Starkey v State of South Australia - [2011] SASCFC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STARKEY & ORS v STATE OF SOUTH AUSTRALIA
[2011] SASCFC 164
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Stanley)
22 December 2011
ABORIGINALS - HERITAGE PROTECTION
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - CONSEQUENCE OF FAILURE TO ACCORD PROCEDURAL FAIRNESS
Appeal against a decision of a Judge of Supreme Court on an application for judicial review - Minister granted the third respondent’s application for an authorisation to damage, disturb or interfere with Aboriginal site - request for delegation of Minister’s powers made by Aboriginal people at consultation meeting - the Judge found the Minister was not required to delegate her powers - the Judge found Minister did not accord procedural fairness to those the requesting delegation, but that failure did not invalidate the Minister’s authorisation.
Plaintiffs appeal against that decision - whether the Minister is precluded from giving authorisation without first determining whether or not to delegate those powers in accordance with procedural fairness - whether the Aboriginal Heritage Act 1988 (SA) requires the Minister to make a determination under s 12 prior to determining whether or not to grant an authorisation - whether the terms of the authorisation were too wide and uncertain - whether the authorisation was invalid due to the Minister failing to satisfy herself of matters which condition the exercise of the power - whether the authorisation was invalid due to the Minister’s failure to consult with the first plaintiff.
Held (the Court): Appeal allowed - dismissal by the Judge of the application for judicial review set aside - declaration made that the authorisation purportedly given by the Minister pursuant to s 23 of the Aboriginal Heritage Act 1988 (SA) on 7 July 2010 was contrary to law - order made in the nature of certiorari to quash the authorisation - order of the Judge in the nature of mandamus confirmed.
(Stanley J with David J agreeing): The exercise of the Minister’s power to grant an authorisation was conditioned on the observation of the principles of procedural fairness - the condition has been breached, invalidating the authorisation - the Minister was not required to make a determination under s 12 prior to exercising her power - the terms of the authorisation were not too wide or uncertain - the Minister did not have to satisfy herself of those matters claimed to condition the exercise of her power - the Minister did not fail to consult with the first plaintiff.
(Gray J): The terms of the authorisation are too broad - further, it appears that the Minister proceeded on the misunderstanding of fact that, in some undefined way, the third defendant had rights under exploration licence 4296 - the authorisation was granted under a misunderstanding of fact.
Aboriginal Heritage Act 1988 (SA) s 3, s 5, s 6, s 7, s 8, s 11, s 12, s 13, s 14, s 20, s 21, s 22, s 23, s 24, s 29, s 35, s 42, s 45; Native Title Act 1993 (Cth); Acts Interpretation Act 1915 (Cth) s 13, referred to.
Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29; Kioa v West (1985) 159 CLR 550; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Annetts v McCann (1990) 170 CLR 596; Minister for Immigration and Citizenship v Szgur & Anor (2011) 241 CLR 594; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, discussed.
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Owen v South Australia (1996) 66 SASR 251; Burch v South Australia (1998) 71 SASR 12; Nemer v Holloway (2003) 87 SASR 147; K-Generation v Liquor Licensing Court (2009) 237 CLR 501; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Yorta Yorta v Victoria (2002) 214 CLR 422; Wentworth Securities Ltd v Jones [1980] AC 74; R v Young (1999) 46 NSWLR 681; James v Keogh (2008) 102 SASR 51; ASIC v Lanepoint (2011) 85 ALJR 654; Kuru v NSW (2008) 236 CLR 1; Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274; Cornwell v The Queen (2007) 231 CLR 260, considered.

STARKEY & ORS v STATE OF SOUTH AUSTRALIA
[2011] SASCFC 164
Full Court: Gray, David and Stanley JJ
GRAY J:

In these proceedings the plaintiffs sought judicial review of a decision of the Minister for Aboriginal Affairs and Reconciliation. The application sought declarations and consequential orders the effect of which, if granted, would be to set aside an authorisation granted by the Minister pursuant to section 23 of the Aboriginal Heritage Act 1988 (SA).
Straits Exploration Australia Ltd is a mining company and a joint venturer with another entity, Kelaray Pty Ltd, a wholly owned subsidiary of Argonaut Resources NL. Kelaray is the holder of exploration licence 4296 over Lake Torrens and part of Andamooka Island. The licence extends over a total area of about 300 square kilometres. The licence was granted under the Mining Act 1971 (SA). Straits wishes to undertake mining exploration activities on discreet locations on Lake Torrens and Andamooka Island.
On 27 November 2009, Straits sought authorisation for the Minister to undertake mining on a small area covered by an exploration licence. On 7 July 2010, the Minister granted authorisation.
A Judge of this Court declined to make the declarations and consequential orders to set aside the authorisation. The Judge did, however, make a finding that there had been a denial of procedural fairness and made an order in the nature of mandamus, requiring the Minister to confer with representatives of the Kokatha people and the Adnyamathanha people, including specified persons with respect to a request that had been made that the Minister delegate her authority to the traditional owners pursuant to section 6 of the Aboriginal Heritage Act. The Judge accepted that his order would be of limited effect, because the very purpose of the delegation had been overtaken by the authorisation that the Judge declined to set aside. It may be that the Judge overstated that matter by saying that the order of mandamus would be of limited effect. It is difficult to perceive how the order could have any meaningful effect.
This is an appeal from the Judge’s decision.
Stanley J has concluded that the dismissal by the Judge of the primary claims for relief should be set aside. Stanley J would make a declaration that the authorisation purportedly given by the Minister pursuant to section 23 on 7 July 2010 was contrary to law. Stanley J would make an order in the nature of certiorari to quash the authorisation. Stanley J would confirm the order of the trial Judge in the nature of mandamus. I agree with each of these orders.
Stanley J has set out the detailed history of the matter and has included references to the relevant legislation and case law. I respectfully adopt these observations. I only refer to these matters where it is necessary to understand my reasons that follow.
On 27 November 2009, Straits applied to the Minister for an authorisation pursuant to section 23 of the Aboriginal Heritage Act. The application disclosed that Straits was involved in a joint venture with Kelaray and that the exploration licence was held by Kelaray. The application included the following:
Brief description of proposed activity:
The Applicant is seeking authorisation to damage, disturb or interfere with Recorded Site 6436-7237, for:
·seven circular drill target zones (radius 500m), of size 0.78km²each – total area 5.46km²…
·new access tracks will be needed to service the target zones – total area 0.083km²…
·maintenance and utilization of existing tracks from the boundary of the Recorded Site to the mesh runway for access to the lake – total area 1.16km²…
·maintenance and utilization of existing camp and buffer zone – total area 0.22km²…
·maintenance and utilization of existing drill hole disturbance areas (TD4, TD6 and WMC water bore) for recovery of drilling water and for rehabilitation purposes – total area 0.11km²…
·new emergency evacuation and helicopter support routes from the new drill target zones to camp – total area 0.051km²(which may not be used)…
·in addition, the non-ground disturbing activity of 148 extension and infill gravity survey stations will also be undertaken. …
The Applicant will ensure that all personnel and/or contractors that are part of the exploratory team completing the proposed activities, will remain at all times within the areas of disturbance authorised under this s23 application. In addition, the area defined as Crombie Ridge on the Aboriginal Heritage register will be excluded from any activities requested herein.
Total disturbance area applied for under this s23 application is 7.08km². Co-ordinates for all areas of disturbance can be found as Attachment 1.
It is to be noted that the authorisation was sought with respect to discreet locations within the vast area covered by the exploration licence. Straits asserted that it would ensure that all personnel and contractors would remain within the area of proposed disturbance.
The 27 November 2009 application consisted of a covering letter attaching extensive documentation totalling some hundreds of pages. That documentation identified the area to be disturbed and included a number of statements about respecting Aboriginal heritage. The documentation included a statement described as “Straits Community and Heritage Policy”. This policy included a statement that Straits recognised the importance of identifying and preserving ancestral land and culturally significant areas, and that Straits would minimise any impact on these sites in consultation with relevant community members and by developing appropriate management and protection strategies.
A further document identified Straits’ procedures for heritage management planning. These procedures set out a responsible plan for respecting Aboriginal heritage. They include Straits’ plan to ensure that disturbance be kept to a minimum, that protection measures for a site be undertaken under the supervision of and with the participation of the Aboriginal traditional owners and that the resultant salvaged material (e.g. stone artefacts) be stored in a culturally appropriate keeping place.
Section 23 of the Aboriginal Heritage Act provides:
A person must not, without the authority of the Minister—
(a)     damage, disturb or interfere with any Aboriginal site; or
(b)     damage any Aboriginal object; or
(c)     where any Aboriginal object or remains are found—
(i)     disturb or interfere with the object or remains; or
(ii)    remove the object or remains.
Maximum penalty:
(a)     in the case of a body corporate—$50 000;
(b)     in any other case—$10 000 or imprisonment for 6 months.
It should be immediately noted that this section is designed to protect Aboriginal sites, objects or remains from damage, disturbance and inference. The criminal sanctions for breach indicate the importance of the matters protected by the section. Imprisonment may be imposed for a breach. Parliament intended to impose a heavy sanction on anybody acting contrary to the section without authority.
Section 23 can be fairly described as being at the centre or heart of the Aboriginal Heritage Act. The purpose of the Act is described in the long title as: “An Act to provide for the protection and preservation of the Aboriginal heritage …”. It is to be understood that an authorisation by the Minister removes the very protection and preservation that the Act sets out to provide. It might be expected that authorisations would be granted only when fully justified, and only then on appropriately strict terms and conditions.
An authority granted by the Minister operates to relieve a person engaging in activity otherwise in breach of section 23 of criminal responsibility. One would expect such an authority to be clear in its terms as to the extent of activities said to be authorised and as to the person who may as a consequence obtain immunity from criminal proceedings.
Before turning to the terms of the subject authorisation, it is appropriate to say something more about the scheme of the Aboriginal Heritage Act. It is evident that this Act was intended to protect Aboriginal heritage. That heritage had been substantially ignored for over one hundred years. It is to be noted that this Act, together with other legislation, attempts to right the grievances, injustices and ignorance of the past.
It is settled law that a particular approach is to be taken to remedial or beneficial legislation - legislation that confers or provides some benefit to a person and thereby remedies some injustice.[1] The dissenting judgment of Isaacs J in Bull v Attorney-General (NSW)[2] is often cited. In that decision, Isaacs J observed:[3]
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn L.C. in Bist v. London and South Western Railway Co.). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. …
[Footnote omitted.]
[1]    See generally Pearce & Geddes, Statutory Interpretation in Australia (6^th ed, 2006) Ch 9.
[2]    Bull v Attorney-General (NSW) (1913) 17 CLR 370.
[3]    Bull v Attorney-General (NSW) (1913) 17 CLR 370, 384.
The High Court has applied this principle of construction in the context of Aboriginal land rights and native title.[4]
[4] For example see R v Kearney; Ex parte Jurlama (1984) 158 CLR 426, 433.
There has been much said about the beneficial or remedial nature and the genesis of the Native Title Act, and the consequent approach to interpretation of that piece of legislation. In Northern Territory v Alyawarr,[5] the Full Court of the Federal Court pointed out that in both the construction of the Native Title Act and the application of that Act to the facts of a case, the moral foundation for the Act, made express in the preamble, was to be borne in mind.[6] In Commonwealth v Yarmirr, McHugh J said the following about how the Native Title Act is to be construed:[7]
In construing the Act, it is necessary to remember the warning that this Court gave in North Ganalanja Aboriginal Corporation v Queensland:
"Unless the Act is read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title, its terms may be misconstrued."
It is also necessary to keep in mind that, in the Second Reading Speech on the Native Title Bill 1993, the then Prime Minister, Mr Keating, saw Mabo [No 2] as giving Australians the opportunity to rectify the consequences of past injustices. The Act should therefore be read as having a legislative purpose of wiping away or at all events ameliorating the "national legacy of unutterable shame" that in the eyes of many has haunted the nation for decades. Where the Act is capable of a construction that would ameliorate any of those injustices or redeem that legacy, it should be given that construction.
If the purpose of the Act was to recognise native title in any case where Aboriginal or Torres Strait Island peoples still possessed rights and interests in respect of land or water under their traditional laws or customs, the duty of the courts would be to ensure that that purpose was achieved. That would be so even if it meant giving a strained construction to or reading words into the Act. In an extrajudicial speech, Lord Diplock once said that "if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed".
[Footnotes omitted.]
[5]    Northern Territory v Alyawarr (2005) 145 FCR 442.
[6]    Northern Territory v Alyawarr (2005) 145 FCR 442, 461.
[7]    Commonwealth v Yarmirr (2001) 208 CLR 1, 75.
There is commonality between what the Native Title Act and what the Aboriginal Heritage Act seek to protect. In this respect, and having regard to the terms of section 23, it is instructive to set out the following definition, as contained in section 3 of the Aboriginal Heritage Act:
Aboriginal object means an object—
(a)     of significance according to Aboriginal tradition; or
(b)     of significance to Aboriginal archaeology, anthropology or history,
and includes an object or an object of a class declared by regulation to be an Aboriginal object but does not include an object or an object of a class excluded by regulation from the ambit of this definition;
…
Aboriginal remains means the whole or part of the skeletal remains of an Aboriginal person but does not include remains that have been buried in accordance with the law of the State;
Aboriginal site means an area of land—
(a)     that is of significance according to Aboriginal tradition; or
(b)     that is of significance to Aboriginal archaeology, anthropology or history,
and includes an area or an area of a class declared by regulation to be an Aboriginal site but does not include an area or an area of a class excluded by regulation from the ambit of this definition;
Aboriginal tradition means traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation;
Notably, section 5(1)(a) provides that the Minister is “to take such measures as are practicable for the protection and preservation of Aboriginal sites, objects and remains”.
In the explanation of the Aboriginal Heritage Bill 1998 (SA), during the second reading, the following was stated:[8]
The aim of this Bill is to provide for the effective protection of Aboriginal heritage in South Australia.
Protection for Aboriginal heritage is currently afforded under the Aboriginal and Historic Relics Preservation Act 1965. This legislation is now outdated and its European relics component has been superseded by the South Australian Heritage Act 1978.
Equivalent Aboriginal Heritage protection legislation is considered essential. In particular, the 1965 Act does not give adequate protection to all sites of significance to Aboriginal heritage. It gives no protection at all to sites of significance to Aboriginal people which are natural features of the landscape (unless formally declared to be a prohibited area or historic reserve); nor does it allow sufficient input by Aboriginal people.
In 1979 a new Act, the Aboriginal Heritage Act, was assented to by Parliament. It was not proclaimed, however, largely because of some perceived inadequacies in its provisions. When the Labour Party assumed office in late 1982 it brought with it a commitment to prepare and introduce a new piece of legislation, rather than an amended version of that passed in 1979. To this end, an extensive program of consultation with Aboriginal communities throughout South Australia has been undertaken. Consultation has also taken place with a range of Government and non-government interests in mining, pastoral and Aboriginal administration fields.
[8] South Australia, Parliamentary Debates, Legislative Council, 3 November 1987, 1566 (The Hon. J R Cornwall).

In my view, it is to be inferred that the South Australian Parliament, in enacting the Aboriginal Heritage Act, had the same general legislative intention as the Commonwealth Parliament in enacting the Native Title Act, to remedy the wrongs of the past and to protect and preserve, in this case Aboriginal heritage, into the future.
Against this background I turn to the terms of the authorisation granted by the Minister. They were as follows:
I authorise the applicant together with its partners, staff, contractors and subcontractors and any company (including its partners, staff, contractors and subcontractors) to whom Straits may transfer its rights under EL #4296 to:
(a)     damage, disturb or interfere with any Aboriginal site; or
(b)     damage any Aboriginal object; or
(c)     where any Aboriginal object or remains are found—
(i) disturb or interfere with the object or remains; or
(ii) remove the object or remains.
in accordance with the application lodged on 27 November 2009.
This authorisation gives rise to a number of concerns. The authorisation extends to Straits and its partners, staff, contractors and subcontractors. There is no identification of who those partners may be, who the staff may be, the identity of any contractor or the identity of any subcontractor. There is no identification as to period of time during which these unidentified persons may have authority. There is no requirement to keep any record of who these persons may be. It is simply left at large. To my mind this is entirely unsatisfactory. The authorisation lacks clarity and precision. It is difficult to accept that it was ever the intention of Parliament in enacting section 23 in its terms for an authorisation such as this to be granted.
The authorisation extends to any person or entity to whom Straits may transfer its rights under exploration licence 4296. This aspect of the authorisation suggests that the Minister was proceeding under a material factual misunderstanding. The exploration licence is held by a different entity, the joint venturer, Kelaray. There was no suggestion that Straits had any rights under the licence.
It appears that the Minister proceeded on the misunderstanding of fact that, in some undefined way, Straits had rights under exploration licence 4296. This is a matter of particular concern as a Minister granting authorisation under section 23 would understand that a licence holder would be subject to strict compliance with the terms of its licence and through the licence subject to the terms of the Mining Act and its regulations.
The authorisation extends well beyond the express terms of Straits’ application. The application did not seek authorisation for the partners of Straits or for subcontractors. It only sought authorisation for the company itself. The earlier referred to extract from the application notes that Straits would ensure that all personnel and contractors would remain within the area of disturbance. For reasons that are unexplained the Minister chose to grant an authorisation to persons well beyond the terms of the application.
On its terms, the authorisation addresses damage, disturbance and interference “in accordance with the application lodged on 27 November 2009”. This creates difficulty when it is understood that the application extends over many hundreds of pages. At one level, one can identify, as appears in the extract as set out above, that the authorisation only relates to recorded site 6436-7237. However, the application also identifies new access tracks, maintenance and utilisation of existing tracks, maintenance and utilisation of the existing camp, maintenance and utilisation of existing drill hole disturbance areas, new emergency evacuation routes and in fill gravity survey stations. Was it the intent of the Minister, by referring to “in accordance with the application”, to authorise damage, disturbance and interference in each of the locations of these activities. These concerns are material. I provide the following example. The document contemplates that the new access tracks will have an impact to the Lake’s surface, that the maintenance and utilisation of existing tracks may lead to damage, disturbance and interference and that the use and maintenance of the existing camp may also lead to damage, disturbance and interference. Presumably the Minister’s authorisation provides immunity from section 23 prosecution in regard to all such activities.
I consider the terms of the authorisation to be far too broad. An authorisation should be granted to an applicant, and if extended to any other person, any such person should be identified. To provide an authorisation to barely identified, broad classes of persons is not justified. Such an authorisation provides no accountability, no audit trail and no protection to the interests that the Act seeks to protect. The authorisation as documented has all the hallmarks of the drafter having simply copied each of the terms of section 23 and presented the document in that form for the Minister’s consideration.
Further, to my mind it is apparent that the authorisation has been granted under a misunderstanding as to fact. As discussed above, Straits was not the holder of the exploration licence or at the very least no basis was identified on which it would be said that Straits had any rights under the exploration licence. Further, to grant the authorisation in terms of a wide ranging application of many hundreds of pages was not a valid authorisation. An authorisation that protects a person from criminal liability must be clear and precise in its terms. A reader of the authorisation should be able to understand its scope and reach. The effect of this authorisation does not enable its scope and reach to be understood.
It is well settled that statutory provisions that impose criminal liability must be clear and unambiguous in their terms. A statutory provision that provides immunity or a defence should also be clear and unambiguous. Members of the public need to clearly understand whether they are subject to an exposure to criminal penalty. This authorisation is so vague and open ended that it does not allow that necessary clear understanding.
It is to be noted that in the above respect I disagree with the conclusion of Stanley J that the section 23 authorisation was not too wide or uncertain. I would declare that the section 23 authorisation was invalid on this ground. Otherwise I agree with the reasons of Stanley J and his conclusion that the authorisation was invalid.
Conclusion
I agree with the orders proposed by Stanley J.
DAVID J: I would allow the appeal and agree with the orders proposed by Stanley J. I agree with his reasons in that the Minister’s failure to afford procedural fairness to the appellants in relation to their purported request for delegation invalidates the Minister’s authorisation under s 23 of the Aboriginal Heritage Act 1988 (SA).
I would add that in my view, the terms of the s 23 authorisation itself were not impermissibly broad. The authorisation clearly set out the area to which the authorisation applied, and those classes of people permitted by the authorisation to damage, disturb or interfere with the relevant Aboriginal sites or objects. There was no uncertainty as to the scope of the authorisation, nor was it in my view too wide in the circumstances.
STANLEY J:
Introduction
This is an appeal from a decision of a judge of the Court on an application for judicial review.
The third respondent, Straits Exploration (Australia) Ltd (“Straits”) is in a joint venture with Kelaray Pty Ltd (“Kelaray”), the holder of an exploration licence incorporating an area of approximately 320 square kilometres of Lake Torrens and approximately 25 square kilometres of the south-western corner of Andamooka Island (“the Lake Torrens site”). Straits plans to undertake mineral exploration activities within the Lake Torrens site, including drilling on Andamooka Island and on the bed of the main salt lake of Lake Torrens.
For this purpose, on 27 November 2009, it applied to the second respondent, the Minister for Aboriginal Affairs and Reconciliation (“the Minister”) for an authorisation pursuant to s 23 of the Aboriginal Heritage Act 1988 (SA) (“the Act”). The purpose of the authorisation is to permit Straits to damage, disturb or interfere with any Aboriginal sites, objects or remains that may exist on the Lake Torrens site. The Minister granted the authorisation on 7 July 2010 in the following terms:[9]
[9] At the relevant time the Minister was the Honourable Grace Portolesi MP.
I authorise the applicant together with its partners, staff, contractors and subcontractors and any company (including its partners, staff, contractors and subcontractors) to whom Straits may transfer its rights under EL#4296 to:
(a)damage, disturb or interfere with any Aboriginal site; or
(b)damage any Aboriginal object; or
(c)where any Aboriginal object or remains are found –
(i)disturb or interfere with the object or remains; or
(ii)remove the object or remains,
in accordance with the application lodged on 27 November 2009.
The first appellant, Robert John Starkey, is a member of the Kokatha Wati people. The second appellant, Vince Coulthard, is a member of the Adnyamathantha people, and a chairperson of the Adnyamathantha Traditional Lands Association.
The appellants sought judicial review of the s 23 authorisation granted to Straits by the Minister.
The Act creates a regime for the protection of Aboriginal heritage, including Aboriginal sites, objects or remains. It is common ground between the parties that upon the Minister receiving the application from Straits for an authorisation pursuant to s 23, she was required to consult Aboriginal interests in relation to the application before giving any authorisation. To this end the Minister convened a meeting of interested persons at Port Augusta on 19 December 2009. At that meeting there was a request made to the Minister to delegate his powers under s 23 to grant the authorisation sought by Straits to the relevant traditional owners of Lake Torrens, pursuant to s 6(2) of the Act.[10]
[10] At the relevant time the Minister was the Honourable Jay Weatherill MP.
The Act provides for a central archive relating to Aboriginal heritage entitled the Register of Aboriginal Sites and Objects (“the Register”). The Register identifies sites or objects determined by the Minister to be Aboriginal sites or objects.[11] In 2008 the Minister was provided with the Lake Torrens Aboriginal site record, and later with a revised site card, by various Kokatha men, both of which set out the significance of the Lake Torrens site to the Kokatha community. Nonetheless, the Lake Torrens site was not entered into the Register.
[11] Aboriginal Heritage Act 1988 (SA) s 9(2).
The appellants sought to have the s 23 authorisation quashed, and orders made requiring the Minister to consult with the Aboriginal interests on the significance of the Aboriginal site, objects and remains on the Lake Torrens site, and on the requests made to the Minister to delegate to the traditional owners the power to grant the s 23 authorisation, pursuant to s 6(2) of the Act, and requiring the Minister to determine whether an entry should be made on the Register in relation to the Lake Torrens site card and, finally, an order requiring the Minister to make a decision on the request pursuant to s 6(2) for her to delegate her powers to grant the s 23 authorisation.
The learned trial judge refused the relief sought by the appellants except in one respect. The learned trial judge found the appellants were denied procedural fairness by reason of the Minister’s delay in determining the request for the delegation to the traditional owners of the Minister’s power to grant the s 23 authorisation. The learned trial judge made an order in the nature of mandamus requiring the Minister to confer with the representatives of the Kokatha people, including the first appellant, and the Adnyamathantha people, including the second appellant, on the request to delegate her authority pursuant to s 23 to the traditional owners.
The legislative scheme
Before considering the learned trial judge’s reasons for decision, it is necessary to consider the statutory scheme.
The Act provides for the protection and preservation of Aboriginal heritage. In particular, the Act provides for the protection of Aboriginal sites, objects and remains.
Section 3 defines various terms relevant to the appeal as follows:
3—Interpretation
In this Act, unless the contrary intention appears—
Aboriginal object means an object—
(a) of significance according to Aboriginal tradition; or
(b) of significance to Aboriginal archaeology, anthropology or history,
and includes an object or an object of a class declared by regulation to be an Aboriginal object but does not include an object or an object of a class excluded by regulation from the ambit of this definition;
…
Aboriginal remains means the whole or part of the skeletal remains of an Aboriginal person but does not include remains that have been buried in accordance with the law of the State;
Aboriginal site means an area of land—
(a) that is of significance according to Aboriginal tradition; or
(b) that is of significance to Aboriginal archaeology, anthropology or history, and includes an area or an area of a class declared by regulation to be an Aboriginal site but does not include an area or an area of a class excluded by regulation from the ambit of this definition;
Aboriginal tradition means traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation;
…
traditional owner of an Aboriginal site or object means an Aboriginal person who, in accordance with Aboriginal tradition, has social, economic or spiritual affiliations with, and responsibilities for, the site or object;
…
By s 5(1)(a) the Minister is “to take such measures as are practicable for the protection and preservation of Aboriginal sites, objects and remains”. Pursuant to s 5(1)(d) the Minister is also required to carry out any other function assigned to the Minister under the Act.
Section 6(1) allows the Minister to delegate any of the Minister’s powers under the Act, other than the power to authorise the commencement of proceedings for an offence against the Act. By s 6(2), the Minister must, at the request of the traditional owners of an Aboriginal site or object, delegate the Minister’s powers under sections 21, 23, 29 and 35 to the traditional owners of the site or object.
Section 6(3) sets out the requirements for a delegation under s 6. It provides:
(3) A delegation under this section—
(a) must be in writing; and
(b) may be subject to such conditions as the Minister considers appropriate; and
(c) may authorise the sub-delegation of a specified power; and
(d) if made to the holder of a specified office or position, empowers any person holding or acting in the office or position to exercise the delegated powers; and
(e) is revocable at will; and
(f) does not prevent the Minister from acting personally in any matter.
Pursuant to s 6(4) the Minister cannot revoke a delegation made pursuant to that section without the consent of the traditional owners.
Section 7 establishes the Aboriginal Heritage Committee.
Section 21 makes it an offence for a person to excavate land for the purpose of uncovering any Aboriginal site, object or remains without the authority of the Minister. Section 23 makes it an offence for a person to damage, disturb or interfere with any Aboriginal site, object or remains without the authority of the Minister. I will return to this provision shortly. Section 29 makes it an offence for a person to sell or dispose of an Aboriginal object or remove an Aboriginal object from the State without the authority of the Minister. Section 35 makes it an offence for a person to divulge information relating to an Aboriginal site, object or remains, or Aboriginal tradition except as authorised or required by the Act.
Section 23 is critical to this matter. Accordingly I set out its terms in full:
23—Damage etc to sites, objects or remains
A person must not, without the authority of the Minister—
(a) damage, disturb or interfere with any Aboriginal site; or
(b) damage any Aboriginal object; or
(c) where any Aboriginal object or remains are found—
(i) disturb or interfere with the object or remains; or
(ii) remove the object or remains.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in any other case—$10 000 or imprisonment for 6 months.
The Minister is required to consult with certain people and groups before giving an authorisation, such as an authorisation pursuant to s 23. This requirement is imposed by s 13, which states:
13—Consultation on determinations, authorisations and regulations
(1)     The Minister must—
(a) before making a determination under this Act; or
(b) before giving an authorisation under this Act; or
(c) before a site or object is declared by regulation to be an Aboriginal site or object or is excluded by regulation from the ambit of the definition of Aboriginal site or object, take all reasonable steps to consult with—
(d) the Committee; and
(e) any Aboriginal organisation that, in the opinion of the Minister, has a particular interest in the matter; and
(f) any—
(i) traditional owners; and
(ii) other Aboriginal persons, who, in the opinion of the Minister, have a particular interest in the matter.
(2)    When determining whether an area of land is an Aboriginal site or an object is an Aboriginal object, the Minister must accept the views of the traditional owners of the land or object on the question of whether the land or object is of significance according to Aboriginal tradition.
(3)    This section does not apply to—
(a) a determination under section 24(8); or
(b) an authorisation under section 27 or 36.
Section 14 provides that an authorisation may be given by the Minister on conditions.
As can be seen, an authorisation given pursuant to s 23 is not one of the authorisations exempted from the operation of s 13 by s 13(3)(b). Therefore, before the Minister gives an authorisation pursuant to s 23, the Minister is required to consult on that authorisation in accordance with s 13.
Pursuant to s 11(a), a site or object will be conclusively presumed to be an Aboriginal site or object if it is entered into the Register.
Section 12 governs the determination of whether a site or object is an Aboriginal site or object. It enables any person who proposes to take action in relation to a site or object, if that action may constitute an offence, to apply to the Minister, who shall advise if the object or site is entered in the Register. The Minister must determine whether areas, sites or objects should be entered in the Register if the Minister receives an application. Given its importance to the argument before the court, I set out the terms of s 12 in full:
12—Determination of whether site or object is an Aboriginal site or object
(1) If a person proposes to take action in relation to a particular object and that action may constitute an offence against this Act if the object is an Aboriginal object, the person may apply to the Minister under this section.
(2) On an application under subsection (1), the Minister must—
(a) if the object is entered in the Register of Aboriginal Sites and Objects, give the applicant written notice that it is so entered;
(b) if the object is not entered in the Register, determine whether it should be so entered and give the applicant written notice of the determination.
(3)If a person proposes to take action in relation to a particular area and that action may constitute an offence against this Act if the area is, is part of or includes an Aboriginal site or if an Aboriginal object is located in the area, the person may apply to the Minister under this section.
(4) On an application under subsection (3), the Minister must—
(a) determine whether any entries should be made in the Register of Aboriginal Sites and Objects in relation to sites or objects in the area that are not so entered and give the applicant written notice of the determination; or
(b) subject to subsection (5), give the applicant written notice of the location of each Aboriginal site or object in the area that is entered, or that the Minister has determined should be entered, in the Register.
(5) The Minister must not disclose the exact location of a site or object if, in the Minister's opinion, the disclosure is likely to be detrimental to the protection or preservation of the site or object or to be in contravention of Aboriginal tradition.
(6) The Minister may, within 20 working days after receiving an application, require an applicant to provide information in connection with the application or to engage an expert acceptable to the Minister to do so.
(7) Where the Minister requires information to be provided under subsection (6), the Minister must determine the application within 30 working days of receiving that information.
(8) The Minister may refuse to entertain an application under this section on the grounds—
(a) that the area or object is insufficiently identified; or
(b) that the application is not genuine; or
(c) that the Minister does not have the resources to determine the application.

Section 20 imposes an obligation on the owner of land on which an Aboriginal site, object or remains is discovered to report the discovery to the Minister.
Pursuant to s 42 only a traditional owner of an Aboriginal site or object is entitled to question the validity of an act or determination of the Minister on the ground that there has been a failure to comply with a requirement of the Act as to consultation with traditional owners or as to the obtaining of approval from, or the stipulation of conditions by, traditional owners.
Section 45 provides that the power to authorise a prosecution for an offence under the Act is vested in the Minister only.
Thus the Act establishes a regime whereby the Minister is required to consult with any traditional owners, Aboriginal organisations or persons who, in the opinion of the Minister, have a particular interest in the grant of an authorisation under s 23 of the Act, before granting such an authorisation. Without an authorisation under s 23 it is an offence to damage, disturb or interfere with any Aboriginal site or object. Further, pursuant to s 6(2), the Minister must delegate the Minister’s powers under s 23 to the traditional owners of the site or object if they so request.[12]
[12] Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 paragraph [21].
The trial judge’s reasons for decision
At trial the appellant submitted that the Minister was required to make a determination pursuant to s 12, prior to making a s 23 authorisation. The learned trial judge rejected this submission.
The learned trial judge concluded that s 12 grants a party in Straits’ position the opportunity to have a determination made by the Minister as to whether a site or object is an Aboriginal site or object within the meaning of the Act, in circumstances where that party is aware, but uncertain, that taking action in relation to that site or object may constitute an offence. Section 12 is intended to give a party certainty as to whether it is safe to proceed with its action without fear of committing an offence, or whether it is necessary to seek an authorisation under s 23. His Honour held it was not a prerequisite to the grant of the s 23 authorisation.
The appellants further submitted that the s 23 authorisation granted by the Minister was so broad as to be incapable of meaningful application. The basis for this submission was that the identity of the persons falling within the classes described in the authorisation could not be presently known or determined, and the numbers of such persons were potentially infinite. It was also contended that the authorisation did not sufficiently identify the Aboriginal sites and objects which were subject to the authorisation.
The learned trial judge rejected this submission.
His Honour considered that it was necessary for practical purposes and for reasons of commercial efficacy that a s 23 authorisation allow associated parties, aside from Straits, to undertake the relevant activities under the authorisation. Furthermore, it was unnecessary and impractical for each and every person who may at some point be authorised under s 23 to be specifically identified. It was sufficient that they be identified by categories. The learned trial judge was satisfied that in this case the classes of persons authorised by the Minister were sufficiently defined. Likewise the sites and objects were sufficiently specified by the terms of the authorisation. Although individual sites or objects were not identified, the authorisation did specifically identify the areas of land subject to the authorisation granted to Straits. Those areas were geographically identifiable from the terms of the authorisation and Strait’s application. The identified categories of persons who were permitted to damage, disturb or interfere with any Aboriginal site or object within those areas, were adequately identified. Accordingly, there was no ambiguity as to what activities may be undertaken on which areas of land.
At trial the appellants further contended that that the Minister erred in granting the s 23 authorisation to Straits where there had been a request by the traditional owners for the Minister to delegate her powers with respect to the authorisation pursuant to s 6(2) of the Act.
The learned trial judge found that the Minister was justified in refusing to delegate her powers under s 23 in circumstances where it was unclear whether, those who attended the consultation meeting at Port Augusta on 19 December 2009 and passed the relevant resolution calling for the Minister to delegate his powers, were the traditional owners within the meaning of s 6(2). For the purpose of s 6(2), his Honour found “the traditional owners” must be interpreted as meaning “a person or group of persons who are traditional owners and who can be identified as representing the traditional owners as a whole”. His Honour considered that such a representative must be able to be sufficiently identified as having the authority in relation to the relevant Aboriginal sites and objects to act on behalf of traditional owners as a whole of such sites and objects. The learned trial judge considered that between 19 December 2009 and 7 July 2010, when the Minister granted the s 23 authorisation to Straits, she had no evidence as to the standing, in relation to the Lake Torrens site, of any or all of the people who passed the resolution of 19 December 2009 requesting the delegation of the Minister’s powers. Accordingly, the court held the Minister was justified in refusing to delegate her powers until further material was put before her, showing that those people making the request for delegation were in fact the traditional owners for the purposes of the Act.
Notwithstanding the learned trial judge’s satisfaction that the Minister was correct in not simply delegating her powers, based on the request at the Port Augusta consultation meeting, he concluded the Minister did not act in accordance with the principles of procedural fairness in reserving her decision on delegation.
The learned trial judge considered that one of the purposes of the Act is to allow traditional owners to have a direct role in the protection of their own heritage. Against that background, the Minister’s delay in informing the appellants of her concerns about the request for delegation, and whether or not that request was to be regarded as one made by the “traditional owners” of the Lake Torrens site, failed to afford the plaintiffs procedural fairness because the Minister failed to disclose to persons, whose interests were to be affected by a decision, of a matter on which the decision was likely to turn, so that those persons could have the opportunity to deal with it.
Nonetheless, the learned trial judge was not satisfied that this failure invalidated the s 23 authorisation.
His Honour held that although s 6(2) required the Minister to delegate her functions under s 23 to the traditional owners, if so requested, the section did not prohibit the Minister from exercising her powers under s 23 after a s 6 request had been made. His Honour said:
Although there is a clear relationship between s 6(2) and s 23, if Parliament had intended to prohibit the Minister from exercising her powers under s 23 until a request under s 6 had been resolved, that would have been made clear.
It may be that the Minister is required to make extensive enquiries to ascertain if a person or group who request a delegation are the traditional owners, or are authorised to represent the traditional owners. Such an investigation may take a considerable time. If the Minister was prohibited from exercising her powers under s 23 while such investigations were continuing, it could have major consequences for those seeking the authorisation. The progress of a proposal may be delayed indefinitely while the Minister investigates competing requests for a delegation, or where several different groups claim traditional ownership of the site.
In my view, the Minister has a responsibility to preserve Aboriginal heritage, but that must be subject to the Minister having the authority to act, when requested, to authorise interference with Aboriginal sites or objects if satisfied that there is a legitimate reason.
In reaching his decision the learned trial judge rejected a submission put on behalf of Straits that the Minister retained the power to grant an authorisation under s 23 even after a delegation of those powers under s 23 to the traditional owners. The learned trial judge rejected such a construction on the basis that while this interpretation of s 6 was open on the language of the provision it was contrary to the evident purpose of the Act to allow the traditional owners of Aboriginal sites and objects to take control of the s 23 authorisation process when they so request.
At trial, the appellants also submitted that the authorisation was unlawful because of a breach by the Minister of her duty to consult under s 13. The appellants raised three matters. First, the consultation on the s 23 authorisation was inadequate. Secondly, the Minister did not consult at all on the s 6 request for delegation. Thirdly, the Minister did not consult in relation to the Lake Torrens site card.
The learned trial judge rejected each of these arguments.
His Honour considered the consultation meeting at Port Augusta on 19 December 2009 and the subsequent receipt of written submissions from interested parties, coupled with the consideration given to those submissions, complied with the Minister’s obligations under s 13. It was not necessary for the Minister to consult with the appellants individually.
The learned trial judge considered that, as a matter of construction, there was no obligation on the Minister to consult in relation to the request for the s 6(2) delegation. Section 13 imposed the obligation to consult only in respect of an “authorisation” or a “determination” under the Act. A decision under s 6(2) was neither an “authorisation” nor a “determination” within the meaning of s 13.
Finally, the appellants submitted that the Minister was bound to accept the view that the Lake Torrens site was an Aboriginal site as expressed in the site card that was provided to her and, as a consequence, enter the site in the Register. It was further submitted that the Minister was under a duty to consult with the first appellant as an informant to the site card. The learned trial judge noted that there was no reference in the Act to site cards. His Honour held that while it was true that the Minister was bound to accept the views of the traditional owners in relation to the significance of a site or object, it did not follow that the site cards constituted a method for the traditional owners to register sites and objects in the Register. The trial judge said while the information contained in site cards may well be relevant when the Minister determines whether or not a site should be entered into the Register, the site cards have no formal role to play in the scheme of the Act, and merely constitute an administrative mechanism providing a practical way of recording sites based on information provided. This did not impose any obligation on the Minister to consult with the first appellant.
The court made an order in the nature of mandamus requiring the Minister to confer with representatives of the Kokatha and the Adnyamathantha on the delegation request but otherwise dismissed the application.
The grounds of appeal
The grounds of appeal can be broadly summarised as follows:
(1)the learned trial judge erred in failing to find the Minister was precluded from giving the authorisation to Straits under s 23 without first determining whether or not to delegate those powers to the traditional owners pursuant to the request made under s 6 in accordance with the principles of procedural fairness;
(2)the learned trial judge erred by failing to construe the Act as requiring the Minister to make a determination under s 12 of the Act prior to determining whether or not to grant authorisation to Straits under s 23 of the Act;
(3)the learned trial judge erred in failing to find that the terms of the s 23 authorisation were too wide or uncertain;
(4)the learned trial judge erred in failing to find that the s 23 authorisation was invalid by reason of the Minister’s failure to satisfy herself of matters which condition the exercise of the power before giving the authorisation; and
(5)the learned trial judge erred in failing to find that the s 23 authorisation given by the Minister was invalid by reason of her failure to consult with the first appellant, pursuant to s 13, prior to giving the s 23 authorisation.
The denial of procedural fairness and its consequences
The contemporary approach to the application of the principles of procedural fairness dates from the High Court’s judgments in Kioa v West[13] and Annetts v McCann.[14]
[13] (1985) 159 CLR 550.
[14] (1990) 170 CLR 596 at 598.
Since the High Court’s judgment in Kioa v West[15] it has been accepted that it is a fundamental rule of the common law doctrine of procedural fairness that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, the person is entitled to know the case sought to be made against him or her and to be given an opportunity of replying to it.[16] A “right or interest” in these formulations is to be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interest. In Kioa v West Mason J said the concept of “legitimate expectation” extends to expectations which go beyond enforceable legal rights provided that they are reasonably based.[17] Subsequently, however the High Court has questioned whether, given the development in the Australian common law of the requirements of procedural fairness, the doctrine of legitimate expectations is left to perform any distinct role. In Minister for Immigration and Ethnic Affairs v Teoh[18] McHugh J said: [19]
I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision-maker “to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it”. If that approach is adopted, there is no need for any doctrine of legitimate expectations. The question becomes, what does fairness require in all the circumstances of the case?
(Footnote omitted)
[15] (1985) 159 CLR 550.
[16] (1985) 159 CLR 550 at 582.
[17] (1985) 159 CLR 550 at 583.
[18] (1995) 183 CLR 273.
[19] (1995) 183 CLR 273 at 311-312.
In Annetts v McCann[20] it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, the principles of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
[20] (1990) 170 CLR 596 at 598.
Accordingly, where an administrative decision is made, in the exercise of statutory power, which affects rights or interests, the person affected is to be afforded procedural fairness subject only to a clear manifestation of a contrary statutory intention.
Where the administrative decision is empowered by statute, the application and content of the requirements of procedural fairness turn on the construction of the statute. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual, considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[21] The statutory framework encompasses the express and implied provisions of the relevant legislation and the inferences of Parliamentary intention to be drawn from the circumstances to which the Act was directed and from its subject matter.[22]
[21] Kioa v West (1985) 159 CLR 550 at 584-585.
[22] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504.
The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision maker is controlled by any relevant statutory provisions and may vary according to the circumstances of the particular case.[23]
[23] Kioa v West (1985) 159 CLR 550 at 633.
Relevantly, in the context of this matter, the High Court held recently that procedural fairness requires a decision maker to identify for a person affected, any critical issue to be considered which is not apparent from the nature of the decision or the terms of the statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material. Where the decision maker identifies apparent inconsistencies, contradictions or weaknesses in the case of the party before him or her, the decision maker may be obliged to invite the applicant to respond and make supplementary submissions.[24]
[24] Minister for Immigration and Citizenship v Szgur & Anor (2011) 241 CLR 594 at 598 [9].
The learned trial judge found the appellants were denied procedural fairness. This resulted from the Minister’s failure to inform the appellants of her concerns as to the status of the persons who had requested that the Minister delegate her powers under s 23 of the Act to the traditional owners of the site. The request was made pursuant to s 6(2) of the Act.[25]
[25] The second appellant was present at the Port Augusta meeting of 19 December 2009 at which the request was made. The first appellant was not present at the meeting but submissions were made subsequently on his behalf to the Minister in relation to the s 23 application.
In this matter Straits applied to the Minister for authorisation pursuant to s 23 in respect of the Lake Torrens site on 27 November 2009. Pursuant to s 13(1)(b) this application triggered an obligation on the part of the Minster to take all reasonable steps to consult with the Aboriginal Heritage Committee established under the Act, any Aboriginal organisation that, in the opinion of the Minister, had a particular interest in the matter and any traditional owners and other Aboriginal persons who, in the opinion of the Minister, had a particular interest in the matter.
In accordance with that obligation the Minister convened a meeting at Port Augusta on 19 December 2009. The Minister invited a number of persons to attend that meeting. Presumably they were invited on the basis that they fell within the various categories of persons the Minister was statutorily obliged to consult. Obviously, this included the traditional owners. The meeting commenced with a welcome to all of the attendees on behalf of the traditional owners.
Minutes of the meeting taken by a solicitor for Straits, Julia Dnistrianski, and in evidence before the Court, described the meeting’s purpose as being to consider whether Straits should be granted an authorisation under s 23 of the Act for the purpose of conducting mining exploration activity over the Lake Torrens site and if so whether any conditions should be applied to the authorisation.
During the course of the meeting, the following resolution was put and passed by a majority of the persons present:[26]
That the Minister for Aboriginal Affairs and Reconciliation be asked to delegate his authority under section 6(2) of the Aboriginal Heritage Act to the relevant traditional owners of Lake Torrens in respect of the section 23 application who are represented today at this meeting.
[26] CB Vol 2 p 793. Minutes of the meeting apparently taken by someone from the Aboriginal Affairs and Reconciliation Division, Department of Premier and Cabinet, recorded the resolution as: “That the Minister for Aboriginal Affairs and Reconciliation be asked to delegate his authority under s 6(2) in respect of the s 23 application to relevant traditional owners.” CB Vol 1 p 79.

There was no further communication between the Minister and those who attended this meeting in relation to the request made pursuant to s 6(2) until 7 July 2010 when the Minister wrote to Mr Linde, the solicitor for the first appellant. That letter advised that the Minister was reserving consideration of the request to delegate her authority under s 23 on the basis that the question of traditional ownership was not clear in the case of the Lake Torrens site and she was awaiting completion of work by staff in the Department of Premier and Cabinet, Aboriginal Affairs and Reconciliation Division and the State Aboriginal Heritage Committee to develop a framework for delegation that included guidelines, conditions and general procedures for handling matters under the Act. The letter concluded:
This decision will be communicated to groups in attendance at the section 13 consultation meeting for the Straits Exploration application once I have reached a decision on that application.
The conclusion to the letter is somewhat curious given that, on the same date, the Minister wrote to Straits granting a s 23 authorisation in the following terms:
I authorise the applicant together with partners, staff, contractors and subcontractors and any company (including its partners, staff, contractors and subcontractors) to whom Straits may transfer its rights under EL#4296 to:
(a)damage, disturb or interfere with any Aboriginal site; or
(b)damage any Aboriginal object; or
(c)where any Aboriginal object or remains are found –
(i) disturb or interfere with the object or remains; or
(ii) remove the object or remains.
in accordance with the application lodged on 27 November 2009.
As I have said, the learned trial judge found that, as a result, the appellants were denied procedural fairness. His Honour’s reasons for this finding are as follows:[27]
Some seven months passed between the Port Augusta consultation meeting at which the request for delegation was made and the Minister informing Mr Linde that she was reserving her decision. Although this delay can partly be explained by the fact that a state election took place during March 2010, resulting in a caretaker government and a change of minister, this was an extremely long period of time to reserve a decision without communicating with those who requested the delegation and without ultimately ever making a decision.
More importantly, over the course of this seven month period, the Minister did not at any stage notify the persons who made the request for delegation of her reservations regarding their status as traditional owners under the Act. The persons who voted at the Port Augusta consultation meeting were not informed of the fact that the Minister was minded to refuse their request, or reserve her decision as to their request, until the very same day that the Minister gave the section 23 authorisation.
Given that one of the purposes of the Act, and of section 6(2) specifically, is to allow traditional owners to have a direct role in the protection of their own heritage, the delay in informing the applicants of her concerns about the request for delegation, whether or not that request is to be regarded as one made by the “traditional owners” of the Lake Torrens site, failed to afford the plaintiffs procedural fairness.
[27] (2011) 109 SASR 233 at 249-250 [76] – [78].
In my view the learned trial judge was correct in his conclusion that the Minister’s delay in informing the appellants of her concerns about the request for delegation constituted a denial of procedural fairness.
Procedural fairness required the Minister, in accordance with the approach in Szgur,[28] to identify for the appellants her concern as to the lack of clarity on the question of traditional ownership of the Lake Torrens site. The Minister failed to identify her concern in this regard for nearly seven months. No explanation was provided for this delay. In my view, the delay was unreasonable. The failure to raise with the appellants her concern in this regard much earlier, and in a reasonable timeframe, denied the appellants procedural fairness.
[28] Minister for Immigration and Citizenship v Szgur & Anor (2011) 241 CLR 594 at 598 [9].
What is at issue in this appeal, however, is not so much whether the Minister failed to observe the requirements of procedural fairness, but the consequence of such failure.
Having found the appellants were denied procedural fairness the learned trial judge made an order in the nature of mandamus requiring the Minister to confer with the representatives of the Kokatha people, including the first plaintiff, and the Adnyamathanha people, including the second plaintiff, on the request to delegate her authority pursuant to s 23 to the traditional owners.
The learned trial judge however, noted that this order might be of limited efficacy because of his conclusion that a valid authorisation had been granted by the Minister to Straits pursuant to s 23.
The learned trial judge made two findings which were critical to his conclusion that the s 23 authorisation was valid.
First, the learned trial judge found that the Minister did not have the information that was necessary to enable her to determine the request made under s 6(2) for a delegation of her powers pursuant to s 23.
Secondly, and in any event, the learned trial judge found that although s 6(2) required the Minister to delegate her power under s 23 to the traditional owners, if so requested, the section did not prohibit the Minister from exercising her powers under s 23 subsequent to the making of a request pursuant to s 6(2).
It is convenient to commence by dealing with the learned trial judge’s second finding. I will return to consider the first finding later in these reasons.
In regard to the second finding the learned trial judge said, referring to s 6:[29]
[T]he section does not prohibit the Minister from exercising her powers under section 23 after a section 6 request has been made. Although there is a clear relationship between section 6(2) and section 23, if Parliament had intended to prohibit the Minister from exercising her powers under section 23 until a request under section 6 had been resolved, that would have been made clear.
[29] (2011) 109 SASR 233 at 250 [83].
The learned trial judge’s reasoning is consistent with the approach taken in Newchurch v Minister for Aboriginal Affairs and Reconciliation[30] where the Chief Justice rejected a submission that a request made to the Minister pursuant to s 6 to delegate any of the Minister’s powers under s 21, s 23, s 29, or s 35 resulted in a suspension of the Minister’s powers pursuant to those provisions until such time as the Minister had determined the request for delegation under s 6. The Chief Justice said:[31]
If that had been Parliament’s intention, I would have expected s 6 to so provide.
[30] [2011] SASC 29 at [139].
[31] [2011] SASC 29 at [139].
In my view, the construction of the Act adopted by the learned trial judge and the Chief Justice is correct. A request under s 6(2) of the Act may require detailed investigation and careful consideration by the Minister before a decision can be made. If the Minister was prohibited from exercising the powers conferred under s 21, s 23, s 29 or s 35, while such investigations were continuing, it could have major consequences for those seeking the authorisation. The progress of a proposal may be delayed unreasonably while the Minister conducts such investigations as are necessary to the exercise of the obligation to delegate.
Furthermore, I consider the learned trial judge was correct in concluding that the making of a request for the Minister to delegate power under s 6 does not enliven the obligation to consult found in s 13. That obligation only arises in the circumstances prescribed in s 13(1)(a), (b), or (c). A s 6 request is not encompassed within any of those provisions.
That is not the end of the matter, however. In Kioa v West[32] Brennan J described the procedural fairness rule as an implication to be drawn from legislation conferring decision making authority. The implication being that observance of the principles of natural justice conditions the exercise of any statutory power which affects rights and interests.[33]
[32] (1985) 159 CLR 550.
[33] (1985) 159 CLR 550 at 615; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ with whom Gleeson CJ agreed at 100; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gleeson CJ and Hayne J at 69.
As the learned trial judge noted, there is a clear relationship between s 6(2) and s 23.[34]
[34] (2011) 109 SASR 233 at 250.
In my view, by reason of that clear relationship, the exercise of the statutory power conferred upon the Minister pursuant to s 23, which affected the rights and interests of the appellants, was conditioned upon the observance of the principles of procedural fairness in relation to the request for the delegation by the Minister, in accordance with s 6(2), of her powers pursuant to s 23.
It is important to recognise that the request for delegation of the Minister’s powers pursuant to s 23 was made in the context of Straits’ application for authority to damage, disturb and interfere with Aboriginal sites, objects and remains in the Lake Torrens environs, which were of cultural significance to the appellants and, it can be inferred, the traditional owners.
The purpose of the Act is to protect those rights and interests. As I have said, the Act provides for the protection and preservation of Aboriginal heritage. In particular, the Act provides for the protection of Aboriginal sites, objects and remains.
As the High Court said in Project Blue Sky v Australian Broadcasting Authority[35] citing with approval the dictum of Dixon CJ in Commissioner for Railways (NSW) v Agalianos[36] the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. In this regard, reference may be made to Parliamentary debates to discern the underlying purpose of the legislation in question.[37]
[35] (1998) 194 CLR 355 at 381 [69].
[36] (1955) 92 CLR 390 at 397.
[37] Owen v South Australia (1996) 66 SASR 251 per Cox J at 255-256; Burch v South Australia (1998) 71 SASR 12 per Cox J at 16-19, per Lander J at 26-27, and Bleby J at 39; Nemer v Holloway (2003) 87 SASR 147 at 166; K-Generation v Liquor Licensing Court (2009) 237 CLR 501 at 521-522. In this regard I note the injunction of the High Court in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 264-265 that statements as to legislative intention found in extrinsic materials, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
In the Parliamentary debate which led to the enactment of the Act, the Minister responsible for the introduction of the legislation into the Upper House of the Parliament, said:[38]
The government is on record – and has been on record on many occasions both inside and outside the Parliament – as stating that it is intended that day-to-day administration of the Act will, as far as is practicable, be delegated to traditional owners or local Aboriginal organisations acting on behalf of the traditional owners to ensure that Aboriginal heritage is protected by its owners.
However, I acknowledge that some concern has been expressed that this government’s commitment, given in good faith, may not be matched at some future time …. I therefore propose on behalf of the government to move an amendment in committee to formalise the commitment by requiring that the Minister delegate those functions to traditional owners that would always, at the request of the traditional owners, be delegated.
[38] Hansard Legislative Council 16 February 1988 page 2757.
The Minister later moved to amend the bill to include what subsequently became s 6(2). In moving the amendment he said:[39]
This clause concerns delegation to traditional owners. The government has continually made the point that the bill is designed to give, by delegation, traditional owners the mechanism to enable them to protect their heritage. The amendment formalised that position in relation to those functions of the legislation which will always, at the request of the traditional owners, be delegated. I made that point in the second reading explanation earlier this evening and I repeat that, at the request of the traditional owners, those functions of legislation will always be delegated.
[39] Hansard Legislative Council 23 February 1988 page 2926.
The Minister also said in this context:[40]
Much has been said about the power of the Minister with regard to this legislation and I have made clear that as far as practicable its administration will be delegated to traditional owners – that is at the heart of the bill.
[40] Hansard Legislative Council 16 February 1988 page 2757.
The Parliamentary debate confirms the purpose of the Act is to provide for the protection and preservation of Aboriginal heritage, which is to be undertaken predominantly by traditional owners or local Aboriginal organisations acting on behalf of the traditional owners. This is achieved by the mechanism of delegation.
While the terms of s 6 do not prohibit the Minister from exercising the powers conferred pursuant to s 23, once the request for delegation pursuant to s 6(2) was made, I consider that the exercise of the Minister’s powers pursuant to s 23 was conditioned upon observance of the principles of procedural fairness in relation to the request for delegation of those powers in accordance with s 6(2). My view in this regard is supported by the underlying purpose of the Act as disclosed by the Parliamentary debate.
This approach is not inconsistent with the construction of s 6 adopted by the learned trial judge and the Chief Justice in Newchurch.[41]While, in the ordinary course, the Minister is not precluded from exercising her power to grant an authorisation pursuant to s 23, once a request for delegation of that power has been made pursuant to s 6, the exercise of the Minister’s power pursuant to s 23 is conditioned upon observance of the principles of procedural fairness. A breach of those principles will invalidate the Minister’s decision pursuant to s 23.
[41] Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29.
I turn then to consideration of the first finding I referred to earlier in these reasons, critical to the learned trial judge’s conclusion that the denial of procedural fairness did not invalidate the authorisation granted by the Minister pursuant to s 23.
The first finding was that the Minister did not have the information that was necessary to enable her to determine the request made under s 6(2) for her to delegate the power to grant the s 23 authorisation.
The first point to be made in relation to the Minister’s reason is that she did not have the information necessary to enable her to determine the request for delegation because, for nearly seven months, the Minister failed to inform those who had made the request that there was any uncertainty in her mind as to the identity of the traditional owners.[42] This is the essence of the failure to afford the appellants procedural fairness. That uncertainty might have been resolved well within that time if the Minister had afforded the appellants procedural fairness. It is far from clear on the evidence that the identity of the traditional owners could not have been ascertained on inquiry by the Minister given the evidence of the Lake Torrens arrangement.[43] If that had occurred, the Minister would have been in a position to delegate her powers, pursuant to s 23, prior to the decision she made on 7 July 2010, granting Straits’ request for authorisation in accordance with that provision. In short, the actions of the Minister constituting the denial of procedural fairness, found by the learned trial judge, deprived the traditional owners of the opportunity to do as the Act intended, namely, to protect and preserve their heritage.
[42] Again I note that there was a change of Minister during this period.
[43] There was evidence put before the court of an agreement between the Adnyamathantha and the Kokatha people recognising each other as traditional owners of Lake Torrens in the affidavit of the second appellant, CB Vol 1, p 158, [6].
In this context, I reject a submission put by the respondents that it was not open to the Minister to grant the delegation sought at the meeting of 19 December 2009 because the request failed to identify who were the traditional owners in circumstances in which a number of groups were asserting claims. First, these assertions were in relation to native title, not traditional ownership. The relevant text to be applied by the Minister was referrable solely to the definition of “traditional owner” in s 3 of the Act. Recourse to consideration of the meaning to be afforded the expression “native title rights and interests” in the Native Title Act 1993 (Cth) as found in Yorta Yorta v Victoria[44] not only is of limited assistance, it has the potential to distract attention from the obligation to ascertain the true meaning of the relevant definition in the Act. Second, prima facie, the circumstances in which the request was made, at the very least, raised the strong suspicion that the request was being made by traditional owners or Aboriginal people speaking on behalf of the traditional owners. As I have said, many of the people present at the meeting were there at the invitation of the Minister, who was undertaking the consultation required pursuant to s 13. The terms of that provision required the Minister to take all reasonable steps to consult with, inter alia, any traditional owners. As I have also said, the meeting commenced with a welcome to all the attendees on behalf of the traditional owners. After all, s 13 obliged the Minister to consult with the traditional owners before giving an authorisation pursuant to s 23. If the Minister did not believe the traditional owners were consulted at the Port Augusta meeting there is no evidence she consulted them on any other occasion prior to granting the s 23 authorisation on 7 July 2010. In these circumstances, the Minister could not abdicate her statutory duty pursuant to s 6(2). Any uncertainty on the part of the Minister as to the identity of the traditional owners did not invalidate the request. It merely required the Minister to undertake the necessary investigations to ascertain the identity of the traditional owners, and whether the traditional owners had authored the request made at the Port Augusta meeting on 19 December 2009.
[44] (2002) 214 CLR 422 at 455-457.
While it is the case that, in order to grant the delegation requested, the Minister had to be satisfied that the persons seeking the delegation had social, economic or spiritual affiliations with, and responsibilities for, the site, in accordance with Aboriginal tradition, it does not follow that the Minister was entitled to ignore the request for delegation made at the Port Augusta meeting if she was uncertain as to those matters. For the reasons I have set out above it was not the case that the motion passed at the Port Augusta meeting, was a motion passed by a group of individuals whose status as traditional owners was not known. Their presence at that meeting reflected their status as persons encompassed within the terms described in s 13(1)(e) and (f). Prima facie the Minister was not entitled to act on the basis that the persons who made the request lacked the requisite standing to do so. To the extent that she harboured any uncertainty as to their status she was obliged to make relevant enquiries, including, in particular, enquiries of those persons who authored the request, to clarify the position.

There is another aspect to this matter which I think relevant.
The Minister’s letter of 7 July 2010 advising that she was reserving consideration of the request to delegate her authority under s 23 specified two reasons for this decision. The first was that the question of traditional ownership of the Lake Torrens site was not clear. The second was that the Minister was awaiting completion of work by public servants and the State Aboriginal Heritage Committee to develop a framework for delegation that included guidelines, conditions and general procedures for handling matters under the Act.
I have dealt with the first reason earlier in these reasons.
The second reason relied on by the Minister in her letter of 7 July 2010, reserving her decision on the delegation request, is that she was awaiting completion of work by public servants and the Aboriginal Heritage Committee on the development of a framework for delegation that included guidelines, conditions and general procedures for handling matters under the Act.
In my view, this was an irrelevant consideration.
There is no warrant for the Minister to have regard to guidelines, conditions or procedures not otherwise prescribed by the legislation. Section 6 does not refer to guidelines. In exercising the power of delegation prescribed by s 6(2) the Minister is confined to a consideration only of those matters prescribed by the section. The absence of guidelines, conditions or procedures was not a proper basis for the reservation by the Minister of her decision in relation to the request for delegation. In making her decision of 7 July 2010, the exercise of the Minister’s powers miscarried by reason of that decision being based on an irrelevant consideration.
In this case, if the Minister’s decision to grant the authorisation sought by Straits pursuant to s 23 is allowed to stand, then the Minister’s failure to afford the appellants procedural fairness, and her taking account of an irrelevant consideration in making her decision on delegation, would have no legal consequence. In my view, the law does not admit of such an outcome. The valid exercise of the power to grant the authorisation to the third appellant pursuant to s 23 was conditioned on the Minister affording the appellants procedural fairness and exercising her powers pursuant to s 6 lawfully. As this has not occurred, her decision is invalid.
Before leaving this aspect of the argument it is necessary to deal with a submission put by Straits. Straits submitted that a delegation under s 6(2) did not deprive the Minister of the power to grant an authorisation by reason of the provision of s 6(3)(f) which provides that a delegation does not prevent the Minister from acting personally in any matter.
The learned trial judge found that it did. His Honour considered that the construction contended for by Straits was contrary to the purposes of s 6(2), which is to allow traditional owners to take control of the s 23 authorisation process when they so request. The learned trial judge construed s 6(3)(f) as being confined in its operation to delegations made by the Minister pursuant to s 6(1), as a literal interpretation of s 6(3) is fundamentally inconsistent with the delegation to traditional owners of the Minister’s powers prescribed under s 6(2).
In my view there are two answers to Straits’ submission.
In the first place I consider the construction adopted by the learned trial judge is correct.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT),[45] the High Court again emphasised that the task of statutory interpretation must begin with a consideration of the text itself. Nonetheless, that proposition does not detract from the principle that the true meaning of a statute may require consideration of its context, which includes the general purpose and policy of a provision, including, in particular, the mischief the provision is seeking to remedy.
[45] (2009) 239 CLR 27 at 46-47, [14].
Commencing the task of statutory construction with a consideration of the ordinary and grammatical sense of the words of the statute to be interpreted, does not mean reading s 6(3)(f) in isolation. It must be read in the context of the entire section and of the scheme of the Act.
In my view, the learned trial judge was correct in concluding that s 6(3)(f) is confined in its operation to a delegation made pursuant to s 6(1). When the section is read as a whole, the true meaning to be afforded to s 6(3)(f) is governed by the provisions of s 6(4). Section 6(4) provides that the Minister must not revoke a delegation under subsection (2) without the consent of the traditional owners. It is difficult to reconcile the construction contended for by Straits with the plain intention of the Parliament that a delegation under subsection (2) could only be revoked by the Minister with the consent of the traditional owners. Plainly, subsection (4) emphasises the distinctive nature of the delegation to traditional owners made pursuant to subsection (2). Once such delegation has occurred it is evident that the Parliament intended that those powers were only exercisable by the traditional owners, except where the delegation is revoked in accordance with the terms of subsection (4), namely, with the consent of the traditional owners. It is simply inconsistent with that construction for there to be a preservation of the Minister’s power to grant any of the authorisations specified in subsection (2), in circumstances where those powers have been delegated to the traditional owners.
This is not an instance where it is necessary to read words into a statute to overcome an omission resulting from the inadvertence of Parliament, of the kind considered by Lord Diplock in Wentworth Securities Ltd v Jones,[46] rather, this is a case of the kind considered by Spigelman CJ in R v Young,[47] cited with approval by the Chief Justice in James v Keogh.[48] This is a case of the Court construing words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate, where the words actually appearing in the statute are reasonably open to such a construction.
[46] [1980] AC 74 cited in James v Keogh (2008) 102 SASR 51 at 59-60.
[47] (1999) 46 NSWLR 681 at [12].
[48] (2008) 102 SASR 51 at 60.
The construction I have adopted is text based. The words of s 6 read as a whole are reasonably open to the construction adopted by the learned trial judge, with which I agree.
In the second place, in any event, the operation of s 6(3)(f) does not arise in this case. This is not a case of the Minister acting personally to grant an authorisation subsequent to the delegation of the Minister’s powers pursuant to s 6(2). The Minister has made no such delegation as yet. The very issue is that the Minister’s decision in this regard has been infected by a denial of procedural fairness. For the reasons set out above, that denial of procedural fairness also vitiates the s 23 authorisation.
In circumstances where I have concluded that the exercise of the Minister’s power pursuant to s 23 was conditioned on the observation of the principles of procedural fairness, and that condition has been breached invalidating the authorisation, the operation of s 6(3)(f) has not yet arisen.
For these reasons I consider the learned trial judge erred in concluding the s 23 authorisation was valid notwithstanding his finding that there had been a denial of procedural fairness. This conclusion is sufficient to allow the appeal. Nonetheless, I propose to consider the other grounds of appeal argued by the appellants.[49]
Was a determination pursuant to s 12 required before the Minister could grant the s 23 authorisation?
[49] ASIC v Lanepoint (2011) 85 ALJR 654; Kuru v NSW (2008) 236 CLR 1; Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274; Cornwell v The Queen (2007) 231 CLR 260.
The appellants submit that the learned trial judge was in error in rejecting the contention that, on its proper construction, the Act required the Minister to make a determination under s 12 of the Act prior to determining whether or not to grant authorisation to Straits under s 23 of the Act and, accordingly, that s 23 had no work to do absent a s 12 determination.
Therefore, they submitted, the Minister, before making the s 23 authorisation, was required to make a determination under s 12 as to whether the Lake Torrens site was an Aboriginal site or whether or not Aboriginal objects or remains were present on the site.
I do not accept this submission.
I agree with the learned trial judge that the exercise of the Minister’s powers pursuant to s 23 is not conditional upon a determination being made under s 12. There are a number of reasons for this conclusion.
First, subject to certain exceptions, the Act provides blanket protection for all Aboriginal sites and objects irrespective of whether they are registered on the Register. The definition of “Aboriginal site” is not limited to areas declared by regulation to be so, nor is it limited to those sites determined to be “Aboriginal sites” which have been entered into the Register pursuant to s 12.
Aboriginal sites which have not been entered on the Register are nonetheless protected by the Act.
The operation of s 23 is not circumscribed by the concept of “registered” Aboriginal sites or objects. In the scheme of the Act it has an operation independent from s 12. The Minister can give an authorisation to a person to damage, disturb or interfere with an Aboriginal site or object not on the Register.
Secondly, the language of s 12 is permissive. The words in s 12(1) “the person may apply to the Minister” emphasises that the nature of the provision is permissive rather than mandatory.
Section 12 provides a mechanism whereby a party such as Straits can obtain clarity and certainty. It can operate to protect such a party from an allegation that s 23 of Act has been contravened if the Minister determines that a site should not be entered on the Register.
Pursuant to s 12 a person who proposes to take action in relation to a particular object or area which may constitute an offence under the Act can apply to the Minister. The Minister must give the applicant a written notice if the object is entered in the Register, or notice that the Minister considers the object should be entered in the Register, or give the applicant notice of the location of each site or object in the area that is entered in the Register or the Minister has determined should be entered in the Register.
Therefore, pursuant to s 12 a party such as Straits may make an application to the Minister for a determination as to whether a specified area includes an Aboriginal site or object. If the determination is in the negative the party may proceed with the activity and cannot be found guilty of contravening s 23 even if, subsequently, it transpires that the area does contain a site or object of Aboriginal significance. Conversely, if a site or object is registered pursuant to s 12, the party alleged to have contravened s 23 would be unlikely to be able to rely upon a defence that it did not know that it had damaged, disturbed or interfered with a site or object.
These considerations provide sound reasons why a party in the position of Straits may wish to avail itself of an application to the Minister pursuant to s 12. However, it is not obliged to do so.
Thirdly, the operation of s 23 being conditional upon s 12 is contra indicated by the powers conferred upon the Minister to enter a site onto the Register of the Minister’s own motion.[50]
[50] Aboriginal Heritage Act 1988 (SA) s 5(1)(a), s 5(1)(b), s 8(1)(a), s 22(1) and s 24(1).
Fourthly, I agree with the submission for the first and second respondents that the terms of the letter from the Minister’s Department recommending that Straits firstly seek a s 12 determination prior to seeking an authorisation pursuant to s 23 does not support the construction contended for by the appellants. On the contrary the letter supports the respondents’ construction. In express terms, the letter provides that the Act allows a concurrent s 12 determination and a s 23 authorisation. The letter is inconsistent with the appellants’ submission.
Were the terms of the s 23 authorisation too wide or uncertain?
The appellants submit that the scope of the authorisation given to Straits by the Minister pursuant to s 23 was contrary to that section and the scheme of the Act by reason of the authorisation being so wide as to be unlimited or uncertain. In particular, the appellants submit that because the identity of persons falling within the classes described in the authorisation is not presently known the authorisation is unlawful. In addition, they contend the terms of the authorisation were too wide by reason of the failure to particularise the area the subject of the authorisation or to limit Straits in the way in which it was to deal with any Aboriginal objects or remains it might find. Finally, they argue that the authorisation given by the Minister was wider than was sought by Straits.
For the reasons that follow, I do not accept those submissions. However, I consider that Gray J is correct in his conclusion that the Minister granted the authorisation under a misunderstanding as to fact.
As a matter of construction s 23 does not require each and every individual person who is authorised pursuant to s 23 to be individually identified. The Act does not expressly require this. There is nothing in the Act which prohibits the Minister from making an authorisation in the terms of the s 23 authorisation granted to Straits. In this case the authorisation applies to Straits and in addition, to its partners, staff, contractors and subcontractors and any company (including its partners, staff, contractors and subcontractors) to whom Straits may transfer its rights under EL#4296.[51]
[51] CB Vol 1 p 44.
Each of the persons identified in the Minister’s authorisation represent recognisable categories of persons identified by their relationship to Straits.
In my view there is no uncertainty as to the scope of the authorisation in this regard. It is sufficient the authorisation identifies each of the entities referred to generically so that those persons can be determined with precision at any particular time in the future. Each of the relationships described in the authorisation are recognised legal categories which the Court would have no difficulty in identifying. There would be no difficulty in any given case deciding whether a person was a partner, employee, contractor or subcontractor of Straits.
Neither do I consider the authorisation to be too wide. In my view it was open to the Minister to grant an authorisation to those identified categories of persons who may be in a legal relationship with, or connected with, Straits for the purposes of the exploration activity Straits wishes to undertake in the Lake Torrens site.
The purpose of the s 23 authorisation justifies the width of the authorisation granted by the Minister and its terms. A pragmatic approach should be taken to this matter. It is not difficult to conceive that for the purposes of undertaking its exploration activities Straits may wish to engage contractors and to use subcontractors. There is no reason why they should not be incorporated within the terms of the authorisation given by the Minister at this stage. There is no reason why Straits should be forced to apply for a separate authorisation in future in circumstances where it might wish to avail itself of the services of contractors or subcontractors or, for that matter, to enter into a partnership with another company or to transfer its interest and rights under the exploration licence to another company. On the contrary, if the Minister is satisfied that it is appropriate to grant an authorisation to Straits, there is no reason to consider it is not appropriate to grant the authorisation in the wider terms the Minister gave.
I note in this regard that there is no suggestion by the appellants that the Minister acted unreasonably or inappropriately in doing so.
Further, any suggestion that the authorisation was too wide or uncertain in respect of the area subject to the authorisation is misconceived.
The terms of the authorisation are confined to damaging, disturbing or interfering with any Aboriginal site, object or remains “in accordance with the application lodged on 27 November 2009”.
The terms of Straits’ application strictly confines the area within which the authorisation operates to geographically precise components of land in the Lake Torrens site aggregating 7.08 square kilometres. This comprises seven dot points as follows:[52]
·       seven circular drill target zones (radius 500 metres), of size 0.78 square kilometres each – total area 5.46 square kilometres;
·       new access tracks … to service the target zones – total area 0.083 square kilometres;
·       maintenance and utilisation of existing tracks … - total area of 1.16 square kilometres;
·       maintenance and utilisation of existing camp and buffer zone – total area 0.22 square kilometres;
·       maintenance and utilisation of existing drill hole disturbance areas … for recovery of drilling water and for rehabilitation purposes – total area of 0.11 square kilometres;
·       … non-ground disturbing activity of 148 extension and infill gravity survey stations.
[52] CB Vol 1, p 191.
The aggregate area of 7.08 square kilometres comprises only a small percentage of the total exploration licence area which is 295 square kilometres.
Further, in considering the appellants’ submission that the terms of the s 23 authorisation is unlimited, it is well to remember that the authorisation includes a series of guidelines prepared by the Minister which constrains Straits’ dealings with any Aboriginal objects or remains, if found. Those guidelines require Straits, inter alia, to:
(1)determine if there are any objects or remains within the proposed drilling area or other land that is to be disturbed in accordance with the authorisation and lodge a report of its findings in that regard;
(2)document all findings and, if objects or remains are found, engage an archaeologist to document the discoveries in accordance with professional practise; and
(3)liaise with traditional owners as to the removal and reburial of any remains or relocation and safekeeping of any objects.
The obligations imposed by the guidelines which form part of the s 23 authorisation, also must be read against the background of s 20 of the Act, which requires Straits to report the discovery of any Aboriginal objects or remains to the Minister as soon as practicable.
Finally, I reject the attack on the lawfulness of the s 23 authorisation based on the fact it was wider than the authorisation sought by Straits.
Section 23 prohibits prescribed conduct unless undertaken with the authority of the Minister. A broad discretion is conferred on the Minister. It is not to be confined by the terms of the application but only by the terms of the legislation. For the reasons set out above I do not consider the exercise of the Minister’s direction, in this regard, was inappropriate. It certainly was not unlawful. It did not miscarry.
Nonetheless, the terms of the authorisation granted by the Minister on 7 July 2010 referring as it does to “any company (including its partners, staff, contractors and subcontractors) to whom Straits may transfer its rights under EL#4296 …” reveals that the Minister exercised her discretion pursuant to s 23 of the Act under a misapprehension of fact, namely, that Straits held rights under EL#4296. As a matter of fact and law, this was wrong. EL#4296 is, and was at the relevant time, held by Kelaray. As Gray J points out, Kelaray and Straits were in a contractual relationship. No doubt Straits enjoyed various rights under the joint venture agreement, but that is not to the point. Straits concedes that it held no rights under the exploration licence. The terms of the authorisation do not refer to rights Straits held under the joint venture agreement but rather the rights Straits enjoyed under the exploration licence. The misapprehension of fact this involved is not curable by recourse to s 13 of the Acts Interpretation Act 1915 (SA). To read down or sever that part of the authorisation cannot alter the fact that the Minister, in exercising her discretion, proceeded on a misapprehension of fact. The fact was material.

This gives rise to a problem with the terms of the authorisation. As there is no evidence that Straits holds any rights under EL#4296, it is not possible for it to transfer rights under EL#4296 to “any company (including its partners, staff, contractors and subcontractors)”. This creates uncertainty as to the breadth of operation of the authorisation. As the authorisation creates an exemption from criminal liability, it is necessary that the terms of the authorisation not be infected with uncertainty. Such uncertainty has the real potential to create problems in the future. I consider the authorisation bad for this reason.
Having regard to my earlier conclusion that the consequence of the Minister’s failure to afford procedural fairness is to invalidate her decision granting Straits an authorisation pursuant to s 23, it is strictly unnecessary for me to reach any conclusion as to the consequences of the Minister granting the authorisation pursuant to the above misapprehension of fact. Nevertheless, in my view, if her decision had not otherwise been vitiated by the contravention of the rules of procedural fairness, I would invalidate the decision on this basis.
Did the Minister fail to satisfy herself of matters essential to the grant of the s 23 authorisation?
The appellants submit that the s 23 authorisation was unlawful because of the failure by the Minister, before granting the s 23 application, to satisfy herself of three matters, namely:
(1)that the site was an Aboriginal site;
(2)that there was present on the site any Aboriginal object; and
(3)there was present on the site any Aboriginal remains.
The appellants submit that the Minister’s satisfaction as to these matters was a condition precedent to the exercise of her power pursuant to s 23.
I do not accept this submission.
In my view there is nothing in the Act which requires the Minister to be satisfied as to the existence or otherwise of an Aboriginal site, object or remains before giving a s 23 authorisation. The Minister’s power under s 23 does not arise only where objects or remains have been identified.
Section 23 contemplates “a situation in which there is a risk of damage to or disturbance of Aboriginal objects and remains, it being uncertain whether or not this will occur because of uncertainty as to whether or not Aboriginal objects or remains are present”.[53]
[53] Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 at [138].
I accept the submission put by Straits, that in the absence of clear words in the Act, there is no reason to fetter the Minister’s power under s 23 in the manner contended by the appellants. Had Parliament intended to do so, it could have expressly stipulated such a requirement. There is nothing to suggest that Parliament intended there to be any such requirement.
On the contrary, to require that the Minister be satisfied of these matters prior to granting an authorisation might well require the Minister to undertake substantial excavation and interference with the site itself, which would be contrary to the provisions of s 23, absent the Minister’s authorisation. In any event, this would be completely impractical in many circumstances.
Was the s 23 authorisation invalid because of the Minister’s failure to consult with the first appellant pursuant to s 13 prior to giving the authorisation?
The appellants submit that the Minister failed to discharge her duty as required by s 13(1) of the Act to take all reasonable steps to consult prior to granting the s 23 authorisation. An ancillary argument by the appellants was that the submission by certain Kokatha men of a “site card” was binding on the Minister and, accordingly, by operation of s 13(2) the site must be regarded as an Aboriginal site and the Minister had to accept the views of the traditional owners that the site was of significance in accordance with Aboriginal tradition. They argued that, as a result, the Minister was under a duty to determine that an entry to that effect should be made in the Register.
I do not accept these submissions.
Consultation
The learned trial judge correctly identified that the s 13 consultation by the Minister occurred at the Port Augusta meeting of 19 December 2009. The learned trial judge concluded that thereby the Minister had complied with her obligation to take reasonable steps to consult. He said:[54]
Mr Starkey’s complaint in relation to the consultation on the section 23 authorisation can be shortly dealt with. Although Mr Starkey did not attend the Port Augusta consultation meeting, written submissions were made by his solicitor on behalf of “the Kokatha Uwankara native title claim group and the informants and traditional owners of the recorded sites Lake Torrens and Andamooka Island.” In receiving and considering these submissions, the Minister took reasonable steps to consult with the Kokatha community, thereby complying with her obligations under section 13. Mr Starkey was an informant of the recorded sites and was therefore one of the Kokatha people on whose behalf submissions were made. It was not necessary for the Minister to consult with Mr Starkey individually.
[54] (2011) 109 SASR 233 at 253 [102].
In my view the reasoning of the learned trial judge in this regard is correct. The obligation imposed by s 13 does not require the Minister to consult personally with each of the persons identified in s 13(1)(d), (e) and (f). That would not be practical. The same conclusion was reached by the Chief Justice in Newchurch.[55] The obligation to consult imposed on the Minister by s 13 is qualified by the words “take all reasonable steps to”. While this could include personal consultation, it does not require it.
[55] Newchurch v Minister for Aboriginal Affairs and Reconciliation [2011] SASC 29 at [148] and [157].
In my view the findings by the learned trial judge establish that the Minister satisfied the obligations imposed pursuant to s 13.
As it was, the second appellant attended the consultation meeting at Port Augusta on 19 December 2009. While the first appellant did not attend the meeting he did receive an invitation and submissions were subsequently made on his behalf to the Minister.
The site card
The learned trial judge addressed the issue of the site card as follows:[56]
Although it is true that the Minister is bound to accept the views of the traditional owners in relation to the significance of a site or object in Aboriginal culture, it does not follow that the site cards constitute a method for the traditional owners to register sites and objects in the Register of Aboriginal Sites and Objects. There is no reference in the Act to site cards. The information contained in site cards may well be relevant when the Minister is determining whether or not a site should be entered into the Register, however I accept the submission of the Solicitor-General that site cards, of themselves, have no formal role to play in the scheme of the Act.
[56] (2011) 109 SASR 233 at 254 [110].
The appellants’ argument is misconceived. The Minister is only obliged to make a determination under s 12 following an application by a relevant person under s 12(1) or (3). No application has been made here. As the learned trial judge noted there is no reference in the Act to site cards. There was evidence before the Court that a site card is a document submitted to the Aboriginal Affairs and Reconciliation Division of the Department of Premier and Cabinet as part of an “unofficial” process. While site cards are entered into an archive database maintained by the Aboriginal Affairs and Reconciliation Division of the Department of Premier and Cabinet, they have no legal status under the Act.
I accept the submission of Straits that there is nothing in the Act, either in s 13 or otherwise, which requires the Minister to determine whether an entry should be made in the Register following the submission of a site card.
Conclusion
For the reasons set out above I would allow the appeal.
I would set aside the orders dismissing the appellants’ application for judicial review. I would make a declaration that the authorisation purportedly given by the Minister to Straits pursuant to s 23 of the Act on 7 July 2010 was contrary to law. I would make an order in the nature of certiorari to quash the said authorisation purportedly given by the Minister to Straits pursuant to s 23 of the Act on 7 July 2010. The order made by the learned trial judge in the nature of mandamus directed to the Minister, stands.