Wintawari Guruma Aboriginal Corporation RNTBC v The Hon Benjamin Sana Wyatt

[2019] WASC 33

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WINTAWARI GURUMA ABORIGINAL CORPORATION RNTBC -v- THE HON BENJAMIN SANA WYATT [2019] WASC 33

CORAM:   KENNETH MARTIN J

HEARD:   11 & 12 OCTOBER 2018

DELIVERED:   15 FEBRUARY 2019

FILE NO/S:   CIV 1516 of 2018

BETWEEN:   WINTAWARI GURUMA ABORIGINAL CORPORATION RNTBC

Applicant

AND

THE HON BENJAMIN SANA WYATT

First Respondent

VANESSA KICKETT

First Second Respondent

PATRICK CHURNSIDE

Second Second Defendant

LINDSAY DEAN

Third Second Defendant

BRUCE SMITH

Fourth Second Defendant

MURRAY DOLLING

Fifth Second Defendant

GAIL McGOWAN

Sixth Second Defendant

GRAEME GAMMIE

Seventh Second Defendant

MERLE CARTER

Eighth Second Defendant

QUINTON TUCKER

Ninth Second Defendant

ALEC COLES

Tenth Second Defendant

DEANNE FITZGERALD

Eleventh Second Defendant

FORTESCUE METALS GROUP LTD

First Other Party

FMG PILBARA PTY LTD

Second Other Party

ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Intervenor

Catchwords:

Judicial review - Alleged jurisdictional error - Certiorari - Aboriginal Heritage Act 1972 (WA) (AH Act) s 5, s 16, s 18 and s 39 - Affirmative resolution of Aboriginal Cultural Material Committee (the ACMC) to recommend to the Minister - Minister considers and acts on ACMC recommendation to issue Ministerial consent - Both decisions challenged by certiorari - Alleged invalidating effect of Minister's consent by an alleged jurisdictional error in ACMC's recommendation decision - Whether a recommendation in fact from ACMC is all that was prerequisite to Minister acting - Legal validity of recommendation not a pre-condition for validity of Minister's decision - Second actor theory applied

Judicial review - Jurisdictional error - Challenges to ACMC based on alleged failure to evaluate importance and significance of Aboriginal sites identified by ACMC and alleged alternate failure to apply criteria of s 39(2) and (3) of AH Act on that evaluation of sites - Alleged failure by ACMC to provide reasons - Alleged failure by ACMC to defer its recommendation to Minister based on an approved s 16(2) authorisation of Applicant by Registrar of Aboriginal Sites - Decision of ACMC challenged as irrational or unreasonable

Legislation:

Aboriginal Heritage Act 1972 (WA)
Aboriginal Heritage Amendment Act (No 2) 1980 (WA)
Environmental Protection Act 1986 (WA)
Sentencing Act 1995 (WA)
Sentencing Administration Act 2003 (WA)

Result:

Both applications for certiorari dismissed

Category:    A

Representation:

Counsel:

Applicant	:	Dr E M Heenan
First Respondent	:	Submitting appearance only
First Second Respondent	:	Submitting appearance only
Second Second Defendant	:	Submitting appearance only
Third Second Defendant	:	Submitting appearance only
Fourth Second Defendant	:	Submitting appearance only
Fifth Second Defendant	:	Submitting appearance only
Sixth Second Defendant	:	Submitting appearance only
Seventh Second Defendant	:	Submitting appearance only
Eighth Second Defendant	:	Submitting appearance only
Ninth Second Defendant	:	Submitting appearance only
Tenth Second Defendant	:	Submitting appearance only
Eleventh Second Defendant	:	Submitting appearance only
First Other Party	:	Mr B Dharmananda SC & Mr A J Papmatheos
Second Other Party	:	Mr B Dharmananda SC & Mr A J Papmatheos
Intervenor	:	Mr B D Nelson

Solicitors:

Applicant	:	McNally & Co
First Respondent	:	State Solicitor's Office
First Second Respondent	:	State Solicitor's Office
Second Second Defendant	:	State Solicitor's Office
Third Second Defendant	:	State Solicitor's Office
Fourth Second Defendant	:	State Solicitor's Office
Fifth Second Defendant	:	State Solicitor's Office
Sixth Second Defendant	:	State Solicitor's Office
Seventh Second Defendant	:	State Solicitor's Office
Eighth Second Defendant	:	State Solicitor's Office
Ninth Second Defendant	:	State Solicitor's Office
Tenth Second Defendant	:	State Solicitor's Office
Eleventh Second Defendant	:	State Solicitor's Office
First Other Party	:	Green Legal
Second Other Party	:	Green Legal
Intervenor	:	State Solicitor's Office

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

Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269

Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117

Boddington v British Transport Police [1999] 2 AC 143

Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239

Damberg v Damberg [2001] NSWCA 87

Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317

Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 36; (2017) 91 ALJR 833

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780

Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1995 - 1996) 185 CLR 149

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] 145 FCR 1

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27

Oudekraal Estates (Pty) Ltd v City of Cape Town (2004) (6) SA 222

Paterson v Minister for Mines and Petroleum [2018] WASC 200

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481

Plaintiff S157/2001 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

R v Consolidated Maybrum Mines Ltd [1998] 1 SCR 706

Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372

Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296

Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391

Regina v Wicks [1998] AC 92 (HL)

Robinson v Fielding [2015] WASC 108

Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482

The State of New South Wales v Kable [2013] HCA 126; (2013) 252 CLR 118

The State of Western Australia v Bropho (1991) 5 WAR 75

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591

Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105

Tulloh v Prisoners Review Board [2014] WASC 239

Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson (1924) 34 CLR 482

Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471

Woodley v Minister for Indigenous Affairs [2009] WASC 251

TABLE OF CONTENTS

Introduction

Overview

The AH Act

Some background to WGAC's judicial review applications

First decision sought to be quashed

Second decision sought to be quashed

Section 18(2) and (3) of the AH Act

WGAC's grounds seeking certiorari

Part I

The FMG Parties' plenary response to WGAC's arguments

The concepts of jurisdiction and jurisdictional error

Professor Christopher Forsyth's second actor theory

Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 (Tulloh)

Tulloh:  Wider acceptance of the second actor theory

My application of the second actor theory to present facts

The role of the Minister under s 18 of the AH Act

Conclusions re the affirmative application of the second actor theory to the present facts

Further cases relied upon by WGAC

Part II

Locating the 12 Aboriginal sites the subject of the ACMC's recommendation to the Minister

What WGAC's application is not about

WGAC's second amended application for judicial review - the grounds

The common preface to first five grounds (1, 1A, 2, 3 and 4)

Ground 1:  WGAC's failure to evaluate the 'importance and significance' of each Aboriginal site

Ground 1A: s 39(2) AH Act considerations

Ground 2:  No 'reasons' by the ACMC

Ground 3:  An alleged denial of procedural fairness to WGAC by the ACMC

Ground 4:  Alleged Wednesbury unreasonableness or Li irrationality by the ACMC

Ground 5:  Minister's failure to have regard to mandatory relevant considerations

Preliminary summary of the first five grounds (1, 1A, 2, 3 and 4)

The Applicant:  WGAC and its unchallenged standing to seek certiorari and declaratory relief on the present applications

A formal record of the evidence adduced by the present applications of WGAC

Factual findings:  Chronology of further events

The Minister's expressed position

The ACMC's s 18(2) recommendation

The Minister's s 18(3) conditional consent decision

The Minister's advice to WGAC

Final determinations and evaluations on WGAC's first five grounds

Ground 1

Ground 1A

Ground 2

Grounds 3 and 4

Conclusions

KENNETH MARTIN J:

Introduction

1. Wintawari Guruma Aboriginal Corporation RNTBC (ICN 4730) ('WGAC') by this judicial review application seeks two writs of certiorari directed against two separate, sequential decisions. First challenged is a decision by members of a statutory advisory committee, the Aboriginal Cultural Material Committee (the 'ACMC'), who are all joined as second respondent parties to the application. Second challenged is a decision of the State Minister for Aboriginal Affairs, Mr Benjamin Sana Wyatt, who is the first respondent (but see s 11(1)(a) of the Aboriginal Heritage Act 1972 (WA) (as amended) (the 'AH Act') as regards 'the Minister' being a designated body corporate. However, it is agreed nothing turns on that distinction upon these applications).

2. There are two 'other parties' to these applications of WGAC.  Both actively resist the present judicial review application of WGAC.  They are Fortescue Metals Group Ltd and its wholly owned subsidiary FMG Pilbara Pty Ltd (together referred to as 'the FMG Parties').  They were essentially the substantive contradictors against WGAC's present review applications.

3. In addition, the Attorney General of Western Australia intervened by leave in order to be heard on the present applications.  The State Solicitor's Office (the 'SSO') has represented the first and second respondents as well as the Intervenor.

4. For the certiorari application by WGAC, 11 members of the ACMC (the second respondents) all agreed to abide by the decision of the court.  They did not otherwise participate.  The first respondent's ('the Minister's') position is a little different.  I will explain that unique stance in a later section of the reasons.

Overview

1. In broad terms, it is convenient to contextualise WGAC's present applications commencing at s 17(a) of the AH Act, which renders it an offence for any person to excavate, destroy, damage, conceal or in any way alter an 'Aboriginal site'.  Section 17(b) creates a like offence, if there is damage, destruction, alteration, etc as regards any 'object' on or under an 'Aboriginal site'.

2. As will emerge in these reasons, a critically important term towards resolving the present applications is repeatedly used within the AH Act, namely, the term 'Aboriginal site'. This term is expressly defined at s 4 of the AH Act as a 'place' to which the AH Act applies under the operation of s 5 of the AH Act.

3. In turn, s 5 of the AH Act is seen to identify four potential sub‑categories of a 'place' or a 'site' - any one of which could trigger the application of the AH Act to that 'place' or 'site'.

4. For introductory purposes, it is sufficient now to mention only s 5(a) of the AH Act. It provides that the AH Act applies to:

   (a)any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present;  (my emphasis)

5. The above s 5(a) contemporary definition towards an 'Aboriginal site' embodies the amendments to the AH Act made in 1980: see Aboriginal Heritage Amendment Act (No 2) 1980 (WA). As first enacted under the AH Act in 1972, the par 5(a) definition had then read:

   (a)Any place where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present.

   The 1980 amendments to the AH Act also made changes to the s 5(b), (c) and (d) definition criteria. As Chaney J observed in Robinson v Fielding [2015] WASC 108 [93]:

   It can be seen that the focus of the amendments to s 5(a), s 5(b) and s 5(c) was on introducing or reframing considerations of importance and significance …

   See also [94] - [96].

6. Hence, in 1980, by what were then some significant amendments to s 5 of the AH Act, two adjectives, namely, the words 'importance' and 'significance', were specifically deployed by the legislature as regards the noun 'place' - so as to then feature within s 5(a) as the operative Aboriginal site identification criteria. That legislative history is contextually relevant to the present applications. The 1980 amendments seen in overall context displayed a legislative choice to use these two new qualitative and non-specific adjectives, yet also somewhat intangible criteria. So seen, these were words of a positive emphasis, to be applied as the criteria as regards 'place(s)' being assessed as Aboriginal sites from the time of those amendments taking effect.

7. Those same two adjectives, 'importance' and 'significance', are then found to be used recurrently elsewhere, in other parts of the AH Act, in particular in s 5(b) the phrase 'importance and spiritual significance' and in s 5(c) the phrase 'importance and significance', then again in s 18(2) and as well, in s 39.

8. However, another phrase 'evaluate the importance and significance' (of an Aboriginal site) that is found used in s 18(2) (now as regards the work of the ACMC) had effectively been present before 1980 - ie, since the AH Act's inception in 1972, albeit then by reference to the work of 'the Trustees' (as then defined). That chronological feature for s 18(2) as regards its somewhat longer period of use of the two adjectives - well before the changes to s 5 some eight years later - is also a feature of contextual significance, as will be seen.

9. The concluding proviso to s 17 of the AH Act identifies two statutory exceptions which, if applicable, afford an immunity to a 'person' against the committing of an offence against s 17.

10. The first s 17 exception is where the person is acting with 'authorisation' from the Registrar of Aboriginal Sites ('the Registrar') under s 16(2) of the AH Act. By s 16(1), the Registrar may personally excavate or remove anything from an Aboriginal site. But by s 16(2), the Registrar, to the same end as s 16(1) is directed, may authorise (on advice from the ACMC) the entry upon and excavation of an Aboriginal site and the examination or removal of any thing on or under that site by the so authorised person. In that circumstance, the authorised person enjoys immunity from prosecution.

11. The other and more presently relevant exception against the committing of a s 17 offence as is afforded under the proviso to s 17, is for the benefit of a person (being the 'owner' (as identified) of relevant 'land' on which the Aboriginal site is located), who acts with 'consent' that has been obtained from the Minister, granted under s 18(3) of the AH Act.

12. As will be seen, the obtaining of a Minister's consent via s 18(3) by an 'owner' is governed by an elaborate three‑step statutory process set down under s 18(2) and s 18(3). It will be necessary to turn to examine in greater detail this process shortly. However, in brief summary, the three required steps are:

    (a)the owner's written notice to the ACMC, seeking the Minister's consent;

    (b)the ACMC's recommendation (decision) made to the Minister; and

    (c)the Minister's decision providing consent, or otherwise.

13. That legislative three step position displays a considerable change to how s 18 had operated when first introduced in the AH Act of 1972. At that time a 'consent' under s 18(2) was by the Trustees of the 'Museum', subject to various review or challenge mechanisms. Transfer of the s 18 'consent' function to the Minister under the 1980 amendments to the AH Act saw the legislature deliberately strengthen from then the input of the executive government in the s 18 process.

14. I turn to scrutinise some further aspects of the AH Act.

The AH Act

1. A person who infringes against s 17 by an activity at an 'Aboriginal site' that has not been authorised by the Registrar under s 16(2), or that is undertaken without the consent of the Minister under s 18(3), commits an offence. The maximum penalty for such an offence set by s 57(1)(b) of the AH Act, in the case of a body corporate (for a first offence), is a fine of $50,000 with a daily penalty of $1,000. There is a further provision for the punishment of a director, manager, secretary or similar officer of any infringing body corporate, under s 59(2) of the AH Act.

2. Hence, as regards the operation of the AH Act and its objectives towards the protection of Aboriginal sites and objects, it may be seen that two key features present are being fundamental, namely:

   (a)the criminal offence carries a sanction against both individuals and corporations who engage in conduct concerning an 'Aboriginal site' contrary to s 17 - where their conduct concerning the 'site' is not either authorised by the Registrar under s 16(2), or the subject of a s 18(3) consent given by the Minister; and

   (b)the term 'Aboriginal site' - which in the AH Act as amended is now defined essentially by reference to the qualitative criteria of 'importance and significance'. Those concepts as regards an Aboriginal site are at the epicentre of the AH Act. Such places are seen to be identified under what are only loose adjectival criteria, but deliberately chosen by the legislature to enable the 'Aboriginal site' to be first identified, and then, to be evaluated.

3. A further early matter to note in the AH Act is that a number of provisions, including the legislation's long title, expressly declare it to be legislation providing for the preservation of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants - as an exercise that is undertaken 'on behalf of the community' of Western Australia.

4. The same phrase, 'on behalf of the community', is also used elsewhere in the AH Act, in relation to the functions of significant statutory functionary bodies operating under the AH Act on behalf of the community of Western Australia. That expressed community objective is discernible at various places throughout the AH Act, including at s 10(1) as regards the duty of the Minister, at s 39(1)(a) as regards the ACMC's function in evaluating the importance of places and objects associated with Aboriginal persons, and again at s 18(3), as regards the Minister in any consideration of a recommendation that is made to the Minister by the ACMC under s 18(2). In The State of Western Australia v Bropho (1991) 5 WAR 75, 86 Anderson J (with the agreement of Malcolm CJ and Franklyn J upon this point) observed towards this key phrase used in the AH Act:

   The provisions of the Act as a whole, including its long title, show that it was passed for the benefit of the community - all Western Australians - with a view to the preservation of objects and places regarded as being of significance in the context of the traditional cultural life of the original inhabitants of the State and their living descendants.

5. Contextually, Anderson J's observations remain pertinent towards that phrase.

6. Parts of the AH Act have been the subject of prior consideration under a number of previous decisions by this court, including in 1991 by the Full Court in Bropho mentioned above, then after that by other judges at first instance, including by Martin CJ in two decisions, Woodley v Minister for Indigenous Affairs [2009] WASC 251, then in Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296; by Chaney J in Robinson v Fielding; and more recently by Pritchard J in Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269.

1. The statutory framework of the AH Act has been comprehensively discussed by Chaney J in Robinson v Fielding at [7] - [14]. Pritchard J undertook a similar exercise in Abraham v Collier.  So it is that this legislation has been heavily traversed at first instance in the past.

2. Given that, I am content merely to respectfully refer to and repeat Pritchard J's reasons at [12] - [16], with which I fully agree. The statutory purpose and surrounding legislative provisions of the AH Act bear heavily upon the present dispute. To that end, I repeat the following observations by Pritchard J in Abraham v Collier as apposite to understanding the legislative background underlying the present applications.  Her Honour said: 

   [12]The AH Act is, as its title suggests, concerned with the preservation of Aboriginal heritage, which is an important part of the heritage of the State as a whole. It does so by preserving, on behalf of the Western Australian community, places and objects customarily used by, or traditional to, Aboriginal people or their descendants. The provisions of the AH Act establish a process by which places (known as 'Aboriginal sites') and objects of special significance to Aboriginal people, past or present, can be protected and made available to Aboriginal people for purposes which accord with Aboriginal tradition.

   [13]An Aboriginal site includes a place of importance and significance where persons of Aboriginal descent have, or appear to have, left objects used for any purpose connected with the traditional cultural life of Aboriginal people, past or present; any sacred, ritual or ceremonial site which is of importance and special significance to persons of Aboriginal descent; and any place associated with Aboriginal people which is of historical, anthropological, archaeological or ethnographical interest and which should be preserved because of its importance and significance to the cultural heritage of the State.

   [14]Section 17 of the AH Act provides that a person who excavates, destroys, damages, conceals or in any way alters any Aboriginal site commits an offence unless he is acting with the authorisation of the Registrar under s 16, or the consent of the Minister under s 18 of the AH Act.

   [15]Central to the operation of the AH Act are the ACMC and the Minister. The ACMC is an advisory body,7 whose functions include evaluating, on behalf of the community, the importance of places and objects alleged to be associated with Aboriginal persons, and recommending to the Minister places and objects which are of special significance to people of Aboriginal descent and which should be preserved.  The Minister has a variety of powers, including powers to recommend that an Aboriginal site be declared a protected area and to consent to the use of Aboriginal sites for specified purposes.  These powers are required to be exercised having regard to, or in the general interest of, the community.

   [16]Where an owner of land requires to use the land for a purpose which, unless the Minister gives his consent, would be likely to result in a breach of s 17 in respect of any Aboriginal site that might be on the land, s 18 of the AH Act permits the owner to give the ACMC written notice that he requires to use the land for that purpose. Section 18 requires that as soon as it is reasonably able to do so, the ACMC must form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister, together with the ACMC's recommendation as to whether or not the Minister should consent to the use of the land for the purpose sought by the owner and (if applicable) the extent to which and the conditions upon which such consent should be given. Pursuant to s 18(3), the Minister must consider the ACMC's recommendation and, having regard to the general interest of the community, either consent to the use of the land the subject of the notice, or part thereof, for the purpose proposed, with or without conditions, or wholly decline to consent to the use of the land for that purpose, and advise the owner of that decision.

3. I would only add that the extensive prior judicial consideration of the AH Act as discussed has now rendered it absolutely explicit that a recommendation decision of the ACMC given under s 18(2) of the AH Act, as well as any subsequent 'consent' decision by a Minister under s 18(3), are both decisions potentially amenable to judicial review, including by the prerogative writ of certiorari. A 'recommendation' by the ACMC made to the Minister clearly fits the criteria for judicial review as was discussed in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1995 - 1996) 185 CLR 149, 165 (Brennan CJ, Gaudron & Gummow JJ). The Minister must consider the ACMC's recommendation, but is not bound to follow it.  In prior cases in this court (eg, Robinson v Fielding) the ACMC's recommendation was challenged on a judicial review application, but in those decisions, the challenge was made before the ACMC's recommendation had been considered by the Minister.  Chronologically, that is not the same position here, as will be seen.

4. The first instance decisions in Robinson v Fielding and Abraham v Collier by this court both saw recommendation(s) of ACMC made the subject of those review applications. 

5. Clearly also, the Minister's decision to consent or otherwise when made under s 18(3) may be the subject of judicial review, as the Bropho and Woodley decisions display. There is, of course, the provision by the AH Act of a statutory merits review against a Minister's decision - afforded only to an 'owner of land', by s 18(5). Significantly, no such statutory right of review is afforded to Aboriginal persons by the AH Act. Hence explains the present resort to certiorari against the Minister's consent decision by this applicant corporation on their behalf.

Some background to WGAC's judicial review applications

1. WGAC filed the present applications for judicial review seeking (initially) a prerogative writ of certiorari - to quash the legal effect of the Minister's conditional consent as given to the FMG Parties under s 18(3) on 3 November 2017 (the Minister's s 18(3) conditional consent decision). That was on 23 March 2018. Some time later WGAC added, by leave, the 11 members of the ACMC as second respondents to these proceedings. WGAC subsequently then re‑amended and expanded its application for judicial review to also seek certiorari against the ACMC's recommendation as made to the Minister of 27 September 2017 under s 18(2) of the AH Act (the ACMC's s 18(2) recommendation).

2. WGAC's present application seeks first, a writ of certiorari to quash the ACMC's s 18(2) recommendation. Secondly, certiorari is also pursued by WGAC against the Minister's s 18(3) conditional consent decision. Associated declaratory relief is also claimed.

First decision sought to be quashed

1. The ACMC's s 18(2) recommendation is described in the following terms by WGAC's judicial review application:

   Description: The recommendation of the Second Respondents to the Minister under s 18(2) of the Aboriginal Heritage Act 1972 (WA) that the Minister should consent, subject to conditions, to the use of the land described as being a portion of mining tenements M47/1409, M47/1474, L47/0381 and L47/0294 for a purpose described as extending mining operations and infrastructure in the Fredericks area of Fortescue's Solomon Project, including but not limited to mining pits and infrastructure including roads, lay-downs, power and water.

2. The ACMC's s 18(2) recommendation is to be found within a Briefing Note that was sent to the Minister on 27 September 2017 by a Ms Butler (the Registrar). It contained the ACMC's s 18(2) recommendation upon a s 18(2) written notice that the FMG parties had given to the ACMC, dated 23 May 2017. By the AH Act the Registrar is a departmental officer whose function, amongst other specified duties, is to administer the day-to-day operations of the ACMC: see s 37(2) AH Act. All communications as required by the AH Act to be made to or by the Minister or to the ACMC may be made through the Registrar: see s 37(4) AH Act.

3. At the hearing of this application, no limitation of action temporal objections were raised against WGAC's certiorari application against the ACMC's s 18(2) recommendation (noting a six-month period in RSC O 56 r 2(4)), albeit that this relief was only sought under a re‑amendment to WGAC's judicial review application of 13 August 2018). Thus minor factual issues about when precisely WGAC first learned of the ACMC's s 18(2) recommendation to the Minister were essentially, irrelevant.

4. The ACMC makes its s 18(2) recommendation exclusively to the Minister. It is under no express obligation by the AH Act to inform anyone else about that recommendation - even other persons it has heard from or had engaged with in the lead-up period to a recommendation decision.

5. The ACMC's s 18(2) recommendation had followed from a regularly scheduled ACMC meeting of 11 July 2017, with seven members then in attendance. At that meeting the ACMC had before it the relevant s 18(2) notice issued by the FMG Parties seeking the Minister's consent. That notice concerned 50 potential Aboriginal sites which had been identified as 'places' on the mining leases or miscellaneous licences held by the FMG Parties - and which might potentially be affected in future by the as proposed Fredericks area expansion plans of the FMG Parties' towards future works at the subsisting Solomon iron ore project located in the Hamersley Ranges of the Pilbara region of Western Australia.

6. The Department of Aboriginal Affairs (the Department) had also provided some internal advice to assist the ACMC at that meeting, with the Department then identifying six of the 50 places identified by the FMC Parties as being Aboriginal sites.

7. Invoking the process that is only afforded to 'owners' of land (as defined) under s 18(2) of the AH Act, the FMG Parties had, on 23 May 2017, given their formal written notice that they required to use their mining leases or mining licences as a part of the proposed expansion of their overall iron ore mining operations. Specifically, they sought a Ministerial approval to conduct activities in the future on their mining tenements that might otherwise result in a breach of s 17 in respect of some Aboriginal sites - unless the Minister gave a s 18(3) consent under the AH Act to that proposed future use of their land.

8. At the scheduled ACMC meeting held on 11 July 2017, the ACMC dealt, amongst other business on its agenda, with the FMG Parties' s 18(2) notice, in a context of assessing 50 potential places the subject of the FMG Parties' s 18(2) notice. The ACMC then duly identified at that meeting a further six places as Aboriginal sites. They were places in addition to the six sites that the Department had already identified in the materials it had provided to the ACMC. Hence, the ACMC by its attending members at this meeting had assessed, at the end, some 12 Aboriginal sites (of 50 possible places as potential Aboriginal sites they assessed) on the land over which the FMG Parties as the relevant 'owners' were then seeking the Minister's consent under s 18(3).

9. The basis of the ACMC's identification of the 12 (of 50) places as being 'Aboriginal sites' by the ACMC was explicitly recorded as being on the basis of criteria in 's 5(a)' of the AH Act. In other words, the attending members of the ACMC on 11 June 2017 had concluded and resolved that day that some 12 of the 50 potential places that might be affected by the FMG Parties' future proposed iron ore expansion works on their Pilbara mining tenements had then been assessed by the ACMC as being places (under s 5(a)) of 'importance and significance'.

10. Following the ACMC's meeting on 11 July 2017, the Registrar sought and received for the ACMC some internal legal advice - referable to conditions the ACMC then proposed concerning its recommendation. Subsequently, draft ACMC minutes were prepared for two 11 July 2017 resolutions by the ACMC concerning the FMG Parties' s 18(2) notice, as had been considered, and towards the 12 Aboriginal sites as now identified.

11. Later, the Registrar, in liaison with the Chair of the ACMC, Ms Kickett, had a discussion about the draft minutes.   Ms Kickett told the Registrar that she had 'no issues' with the revised draft minutes for the 11 July 2017 ACMC meeting on this agenda item. 

12. In subsequent months, the ACMC met again.  On 10 October 2017, the ACMC now met, approved and ratified the draft minutes for the earlier 11 July 2017 ACMC meeting (in accord with orthodox meeting procedure). 

13. In fact, the ACMC's s 18(2) recommendation, in the period before 10 October 2017, when it was only the subject of draft minutes, had been incorporated within a briefing note to the Minister of 27 September 2017, signed off by the Registrar. Albeit a little early and out of sequence, it is agreed before me that nothing now turns on this. In the end result, the ACMC's 10 October 2017 ratification of the minutes for its 11 July 2017 meeting and the two relevantly approved resolutions of that July meeting concerning the FMG Parties' s 18 notice were uncontroversial - towards the ultimately approved minutes for the ACMC's meeting of 11 July 2017 - relevantly to WGAC's present judicial review applications seeking certiorari.

14. However, multiple other challenges are raised by WGAC against the ACMC's s 18(2) recommendation upon the grounds of the present applications to pursue certiorari not only against the ACMC's recommendation decision, but also as against the Minister's s 18(3) subsequently given conditional consent decision.

Second decision sought to be quashed

1. The Minister's s 18(3) conditional consent decision, in effect, issued upon and following the ACMC's s 18(2) recommendation towards the FMG Parties' s 18(2) notice. On 30 November 2017, the Minister, by hand, endorsed conditional approval to that Briefing Note as had been sent by the Registrar on 27 September 2017, thereby indicating Ministerial consent to the s 18(2) notice given to the FMG Parties. The Minister also signed a letter the same day notifying the FMG Parties of his conditional consent decision. The s 18(3) conditional consent decision sought to be quashed by certiorari, as described by WGAC's judicial review application was:

   Description: The decision by the Minister under s 18(3) of the Aboriginal Heritage Act 1972 (WA) to consent, subject to conditions, to the use of the land described as being a portion of mining tenements M47/1409, M47/1404, L47/0381 and L47/0294 (the Land) for a purpose described as extending mining operations and infrastructure in the Fredericks area of Fortescue's Solomon Project, including but not limited to mining pits and infrastructure including roads, lay-downs, power and water (the Purpose).

Section 18(2) and (3) of the AH Act

1. The fundamental objective of WGAC's application is targeted at quashing the Minister's s 18(3) conditional consent decision. I set out in more detail later in these reasons the full content of what is the challenged ACMC s 18(2) recommendation and also then, the terms of the Minister's s 18(3) conditional consent decision.

2. For present purposes, however, it is helpful just to see the immediate underlying statutory base for the two now challenged decisions within s 18(2) and s 18(3) of the AH Act.

3. The proper meaning of the two subsections (which, of course, must be assessed in overall statutory context) is, as will be seen, fundamental to the certiorari relief sought by WGAC. 

4. I should also observe that whilst there were as discussed already some or key amendments to s 5 of the AH Act in 1980 as already mentioned, the terms of s 18(2) and s 18(3) were also altered somewhat - following the inception of the 1980 AH amendment legislation. However, as also mentioned, what is a key phrase used in s 18(2), namely (for the ACMC to) 'evaluate the importance and significance of (the) site', has been a constant since 1972 when the AH Act first took effect.

5. Section 18(2) of the AH Act currently provides:

   Where the owner of any land gives to the Committee notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Committee shall, as soon as it is reasonably able, form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.  (my emphasis in bold)

6. Section 18(3) of the AH Act then provides:

   Where the Committee submits a notice to the Minister under subsection (2) he shall consider its recommendation and having regard to the general interest of the community shall either -

   (a)consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or

   (b)wholly decline to consent to the use of the land the subject of the notice for the purpose required,

   and shall forthwith inform the owner in writing of his decision.  (my emphasis in bold)

7. In Bropho, it was apparent from the underlying facts that the Minister there had given a s 18(3) consent to that owner, notwithstanding receipt of a negative recommendation by the ACMC. Various procedural fairness arguments were (unsuccessfully) raised in Bropho about certain events.  But there was and could be no valid suggestion in Bropho that the Minister was not empowered to act unilaterally, once the committee's recommendation had been received and considered by the Minister.

8. Thus, it is explicitly clear that the Minister, by s 18(3), must consider any recommendation of the ACMC, once it is received. But the Minister is not bound by any recommendation from the ACMC: see s 11A of the AH Act, and noting again, Bropho. 

WGAC's grounds seeking certiorari

1. There are six grounds underlying WGAC's application. The grounds are examined in detail later in the reasons. However, the fundamental and recurrent challenge of WGAC seeks to attribute a jurisdictional error to the Minister as regards his s 18(3) conditional consent decision which issued (save for sub-grounds 5(b) and 5(c)). Fundamentally, however, it is the as alleged jurisdictional errors attributed by WGAC to the ACMC (not to the Minister) that are, in effect, contended by WGAC to carry legally wider invalidating repercussions by way of, in effect, automatically vitiating the subsequent s 18(3) conditional consent decision of the Minister - a person who clearly was the subsequent and second tier decision maker in the s 18(2) and s 18(3) regime concerning the FMG Parties' notice seeking the Minister's consent and thereby their immunity against potential prosecution.

2. The core legal contention underlying most of WGAC's certiorari challenges is that there was no 'valid' recommendation made by the ACMC under s 18(2) of the AH Act. Consequently, it is next put by WGAC that the Minister 'had no power' to grant a consent (even conditional consent) under s 18(3) of the Act. The essence of the certiorari challenge against the Minister is essentially seen then as a collateral attack against the Minister's s 18(3) conditional consent decision - based on earlier 'faults' of the ACMC in making its s 18(2) recommendation.

3. It is noteworthy that on these applications of WGAC, there is no fact or feature contended for that might possibly have suggested or alerted the Minister there was some underlying or invisible flaw which could later deliver a legal consequence of undermining the ACMC's as received written recommendation as somehow being jurisdictionally flawed.  But WGAC's position is that all that is simply irrelevant.  Invoking Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [152] (Hayne J), WGAC argues the ACMC's s 18(2) recommendation carried no legal consequences at all and so was without an existence or effect in law.

1. WGAC also argues here that it should not even be necessary for it to quash the ACMC's s 18(2) recommendation. This it says is because the Minister's s 18(3) conditional consent decision had issued upon a 'recommendation' of the ACMC that in law, had no legal existence. That feature, argues WGAC, is enough to support an order for certiorari quashing the Minister's s 18(3) conditional consent decision and for the ancillary declaratory relief it seeks. But only in case it were necessary, WGAC did eventually amend its judicial review application to also seek certiorari against the ACMC's s 18(2) recommendation.

2. As explained, the underlying legal basis for its legal submission by WGAC towards the Minister's consent is tied to a contended application of a number of Australian case authorities, including Bhardwaj. The following further passage from the joint judgment of Gaudron and Gummow JJ at [53] in Bhardwaj is particularly relied upon:

   As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.  Once that is accepted, it follows that, if the duty of the decision‑maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed.  Thus, not only is there no legal impediment under the general law to a decision‑maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.

3. To that same end, support is also derived by WGAC from the observations of Hayne J in Bhardwaj at [152] and [153].

4. Reliance is then next directed by WGAC to a series of subsequent decisions in the High Court and elsewhere, including upon Plaintiff S157/2001 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The Full Federal Court's decision in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] 145 FCR 1 [42] (Gray and Downes JJ) and [64] (Kenny J) is also called in support by WGAC. Further case authorities are invoked to the same end, including more recent decisions of the High Court in Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 [46], [63], [96] - [97] (Gummow, Hayne & Bell JJ) and [113] (Heydon J) and in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 [23] - [24] (Kiefel CJ, Gageler & Keane JJ).

5. WGAC's submission as regards the legal ramifications ultimately said to undermine the Minister's s 18(3) conditional consent decision - derived out of the jurisdictional errors of the ACMC - may be found illustrated in what it submits at par 200 of its first written outline of submissions of 17 August 2018, in the following terms:

   Where certiorari is sought to quash the legal effect of an administrative decision, it is inapt to speak of the decision as 'void', 'voidable', 'invalid', 'vitiated' or as a 'nullity'.  An administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.  Unless the relevant statute so directs, administrative decisions involving jurisdictional error are not binding and have no legal effect even if not set aside.  An administrative decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.  Once it is recognised that a court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences, whether or not an application for certiorari has been made.

6. By par 203 of WGAC's first written outline of submissions its position was that, by reason of jurisdictional error, that at law 'the ACMC is properly to be regarded as having made no recommendation to the Minister at all'. 

7. The culmination of WGAC's arguments (by its first written outline at pars 403 - 405) is that it is neither necessary, nor appropriate, for certiorari to issue to quash the legal effect of the ACMC's s 18(2) recommendation - before the validity of the Minister's subsequent decision may be challenged. That, WGAC says, is because the ACMC's s 18(2) recommendation did not 'of its own accord create or affect legal rights' (par 403).

8. WGAC accepts that at law the ACMC's s 18(2) recommendation is amenable to certiorari, applying Hot Holdings Pty Ltd v Creasy. But WGAC's primary position is that such a step is ultimately unnecessary, because it is sufficient only for it to identify the jurisdictional errors of the ACMC - then proceed directly to ask the court to quash the Minister's collaterally tainted s 18(3) conditional consent decision - which valid recommendation was, WGAC says, a necessary pre-condition 'to the existence of the Minister's power'.

9. WGAC says that it only became aware of the nature of the ACMC's s 18(2) recommendation to the Minister some considerable time after it had been given, as may be accepted. Nothing turns on that, however.

Part I

The FMG Parties' plenary response to WGAC's arguments

1. In the present application, the FMG Parties fulsomely reject seriatim all the alleged jurisdictional errors as contended for by WGAC. But the key residual defensive submission of the FMG Parties is that, as a matter of law, it really does not matter, in the end, even if there are shown to be some jurisdictional errors underlying the ACMC's s 18(2) recommendation. This is because the FMG Parties say as a matter of the true statutory construction of s 18 of the AH Act, the Minister's consent, once it is given under s 18(3), did not need to be grounded upon a 'valid' ACMC recommendation earlier issued to the Minister by the ACMC under s 18(2). All that was merely necessary, submit the FMG Parties, was the fact of the earlier written recommendation as given by the ACMC to the Minister - as it is accepted there undoubtedly was here. 

2. If that plenary defensive response of the FMG Parties is correct, then all of WGAC's alleged jurisdictional error challenges directed at undermining the ACMC's s 18(2) recommendation, in the end, even if shown, would still go nowhere, once the Minister's s 18(3) conditional consent issued - as it clearly has in this case. The FMG Parties contend that all the Minister needed to be validly empowered to issue a Ministerial consent was a recommendation in fact from the ACMC - so that the ACMC's s 18(2) recommendation here was fully sufficient in fact for s 18(3) purposes, even if shown as tainted by the ACMC's jurisdictional errors(s) in any respect.

3. That plenary defensive response of the FMG Parties as regards upholding the Minister's subsequent s 18(3) consent raises for my direct consideration and emerging and interesting legal point within contemporary administrative law jurisprudence - attributable to the writings of Professor Christopher Forsyth and known widely now as the principle of the 'second actor'.

4. It is necessary for me to say a little more about jurisdiction and jurisdictional errors before I turn to evaluate more closely what is the plenary 'second actor' defensive response of the FMG Parties against WGAC's applications.

The concepts of jurisdiction and jurisdictional error

1. In the High Court's recent decision Hossain v Minister for Immigration [2018] HCA 34; (2018) 92 ALJR 780, Kiefel CJ, Gageler and Keane JJ conveniently explain in contemporary terms the concepts of jurisdiction and jurisdictional error under Australian law. Their Honours commence at [17], observing on the traditional distinction between jurisdictional and non-jurisdictional error still being required to be maintained, not being capable of avoidance for Australia: see [22].

2. Explaining the concept of jurisdiction at [23] their Honours said:

   Jurisdiction, in the most generic sense in which it has come to be used in the field of discourse, refers to the scope of the authority that is conferred on a repository.  In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision‑maker to make a decision of a kind to which the statute then attaches legal consequences.  It encompasses in that application all of the pre-conditions which the statute requires to exist in order for the decision‑maker to embark on the decision‑making process.  It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision‑making process in order for the decision‑maker to make a decision of that kind.  A decision made within jurisdiction is a decision which sufficiently complies with those statutory pre‑conditions and conditions to have 'such force and effect as was given to it by the law pursuant to which it was made'.

   (By footnote 21 their Honours in Hossain cite Bhardwaj at [46] as authority for the last stated proposition.)

3. Presently, of course, it will be remembered that WGAC contends for jurisdictional error(s) made by the ACMC - which in turn WGAC contends delivered the collateral result of depriving the Minister of any 'power' under s 18(3) to provide a valid consent - upon the application of the FMG Parties made under their s 18(2) AH Act notice, seeking the Minister's consent (thereby to avoid a future exposure to prosecution for works that would be otherwise a contravention against s 17 of the AH Act at an 'Aboriginal site' on their iron ore mining tenements).

4. Next, I address the related concept of jurisdictional error.  Again, it is convenient to cite further observations of the plurality from Hossain.  At [24] their Honours said:

   Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision‑making process, correspondingly refers to a failure to comply with one or more statutory pre-conditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it.  To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction.  [Note footnote 22:  once again, Bhardwaj at [17] is cited here by their Honours.] A decision made outside jurisdiction is not necessarily to be regarded as a 'nullity', in that it remains a decision in fact which may yet have some status in law.  (my emphasis in bold)

   (Their Honours at footnote 22 refer again to Bhardwaj at [46], then to the full Federal Court's reasons in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at [42].)

   The plurality then continued in Hossain:

   But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as 'no decision at all'.  [Footnote 24, referring again to Bhardwaj at [51].]

   To that extent, in traditional parlance, the decision is 'invalid' or 'void'. [Referring at footnote 25 to Baxter v New South Wales Clickers' Association (1909) 10 CLR 114 at 157 and Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248 at [63].]

5. In the Hossain appeal the Court proceeded to explain the concept of 'materiality' as regards jurisdictional errors made by, in that case, the AAT.  That happened as the AAT was evaluating that appellant's claim for a partner visa - in circumstances where one of the AAT's temporal determinations was clearly made in error.  But another and discretely independent reason of the AAT for visa refusal, grounded on the appellant's outstanding debts to the Commonwealth, was correctly reached and unassailable. 

6. In Hossain at [29] the plurality observed as regards the concept of 'materiality' in that context:

   Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition.  The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

7. In the end, all members of the High Court dismissed the appeal in Hossain.

8. For the general arena of jurisdictional error, I also note in passing the earlier decision of the High Court in April 2018 (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481) that a plurality there, of Gageler, Keane and Nettle JJ, had rendered the following observation about the issue they did not in the end need to resolve at [12]:

   In particular, there is no need to explore the sense in which, or the extent to which, or the purpose for which, the section might result in a decision to refuse to grant a visa which is ineffective in law to achieve that result because it is made in non-compliance with a provision of subdiv AB nevertheless being treated as a valid decision.  [At footnote 12 referring to Bhardwaj at [11]]. (my emphasis in bold)

   That is because the requisite analysis can proceed sufficiently on the basis that a decision to refuse to grant a visa made in non-compliance with s 57 is a decision that is made in fact.  (my emphasis in bold)

Professor Christopher Forsyth's second actor theory

1. Chapter 9 of the text Wade, M W and Forsyth, C F, Administrative Law (11th ed, 2014) addresses generally various problems of invalidity in administrative law.  In that context, Professor Forsyth discussed the established phenomenon of permissible collateral challenge taken against administrative decisions. 

2. At page 251 of the text, Professor Forsyth explained the second actor theory in administrative law decision review as follows:

   The Theory of the Second Actor

   An important step in developing a principled and practical approach for these conundrums has been the development of the theory of the second actor [referring to the seminal article by C Forsyth in 'The Golden Metwand' Forsyth and Hare (eds) of 1998 at page 141].  This theory, which has attracted significant judicial support, seeks to explain how an unlawful and void administrative act may nonetheless have legal effect.  It is built on the perception that while unlawful administrative acts (the first acts) do not exist in law, they clearly exist in fact.  Those unaware of their invalidity (the second actors) may take decisions and act on the assumption that these (first) acts are valid.  When this happens the crucial question is whether these latter, or second, acts are valid.

   The theory of the second actor holds that the validity of the second acts does not depend upon any presumption of validity or judicial exercise of a discretion to refuse a remedy to an applicant in particular proceedings.  It depends upon the legal powers of the second actor.  Did that second actor have power to act even though the first act was invalid?  Thus in the case discussed above of the man prosecuted for carnal knowledge of a detained mental defective, [referring to the House of Lords decision Director of Public Prosecutions v Head [1959] AC 83] the decision of the House of Lords meant that the court before which he was charged (the second actor) lacked the power to convict unless the detention order (the first act) was valid. On the other hand in the case of the landowner prosecuted for failure to comply with an enforcement notice served by the local planning authority [referring to R v Wicks [1998] AC 92], the House of Lords held that notwithstanding the alleged invalidity of the first act (the enforcement notice) the magistrates court (the second actor) had power to convict.

3. In the same text, Professor Forsyth had noted some developmental principles around the theory, which he said had begun to emerge.  Relevantly, he observed:

   Another is the 'value of certainty in a modern bureaucratic state, a value which the legislature should be taken to have had in mind as a desirable objective when it enacts enabling legislation'.

   Ultimately its application in any particular case is heavily dependent upon the terms of the particular statute which must be given primacy in the overall evaluation of the assessed validity of any second act.

   (See page 252.)

4. By footnote 145, at page 251 of the same text, in relation to the second actor theory attracting significant international support, reference is made to a number of further cases, including decisions by the House of Lords, the South African Supreme Court of Appeal and the Malaysian Court of Appeal.  The Supreme Court of Canada's decision in R v Consolidated Maybrum Mines Ltd [1998] 1 SCR 706 is also cited and where it was said the second actor theory was adopted in all but name.

5. Although the second actor theory has not yet been endorsed by the High Court of Australia, the extract I cited earlier from Plaintiff M174/2016 would suggest that at least in 2018 a plurality of the High Court was highly cognisant of a possible validity significance in administrative law of a decision that is 'made in fact'.

6. Locally, the theory of the second actor has been followed and applied.  It was described in 2018 by Le Miere J in Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 at [36] as a 'principled and practical approach to' the conundrum of an administrative decision affected by jurisdictional error being legally invalid but, nevertheless, having a legal effect in certain circumstances. I respectfully endorse that observation, as I turn below to examine more closely his Honour's decision.

Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 (Tulloh)

1. In Tulloh, Le Miere J was resolving a preliminary issue.  In the process he concluded that notwithstanding Chaney J in Tulloh v Prisoners Review Board [2014] WASC 239 had quashed by his grant of certiorari (for jurisdictional errors) a 2012 decision of the Prisoners' Review Board (which decision purported to cancel Mr Tulloh's parole and cancel his release from long term imprisonment), that nevertheless Mr Tulloh's law suit claiming damages against the State of Western Australia and from the Chief Executive Officer (CEO) of the Department of Corrective Services for wrongful imprisonment across a 19‑month period (from December 2012 to July 2014, when Chaney J's certiorari orders issued), could not succeed.

2. That negative end outcome for Mr Tulloh's wrongful imprisonment damages claim across that (roughly 19‑month) period came about because Le Miere J ultimately concluded that Mr Tulloh had been detained over that period under lawful authority.  Reaching that validity consequence, his Honour found that the (subsequently quashed) cancellation order decision of the Prisoners Review Board (terminating Mr Tulloh's parole) was not inconsequential for all purposes.

3. The (subsequently quashed) cancellation order, with the original 2002 warrant of commitment of Mr Tulloh, applied in combination with provisions of West Australian Sentencing Act and Sentencing Administration Act legislation, together provided the lawful authority for Mr Tulloh's detention - until the time of Chaney J's certiorari orders of July 2014.

4. At [9] of Le Miere J's reasons his Honour explained that Mr Tulloh's case for false imprisonment had presented as a 'simple' one.  Mr Tulloh's argument had been:

   An act or order which is quashed for jurisdictional error is a nullity in the sense that it has no relevant legal consequence; it is utterly without existence or effect in law.  The cancellation having been quashed by order of this court has no relevant legal consequence.  The cancellation order is to be treated as if it had never been made.

5. The same simple argument of law (which in the end was rejected by Le Miere J in Tulloh) resonates here very closely with the grounds of challenge advanced by WGAC against the ACMC on the present application. That is so particularly as regards what is WGAC's asserted collateral negating impact by law from the ACMC's jurisdictional error -leading, in effect, to the alleged absence of power in the Minister to be in a position to issue a consent under s 18(3) of the AH Act, according to WGAC.

1. I would respectfully incorporate without repeating again the reasons in Tulloh at [18] through [27]. That discussion relieves me of the task of summarising any further all the leading case authorities in this area. Essentially, the same line of cases as discussed by Le Miere J are similarly invoked by WGAC upon the present applications, including Bhardwaj, Plaintiff S157/2002 and the full Federal Court's decision in Jadwan.  Further case authority is collected in Tulloh at [26] from other Australian Intermediate Courts of Appeal.

2. For present purposes, it is enough that I extract from Tulloh at [28], where Le Miere J conveniently synthesises all the case authorities - distilled to three case propositions, expressed in the following terms:

   In my opinion, the effect of the authorities is as follows.  First, an administrative decision which involves jurisdictional error is legally invalid.  Secondly, an administrative decision which is legally invalid does not necessarily have no legal effect unless and until it is set aside or declared to be invalid.  Thirdly, whether a legally invalid decision has any relevant legal effect before it is set aside or declared to be invalid depends upon the statutory framework under which and the context in which the decision is made.

3. I respectfully adopt that synthesis of the cases and the summary propositions derived from them. 

4. That synthesis aligns, in my assessment, with what is now found in chapter 9 of Wade and Forsyth's Administrative Law text at page 248, where it is said:

   The voidness of invalid acts also flows from the classic approach to ouster clauses and the necessity of collateral challenge to the rule of law as explained elsewhere.

   But, as will be seen, an absolute approach to invalidity, although principled and resting upon high authority, poses conundrums that need to be understood in order to be resolved.

5. Le Miere J's close analysis of the leading cases in Tulloh shows that, properly understood, they do not support any absolute approach to an invalidity conclusion - particularly applying the observations in Jadwanby Gray and Downes JJ at [42], which were recently approved in Hossain:  at footnote 23 from [24] of the plurality's reasons.

Tulloh:  Wider acceptance of the second actor theory

1. In Tulloh, Le Miere J at [36] cited extensively from another of Professor Forsyth's articles in this area, 'The Theory of the Second Actor Revisited' (2006) 1 Acta Juridica 209, 215 from pages 220 to 221 (see [36] and [40] of his Honour's observations). 

2. At [37] Le Miere J noted an approval of the second actor theory in Boddington v British Transport Police [1999] 2 AC 143, 172 (by Lord Steyn). That conclusion followed Lord Steyn's reference to Professor Forsyth's further essay in this same area 'The Metaphysics of Nullity - Invalidity, Conceptual Reasoning and the Rule of Law' (1998). At page 159 of Boddington, Lord Steyn had said:

   Nevertheless, I accept the reality that an unlawful bye law is a fact and that it may in certain circumstances have legal consequences.

3. In Tulloh, Le Miere J also discussed a leading decision of the South African Supreme Court of Appeal, Oudekraal Estates (Pty) Ltd v City of Cape Town (2004) SA 222.  In that appeal at [28] - [29] Howie P and Nugent JA said as regards the second actor theory:

   Central to that analysis is the distinction between what exists in law and what exists in fact.  Forsyth points out that while a void administrative act is not an act in law, it is, and remains, an act in fact, and its mere factual existence may provide the foundation for the legal validity of later decisions or acts. 

   In other words [and citing Professor Forsyth's 'Metaphysics of Nullity' essay]:

   'An invalid administrative act may, notwithstanding its non-existence [in law], serve as the basis for another perfectly valid decision.  Its factual existence, rather than its invalidity, is the cause of the subsequent act, but that act is valid since the legal existence of the first act is not a pre-condition for the second.'

4. Noting Lord Hoffman's views in Regina v Wicks [1998] AC 92 at 117, the President and Nugent JA continued at [31]:

   Thus the proper enquiry in each case - at least at first - is not whether the initial act was valid but rather whether its substantive validity was a necessary pre-condition for the validity of consequent acts.  If the validity of consequent acts is dependent on no more than the factual existence of the initial act then the consequent act will have legal effect for so long as the initial act is not set aside by a competent court.

5. In Tulloh, at [37] of the reasons, Le Miere J observed further that the second actor theory had been referred to with evident approval by Kirby J in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391. Reference was to [321] of Kirby J's reasons and from there, to footnote 408, where Kirby J wrote (after citing the reasons of Gummow and Hayne JJ in Bhardwaj at [199] - [200]):

   An analogous problem arises, and has been sensibly solved, in respect of the finding that an administrative act is a nullity.  That finding does not deprive the Court so finding of the jurisdiction and power to renounce, and to give effect to, its conclusion; cf Taggart, 'Rival Theories of Invalidity in Administrative Law:  Some Practical and Theoretical Consequences' in Taggart (ed), Judicial Review of Administrative Action in the 1980s (1986) pp 70-102; Forsyth, 'The legal effect of unlawful administrative acts:  the theory of the second actor explained and developed' Amicus Curiae, vol 35 (2001) 20.

6. I would only seek to add to the assembled literature in this area what was Professor Forsyth's further article in this area, 'Showing The Fly The Way Out Of The Fly Bottle:  The value of formalism and conceptual reasoning in administrative law' (2007) 66(2) Cambridge Law Journal 325, 325 - 347, particularly at pages 340 - 341.  Emphasising that a close analysis of each unique statutory framework surrounding each case is essential in the application of this theory, Professor Forsyth observed at page 341:

   The effectiveness of the first act thus depends on the second actor having legal power to act.  The theory does not lay down what the powers of the second actor are.  All it does is to indicate where the judge is to look for the answer:  in the formal legal powers of the second actor.  And while the theory provides no specific guidance as to how the powers of the second actor are to be determined when not expressly laid down in statute, some guiding principles - formal of course - are beginning to emerge.

My application of the second actor theory to present facts

1. Let it be assumed for the moment that one or more of the jurisdictional error grounds of challenge against the ACMC as presently advanced by WGAC are eventually found to be established. The question is where that would lead as regards the Minister's subsequent s 18(3) conditional consent decision.

2. Returning to Tulloh for the moment, Le Miere J at [39] had applied Professor Forsyth's second actor theory, by posing first a question whether the substantial validity of the first act (the subsequently quashed parole cancellation order), was to be assessed as a necessary pre‑condition to the validity of the second act (determination of Mr Tulloh's release date and detention of Mr Tulloh). The answer for Tulloh, as it will be here, is to be found in the underlying statutory context, applying the approach of the full Federal Court in Jadwan (and the subsequent cases using that same approach). 

3. At [42] in Tulloh Le Miere J concluded that the determination of Mr Tulloh's release date and the lawful authority of the CEO of the Department of Corrective Services to detain Mr Tulloch was

   … not dependent on the validity of the cancellation order but merely upon the fact that it was made.

   His Honour continued:

   Put another way, the legal validity of the cancellation order is not a precondition for the Chief Executive Officer to determine a prisoner's release date based on the cancellation order and detain a prisoner after a cancellation order has been made in fact.

4. Three reasons were said to underlie his Honour's conclusion in Tulloh.

5. The first of the reasons discussed at [43] understandably deals with the unique statutory framework underlying that litigation, namely, the West Australian sentencing administration legislation (the Sentencing Administration Act) and the Sentencing Acts in combination.  There the indication arising from the close analysis of that legislation was that a legally invalid parole cancellation order would still carry legal consequences.  Hence, that order, albeit invalidated by certiorari, was not assessed within that overall legislative regime to be assessed as completely without any existence or effect in law. 

6. Similarly, towards the present applications by WGAC, a wholly different and unique statutory framework presented under the AH Act, at the end, must be substantially determinative of this question. Close attention must therefore be directed contextually within the AH Act to the powers and functions of the Minister under s 18(3) - as he would be the relevant 'second actor' in the present circumstances. Later I offer some further discrete remarks concerning the Minister's role and position within the AH Act in due course, but it is sufficient to say that the AH Act at s 18 establishes a two step regime ultimately directed to an owner's avoidance of prosecution for damaging an Aboriginal site and thereby being exposed to a criminal sanction. I see no room in this regime for supporting collateral attacks against a Ministerial consent but undermining the works or processes of a lower tier body whose recommendation is ultimately not binding on the Minister.

7. A second determinative consideration bearing on Le Miere J is also found discussed at [44] in Tulloh. Again, this is a policy consideration that is relevant to and must also carry a strong resonance for the present application of WGAC - as regards a first actor's decision (ie, the ACMC's s 18(2) recommendation) made within a legislative framework that specifies a regime of a decision of an advisory body intended to be received by and later possibly used by another subsequent decision maker. [For the present case, of course, the ACMC's recommendation was only to the Minister, but it must be seen in the overall context of the FMG Parties' s 18(2) notice first requesting a ministerial consent made by land owners (as defined) who were seeking the consent to lawfully pursue in the future mining related activities that might otherwise expose them to prosecution for an offence against s 17, by reason of the occasioning of damage to an Aboriginal Site.]

8. Le Miere J had mentioned at [45], from Tulloch's statutory context that the ascertained legislative indication was that 'certainty' was, in effect, a policy consideration of some importance, in construing that statute - as regards the rights of subsequent persons (second actors) who would be necessarily acting on an earlier (first) decision of the Prisoners Review Board, ie, the decision to cancel Mr Tulloh's parole.  Multiple pejorative repercussions might arise if a cancellation order could be widely just ignored before a court quashed it.  These were live considerations for his Honour.  In that statutory context there was a demonstrable overall need for certainty in the application of that overall statutory regime concerning prisoners.  Hence, that same policy consideration as to a required level of certainty 'down the line' for subsequent decision makers resonates equally as a policy consideration of force to be weighed as well.

9. At [46] Le Miere J observed in Tulloh upon a problem faced by the CEO of the Department of Corrective Services by reason of that (second actor's) 'inability to know' that a cancellation order which was acted upon was 'legally invalid before it is declared to be so'. To that end his Honour had observed at [46]:

   The legislature could not have intended the CEO [of the Department of Corrective Services (ie, the second actor)] to enquire into and be satisfied that the cancellation order is legally valid before acting on it.

10. His Honour also mentioned the policy observations by the High Court of Australia in The State of New South Wales v Kable [2013] HCA 126; (2013) 252 CLR 118 [40]. There the plurality (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler & Keane JJ) said:

    On Mr Kabel's argument, the order was without legal effect and should not have been obeyed.  The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments.  More fundamentally, as the legal philosopher Hans Kelsen wrote:  '[a] status where everybody is authorised to declare every norm, that is to say, everything which presents itself as a norm, as null, is almost a status of anarchy.'

11. The very same orderly governance policy considerations carry a resonance on the present applications where here, as with the facts of Tulloh, absolutely nothing was before this Minister from the ACMC or otherwise to potentially 'red flag' or alert the Minister to some underlying vitiating ACMC problem within the recommendation as received at the time the Minister came to consider the question of giving a consent under s 18(3) of the AH Act. In other words, all the ACMC recommendation briefing material that was sent to and was put before the Minister - on its face - gave him no hint at all of any underlying, invisible flaw in the work of, or in the processes of the ACMC up to the point of that statutory committee presenting its written recommendation under s 18(2) of the AH Act to the Minister. Sometimes a different statutory regime might 'red flag' more transparently an obvious underlying demonstrated deficiency of process or substance. But that is not the case for the s 18 AHA regime. This supports a view that once a recommendation of fact is received from the ACMC by the Minister that the Minister is fully empowered to act under s 18(3).

12. The last of the three determinative considerations prevailing in Tulloh influential towards the conclusion ultimately reached by Le Miere J, is found discussed at [48] of the reasons.  It likewise also carries a strong resonance for the present application of WGAC and the applicability of the second actor theory.  His Honour noted there that the second actor's conduct in detaining Mr Tulloh after the cancellation order concerning his parole had been an administrative act and had been specifically addressed to that individual prisoner (ie, to Mr Tulloh).  It was not an administrative act that had been addressed more widely, ie, to bear upon a greater range of affected persons.  A limited range of application was another indication suggesting the legal validity of the cancellation order was not a pre-condition to the validity of the subsequent actions of the CEO of the Department of Corrective Services (applying Lord Irvine's observations from Boddington from pages 161 - 162).

13. Again here, it is also clear enough, upon WGAC's applications that the Minister's consent was a decision that was required to be specifically communicated by s 18(3) of the AH Act to only the FMG Parties as the persons (as owners) who had invoked a process afforded to only them as owners by s 18(2) of the AH Act - as a uniquely provided exculpation mechanism by statute for owners to avoid potential prosecution for undertaking future works upon their land - if their future works might otherwise cause damage to an Aboriginal site. And here, of course, the nature of the second actor's consent decision (ie, made by the Minister) in these overall s 18 AH Act circumstances was only applicant specific (ie, benefiting only the s 18(2) applicant land owner) as in Tulloh, rather than being an administrative decision, say, of the wider application to a broader sector of the State's community. 

14. Moreover, I can observe further for present circumstances that a ministerial consent obtained by the FMG Parties as 'owners' under s 18(3) is likely to be a necessary component of an overall wider expansion in iron ore mining operation plans. The Minister's s 18(3) consent for the owners is likely to be of a wider commercial significance - well beyond being a personal protection against a future prosecution for infringing s 17 of the AH Act. Obtaining of the s 18(3) consent of the Minister would likely be of project due diligence importance in the wider context as a required milestone necessary to be met in a project expansion process. Obtaining the s 18(3) consent is likely to carry affirmative implications for project expansion needed to satisfy persons such as bankers, financiers or the like. The advancing of a massive iron ore expansion project would typically require a satisfaction of a multitude of due diligence steps or enquiries all assembled to be fulfilled towards satisfying pre-requisites such as project funding, venture participation by others and the like.

15. As seen here, the Minister did provide the s 18(3) conditional consent document to the FMG Parties, with the accompanying conditions to be met with that consent.

16. Potential for a subsequent ex post facto invalidating of the s 18(3) ministerial consent, predicated only on a late unearthing of some argued jurisdictional error, not by the Minister but by an earlier stage recommending advisory body (whose recommendations did not in any event bind the Minister) may be seen within the framework of the AH Act as a whole as the antithesis of providing long term commercial certainty for a major expansion of a mining project once the Minister's consent had finally issued under s 18(3).

17. Uncertainties presented for a multi-million dollar expansion project arising from a successful after‑the‑event collateral attack against a Minister's as issued s 18(3) consent, grounded only on a court's subsequent identification of a downstream error by the advisory body to the Minister, are not satisfactorily answered by a palliative response of certiorari possibly being denied by a court as a discretionary consideration where the Minister's consent decision has issued and been relied upon. An undermining of a s 18(3) consent by collateral attack surrounding a major mining project, emerging only after the event of an issued consent would deliver obvious and unacceptable long-term and destabilising economic uncertainty - in the nature of a concern akin to a sovereign risk. Such commercial uncertainty is discordant with the statutory objectives of the AH Act assessed as being enacted for the benefit of the whole West Australian community. I would assess the enforcement of s 18(3) of the AH Act to be as equally receptive to an affirmative application of the second actor theory as in Tulloh, if not greater.

The role of the Minister under s 18 of the AH Act

1. I earlier discussed by reference to case authority the statutory framework of the AH Act as legislation, which has been the subject of much prior curial consideration by this court, both in the Full Court and later at first instance in all the decisions I collected earlier.

2. I have now also set out subsections (2) and (3) of s 18 of the Act, which address the consent regime and therein the relative roles and contributions of first the ACMC, and then the Minister, in relation to an application made by an owner (as defined) - initiated by a given notice of the owner (as defined) seeking to obtain the consent of the Minister and thereby to avoid a future potential prosecution for violating s 17 of the AH Act, as regards future works negatively affecting an Aboriginal site (as defined).

3. I can detect nothing within s 18 itself, from its surrounding legislative context in the AH Act, or beyond that even from within the objectively assessed purposes of the AH Act as a whole to support an end position that a jurisdictional error that is later detected in the decision or decision‑making processes of the ACMC (as an advisory body to the Minister) must necessarily always carry the consequence that a subsequent s 18(3) consent issued by the Minister, after the Minister has received and considered the ACMC's recommendation, must inevitably carry, as WGAC submits, the repercussion of invalidating a s 18(3) consent if given by the Minister. In other words, I am of the view that the jurisdictional pre-requisite for the Minister to properly exercise the power afforded under s 18(3) to provide a valid consent to an applicant land owner who has given a s 18(2) notice is simply the fact of a written recommendation from the ACMC, not a 'legally valid' ACMC recommendation as WGAC fundamentally submits.

1. The same repetition of what is the bare statutory language of s 39(2)(b) can be found in the next phrase used in particular (iii), namely:

   or any former or reputed use or significance attributed upon the basis of tradition, historical association and sentiment of the Eastern Guruma people …

2. Finally, a component to particular (iii) of ground 1A that reads:

   or associated sacred beliefs, and ritual or ceremonial usage of the sites

   is merely, in effect, a bare repetition of the introductory words to s 39(3).

3. As now seen, there is, on closer examination, no substantive factual detail within the so‑called particulars to support a challenge which is (like ground 1) essentially negative and conclusionary in its factual grievance premise.  The forensic inconsistency with ground 1A for WGAC, however, is that by its inherent premise (unlike ground 1), that if there was some degree of evaluation of the 12 Aboriginal sites by the ACMC, then this grievance presents very much like an 'on the merits' challenge put against the result of the decision of the ACMC - rather than being a legitimate jurisdictional error challenge.

4. By my end assessment, ground 1A must fail as a matter of both fact and law.  First, as a matter of fact, the state of the evidence is that the ACMC at its meeting on 11 July 2017 did have regard to s 39(2) and s 39(3) of the AH Act. The meeting's signed minutes now seen as appended to Mr Green's affidavit as attachment KJG3 at page 15 relate that the ACMC's site assessments were made in respect of 50 potential places (12 of which the ACMC then evaluated as being Aboriginal sites per s 5(a) of the AH Act). The signed minutes at the heading 'Site Assessment' proceed to say:

   Following discussion and consideration of sections 5, 39(2) and 39(3) of the AHA and the information provided, and having regard to the departmental advice received, the ACMC made the site assessments listed at Table 5.

5. Earlier, I set out the entirety of the ACMC's minutes in respect of the two resolutions it carried under agenda items 3.7.1 and 3.7.2 which carried the heading 'Section 18 Notice'. That is the evidentiary position as regards resolution 2017/085 (page 15 of Mr Green's affidavit) and for resolution 2017/086 (page 17 of Mr Green's affidavit).

6. WGAC, under par (1) of its particulars to this ground, argues that at the meeting on 11 July 2017 the ACMC 'purported to consider' the s 18 Notice. Use of the word 'purported' is tendentious. The state of the evidence, on the basis of the signed minutes for this ACMC meeting, is that the committee members present at that meeting did discuss and consider the s 18(2) notice as submitted by the FMG Parties.

7. A further factual contention under particular (iii) to ground 1A is that the ACMC:

   failed to have regard to existing use and significance attributed under custom of the Eastern Guruma people or any former or reputed use or significance attributed upon the basis of tradition, historical association, and sentiment of the Eastern Guruma people, or associated sacred beliefs, and ritual or ceremonial usage of the Sites.

8. As a matter of statutory construction, I am of the view that the underlying rigidity of the position as is contended for by WGAC as regards such as alleged mandatory considerations, is misplaced. That is particularly so in circumstances where s 39(a)(ii) contains the word 'any', seen used as regards the phrase 'existing use or significance attributed under relevant Aboriginal custom'.

9. The word 'any' is seen again to preface the following s 39(b) and (c). Beyond that, the primary considerations mentioned under par 39(3) are to be regarded only 'insofar as such matters can be ascertained'. That terminology suggests something less, I would conclude, than a mandatory requirement that is applicable on all occasions.

10. That same terminology leads me to conclude that such matters are only to be weighed up overall by the ACMC, where they present factually.  But on a case by case basis, they may not present, depending upon what evidence is put before the ACMC.

11. The present ground 1A challenge of alleged jurisdictional error must not be allowed to slide impermissibly towards, or to 'morph', into what is in truth a de facto merits challenge put against the ACMC's ultimate s 18(2) recommendation that issued, on a conditional basis.

12. The language used in s 39 does not suggest to me any absolute requirement bearing upon the ACMC to pursue an enquiry into s 39(2)(a) and (b) considerations, in every case. And it will be remembered that by s 34 it is for the ACMC to determine its own procedures, unless otherwise prescribed (with there being no relevant prescription in existence to date).

13. Another aspect of statutory construction bearing against ground 1A emerges after recognising that the ACMC, when acting under s 18(2), is by reference to the criteria of s 39(1) then acting under s 39(1)(ea) -which provides for the ACMC 'to perform the functions allocated to the Committee by this Act'. To that end, I accept the submission of the Intervenor (written submissions at footnote 52) that the long title to the AH Act is contextually relevant to the analysis. The long title provides for the AH Act to be:

    an Act to make provision for the preservation on behalf of the community of places and objects customarily used by or traditional to the original habitants of Australia or their descendants, or associated therewith, and for other purposes incidental thereto.

14. The role of the ACMC in recommending to the Minister under s 18(2) is plainly one of the incidental 'other purposes'.

15. Section 18 of the AH Act can remove a possibility of a landowner later being held liable for committing the offence of interfering with an Aboriginal site or object on or under an Aboriginal site. But to that end, it does not create or remove legal rights in or in relation to land.

16. It may now be seen then that s 18(2) and (3) merely provide a process whereby a landowner (as defined) may lawfully interfere, including to the point of destruction, with an Aboriginal site or object, that the AH Act would otherwise be directed towards preserving. That is the horizon, in my view, from which the s 18(2) phrase 'evaluate the importance and significance of any such site' should be viewed.

17. From that horizon, it can next be seen that:

    (a)there is a conceptual overlap to some extent in s 18(2), as regards a use of the adjectives 'importance' and 'significance' for circumstances where (as here) an Aboriginal site has been identified by the ACMC on an owner's land based upon using and meeting the criteria of s 5(a) AH Act - given that s 5(a) itself is predicated on meeting the same adjectival criteria of 'importance and significance' for a place where persons of Aboriginal descent and objects and purposes connected with the traditional cultural life of Aboriginal people past or present;

    (b)the 'importance and significance' criteria overlap as between s 5(a) and s 18(2) may perhaps be viewed as historically anomalous - given the amendments to the Act after 1972, and the subsequent introduction in 1980 of the same concepts of importance and significance now to be used as s 5(a) criteria. By contrast s 18 had already used the same 'importance and significance' as evaluative criteria adjectives, since inception of the AH Act in 1972;

    (c)even more fundamentally, however, the repeated use of these two adjectives in the AH Act at various places would indicate that the overall evaluative process as was to be undertaken by the ACMC under s 18(2) leading to any recommendation is inherently qualitative in character, not quantitative. This evaluative exercise is not to be undertaken by reference to any numerical touchstone or an arithmetical sliding scale towards 'importance or significance' as regards a s 18(2) recommendation. Such utilised concepts for the required evaluation by s 18(2) are inherently intangible and impressionistic criteria which do not lead themselves to a linear gradation measurement exercise;

    (d)so informed, s 39(2) as regards the importance of places and objects only provides what are conceptual pointers for a potential use in the evaluation process. In the end, the s 18(2) recommendation process for the ACMC is still one of qualitative relativity to be reached by a committee of persons, rather than by any exercise of graduated, arithmetic measured precision;

    (e)it would also be an error of statutory construction, in my view, to assess the meaning of s 18(2) on a compartmentalised basis - by reference to a required attempted assembly of distinct, non‑intersecting components of the importance and significance concepts. The exercise in the initial identification of an Aboriginal site by the ACMC, especially when reached by use of the s 5(a) criteria, may well conceivably and conceptually intersect and overlap intellectually with the subsequent evaluation of that site's importance and significance from a s 18(2) recommendation perspective. This, in turn, must overlap with any ensuing recommendation of the ACMC to the Minister - in terms of recommending either the granting or the withholding of consent, or the granting of consent upon conditions. Here an ACMC recommendation (hypothetically) to not grant consent by the committee would usually reflect the inherent assessment of a high level importance and significance by the ACMC, or vice versa;

    (f)the very nature of the work and processes of an advisory committee comprised of individual persons holding different fields of expertise and diverse backgrounds, that is required to reach a singular recommendation to the Minister, is also a factor to be weighed as a consideration here, in my view. The need for a simple ultimate consensus to be reached from a diversity of natural person committee members would, just as for end verdict decisions upon guilt or innocence reached by a jury at a criminal trial, require that a multitude of intangibles to be processed and distilled from different perspectives - before any singular end recommendation. Thus, WGAC's arguments about mandatory evaluative criteria arising out of s 39(2) and (3) cannot be accepted, once viewed against the character and constituents of such a multi-person statutory recommending body. The very nature of such a recommending body points to a conclusion that matters identified in s 39(2) and (3) are in the nature of criteria by way of guidance or, in the case of s 39(3), of relative priority, to the ACMC. But these are not rigid mandatory touchstones to be uniformly or rigidly applied in every case.

    The WGAC submission that there is mandatory criteria for every case is incompatible, in my view, not only with the nature of the ACMC's s 18(2) recommendation task, but also with the very nature of what the committee that is asked to perform under a task of recommendation; and

    (g)furthermore, the character of the s 39(2)(a) to (d) and (3) criteria themselves are demonstrably in the nature of loosely framed tools of guidance, eg, 'potential anthropological, archaeological or ethnographical interest', rather than rigid tools of precise measurement. Again, this feature is not consistent with the high level of rigidity asserted by WGAC towards them as being mandatory considerations.

18. In any event, I would reiterate that as a matter of fact WGAC's ground 1A certiorari challenge must at the end fail, on the basis that the clear state of the evidence is that the ACMC did discuss and consider s 39(2) and s 39(3) - as the signed minutes for the meeting of 11 July 2017 record. To the extent the WGAC ground 1A challenge seeks to cavil beyond that point by some level of de facto merits review, it goes too far.

Ground 2

1. The ACMC's s 18(2) recommendation to the Minister was only ever that, ie, a recommendation. It was not advice, or a 'report' which, by way of contrast, is sometimes a different function that is required to be undertaken by the ACMC, via different parts of the AH Act. See, for instance, as to advice to the Registrar (s 16(2)). And so, for the ACMC's otherwise required reporting function to the Minister, s 19(2) and by s 21 (as regards objections to declaration).

2. In the overall statutory context then, it is first necessary to note the statutory composition of the ACMC - the subject of pt V of the AH Act. The ACMC's members are identified under s 28 to include both appointed members and ex officio members to constitute what is the 'advisory body' established under s 28(1).

3. Also to be noted is a requirement for one ACMC member to hold specialist expertise in the field of anthropology related to the Aboriginal inhabitants of Australia: see s 28(3). I also note the s 28(4) AH Act requirement to appoint ACMC members, who are:

   selected from amongst persons, whether or not of Aboriginal descent, having special knowledge or responsibility which in the opinion of the Minister will assist the committee in relation to the recognition and evaluation of the cultural significance of matters coming before the Committee …

4. The recording of the proceedings of the ACMC is dealt with by s 33(1). The significance from an evidentiary perspective of the signed minutes by the chairperson of the ACMC towards the 'proceedings' at a meeting has already been discussed.

5. The procedures by which the ACMC is to conduct its proceedings is left for it to determine for itself by s 34 (unless otherwise prescribed for, but with there being no evidence of any such prescription to date by a relevant regulation). 

6. I have already mentioned the key role of the Registrar in terms of that person also administering the day-to-day operations of the ACMC. See also s 39, which I set out earlier.

7. As I mentioned earlier, no previous decision by this court has yet concluded that the ACMC is under an obligation to include with a s 18(2) recommendation to the Minister the ACMC's reasons in writing for evaluating the importance or significance of an Aboriginal site or sites to accompany the recommendation to the Minister. I am not persuaded to deviate from that position.

8. The recommendation task given to the ACMC by the concluding text of s 18(2) expressly limits the scope of a recommendation to the Minister (who is only obliged to consider, but to not necessarily act upon them or even be bound by them) to the limited recommendation options of either:

   (a)recommending that ministerial consent be given to a proposed use of land by an owner that has caused a s 18(2) notice to issue;

   (b)recommending that no consent be given to the proposed use of the land for the purpose; or

   (c)recommending the extent to which and any conditions upon which a ministerial consent should be given. 

9. Here, the ACMC's recommendation was that the Minister's consent be given, upon the specified conditions as articulated within its recommendation resolution, the subject of its 11 July 2017 meeting minutes.

10. None of the above features of the ACMC as a statutory advisory body comprised of chosen individual members suggests that the ACMC was obliged to provide the Minister with written reasons explaining or elaborating upon the ACMC's assessment of the (relative) importance and significance of sites. That view is supported by the limited range of possible ACMC end recommendations under s 18(2) - ie, 'yes', 'no', 'yes, with conditions'. Those options necessarily carry, by way of clear implication, the ACMC's underlying evaluations as a committee upon 'importance and significance' - in terms of whether the s 18(2) owner's proposed works purposes have been assessed as regards any identified Aboriginal sites as being either, in effect, tolerable, intolerable or tolerable with conditions.

Grounds 3 and 4

1. Grounds 3 and 4 contend for the absence of procedural fairness by the ACMC to the WGAC. Both grounds are tied to WGAC's underlying argument of statutory construction about some asserted interrelationship, with a s 16(2) authorisation from the Registrar, which was also resolved upon by the ACMC at its meeting on 11 July 2017 and (under ACMC agenda item 4.1 and resolution 2017/089). The ACMC had resolved, pursuant to s 16(2), that the Registrar issue a s 16(2) permit to WGAC to enter on and excavate at 10 of the 12 identified as s 5(a) Aboriginal sites.

2. In essence, ground 3 argues the ACMC erred from a procedural fairness perspective, regarding WGAC, by failing to defer or adjourn its consideration of the FMG Parties' s 18(2) notice to allow WGAC to undertake its examination of 10 sites under s 16(2), and then to wait further for WGAC to report (possibly) by providing information to the ACMC - assuming anything relevant ever emerged from WGAC's foreshadowed investigations at 10 Aboriginal sites.

3. Ground 4 relies on the same ground 3 particulars.  The refashioned argument made under ground 4 is that the ACMC's decision to recommend a consent (on conditions) to the Minister, rather than defer a recommendation, was so fundamentally wrong that no reasonable committee could have reached it or, alternatively, that it was, applying the terminology of Li, either 'irrational' or 'illogical' or both.

4. By my ultimate evaluation, both grounds 3 and 4 proceed on a fundamental interpretative misconception by WGAC made towards an existence of an interrelationship as between s 16(2) and s 18(2) and (3). However, there is no such interrelationship. It is clear from the examination of s 16(2) and s 18 (which ultimately both provide a basis for obtaining a protection against a future prosecution for committing an offence against s 17), they deal with entirely different subject matters. Section 16 allows either the Registrar by s 16(1), or a person authorised by the Registrar's permit under s 16(2), to enter upon and 'excavate' an Aboriginal site for the purpose of the removal of some 'thing' from the site. In other words, s 16(2), assessed in the preceding context of s 16(1), displays a legislative intent towards a salvage task conducted at an Aboriginal site, by someone other than the Registrar for materials ('any thing') from an Aboriginal site. The Registrar's authorisation to that salvage end requires the input of the ACMC by way of advice to the Registrar being received or, indeed, as to any conditions that the ACMC might advise to the Registrar for that salvage approved exercise.

5. By some contrast, s 18 does not address at all the topic of excavation and salvage, or a removal of materials from an Aboriginal site. Instead it deals with a future looming use or an activity as proposed by an owner (as defined) of their land - and where the land is required by the owner to be used for a purpose 'likely to result in a breach of s 17 in respect of any Aboriginal site on the owner's land'.

6. The regime under s 18(2), afforded only to an owner of land, is a wholly different subject matter - well beyond the more limited notions of excavation and salvage at an Aboriginal site under s 16.

7. The ACMC's s 16(2) recommendation to the Registrar by resolution 2017/089 has somehow been upgraded by WGAC to a position which, as argued, sees WGAC by a s 16(2) Registrar's permit being authorised to conduct a cultural investigation and report exercise for ACMC - in order to gather possible information for the purpose of furthering the ACMC's evaluations towards a recommendation to the Minister under s 18(2) on the FMG Parties' notice. This is a completely misconceived and untenable notion. It displays an erroneous blurring of functions, as between s 16(2) concerning, in effect, only the salvage of an affected Aboriginal site, as opposed to the entirely different s 18(2) work of the ACMC recommending to the Minister about whether foreshadowed future works under an owner's purpose as regards the likely future impacts as against an Aboriginal site or sites are either recommended or not (or recommended with conditions). There is no room at all for an external entity like WGAC under the AH Act to be subcontracted, in effect, to conduct an investigation for the ACMC under s 18(2) as regards an Aboriginal site, in the context of a s 18(2) evaluation to be undertaken by the ACMC.

1. WGAC's arguments by grounds 3 and 4 reflect a serious misapprehension about the limited salvage objectives underlying s 16. A s 16(2) authorised salvage and excavation exercise does not correlate to the exercise of WGAC conducting its own 'investigation' about the 'importance and significance' of an already identified Aboriginal site, or of WGAC involving itself via s 16 in the s 18(2) processes of the ACMC in possibly recommending something to the Minister. Nor is it at all relevant here that the Registrar at the time looks, in fact, to have been a source of WGAC's interpretative misapprehension about s 16(2) and its (non)relationship with the s 18(2) process. That feature is substantively irrelevant.

2. Consequently, grounds 3 and 4 must be dismissed as without merit.

Conclusions

1. In the end, all of WGAC's grounds of challenge are seen to fail after an evaluation of their merits, as against all respondents.

2. But as explained, even if any of the WGAC's grounds of challenge under grounds 1, 1A, 2, 3, 4 and 5(a) had been made out, the assessed proper engagement here of the second actor theory would still mean that the grounds could not undermine the force of the Minister's s 18(3) conditional consent decision once issued. That is because in this statutory environment uniquely assessed, all that was required for the Minister's power under s 18(3) to be available was a recommendation in fact from the ACMC as there undoubtedly was. Hence, all challenges against the Minister's s 18(3) conditional consent decision would still fail in any event.

3. So, at the end, the application of WGAC fails at all levels and must be dismissed.  Taxed costs should also follow that event.  Prima facie, I am of the view that cost scale allowance limit removal orders should be made, given the unquestionable underlying importance, complexity and magnitude of the many issues that were required to be canvassed in this litigation.

4. Hence, the application of WGAC will stand as dismissed upon the publication of these reasons.  Otherwise, I will reserve all other issues, including as to costs orders.  I will allow a 21 day period for conferral as between the parties and the Intervenor by their legal representatives after the publication of these reasons.  I will hear the parties, if necessary, either at court or on the papers as to all further orders if an agreed minute of orders cannot be consensually provided after that 21 day period.

ATTACHMENT A

ATTACHMENT B

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DW
Associate to the Honourable Justice Martin

15 FEBRUARY 2019