Summary of primary judge's reasons for judgment
31 As previously mentioned, her Honour's reasons for judgment are very lengthy, which reflects the way the case was presented below. To avoid adding to what are already lengthy reasons for judgment here, we will highlight only the key relevant features of her Honour's reasoning which are the subject of the multiple grounds of appeal.
32 The primary judge emphasised the two limbs to s 19(5)(a), which she described as the "understanding" limb and the "consent" limb respectively (J[236]). Her Honour described the first limb as making it clear that all traditional owners should understand the nature and purpose of the proposed grant, whereas the structure of s 19(5)(a) indicated that the phrase "as a group" only applies to the second limb. This means that the second limb does not require unanimity. However, unless the group of traditional owners has elected to have a decision-making process by a majority under s 77A(b), a simple majority of traditional owners will not necessarily suffice. Her Honour noted at J[238] that there may be reasons related to the seniority position of certain individual traditional owners which requires their consent for there to be consent "as a group".
33 It is convenient now to describe in a little more detail the key relevant findings of fact made by the primary judge which provided the factual framework within which the multiple grounds of judicial review were considered and rejected. Her Honour noted that, while some matters of detail were disputed, there was largely uncontested evidence at a general level as to key aspects of traditional decision-making in the Amoonguna community. The evidence of Ms Marie Ellis and Ms Wilmot (who had written a report for the CLC in 2012 concerning traditional ownership and decision-making structures) was considered to be generally consistent, save in relation to the status of Ms Elaine Ross as Apmereke-artweye, as well as consultation requirements between Apmereke-artweye and Kwertengerle. To the extent of any inconsistency, her Honour said that she accepted Ms Ellis' evidence, given that she is a traditional owner (J[242]). The primary judge set out Ms Ellis' relevant evidence at J[243]. Those extracts included the following statement by Ms Ellis (emphasis added):
Factors such as gender, knowledge, seniority and long-term residence also bear upon the strength and priority of responsibility we Arrernte people have in relation to our estates.
34 Although the primary judge noted that a copy of Ms Wilmot's 2012 report was not before the Committee when it made its decision (J[245]), that report relevantly identified Ms Elaine Ross as a senior Apmereke-artweye and Mr Paul Williams as a senior Kwertengerle (J[246]). Her Honour also noted that Ms Wilmot had stated in an earlier document that in 2010 it was unclear who was the next "head man" with the passing of the previous person with this status. Ms Wilmot stated that Mr Phillip Alice, "while assertive, does not have the appropriate ritual authority and care should be taken, when taking instructions that Philip (sic) does not bolster his own views by drawing on the support of the Tilmouth family".
35 The primary judge set out extracts from Ms Wilmot's affidavit evidence which explained how she had reached the conclusion in her report to the CLC Committee that the traditional owners, as a group, had consented to the grant of the impugned leases (J[252]). For convenience, that material is set out below (without alteration):
34. I then observed Phillip Alice, who I know as one of the senior traditional Aboriginal owners, tell Bob Gosford that they wanted to go ahead with the leases to the NT Government, IES, [MRC] and the Congress. No one in the room disagreed with what Phillip Alice said. Phillip also said that Jeffrey Oliver, Edward Neal and Elaine Ross, who were not at the meeting, had agreed to the leases.
35. As I have mentioned, I understand Jeffrey Oliver to be the senior kwertengerle and so he should normally be consulted by the apmereke-artweye. At the 12 October 2016 meeting Philip Alice said that senior apmereke-artweye men had met with Jeffrey Oliver to discuss the lease proposals. I was also aware that Jeffrey Oliver had attended the CLC September meeting and Bob Gosford told me that he had spoken to Jeffrey the day prior to the 12 October meeting.
36. In my experience, it is common for one of the traditional Aboriginal owners to speak on behalf of the group. Also, in my experience, if that person does not faithfully represent the views of the group, then others in the group will speak up.
37. It is and was my opinion, again based on my based on my training, study and experience as an anthropologist, including my experience in working with the group over the last 12 years, that Phillip Alice validly expressed the consent of the group of traditional Aboriginal owners who have traditional responsibility for making decisions about country.
38. At the meeting, a group of mostly women refused to participate in the decision-making about the proposals for the leases of land at Amoonguna. The women were Nola Ross, Roseanne Ellis, Marie Ellis and Lynette Ellis. Grant Ellis also joined with this group. This group did not vote against the proposal, rather they signed documents that said that they would not participate in the decision. This group was also the most junior of the traditional Aboriginal owners who were present. In my opinion, this group did not, and could not under applicable Aboriginal tradition, "veto" a decision that was made by the senior men. When Philip Alice made the statements I described in paragraph 34 above, he also said something to the effect that this group of people were the nieces and nephews of the traditional owners.
39. For these reasons, I am and was satisfied that the traditional Aboriginal owners understood the nature and purpose of the proposal land use agreements and, as a group, consented to them, and that this happened in accordance with the decision-making processes applicable under the Aboriginal traditional of the traditional Aboriginal owners. I did not regard my absence from the September meeting as affecting my opinions of the validity of the October instructions.
40. During the meeting, I confirmed privately to Bob Gosford that there were sufficient senior traditional Aboriginal owners present to provide instructions, and I affirmed the validity of the instructions (when given by Philip Alice) by nodding my head to Bob Gosford. Immediately after the meeting, I told Bob Gosford my opinions, as set out in the previous paragraph. I then recorded my conclusions in my memorandum of 12 October 2016 to Bob Gosford so that the decisions of the group could be actioned by the CLC. This follows the usual CLC practice that the Anthropology section staff of the CLC involved in consultations on land use proposals provide to the staff who take a matter to the Council or Committee their views on whether or not the relevant traditional Aboriginal owners understand the nature and purpose of the proposal and, as a group, consented to it.
36 After summarising aspects of the cross-examination and re-examination of Ms Wilmot, the primary judge noted at J[257] that although she found some aspects of Ms Wilmot's evidence to be less than satisfactory, she was prepared to accept her evidence as to how she reached the opinion that she did. Her Honour said at J[258] that she was strengthened in this conclusion by Mr Connelly's evidence, whom she described as "a clear and reliable witness" (Mr Connelly is the head anthropologist at the CLC). In particular, her Honour noted Mr Connelly's view that, while there were clearly disagreements between Amoonguna traditional owners about decision-making processes, "such disagreements within the group may not prevent the group reaching a consensus on a particular issue". Mr Connelly said that given the status of Mr Jeffrey Oliver in the group, if there were competing views over his attitude to the impugned leases, it would be preferable that he attended any meeting and expressed his views personally. Mr Connelly said that this was not the case with Ms Elaine Ross, because there were others at her level of seniority. Moreover, her Honour accepted Mr Connelly's evidence that if it were the case that Ms Elaine Ross and Mr Edward Neal were required to be present for a decision to be made, his experience was that other people at the meeting would have stopped the meeting proceeding or advised that they were unable to make decisions. The primary judge also noted (and plainly accepted) Mr Connelly's evidence that he considered that Ms Wilmot was better placed than him to reach a conclusion about whether there was consent by the group, given the long period over which she had worked with traditional owners from Amoonguna (at J[261]).
37 The primary judge noted at J[263]-[264] that it was common ground that the question whether the correct traditional owners had in fact consented to the grant of the impugned lease, or whether the owners so consented as a group, were not questions for the Court itself to determine in the judicial review proceeding. They were questions for the Committee to determine in performing its function under s 19(5) of the ALR Act. Her Honour noted, however, that it was a part of the then applicants' judicial review case that the Committee was not adequately or completely informed about the nature and significance of the differing views within the group of traditional owners, nor was it accurately informed about the views of some of the senior people, especially Mr Oliver and Ms Ross (J[265]).
38 The primary judge found at J[277] that, as at the time of the Chifley Hotel meeting on 12 October 2016, there were "real differences of opinion" between traditional owners about whether or not the impugned leases should be granted or whether or not the CLC should make an arrangement with ICL. Her Honour then noted that merely because there was a divergence of views did not mean that the Committee could not be satisfied that there was "consent as a group". At J[278], the primary judge referred again to Mr Connelly's evidence that "consent as a group" may also involve some with opposing views effectively electing not to press them and that the "dynamics are likely to be many and various".
39 After summarising the evidence of Mr Oliver and Ms Elaine Ross (and noting that aspects of it were "somewhat more problematic"), the primary judge expressed the following findings at J[289]:
289. The evidence remains in a state of uncertainty, with many inconsistencies. The applicants have not discharged their burden of proving there was any material inaccuracy in the information provided to the CLC Committee (whether by omission or otherwise) concerning the views of Mr Oliver and Ms Ross about the impugned leases, as at 12 October 2016. Further, whether or not Mr Alice and Mr Gosford were inaccurate in conveying Mr Oliver's views is not determinative of the grounds of review advanced, for reasons I develop below.
40 The primary judge made certain findings regarding Mr Gosford's evidence as well as making various observations concerning s 77A of the ALR Act, including stating at J[303] that the absence of any evidence or concessions about whether either of the methods set out in s 77A was engaged in the decision-making culminating in the 12 October 2016 meeting was "problematic". It is important to note that the primary judge recognised that the two alternative methods set out in that provision were not exhaustive of the methods of decision-making which could be adopted (J[301]). Her Honour then made the following remarks at J[305] (emphasis in original):
305. It would appear, from the evidence, that an assumption was made that some kind of traditional decision-making process was to be undertaken. I infer that from the emphasis placed by Ms Wilmot on whether the "right" elders and senior traditional owners had agreed. Ms Ellis' own evidence would also seem to assume this was the process, as would the extract from Mr Connelly's cross-examination. However, s 77A(a) has a curious feature, to which no attention had been paid in this proceeding, and that is that it applies where a decision of a particular kind must be made in accordance with a traditional process. There was no evidence whether that was the case in relation to a decision about the impugned leases, but again perhaps it was assumed.
41 After noting that the parties had not paid much attention to s 77A, her Honour stated at J[306] that this provision might have been relevant to the grant of relief if the judicial review applicants established one or more of their judicial review grounds concerning the lawfulness of the Committee's state of satisfaction under s 19(5)(a).
42 The primary judge summarised the relevant evidence and made findings of fact on the material which was given to the Committee members and what they were told, noting that no evidence was given by any member of the Committee. Her Honour noted at J[312] that the Committee members "had a small window of opportunity to read and digest the papers, if the papers were not completed until the evening prior to the meeting". Her Honour also noted that Ms Campbell's paper, which was two pages in length (plus schedules), dealt not only with the Amoonguna land but also with proposals affecting four other communities.
43 Her Honour noted relevant parts of Mr Gosford's paper and its description of the September and October community meetings (J[318]). It is desirable to repeat that description (without alteration):
Those traditional Aboriginal owners that could not be present [at the 12 October 2016 meeting] told CLC staff that they were aware of and agreed with the decisions made at the meeting on 21 September 2016 and agreed that the senior male traditional Aboriginal owners were the right people to make decisions about the Amoonguna ALT.
As with previous meetings the leases, licences and interests for consideration included:
• Leases and licences to MacDonnell Regional Council - council office, workshops, parks etc;
• Leases to the Northern Territory government - school & sewer farm;
• A lease to Central Australian Aboriginal Congress - health clinic; and
• A lease of the whole of the Amoonguna ALT to ICL for 99 years & 2 99 year extensions
New matters for consideration included:
• Approval of Amoonguna township survey plans;
• Approval of upgrades to the town sewer works;
• Approval of upgrades to up to 50 houses at Amoonguna (and associated housing lease);
• Consideration of the Amoonguna Farm issues; and
• ICL charging Amoonguna residents a "poll tax" by way of rent on the houses in which ICL has no legal interest.
ICL representatives at the meeting advised that (a) at least 8 senior traditional owners had resigned from ICL in recent weeks, and (b) that the ICL representatives would not vote or consider any proposal for a lease or licence other than ICL's proposal.
Following staff presentation on these matters and an adjournment for lunch the traditional owners asked all residents and CLC staff to leave the meeting so that senior traditional owners could consider the matters.
After about 40 minutes staff were asked to return to the meeting to answer a number of questions. Senior traditional owners then advised CLC staff that they consented to the leases and licences to the MacDonnell Regional Council, to the NT government and Congress and to the application by the NT government for a development application to allow the correctly surveyed Lots in the town to be approved, so as to allow for leases longer than 12 years.
They wanted the CLC to pursue further negotiations - as a matter of urgent priority - with both the Commonwealth and NT governments in relation to the long-overdue housing upgrades and maintenance issues at Amoonguna that present real safety issues for residents and their families. They also expressed grave concerns about the administration by ICL of an inequitable and poorly managed housing rental arrangement that was unlawful.
Traditional owners rejected the ICL proposal but instructed CLC staff that when ICL was advised of their decision that they should also tell ICL that the traditional owners wanted to consider any future proposals that ICL may have for Amoonguna, particularly in relation to service provision.
44 Her Honour then noted the minutes of the Committee meeting and the single resolution it contained covering all five communities, including Amoonguna. The terms of the resolution relevantly included a statement that the CLC "being satisfied that the provisions of section 19(5)" of the ALR Act "have been satisfied".
45 The primary judge found at J[322] that an inference should be drawn that the discussion of Mr Gosford's paper occurred after the s 19(5) resolution had been made. Her Honour said that it was "unknown" whether any or all of the Committee members had read Mr Gosford's paper before voting on the resolution. This was because no Committee member gave evidence and other CLC witnesses either had not attended the meeting (i.e. Mr Gosford (see further [135(c)] below) and Ms Campbell) or, if they did, they gave no evidence about the meeting itself (i.e. Ms Wynniatt and Ms Rucioch). Her Honour stated at J[325] that she was not prepared to draw an inference that the Committee members had read all of the papers provided to them, including Mr Gosford's paper, before voting on the resolution because there was no evidentiary basis to infer that the Committee members had read the papers before the meeting. The papers had not been completed until after 5:00 pm the evening before the meeting and there was no evidence as to how the papers were physically provided to Committee members. In those circumstances, the primary judge said the following at J[326]-[328]:
326. The Court cannot make a finding one way or the other about what the Committee members did, or did not do, with the papers before them. Likewise, there is an insufficient evidentiary basis to accept the applicants' submission that because the resolution occurred before the Information paper was tabled, none of the Committee members had read the Information paper, and none of them took it into account in deciding how to vote on the resolution, and therefore in forming the requisite state of satisfaction for the purposes of s 19(5) of the Land Rights Act.
327. The applicants have the burden of proving the CLC Committee did not form the requisite state of satisfaction under s 19(5). They have the burden of proving what information was or was not considered by the Committee in forming that state of satisfaction.
328. They have failed to prove on the balance of probabilities that the Committee members did not read or consider both Ms Campbell's statement and Mr Gosford's Information paper. That does not mean, as I have noted above, that I accept the CLC submissions that I can infer they did read all the papers. The state of the evidence precludes a finding one way or the other. However given the burden lies with the applicants, they have not proved the negative fact they sought to establish.
46 At J[342], after emphasising the paucity of evidence about whether any particular process under s 77A had been applied, the primary judge inferred that traditional Arrernte law and custom required decisions about the impugned leases to be made in accordance with that law and custom. Accordingly, the Committee had to be satisfied that a decision-making process in accordance with that law and custom had occurred and resulted in the consent of Amoonguna traditional owners, as a group. Her Honour stated that there was a "role" for s 77A in the formation of the state of satisfaction under s 19(5). She added as J[343] that:
343. …On one view at least, the effect of s 77A on s 19(5) is that the CLC needs to be satisfied the decision was taken in accordance with Aboriginal tradition. If so satisfied, s 77A(a) deems consent as a group to have been given. That is a further difficulty for the applicants' case.
47 Her Honour concluded at J[347] that she rejected the submission that the direction to grant the leases was given simply on the "say-so" of Mr Gosford or Ms Wilmot. Rather, her Honour inferred that the Committee accepted what it had been told about the agreement of the Amoonguna traditional owners, as a group, on the basis that the decision was made under Arrernte law. Although it was unknown how much inquiry and discussion occurred on these matters amongst the Committee members, the primary judge proceeded on the basis that the Committee was able to use its knowledge and expertise to determine the issues before it (see J[347]).
48 It is desirable to set out J[348] and J[349] as they contain central parts of the primary judge's reasoning:
348. The applicants have not proven the decisions were taken without genuine thought or consideration. To adopt the language of Bromberg J, they have not proven there was an absence of active intellectual consideration by the CLC Committee, or a failure by the CLC Committee members to apply their own minds to whether the Amoonguna traditional owners, as a group, consented to the impugned leases. The applicants could have asked, but did not, for reasons for the CLC Committee's decision to give a direction to the AALT. They could have called members of the CLC Committee to give evidence and explain why they reached their decision. They did not. There is simply no evidentiary basis on which the Court can infer there was no thought, no analysis, no consideration or no discussion by the CLC Committee members.
349. It is to be recalled that each of the CLC Committee members is indigenous, and representative of CLC regions, including a region covering Amoonguna. These people are answerable to their communities and constituencies. They can be taken to understand how traditional decision-making processes work, and how group decision-making processes amongst Aboriginal people are generally conducted and concluded. It can be inferred they will all have experienced such processes in their own communities. They can be taken to understand hierarchies and seniorities within traditional Aboriginal law and custom. They may be likely to know personally some, or many, of the individuals involved in traditional decision-making processes. They may have some familiarity with the traditional law and custom that governs the decision-making they are assessing. Indeed they may be related or connected to some of the traditional owners who made the decision. That is part of why the Land Rights Act insists, in its scheme, that Aboriginal people constitute the CLC.
49 For these reasons, ground 1 of the judicial review application was rejected. The primary judge noted at J[350] that the ground also needed to have been differently formulated to take account of the deeming effect of s 77A.
50 As to that part of the challenge to the lawfulness of the Committee's satisfaction under s 19(5)(a) which related to the allegedly inaccurate or incomplete information provided to the Committee (ground 2 below), the primary judge summarised the relevant parts of Ms Campbell's and Mr Gosford's papers. The essence of her Honour's reasons for rejecting ground 2 of the judicial review application is at J[364] (emphasis in original):
364. I am not prepared to find the information provided to the CLC Committee was so deficient as to cause its formation of satisfaction to miscarry, or to be formed otherwise than in accordance with law. Unless put on notice by particular facts or circumstances, in my opinion a decision-maker in the position of the members of the CLC Committee is entitled to rely upon officers and employees of the CLC to provide information about traditional owner consent, including providing their own report. What Mr Gosford and Ms Campbell reported could be characterised in different ways. The applicants, consistently with their contentions, sought to characterise it as the opinions or assertions of Mr Gosford and Ms Campbell. I consider the better characterisation is that each reported what they were told, and what they observed.
51 It is relevant to also note J[373]:
373. In the present proceeding, the applicants have not proven that the information provided to the CLC Committee was wrong or untrue in any material particular. They have not proven that the CLC Committee members were unaware of dissent and disagreement with the traditional owner community at Amoonguna. It is not the case that there was no evidence for the matters set out in the agenda papers. Rather, the details about who attended the 12 October 2016 meeting, who did not, the identities of the senior and less senior traditional owners and what their individual views were, were absent from the briefing papers. In the circumstance of a committee such as this constituted by local Aboriginal people, including representatives for the region of Amoonguna, and in the absence of evidence or reasons from those Committee members, the applicants have not proven that what was in Mr Gosford's paper, and Ms Campbell's paper, was all the available information. They have not proven there was no discussion. The Committee's reasons for forming the state of satisfaction about traditional owner consent as a group remain unknown. I do not consider that the formation of a lawful state of satisfaction under s 19(5) necessarily requires written information at the level of detail suggested by the applicants. I do not consider in the present circumstances that the Committee was unable to be lawfully satisfied of traditional owner consent, as a group, unless it was expressly told in writing that Ms Ellis and those who supported her position did not agree, that Mr Oliver was absent, and that Ms Ross was absent. In fact, the Court does not know, one way or the other, whether some of these facts might indeed have been known to one or more CLC Committee members. That is an illustration of the failure to discharge the burden of proof. Finally, as I have noted above, the applicants have not proven on the balance of probabilities that what Mr Gosford and Mr Alice said (and were told) about the position of Mr Oliver and Ms Ross, on 12 October 2016, was wrong or untrue, if this formed part of the basis of the reports conveyed by Ms Campbell and Mr Gosford to the CLC Committee.
52 Her Honour's reasons for rejecting both aspects of the complaints of procedural unfairness may be summarised as follows (grounds 3 and 4 below). As to the complaint that there was procedural unfairness because of the matters summarised in [63] and [64] below, her Honour did not determine whether or not the then applicants were owed procedural fairness. This was because her Honour found that there was, in any event, no procedural unfairness in what occurred having regard to the nature of the decision-making processes being undertaken. The 12 October 2016 meeting was not a "hearing" on behalf of the Committee but rather was a process which was designed to give autonomy to traditional owners in their decision-making, with reference to the two limbs of s 19(5)(a). The meeting was not an opportunity to be heard as part of a wider decision-making process and no statutory power was being exercised at that time. Instead, the 12 October meeting was the attainment of "a precondition" to any subsequent exercise of power by the Committee. Her Honour emphasised at J[376] that the precondition was the consent by the group.
53 Her Honour explained at J[378] why Jeffs v New Zealand Dairy Production Marketing Board [1967] 1 AC 551 (Jeffs) was distinguishable.
54 As to the second aspect of the procedural fairness complaint, i.e. the failure to provide Ms Marie Ellis with full copies of the Northern Territory leases as requested by her at the Chifley Hotel meeting, her Honour explained why there was no denial of procedural fairness:
(a) the transcript indicated that there was a "clear willingness" by CLC staff at the Chifley Hotel meeting to tell traditional owners whatever they wished to know about the leases;
(b) in circumstances where there was a written presentation to traditional owners about the core lease terms, those present had a chance to ask questions and the Chifley Hotel meeting was a follow-up meeting to the earlier September meeting, there was no evidence that the actual terms of the leases were of any material concern to the traditional owners as a group;
(c) nor was it apparent why the precise terms were of concern to Ms Ellis and why she needed to review their detail;
(d) Ms Ellis was "implacably opposed to the grant of the impugned leases", and it was difficult to see what it was about the detailed drafting that might have been material to the group's, or indeed to her own decision; and
(e) there was no evidence that any other traditional owner needed to see the leases to make up her or his mind, or to understand the proposal.
55 Ground 5 below related to the then applicants' argument that there had been a failure by the Committee to consider relevant material. The primary judge said at J[396] that this ground depended upon the correctness of the then applicants' characterisation of traditional owner consent "as a relevant consideration in the exercise of the discretionary power to direct a Land Trust to grant an estate or interest in land". Her Honour repeated why she did not accept this characterisation. The consent of traditional owners, as a group, is a precondition to the exercise of a power of the statutory power to issue a direction. Accordingly, her Honour said at J[397] that a ground based on relevant considerations arguments must fail.
56 Significantly, however, her Honour's reasons for rejecting this ground did not stop there. Her Honour then proceeded to identify several other reasons why it should be rejected, namely:
(a) while Mr Bagshaw's report was due fairly shortly after the 12 October 2016 meeting, there was no evidence that Ms Wilmot's 2012 report concerning the composition of the traditional owner group Amoonguna was inaccurate as at October 2016 and it was also relevant that the then applicants sought to rely upon Ms Wilmot's report in some other grounds of judicial review;
(b) Mr Bagshaw was not called as a witness and there was no suggestion that if he did finalise a report (and no report was adduced in evidence), he reached conclusions which materially differed from the conclusions reached by Ms Wilmot in October 2016; and
(c) in any event, the primary judge was disinclined to accept that in 2016 or 2018 the Court should find that an anthropological opinion was material or critical to understanding the composition of a group of traditional owners in circumstances where that function is conferred on a body comprised of Indigenous people.
57 Her Honour then proceeded at J[401]ff to identify some confusion in the then applicants' contentions and their failure to appreciate the distinction between a relevant consideration argument (as in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 (Peko-Wallsend)) and a failure to deal with material or information actually or constructively before the decision-maker. This involved a detailed analysis by her Honour of authorities such as Peko-Wallsend, Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; 8 FCR 167 (Videto) and Buchwald v Minister for Immigration and Border Projection [2016] FCA 101; 242 FCR 65 (Buchwald). As to the complaint of legal unreasonableness (ground 6 below), the primary judge said at J[407] that the evidence was "problematic". Her Honour noted that a key aspect of the complaint of legal unreasonableness was that the brief to Mr Bagshaw partly responded to Ms Ellis' assertions as to who needed to be consulted on any decision about Amoonguna land and whose agreement was required. The then applicants contended that the Committee acted unreasonably in not postponing its decision until the Bagshaw report was completed and reviewed.
58 Against that background, her Honour summarised the evidence and concluded at J[415] that the then applicants said little about what might have occurred had the Committee elected to wait until Mr Bagshaw produced his report. The primary judge contrasted this state of affairs with the approach in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) and, in particular, what was said there at [83]. Her Honour stated at J[417] that this paragraph from the plurality's judgment in Li revealed that, in finding that the refusal of the Tribunal there to adjourn a review was legally unreasonable, the plurality looked to see what the Tribunal knew about the prospects of the second skills assessment being different from the (unsuccessful) first one and that this "kind of assessment is an integral part of evaluating the justification for the exercise of power".
59 Her Honour stated at J[418] that there was no evidence on which findings could be made about what the Committee knew or should have known about the likely outcome of the Bagshaw report, so as to measure the reasonableness or otherwise of it proceeding to make a decision. Significantly, her Honour then gave two additional reasons for rejecting the legal unreasonableness contention:
(a) the Committee did not exercise any discretionary power adversely to the then applicants in the sense of refusing to postpone its decision. That was because there was no request made to it to defer its decision until the Bagshaw report was available; and
(b) a related matter was that there was no evidence that the Committee members even knew about the Bagshaw report or what it might contain.
60 Her Honour rejected the contention, based on what Gibbs CJ said in Peko-Wallsend at [31], that the Committee should have constructive knowledge of the Bagshaw briefing. Her Honour rejected the analogy on the basis that the then applicants failed to adduce any evidence that any members of the Committee knew about the Bagshaw retainer or its subject matter, with the consequence that there was no basis to suggest that the Committee was not in a position to determine the appropriateness of making a decision at the 19 October 2016 meeting because of the outstanding Bagshaw report.
61 Finally, the primary judge concluded at J[421] that all six of the grounds of judicial review failed and that, in the case of many of them, this was because of an insufficient evidentiary basis.