FORREST & FORREST PTY LTD -v- MINISTER FOR ABORIGINAL AFFAIRS [2024] WASCA 96 (9 August 2024)

commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.

1. Section 18(2) of the AH Act (as in force at the material time) provided that where 'the owner of any land' (which phrase was defined in s 18(1) to include a lessee from the Crown) gives to the ACMC '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.

1. Section 18(3) of the AH Act (as in force at the material time) provided:

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.

1. On 20 July 2017, Mr Sam Rizzo on behalf of the appellant gave to the ACMC a notice that, in effect, sought the Minister's consent to use land for the MARS project.
2. Ultimately, on 28 June 2018, the ACMC recommended to the Minister that consent not be granted.
3. By letter dated 25 March 2019, the Minister informed the appellant that he declined to consent to the use of the land for the MARS project.
4. The Minister's reasons, as set out in the letter, for declining to consent were these:

In accordance with my powers under section 18(3) of the [AH Act], following consideration of the recommendations from the Aboriginal Cultural Material Committee and having regard to the general interests of the community, I hereby decline consent to the use of the land for the proposed Purpose. My decision is based on the importance and special significance attributed by the Traditional Owners to the Ashburton (Mindurru) River.

1. Section 18(5) of the AH Act (as in force at the material time) provided that where the owner of any land was aggrieved by a decision of the Minister made under s 18(3), the owner may apply to the State Administrative Tribunal (the Tribunal) for a review of the decision.
2. On 18 April 2019, the appellant lodged an application with the Tribunal for a review of the Minister's decision.
3. On 22 to 26 March and 3 and 4 June 2021, the Tribunal (comprising President Pritchard, Dr S Willey, Senior Member, and Ms C Barton, Member) heard the application for review.
4. On 6 April 2023, the Tribunal delivered its decision and published written reasons.
5. On 18 April 2023, the Tribunal ordered that the Minister's decision, as recorded in the letter dated 25 March 2019, be affirmed.
6. The appellant has appealed from the Tribunal's decision to this court, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). By s 105(1), the appellant may appeal only if this court gives leave to appeal.

The questions of law raised by the grounds of appeal

1. The appellant's appeal can only be brought on a question of law. See s 105(2) of the SAT Act.
2. The appellant's case sets out six grounds of appeal. The appellant relies upon the questions of law raised by those grounds.
3. I agree with Mitchell JA, for the reasons he gives, that grounds 2, 3, 4, 5 and 6 have not been established.
4. I agree with Mitchell JA that ground 1 has been made out. However, I will state my own reasons for arriving at that conclusion.
5. I also agree with Mitchell JA that leave to appeal should be granted; the appeal should be allowed; the order made by the Tribunal on 18 April 2023 should be set aside; and the matter should be sent back to the Tribunal for reconsideration. However, I will state the directions or recommendations that I would make in relation to the hearing of further evidence by the Tribunal and whether or not the Tribunal reconsidering the matter is to be constituted by the members who made the original decision.

The background facts and circumstances, the relevant statutory framework, the relevant evidence at the hearing before the Tribunal, the Tribunal's reasons for decision and the submissions of the parties in the appeal

1. The background facts and circumstances, the relevant statutory framework, the relevant evidence at the hearing before the Tribunal, the Tribunal's reasons for decision and the submissions of the parties in the appeal are summarised in Mitchell JA's reasons. I will not repeat his Honour's summary except to the extent necessary to explain my reasons.

1. Ground 1 alleges in essence that the Tribunal erred in law, in determining whether to give or refuse approval of the appellant's application, by giving weight to the Minister's decision to refuse consent under s 18(3)(b) of the AH Act.
2. The question of law raised by ground 1 is whether the Tribunal could lawfully give weight to the decision under review.
3. I begin my consideration of the question of law by examining the relevant statutory framework contained in the AH Act and the SAT Act.
4. By s 18(3) (as in force at the material time), where the ACMC submits a notice to the Minister under s 18(2):

(a) the Minister shall consider the ACMC's recommendation; and

(b) having regard to 'the general interest of the community', the Minister shall either:

(i) 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

(ii) wholly decline to consent to the use of the land the subject of the notice for the purpose required.

1. In the present case, the proceedings before the Tribunal were within its review jurisdiction. See s 17(1) of the SAT Act read with s 18(5) of the AH Act. The AH Act is an 'enabling Act', as defined in s 3(1) of the SAT Act. By s 17(3) of the SAT Act, the Minister's decision under s 18(3) of the AH Act is a 'reviewable decision' for the purposes of the SAT Act.
2. Section 18(1) of the SAT Act provides that, in exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act.
3. Section 27(1) of the SAT Act provides that the review of a reviewable decision is to be by way of a hearing de novo. It is not confined to matters that were before the decision‑maker but may involve the consideration of new material, whether or not it existed at the time the decision was made. By s 27(2), the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. Section 27(3) provides that the reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
4. Section 29(1) of the SAT Act provides that, in exercising its review jurisdiction, the Tribunal has functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision. Section 29(2) provides that s 29(1) does not limit the powers given by the SAT Act or the enabling Act to the Tribunal. By s 29(3), the Tribunal may affirm, vary or set aside the decision that is being reviewed. Section 29(3) also provides that if the Tribunal sets aside the decision that is being reviewed, the Tribunal may substitute its own decision or send the matter back to the decision‑maker for reconsideration, in accordance with any directions or recommendations that the Tribunal considers appropriate. Section 29(3) further provides that, in any case, the Tribunal may make any order that the Tribunal considers appropriate. Section 29(5) provides that the decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision:

(a) is to be regarded as, and given effect as, a decision of the decision‑maker; and

(b) unless the enabling Act states otherwise or the Tribunal orders otherwise, it is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.

1. A review by way of a 'hearing de novo', in its ordinary meaning, involves a fresh hearing and a fresh consideration of the issues on the evidence and on the law at the time of the review; that is, at the time of the hearing de novo. The court or tribunal carrying out the review begins afresh and exercises for itself any function, power or discretion exercisable by the decision‑maker. A hearing de novo involves the exercise of original, not appellate, jurisdiction. It is unnecessary for the applicant or the court or tribunal to identify error by the decision‑maker. The applicant must start again, call witnesses (if necessary) and make out the applicant's case on the relevant issues. The court or tribunal must give its own decision on the relevant issues having regard to the evidence before it and the applicable law at the time of the review. The features of a hearing de novo, in its ordinary meaning, may of course be amended or supplemented by statute. See Harris v Caladine;[1] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum;[2] Ord Irrigation Cooperative Ltd v Department of Water.[3]
2. In the present case:

(a) The hearing before the Tribunal was a hearing de novo.

(b) The hearing de novo was not confined to the material before the Minister. The parties were entitled to adduce additional relevant material at the hearing before the Tribunal, whether or not the material existed when the Minister made his decision, and the Tribunal was obliged to consider that material.

(c) The Tribunal's function was to produce the correct and preferable decision at the time of its decision upon the review.

(d) The appellant did not bear any legal or practical onus of identifying error in the Minister's decision or of showing that there should be some departure from that decision. See Ord Irrigation Cooperative [122].

(e) The Tribunal, in carrying out the review, had functions, powers and discretions corresponding to those of the Minister.

(f) In particular, the Tribunal was bound to consider the ACMC's recommendation but was not bound to give effect to the recommendation. The Tribunal was obliged, having regard to the 'general interest of the community', to either:

(i) consent to the use of the land for the Proposed Works and the MARS project, or a specified part of the land for that purpose, subject to such conditions, if any, as the Tribunal may specify; or

(ii) wholly decline to consent to the use of the land for the relevant purpose.

(g) The Tribunal's powers to affirm, vary or set aside the Minister's decision, conferred by s 29(3) of the SAT Act, had to be exercised by reference to the limits on the Minister's functions, powers and discretions under s 18(3) of the AH Act. See Ord Irrigation Cooperative [123].

(h) However, the Tribunal was bound to consider the material adduced at the hearing before the Tribunal and to form its own view as to whether, having regard to the 'general interest of the community', consent to the use of the land or a specified part of the land for the Proposed Works and the MARS project should be given (either unconditionally or conditionally) or wholly declined.

1. I turn to consider whether, as a matter of law, the Tribunal could lawfully give weight to the Minister's decision in determining whether to give or refuse approval of the appellant's application.
2. In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2),[4] Davies J (the President of the Administrative Appeals Tribunal) gave directions in the context of an application to the Administrative Appeals Tribunal (AAT) to review a decision of the Australian Broadcasting Tribunal.
3. In his reasons, Davies J referred to:

(a) section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which required the decision‑maker, within 28 days after receiving notice of an application for review, to lodge with the AAT a statement setting out the decision‑maker's findings on material facts, referring to the evidence or other material on which those findings were based and giving reasons for the decision (92); and

(b) section 38 of the AAT Act, which empowered the AAT to order that an additional statement be provided by the decision‑maker in a case where the AAT was of the opinion that the statement provided did not contain adequate particulars of findings on material questions of fact, adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for decision (92).

1. His Honour considered that it was a necessary inference from s 37 that the statement provided by the decision‑maker under that provision was 'a relevant matter which the [AAT] may take into account in the review' (92). His Honour also considered that s 38 affirmed the relevance in a review 'both of the findings of fact which were made by the decision‑maker and of the reasons for his decision' (92).
2. Next, Davies J said:

(a) if the AAT considers it appropriate in its review to rely upon a finding of fact set out in the decision‑maker's reasons, the AAT may do so (92); and

(b) if the decision‑maker is a person or tribunal having 'a special expertise or knowledge of facts in a particular area, it may well be appropriate to do so' (92).

It will, from time to time, be appropriate to rely upon a finding of fact expressed in the decision‑maker's statement where the matter does not depend at all upon expertise but is a finding which the Tribunal considers it should take into account because of the delay and expense which would otherwise be involved in investigating the matter. Moreover, in a case where government policy is relevant or where practice should be taken into account with a view to obtaining consistency of decision, it will be relevant and appropriate to have regard to the reasons for decision if those reasons express the relevant policy or practice.

For these reasons, I am of the view that when the Tribunal approaches its task of determining what is the correct or preferable decision on the material before it, the Tribunal may have regard to the findings of fact and the reasons for decision of the decision‑maker for that is part of the material which the Act contemplates may be used by the Tribunal.

That is not to say, however, that the Tribunal should accept a fact stated in a s 37 statement unless that fact is disproved. Section 33 provides that the Tribunal may inform itself on any matter in such manner as it thinks appropriate. The Tribunal will not rely upon a finding of fact set out in a s 37 statement unless it considers it appropriate to do so. It may, if a matter of practice or policy is stated in the reasons, think it appropriate to rely upon that statement or it may think it appropriate to require other evidence to be given of the practice or policy. The Tribunal has a wide jurisdiction and a course of action which may appear appropriate in one case may not be appropriate in another. The Tribunal is directed to proceed with as little formality and technicality and with as much expedition as a proper consideration of the matter before the Tribunal permits. The manner in which a particular review proceeds must depend upon particular circumstances of that review. (emphasis added)

1. It is plain from Davies J's reasons that his Honour held, relevantly, that:

(a) the AAT may, if appropriate, rely upon a finding of fact set out in the decision‑maker's reasons;

(b) if the decision‑maker has 'a special expertise or knowledge of facts in a particular area', it may well be appropriate for the AAT to rely upon findings of fact set out in the decision‑maker's reasons; and

(c) it will be relevant and appropriate for the AAT to have regard to the decision‑maker's reasons for decision if those reasons express a government policy or practice that is relevant.

1. It is also plain that his Honour did not state that the AAT may have regard or give weight to the decision (as distinct from the reasons for decision) of the decision‑maker in carrying out the review.
2. Davies J delivered judgment and published his reasons on 4 March 1981.
3. On 1 October 1981, a Full Court of the Federal Court (Fox, Deane and Morling JJ) delivered judgment and published their reasons in Collins v Minister for Immigration and Ethnic Affairs.[5] The hearing of the appeal occurred on 20 July 1981.
4. In Collins, the AAT affirmed a decision of the Minister to exercise his discretion under s 13(a) of the Migration Act 1973 (Cth) to deport the applicant. The Full Court of the Federal Court allowed the applicant's appeal because it was unclear whether the Deputy President of the AAT who heard and determined the applicant's application for review had placed weight on the Minister's decision to deport the applicant as distinct from the Minister's reasons for deciding to deport him.
5. The applicant made the application to the AAT for review of the Minister's deportation order after it was served on him. The Minister lodged a statement with the AAT in accordance with s 37 of the AAT Act, which set out the Minister's findings on material questions of fact and gave the reasons for his decision to issue the deportation order. The statement also referred to a relevant statement of government policy.
6. The Deputy President said in his reasons that, ultimately, 'it has to be decided what is in the best interests of the Australian community, a decision which will weigh up all relevant aspects with which this review has been concerned, and in arriving at a decision some weight is to be given to the Minister's decision ... There may be cases where that decision should receive great weight or perhaps no weight ... Here I consider the decision should have, and I do give it, some weight' (411).
7. Fox, Deane and Morling JJ observed that the Minister's decision, as set out in the deportation order, gave no reasons and was merely a statement to the effect that the Minister had exercised the power conferred upon him by the Migration Act (412). Their Honours said that the relevance of the deportation order was that it gave rise to a right to invoke the AAT's jurisdiction (412). However, the Minister's decision as embodied in the deportation order '[did] not have any further probative significance in the determination of the question whether, on the material before the [AAT], the decision was the correct or preferable one' (412).
8. Their Honours elaborated (412):

The [AAT] must ... act in accordance with law and this requires it to form its own view on the merits of the case. Moreover, we do not doubt that, in an appropriate case, the expressed reasons of the Minister may carry weight with the [AAT] because of the fact that the [AAT] is impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain. In such circumstances, the [AAT] may give weight to the Minister's reasons in the same way as it gives weight to the oral argument of the legal or other representatives of the parties appearing before it. There is, however, no presumption that the Minister's decision is correct and the [AAT] is neither required nor entitled to place weight, in the ultimate weighing process, upon the fact that the Minister has decided the issue before him, on the material before him, in a particular way. Putting to one side the position where the decision maker is a person or Tribunal having special expertise where the position may conceivably be different, the actual decision does not, in itself, carry any weight.

Unfortunately, the language used by his Honour in the present case leaves us in doubt as to whether, when referring to 'the Minister's decision', he was meaning to refer to the deportation order itself or to the process of reasoning adopted by the Minister in his s 37 statement (which incorporated the reference to government policy). As we have already indicated, the former approach would, in our opinion, manifest an error of law: the latter would not.

1. Fox, Deane and Morling JJ said that it would only be proper for them to dismiss the appeal 'if it did not appear that his Honour placed weight on the Minister's decision to deport an applicant as distinct from the s 37 statement' (413). On balance, their Honours were persuaded that the Deputy President's reference to the Minister's decision was a reference only to the decision to deport and was not a reference to the reasons embodied in the Minister's statement pursuant to s 37 of the AAT Act (413).
2. Their Honours concluded (413):

In the circumstances, there is no alternative to sending the matter back to the Tribunal for reconsideration. It cannot be said with confidence that the Tribunal would have come to the same conclusion if it had not placed any weight at all upon the Minister's decision to deport the appellant. That being so, the appellant is entitled to have his application for review redetermined without any weight being placed upon that decision. Accordingly, the appeal is allowed and the matter remitted to the Administrative Appeals Tribunal to be redetermined in accordance with these reasons.

1. In Shi v Migration Agents Registration Authority,[6] the Migration Agents Registration Authority (the Authority) cancelled the appellant's registration as a migration agent because he was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance. The appellant applied to the AAT for review of the cancellation decision, and for review of other decisions that the Authority had made about his registration as a migration agent. The appellant's appeal to the High Court concerned two questions about the AAT's review of the cancellation decision. First, was the AAT's task to decide whether, at the time the Authority made its decision, the correct and preferable decision was that the appellant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance or was the AAT's task to decide what was the correct or preferable decision at the time the AAT made its decision? Secondly, could the Authority (and could the AAT in exercising for itself the powers and discretions that are conferred by the Migration Act on the Authority) impose certain conditions on the appellant about his future conduct as a migration agent when it administered a caution to him? The High Court (Kirby, Hayne, Heydon, Crennan and Kiefel JJ) held unanimously that the AAT's task was to decide what the correct or preferable decision was at the time the AAT made its decision. Kirby, Hayne, Heydon and Crennan JJ (Kiefel J dissenting) held that the AAT was empowered by the Migration Act to impose the conditions it had attached to the caution it had administered to the appellant.
2. Kirby J examined the function of the AAT and in that connection referred in some detail to Davies J's decision in Re Control Investment. Relevantly, for present purposes, Kirby J made these observations [37] ‑ [38]:

Davies J acknowledged that regard might be had to the decision of the primary decision‑maker as part of the 'material before the [AAT]', particularly where it involved special expertise or knowledge ((1981) 3 ALD 88 at 92 ‑ 93). But ultimately, it was for the [AAT] to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the [AAT] as relevant to its decision. In effect, this was no more than a consequence of the [AAT's] obligation to conduct a true merits review (See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 368; 24 ALR 307 at 335).

There was no error in this analysis. On the contrary, it represents the correct and preferable view of the legislation establishing the functions and powers of the [AAT].

1. In my opinion, there is ambiguity in Kirby J's statement that in Re Control Investment, 'Davies J acknowledged that regard might be had to the decision of the primary decision‑maker as part of the "material before the [AAT]"' [37]. The ambiguity is whether Kirby J, in referring to the decision of the primary decision‑maker, was referring to the decision as distinct from the decision‑maker's reasons for decision. As I have demonstrated, in Re Control Investment Davies J did not state that the AAT may have regard or give weight to the decision (as distinct from the reasons for decision) of the decision‑maker in carrying out the review. Davies J referred to the AAT's approach to its task of determining what is the correct or preferable decision 'on the material before it' and said, 'the [AAT] may have regard to the findings of fact and the reasons for decision of the decision‑maker' (93). In my opinion, Kirby J, in stating that Davies J acknowledged that regard might be had to 'the decision of the primary decision‑maker', must be taken to have been referring to the decision‑maker's reasons for decision as distinct from the decision. Kirby J did not mention the decision of the Full Court of the Federal Court in Collins.
2. None of the other members of the High Court in Shi considered whether the AAT could have regard to the decision of the decision‑maker. It is therefore unsurprising that none of the other members cited Re Control Investment or Collins.
3. In the present case, as I have mentioned, the hearing before the Tribunal was a hearing de novo. The Tribunal's function was to produce the correct and preferable decision at the time of its decision upon the review. The Tribunal was bound to consider the material adduced at the hearing before the Tribunal and to form its own view as to whether, having regard to the 'general interest of the community', consent to the use of the land or a specified part of the land for the Proposed Works and the MARS project should be given (either unconditionally or conditionally) or wholly declined.
4. I am of the opinion that, having regard to the Tribunal's function in carrying out a review of the Minister's decision, the Tribunal could not lawfully give weight to the Minister's decision in determining whether to give or refuse approval of the appellant's application. As Fox, Deane and Morling JJ said in Collins (411), it is 'unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness'. In the present case, there was no presumption that the Minister's decision was correct. Accordingly, the Minister's decision did not, in itself, carry any weight.
5. The Tribunal was, however, entitled, subject to the proper discharge of its function, to have regard to the reasons for decision of the Minister and any findings of fact in those reasons, if the Tribunal thought fit.
6. It is unnecessary, in the present case, to consider whether and in what circumstances the Tribunal may have regard to any practice or policy referred to in the reasons for decision of a decision‑maker or whether and in what circumstances the Tribunal may rely upon findings of fact in a decision‑maker's reasons for decision where the decision‑maker has special expertise or knowledge of facts in a particular area.
7. I turn to consider whether, in the present case, the Tribunal did give weight to the Minister's decision in determining whether to give or refuse approval of the appellant's application.
8. In the present case, the Tribunal noted in its reasons [152]:

We accept the Intervener's submission (Intervener's Opening Submissions para 123) that on the Review, the Tribunal may have regard to the Minister's decision as one which reflected what the Minister considered to be in the general interest of the community (Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [47] [sic] (Kirby J) referring to Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 (Davies J)). (Of course, the Tribunal is not bound to follow the Minister's decision.) (emphasis added)

1. The Tribunal made this statement in the course of considering 'the general interest of the community' within s 18(3) of the AH Act [619]:

We take into account the Minister's decision, which was to refuse consent. We are not obliged to follow the Minister's decision. However, we consider that it warrants some weight in our evaluation of the general interest of the community, because it constitutes the opinion, formed by the Minister, as an elected Member of Parliament and as the Minister with responsibility for the operation of the AH Act, that the general interest of the community did not warrant consent being given to the use of the Land for the Purpose, namely the MARS project. (emphasis added)

1. The Tribunal concluded, after taking into account various specified considerations including the Minister's decision to refuse consent, that 'the general interest of the community' provided some support, but not to a compelling degree, for the implementation of the MARS project [631].
2. The Tribunal then said [632]:

(a) the ACMC formed the view that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;

(b) the implementation of the MARS project will have the permanent effect of interfering with the natural flow of the River, and will thereby alter the River as an Aboriginal site. It will also result in destruction of some of the artefacts found at the location of the proposed weirs, and will, over time, damage the Jiminu Pool Grinding Patches. Alteration of the River in this way will cause spiritual harm to the Thalanyji people in the manner we have described, and would be contrary to the underlying objective of the AH Act of preserving Aboriginal culture as part of the cultural heritage of the State;

(c) the Minister concluded, having had regard to the general interest of the community, that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;

(d) the considerations to which we have had regard as relevant to the general interest of the community provide some support, but not to a compelling degree, for the implementation of the MARS project;

we have concluded that the general interest of the community overall does not warrant consent being given to the use of the Land for the Purpose, namely the MARS project. (emphasis added)

1. The passages in the Tribunal's reasons, which I have reproduced at [62] ‑ [65] above, reveal the Tribunal's view that it was entitled to take into account and give weight to the Minister's decision (as distinct from the Minister's reasons for decision) in evaluating 'the general interest of the community', within s 18(3) of the AH Act, and in deciding whether 'the general interest of the community' warranted the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project. The Tribunal cited [47] of Kirby J's reasons in Shi in support of its view. The Tribunal's reference to [47] of Kirby J's reasons was erroneous. The relevant paragraph in his Honour's reasons is [37]. It appears that the Tribunal arrived at its view by taking literally and at face value Kirby J's reference in Shi [37] to 'the Minister's decision'. A literal and face value understanding of Kirby J's reference to 'the Minister's decision' is incorrect when the reasons of Davies J in Re Control Investment are scrutinised and regard is had to the reasons of the Full Court of the Federal Court in Collins. The Tribunal, like Kirby J, did not cite Collins.
2. The passages in the Tribunal's reasons, which I have reproduced at [62] ‑ [65] above, also reveal that the Tribunal in fact took into account and gave weight to the Minister's decision (as distinct from the Minister's reasons for decision) in evaluating 'the general interest of the community', within s 18(3) of the AH Act, and in deciding whether 'the general interest of the community' warranted the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project.
3. The Tribunal erred in law, in determining whether to give or refuse approval of the appellant's application, by giving weight to the Minister's decision to refuse consent under s 18(3)(b) of the AH Act.
4. I am satisfied, on a fair reading of the passages in the Tribunal's reasons, which I have reproduced at [62] ‑ [65] above, in the context of the Tribunal's reasons as a whole and all relevant material before the Tribunal, that there is a real possibility that the error could have affected the decision. See Collins (413); Sydney Water Corporation v Caruso;[7] Development Consent Authority v Phelps;[8] Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd;[9] Young v Legal Profession Complaints Committee.[10]
5. Ground 1 has been made out.

The orders this court should make in the appeal

1. Section 105 of the SAT Act provides, relevantly:

(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.

(2) The appeal can only be brought on a question of law.

...

(9) The court dealing with the appeal may -

(a) affirm, vary, or set aside the decision of the Tribunal; or

(b) make any decision that the Tribunal could have made in the proceeding; or

(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

and, in any case, may make any order the court considers appropriate.

(10) If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.

1. In s 3(1) of the SAT Act, the term 'decision' of the Tribunal is defined to include 'an order, direction, or determination of the Tribunal'.
2. The power of this court under s 105(1) of the SAT Act to give leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all of the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis v Settlement Agents Supervisory Board.[11]
3. In the present case, I would give leave to appeal in relation to the question of law raised in the context of ground 1. The question concerns a matter of general importance in relation to the Tribunal's exercise of its review jurisdiction. Also, the Tribunal's view that it was entitled to take into account and give weight to the Minister's decision (as distinct from the Minister's reasons for decision) in carrying out its review was plainly wrong.
4. I would not give leave to appeal on the questions of law raised in the context of grounds 2, 3, 4, 5 and 6. Mitchell JA's reasons demonstrate that none of those grounds has been established.
5. The order made by the Tribunal on 18 April 2023 (namely, the Minister's decision, as recorded in the letter dated 25 March 2019, be affirmed) must be set aside.
6. This court may make substitutive orders under s 105(9) of the SAT Act 'where only one conclusion is open on the correct application of the law to the facts found by the Tribunal': Osland v Secretary, Department of Justice [No 2].[12] As French CJ, Gummow and Bell JJ noted in Osland [20], such a case arises 'when no other conclusion could reasonably be entertained' and, in that event, this court can make the order that the Tribunal should have made.
7. Although the language of s 105(9) is of sufficient breadth to allow this court to make substitutive orders in other circumstances, that power must be exercised having regard to the limited nature of this court's 'appellate' jurisdiction, which, as I have mentioned, is confined to appeals 'on' questions of law. See Young [296].
8. In Osland [20], French CJ, Gummow and Bell JJ elaborated on the points I have made at [78] ‑ [79] above, as follows:

Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment. (emphasis added)

See also Commissioner for Consumer Protection v Carey;[13] Medical Board of Australia v Woollard;[14] Scaffidi v Chief Executive Officer, Department of Local Government and Communities.[15]

1. In the present case, the Tribunal's error of law vitiated the Tribunal's evaluation of 'the general interest of the community', within s 18(3) of the AH Act, and its decision about whether 'the general interest of the community' warranted the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project.
2. In part 5 of its original reasons, the Tribunal recounted and made detailed findings in relation to the evidence, including expert evidence, given by numerous witnesses at the hearing. I agree with Mitchell JA that none of those findings are impugned by the Tribunal's error of law.
3. The matter should be sent back to the Tribunal for reconsideration. It is not appropriate for this court to reconsider the matter. First, it is necessary for an evaluative judgment to be made concerning 'the general interest of the community'. Secondly, as I will explain, the parties should be given an opportunity at a further hearing to call additional evidence which could not reasonably have been adduced at the original hearing before the Tribunal.
4. I turn to consider whether the matter should be sent back to the Tribunal for reconsideration by the members who made the original decision.
5. Regrettably, there was a very significant delay between the appellant seeking the Minister's consent (on 20 July 2017) and the Tribunal ordering (on 18 April 2023) that the Minister's decision be affirmed. The ACMC took about 11 months to make its recommendation to the Minister. The Minister took about nine months to decline to give his consent. The original hearing before the Tribunal did not occur until about two years after the appellant lodged its application for review. The duration of the original hearing was seven days. The Tribunal reserved its decision for almost two years.
6. The appellant filed its appeal notice in this court in May 2023, the appeal was heard in March 2024 and judgment in the appeal will be delivered in August 2024. The reconsideration by the Tribunal is unlikely to occur before mid to late 2025.
7. If it is appropriate that the matter be sent back to the Tribunal as originally constituted, then in my opinion it would be in the interests of justice that:

(a) subject to [87] below, the Tribunal's reconsideration of the matter should proceed by reference to the detailed findings made in part 5 of the Tribunal's original reasons; and

(b) subject to [87] below, the parties should not be at liberty to recast their cases in relation to the findings of fact made by the Tribunal in part 5 of its original reasons.

1. However, if it is appropriate that the matter be sent back to the Tribunal as originally constituted, it would be in the interests of justice, in view of the very significant interval between the original hearing before the Tribunal (in March and June 2021) and the likely further hearing before the Tribunal (in mid to late 2025), for the parties to be given an opportunity at the further hearing to call additional evidence which could not reasonably have been adduced at the original hearing.
2. As I have mentioned, at the original hearing the Tribunal was constituted by President Pritchard, Dr S Willey, Senior Member, and Ms C Barton, Member. Dr Willey and Ms Barton are still a Senior Member and a Member respectively of the Tribunal, but President Pritchard's appointment expired on 3 June 2024. However, Justice Pritchard remains a Judge of the Supreme Court and is therefore eligible for appointment as a Supplementary President of the Tribunal pursuant to s 138 of the SAT Act.
3. If it is not appropriate that the matter be sent back to the Tribunal as originally constituted or if the Tribunal is unable to be constituted by the members who made the original decision, then in my opinion it would be in the interests of justice that the further hearing be a fresh hearing de novo. It will be necessary for the parties to call evidence, as they think fit, and for the newly constituted Tribunal to give its own decision on the relevant issues having regard to the evidence before it and the applicable law at the time of the review. The newly constituted Tribunal will be bound to consider the material adduced at the fresh hearing, to make findings of fact as necessary and to form its own view as to whether, having regard to the 'general interest of the community', consent to the use of the land or a specified part of the land for the Proposed Works and the MARS project should be given (either unconditionally or conditionally) or wholly declined.
4. A decision about whether the matter should be sent back to the Tribunal for reconsideration by the members who made the original decision is not to be made simply by determining whether or not a fair‑minded lay observer might entertain a reasonable apprehension of bias by reason of prejudgment if the original members conducted the further hearing. However, the principles governing disqualification on the ground of apprehended bias are relevant to the decision this court must make. The principles governing the disqualification of a judge on the ground of apprehended bias apply by analogy to the members of a statutory body such as the Tribunal who are to determine contentious proceedings. See CNY17 v Minister for Immigration and Border Protection;[16] Goldsmith v Legal Services and Complaints Committee.[17]
5. The test for the disqualification of a judge on the ground of apprehended bias is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. See Webb v The Queen;[18] Ebner v Official Trustee in Bankruptcy;[19] Johnson v Johnson;[20] Michael Wilson & Partners Ltd v Nicholls;[21] CNY17 [17] ‑ [19], [56]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[22]
6. The application of the test does not involve a prediction about how the judge will in fact approach the resolution of the question. The issue is one of possibility (real and not remote), not probability. See Ebner [7].
7. However, a judge should not disqualify himself or herself on the basis of a reasonable apprehension of bias unless substantial grounds are established. See Re JRL; Ex parte CJL;[23] Bienstein v Bienstein;[24] British American Tobacco Australia Services Ltd v Laurie.[25]
8. Apprehended bias is concerned with whether there is a reasonable apprehension that the judge might not decide the case impartially or without prejudice and not with whether the judge might decide the case adversely to one party. See Re JRL (352); Re Polites; Ex parte The Hoyts Corporation Pty Ltd;[26] British American Tobacco [1], [39], [71]; QYFM [328].
9. The test for apprehended bias is objective. This is founded in the need for public confidence in the judiciary and gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. The neutrality of a judge is fundamental to the administration of justice. See Johnson [12]; British American Tobacco [139]; Michael Wilson & Partners [32]; Isbester v Knox City Council;[27] QYFM [30], [71], [107], [273].
10. The determination of whether a fair‑minded lay observer might reasonably apprehend that the judge might not act impartially and without prejudice raises largely a factual issue, but one which must be considered in the legal, statutory and factual contexts in which the judge is required to make the decision. See Isbester [20].
11. Although the hypothetical fair‑minded lay observer is not to be taken to have a detailed knowledge of the law or the judicial process, the observer is presumed:

(a) to be reasonable;

(b) to be neither complacent nor unduly sensitive or suspicious, but cognisant of human frailty and aware of the reality that the judge is human;

(c) not to make snap judgments;

(d) to know that the judge is required, by his or her training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial;

(e) however, to understand that information and attitudes, consciously and conscientiously discarded, might still sometimes have a subconscious effect on even the most professional of decision‑makers; and

(f) to be aware of the nature of the decision which the judge is required to make, what is involved in making the decision and all the objective circumstances of the case.

See Livesey v The New South Wales Bar Association;[28] Laws v Australian Broadcasting Tribunal;[29] Re JRL (368, 371 ‑ 372); Webb (67 ‑ 68); Johnson [12] ‑ [14], [53]; Isbester [23]; Ebner [8]; CNY17 [28]; QYFM [46] ‑ [49], [72] ‑ [75], [170] ‑ [172], [296] ‑ [298].

1. In Ebner [8], Gleeson CJ, McHugh, Gummow and Hayne JJ said that the application of the test for apprehended bias requires two steps. First, the identification of what allegedly might lead a judge to decide a case other than on its legal and factual merits. Secondly, the articulation of the logical connection between the matter complained of and any deviation from the course of deciding the case on its merits. The reasonableness of the asserted apprehension of bias can only be assessed after the two steps have been performed. See also Isbester [21]; CNY17 [21], [57]; QYFM [38], [67], [162], [293].
2. In Minister for Immigration and Multicultural Affairs v Jia Legeng,[30] Hayne J observed that an assertion that a decision-maker has prejudged or will prejudge an issue, or an assertion that there is a real likelihood that a fair-minded lay observer might reasonably apprehend that the decision-maker might not act impartially and without prejudice, in effect makes a statement which has several distinct elements at its foundation. His Honour elaborated:

First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

1. In Livesey, proceedings were commenced in the Court of Appeal of New South Wales to strike the name of a barrister from the roll of counsel on the ground of his unprofessional conduct. It was necessary for the Court of Appeal to determine certain matters of fact and to hear evidence from a witness in relation to them. In previous proceedings in which the barrister had not been a party or a witness, two members of the Court had expressed the view that the barrister had actively and knowingly participated in a corrupt agreement or a conspiratorial arrangement to secure the release of his client on bail by the use of the client's own money. It was common ground that such an agreement or arrangement would constitute a criminal conspiracy. In the Court of Appeal, objection was taken on behalf of the barrister to the two members of the Court sitting upon the case. The judges refused to withdraw. The Court of Appeal found that the charges of impropriety were sustained and ordered that the barrister be struck off. The High Court allowed the barrister's appeal. Mason, Murphy, Brennan, Deane and Dawson JJ held (300):

It is ... apparent that, in a case such as the present ... a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if the particular judge sits would not, of course, avoid the appearance of bias. To the contrary, it would underline the need for the judge to refrain from sitting. (emphasis added)

1. The facts and the reasoning which underpinned the High Court's decision to allow the barrister's appeal were as follows (300):

A central issue in the main charge against the appellant was whether the money which Ms Bacon lodged as bail was her own money. Two of the three members of the Court of Appeal, which was hearing the proceedings as a court of first instance, had already held in a previous case that it plainly was not. Another central issue in the main charge was whether, if the money lodged were not Ms Bacon's, the appellant knew that that was so. Again, two members of the Court had held in the previous case that he clearly did. Ms Bacon was a possible and critical witness on the appellant's behalf and was in fact called to give evidence. Two members of the Court had, in the previous case, expressed the strong view that she was a witness without credit whose evidence on the matters relevant to the proceedings against the appellant should be rejected. The question which arises is whether, in these circumstances, either the appellant or a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had formed and expressed in the Bacon Case might result in the proceedings against the appellant being affected by bias by reason of prejudgment. With due respect to the members of the Court of Appeal who saw the matter differently, it follows from what we have said that we consider that that question must be answered in the affirmative.

1. In British American Tobacco [139], Heydon, Kiefel and Bell JJ observed that it was recognised in Livesey that a fair-minded lay observer might reasonably apprehend that 'a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case'. Their Honours added that the recognition in Livesey was 'a recognition of human nature' [139].
2. In the present case, I am of the opinion, for the following reasons, that the members of the Tribunal who reconsider the matter should not include any of the members who made the original decision.
3. First, there are factors which might lead the original members of the Tribunal to resolve the questions that will arise at the rehearing other than on their legal and factual merits. Those factors are the findings of fact made in part 5 of the original reasons; the evaluation of 'the general interest of the community', within s 18(3) of the AH Act, made in the original reasons; and the ultimate conclusion in the original reasons that, having regard to 'the general interest of the community', consent to the use of the land for the Proposed Works and the MARS project must be wholly declined.
4. Secondly, there is a logical connection between the factors I have identified and a real risk of a deviation from deciding the relevant questions on their merits. At a further hearing in the Tribunal before the original members, the first respondent (who is the Minister) and the second respondent (who was permitted to intervene in the original proceedings in the Tribunal on behalf of the Thalanyji people) would be likely to submit that the Tribunal should evaluate 'the general interest of the community' in the same manner that it did in the original reasons and that the Tribunal should arrive at the same ultimate conclusion that it did in the original reasons.
5. Thirdly, at a further hearing in the Tribunal before the original members, there is a significant prospect that one or more of the parties would call additional evidence which could not reasonably have been adduced at the original hearing. If that occurs, there is a significant prospect that it may be necessary, having regard to the substance of the additional evidence, for the original members to reconsider some of the findings they made in part 5 of the original reasons. If it is necessary for the original members to reconsider some of the findings they made in part 5, it is likely, in view of the very significant interval between the original hearing before the Tribunal (in March and June 2021) and the likely further hearing in the Tribunal (in mid to late 2025), that the original members would have an inadequate recollection (even with the benefit of the transcript) of the evidence that was given more than four years earlier.
6. Fourthly, although a fair‑minded lay observer is presumed to know that the original members of the Tribunal are required, by their training, tradition and oath or affirmation, to discard the irrelevant, the immaterial and the prejudicial, the observer is also presumed to understand that the irrelevant, the immaterial and the prejudicial, which are consciously and conscientiously discarded, might nevertheless have a subconscious effect on the original members.
7. That risk is underscored, in the present case, by:

(a) the significant prospect that at the further hearing additional evidence will be called which could not reasonably have been adduced at the original hearing;

(b) if additional evidence is called, the significant prospect that it may be necessary, having regard to the substance of the additional evidence, to reconsider some of the findings made in part 5 of the original reasons;

(c) the very significant delay between the appellant lodging its application with the Tribunal (on 18 April 2019) and the Tribunal delivering its original decision and publishing its original written reasons (on 6 April 2023); and

(d) the interval between the Tribunal delivering its original decision and publishing its original written reasons (on 6 April 2023) and the likely rehearing date before the Tribunal (in mid to late 2025).

1. In the circumstances of the present case, there is at least an unacceptable risk that a fair‑minded lay observer might reasonably apprehend that the original members might not bring an impartial and unprejudiced mind, by reason of prejudgment, to the reconsideration of any of the findings in part 5 that require reconsideration, to the evaluation of 'the general interest of the community', within s 18(3) of the AH Act, or to the ultimate issue of whether 'the general interest of the community' warrants the Tribunal giving consent to the use of the land for the Proposed Works and the MARS project. The existence of that unacceptable risk is sufficient, in the circumstances of the present case, for this court to decide, in the exercise of its power under s 105(10) of the SAT Act, that the members of the Tribunal who reconsider the matter should not include any of the members who made the original decision.
2. Finally, it is, of course, a deplorable result where a final judgment or decision of a court or tribunal is set aside after a lengthy hearing and a further trial or hearing is ordered. However, on occasion, including in the present case, the interests of justice require that result. I appreciate that ordering a further hearing, by way of a fresh hearing de novo, in the present case will impose a burden, including a burden as to costs, on the parties. However, it must be observed that the appellant evidently has substantial financial resources and has substantial experience in the litigation of disputes; the first respondent is the Minister who was the primary decision‑maker; and the second respondent by its senior counsel erroneously submitted to the Tribunal, on the basis of Kirby J's observation in Shi [37], that the Tribunal was entitled to have regard to the decision of the Minister in carrying out the review.

(a) Leave to appeal on ground 1 granted.

(b) Leave to appeal on grounds 2, 3, 4, 5 and 6 refused.

(c) Appeal allowed.

(d) The order made by the Tribunal on 18 April 2023 is set aside.

(e) The matter is sent back to the Tribunal for reconsideration at a further hearing in the Tribunal.

(f) None of the members of the Tribunal as originally constituted are to participate in the further hearing.

(g) The further hearing before the Tribunal is to be a fresh hearing de novo at which it will be necessary for the parties to call evidence, as they think fit, and for the Tribunal to give its decision on the relevant issues having regard to the evidence before it and the applicable law at the time of the review.

1. Counsel should be heard in respect of the precise form of the orders including costs.

1. The Ashburton River, also known as Mindurru to Buurabalayji Thalanyji people (Thalanyji), is a major river in the Pilbara region which runs through the appellant's Minderoo pastoral lease. The river flows in discrete 'pulses' after significant rainfall events within its catchment. These generally occur through the cyclone season (from January until May). The river is most likely to be dry between August and November.
2. The appellant's managed aquifer recharge scheme (MARS project) proposed to construct ten (later reduced to nine) 'leaky weirs' at varying intervals across the river as it passes through Minderoo station. The weirs are referred to as 'leaky weirs' because they are designed to allow water to 'leak' around and under them. The function of the weirs is to create a pool of water behind the weir which is absorbed into the adjacent groundwater mound. The objective of the MARS project is to enable greater water capture, which will then be put to productive and profitable agricultural uses at Minderoo (such as beef production and cropping).
3. The Tribunal found, without challenge in this appeal, that Mindurru occupies a central place in the belief system of the Thalanyji. The Thalanyji relationship to Mindurru is properly regarded as deeply spiritual, and Mindurru can be regarded as sacred to the Thalanyji.[31] The Thalanyji believe in the existence of the Warnamankura (water snake) as a powerful spirit which lives in Mindurru, which travels up, down and under Mindurru and can control the natural flow of Mindurru. The existence of semi-permanent pools in Mindurru is regarded by the Thalanyji as an enduring expression of the existence of the water snake. The Thalanyji believe that they need to engage in respectful behaviour near Mindurru in order not to make the water snake angry. The Thalanyji believe that if they allow changes that affect the water flow, this would change the natural balance of Mindurru, the water snake may become angry as a result, and that in turn may cause spiritual problems for the Thalanyji.[32]
4. No party to this appeal challenges the Tribunal's finding that Mindurru is an Aboriginal site for the purposes of the Aboriginal Heritage Act 1972 (WA) (AH Act). An alteration of an Aboriginal site constitutes an offence against s 17 of the AH Act unless, relevantly, it is done with the consent of the Minister under s 18 of the AH Act. The appellant sought the Minister's consent to use land for the MARS project by submitting a notice under s 18(2) of the AH Act to the Aboriginal Cultural Material Committee (ACMC). The ACMC is an advisory body established under the AH Act. Subsequently, the Minister declined to give consent to the proposed use of the land for the MARS project, pursuant to s 18(3) of the AH Act. The appellant sought a review of that decision by the State Administrative Tribunal. The Tribunal decided to affirm the Minister's decision. The appellant now appeals to this court against the Tribunal's decision on several questions of law, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
5. In determining whether to affirm the Minister's decision to decline to consent to the use of the land for the MARS project under s 18(3) of the AH Act, the Tribunal was required to have regard to the general interest of the community. In concluding that the general interest of the community overall did not warrant consent being given, the Tribunal gave weight to the fact that the Minister concluded that consent to use the land for the MARS project should be refused. Ground 1 of the appeal raises the following question of law: Could the Tribunal lawfully give weight to the decision under review?
6. For the following reasons, the answer to this question, at least in the circumstances of this case, is that the Tribunal may not lawfully give weight to the fact of the Minister's decision under s 18(3) of the AH Act, as opposed to any reasons expressed by the Minister for making that decision. The Tribunal may consider and agree with the process of reasoning adopted by the Minister in making the decision. However, the Tribunal will err in law if it treats the Minister's decision under s 18(3) of the AH Act as being probative of its own correctness. In the present case, the Tribunal erred in law in regarding the Minister's decision as probative of its own correctness. That error of law was material in the circumstances of this case. Ground 1 of the appeal is established.
7. While the appellant also challenged the Tribunal's decision on other grounds of appeal, none of those other grounds are established.
8. The success of ground 1 means that the appeal must be allowed and the Tribunal's decision to affirm the Minister's decision to decline to consent to the use of the land for the MARS project must be set aside. The matter must be sent back to the Tribunal for reconsideration. In the circumstances of this case, it is in the interests of justice for the matter to be reconsidered by the members who made the original decision. This court should direct that the Tribunal's reconsideration be based on:

(a) the extensive factual findings contained in pt 5 of the primary decision; and

(b) any other factual findings which the Tribunal makes by reference to the evidence adduced at the original hearing and/or such further evidence of matters arising since the original hearing as the Tribunal sees fit to receive.

1. The hearing before the Tribunal took place in March and June 2021. At the time of the hearing, the AH Act as amended up to 2013 was in force.
2. The Tribunal's decision was made on 6 April 2023. At that time, the Aboriginal Cultural Heritage Act 2021 (WA) (2021 Act) had been enacted, but no presently material provisions had come into operation.[33]
3. Substantive parts of the 2021 Act came into operation on 1 July 2023, and relevantly limited the application of the AH Act to notices given prior to that time. The 2021 Act was repealed by the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) (2023 Act). The general effect of the 2023 Act was to restore the previous operation of the AH Act (as amended up to 2013) with various amendments which came into force on 15 November 2023.
4. Regard should be had to the AH Act as amended up to 2013 for the purposes of determining whether the Tribunal erred in law as alleged by the grounds of appeal. If the matter is remitted to the Tribunal, then it would be required to apply the current provisions of the AH Act, including those introduced by the 2023 Act.
5. Unless otherwise indicated, references to the AH Act are to the AH Act as amended up to 2013.

1. The long title to the AH Act identifies its purpose in the following terms:

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 inhabitants of Australia or their descendants, or associated therewith, and for other purposes incidental thereto.

1. The AH Act applies to the places identified in s 5 (defined to be Aboriginal sites) and the objects identified in s 6 of that Act. Most presently relevant are the Aboriginal sites identified in s 5(a) and s 5(b) in the following terms:

(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;

(b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent[.]

1. There is no challenge in the present proceedings to the proposition that Mindurru is a site referred to in s 5(b) and six locations of 'artefact scatters' and one location of 'grinding patches' are sites referred to in s 5(a) of the AH Act. It is therefore unnecessary for this court to consider the limits of the operation of s 5 of the AH Act.

1. The responsibility for the administration of the AH Act is vested in the Minister, who is established as a body corporate. The Minister is required to have regard to the recommendations of the ACMC and the Registrar of Aboriginal Sites (Registrar) but is not bound to give effect to those recommendations.[34]
2. The ACMC is an advisory body established under s 28 of the AH Act. It is comprised of appointed and ex officio members. The appointed members are selected from persons:[35]

having special knowledge, experience or responsibility which in the opinion of the Minister will assist the [ACMC] in relation to the recognition and evaluation of the cultural significance of matters coming before the [ACMC][.]

1. One of the appointed members is to be:[36]

a person recognised as having specialised experience in the field of anthropology as related to the Aboriginal inhabitants of Australia[.]

1. Officers of the WA Museum, the Department of Planning, Lands and Heritage, and Landgate are ex officio members of the ACMC.[37]

1. Section 17 of the AH Act relevantly creates an offence of altering an Aboriginal site without, relevantly, the consent of the Minister under s 18 of that Act. Section 17 is expressed in the following terms:

(a) excavates, destroys, damages, conceals or in any way alters any Aboriginal site; or

(b) in any way alters, damages, removes, destroys, conceals, or who deals with in a manner not sanctioned by relevant custom, or assumes the possession, custody or control of, any object on or under an Aboriginal site,

commits an offence unless he is acting with the authorisation of the Registrar under section 16 or the consent of the Minister under section 18.

1. Section 18 of the AH Act provides for the Minister to consent to the use of land. There are four stages to that process.
2. First, an owner of land (which under s 18(1) relevantly includes a lessee from the Crown) may give notice to the ACMC under s 18(2) (Notice) that:

[the owner] 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[.]

1. Secondly, s 18(2) requires that, as soon as it is reasonably able after receiving a Notice, the ACMC must:

(a) form an opinion as to whether there is any Aboriginal site on the land; and

(b) evaluate the importance and significance of any such site.

1. Section 39(2) and s 39(3) of the AH Act relevantly make the following provision in relation to the ACMC's evaluation of an Aboriginal site:

(2) In evaluating the importance of places ... the [ACMC] shall have regard to -

(a) any existing use or significance attributed under relevant Aboriginal custom;

(b) any former or reputed use or significance which may be attributed upon the basis of tradition, historical association, or Aboriginal sentiment;

(c) any potential anthropological, archaeological or ethnographical interest; and

(d) aesthetic values.

(3) Associated sacred beliefs, and ritual or ceremonial usage, in so far as such matters can be ascertained, shall be regarded as the primary considerations to be taken into account in the evaluation of any place ... for the purposes of this Act.

1. Thirdly, s 18(2) of the AH Act requires the ACMC to submit the Notice to the Minister with its written recommendation as to:

(a) whether or not the Minister should consent to the use of the land for the purpose identified in the Notice; and

(b) where applicable, the extent to which and the conditions upon which the Minister's consent should be given.

1. Fourthly, s 18(3) of the AH Act provides for the Minister to consent or decline to consent to the proposed use of the land, in the following terms:

Where the [ACMC] 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.

1. Section 18(5) of the AH Act provides that an owner of any land who is aggrieved by a decision of the Minister made under s 18(3) may apply to the Tribunal for a review of the decision.

1. The review provided for by s 18(5) of the AH Act comes within the Tribunal's 'review jurisdiction' as defined by s 17 of the SAT Act. For that purpose, the AH Act is the 'enabling Act' as defined in s 3(1) of the SAT Act. Under s 18(1) of the SAT Act:

In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act.

1. When a proceeding for review of a decision under s 18(5) of the AH Act is commenced, s 24 of the SAT Act requires the Minister to provide the Tribunal with 'a statement of the reasons for the decision' and other relevant documents in the Minister's possession or control.
2. Section 27 of the SAT Act provides for the nature of review proceedings in the following terms:

(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.

The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.

1. Section 29(3) of the SAT Act provides for the orders that the Tribunal may make on review, which include affirming or varying the decision being reviewed. The orders the Tribunal may make also include setting aside the decision and substituting its own decision. Under s 29(5):

The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker's decision -

(a) is to be regarded as, and given effect as, a decision of the decision-maker; and

(b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.

1. Section 29(9) of the SAT Act provides that s 27 and s 29 of that Act do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision‑maker.

1. Section 105 of the SAT Act provides for an appeal to this court from a decision of the Tribunal made by a Tribunal constituted by members who include a judicial member. An appeal can only be brought if this court gives leave to appeal and relevantly can only be brought on a question of law.[38]
2. Section 105(9) and s 105(10) provide for the orders this court may make on appeal in the following terms:

(9) The court dealing with the appeal may -

(a) affirm, vary, or set aside the decision of the Tribunal; or

(b) make any decision that the Tribunal could have made in the proceeding; or

(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

and, in any case, may make any order the court considers appropriate.

(10) If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.

1. On 20 July 2017, the appellant gave notice to the ACMC under s 18(2) of the AH Act seeking to use land forming part of its Minderoo Station pastoral lease to establish 10 weirs within Mindurru (Appellant's s 18 Notice).[39]
2. On 8 May 2018, the ACMC considered the Appellant's s 18 Notice and other material.[40] The ACMC identified Mindurru as a 'mythological' Aboriginal site of the type referred to in s 5(b) of the AH Act. Six 'artefact scatters' and one location of 'grinding patches' were identified as Aboriginal sites of the type referred to in s 5(a) of the AH Act. The ACMC resolved to recommend to the Minister that consent with conditions be granted. The resolution was in the following substantive terms:[41]

Resolved to recommend to the [Minister] that consent be granted to [the appellant] to use the land described at pp 4 - 6 of the [Appellant's s 18 Notice] ... (the Land) for the purpose described at p 6 of the [Appellant's s 18 Notice] as being Minderoo Station weir project (the Purpose).

On current knowledge the Purpose will impact upon eight Aboriginal sites within the meaning of [s 5 of the AH Act] on the Land. [Sites identified].

1. The ACMC's resolution set out recommended conditions, which included a condition that the appellant 'avoids impact to permanent pools'.[42]
2. The matter was again considered by the ACMC on 12 June 2018. Its resolution at that meeting was in the following terms:[43]

The Registrar re-presented the [Appellant's s 18 Notice] to the [ACMC] for further clarification and discussion in relation to the suggested draft condition, that the [appellant] avoids impact to the permanent pools as resolved by the [ACMC] at the 8 May 2018 meeting. It was discussed that the proposed impact areas of the weirs will either directly impact on the permanent pools or be in very close proximity to the permanent pools within the Mindurru river. The members discussed that it was therefore not possible for the [appellant] to avoid impact to the permanent pools, making the condition difficult to implement. As a result of the discussions, the [ACMC] resolved to:

1. Remove the suggested draft condition number 5 as resolved and drafted in the 8 May 2018 minutes and;
2. Due to the importance and special significance attributed to the permanent pools and the Mindurru river by the Traditional Owners and taking into account [s 39(2) and s 39(3) of the AH Act], resolved to recommend to the Minister that consent be declined.
3. On 28 June 2018, the Registrar provided a briefing note to the Minister in relation to the Appellant's s 18 Notice. The Registrar recommended that the Minister 'decline making a decision' under s 18(3) of the AH Act. The briefing note attached copies of the Appellant's s 18 Notice, the ACMC resolutions and submissions made by various parties to the ACMC.[44]
4. On 25 March 2019, the Minister declined to consent to the use of the land proposed in the Appellant's s 18 Notice in the following terms:[45]

The [Appellant's s 18 Notice] advised that [the appellant] sought to use [identified land] within the Minderoo Pastoral Lease N049514 (the Land) for the purpose described as the Minderoo Station weir project, being the planning, development, construction and future maintenance of ten weirs, associated bores and infrastructure, access tracks, and a granite quarry for sourcing of weir construction material (the Purpose).

In accordance with my powers under [s 18 of the AH Act], following consideration of the recommendations from the [ACMC] and having regard to the general interests of the community, I hereby decline consent to the use of the land for the proposed Purpose. My decision is based on the importance and special significance attributed by the Traditional Owners to the Ashburton (Mindurru) River.

I encourage [the appellant] to consult with representatives of the Thalanyji people in regards to the proposal if you decide to submit a new application.

1. On 18 April 2019, the appellant applied for a review of the Minister's decision to decline to consent to the use of the land proposed in the Appellant's s 18 Notice.[46]
2. On 18 April 2023, the Tribunal decided to affirm the Minister's decision.
3. On 4 May 2023, the appellant appealed to this court against the Tribunal's decision.

1. The Tribunal gave lengthy and detailed reasons for its decision. A broad overview of the Tribunal's approach, focussing on the most critical aspects of the reasons for present purposes, is set out below.

1. Part 1 of the Tribunal's reasons gave a case overview and made detailed findings about Mindurru, the MARS project and the procedural steps taken in relation to the Minister's decision.

1. Part 2 of the Tribunal's reasons contained a detailed discussion of the operation of the AH Act and the nature of the review.
2. At the outset of that discussion, the Tribunal described the nature of its review in the following terms:[47]

[O]ur task is to hear the [appellant's] application for consent to the Proposed Works under s 18 afresh, by way of a hearing de novo, and to make the correct and preferable decision at the time of our decision upon the review. In doing so, we have functions and discretions corresponding to those which were exercisable by the Minister in making the Minister's decision.

On a review, no party bears any legal or practical onus of proof.

(citations omitted)

1. The Tribunal identified two steps in the exercise of what the Tribunal described as the Minister's discretion under s 18(3) of the AH Act. The first step required the Minister to give proper, genuine and realistic consideration to the recommendation of the ACMC. The second step involved the Minister having regard to the general interest of the community in order to determine whether consent should be given to the proposed use of the land. The Tribunal identified a broad range of considerations, including the community interest in the preservation of Aboriginal sites, which inform the evaluative exercise of determining where the general interest of the community lies.[48]
2. In relation to the Minister's decision, the Tribunal observed:[49]

It has been said that there is a political element to the Minister's decision. The Minister's evaluation as to whether the intended use of the land would be in the general interest of the community no doubt draws on the fact that as an elected member of the Parliament, and as a member of the executive government of the State, the Minister is familiar with assessing competing interests to make a determination as to where the overall interest of the community lies, and to be accountable for that judgment. Further, because the Minister is not bound by the recommendation of the ACMC, the Minister may take into account considerations additional to those taken into account by the ACMC, or may place different weight or emphasis on considerations taken into account by the ACMC, or considerations additional to those taken into account by the ACMC, in determining whether to grant consent having regard to 'the general interest of the community'.

It is open to the Minister to give the various factors relevant to the general interest of the community, such weight as the Minister thinks fit.

(citations omitted)

1. The Tribunal then considered its own role on the review. In doing so, the Tribunal said:[50]

We accept the [Thalanyji] submission that on the Review, the Tribunal may have regard to the Minister's decision as one which reflected what the Minister considered to be in the general interest of the community.[51] (Of course, the Tribunal is not bound to follow the Minister's decision.)

1. The Tribunal summarised its role in the following terms:[52]

In summary, in the Review of the Minister's decision, the Tribunal:

(a) is to proceed by way of a hearing de novo;

(b) is required to consider, but is not bound by, the ACMC's recommendation. That necessarily requires the Tribunal to give proper, genuine and realistic consideration to that recommendation. That requires the Tribunal to consider such information as there is that reveals the basis for the ACMC's opinion as to whether there was an Aboriginal site or sites on the Land, including its evaluation of the importance and significance of those sites, and the degree and significance of any physical impacts on those sites likely to be occasioned by the use of the Land for the Purpose (the MARS), which were the basis for its overall recommendation that consent should be refused;

(c) must have regard to the general interest of the community;

(d) may consider any 'new material' whether or not that material existed at the time the Minister's decision was made. That new material will include the Minister's decision itself;

(e) like the Minister, is entitled to give such weight as it sees fit to the various factors it takes into account or is required to take into account (that is, the ACMC recommendation itself, and any other factors it considers relevant to the general interest of the community);

(f) must determine whether to consent to the use of the Land, or a specified part of the land, for the Purpose (the MARS), and whether conditions should be imposed on the grant of consent, or whether to decline to give consent to the use of the Land for the Purpose.

1. Part 3 of the Tribunal's reasons identified the issues to which the Tribunal would give consideration. Part 4 of the reasons identified the evidence before the Tribunal, which included the evidence of a significant number of lay and expert witnesses and very extensive documentary evidence.

1. Part 5 of the Tribunal's reasons contained a detailed discussion of the evidence and the Tribunal's findings on a range of issues.

1. Part 5.1 of the Tribunal's reasons considered the importance and significance of the Aboriginal sites in question, including Mindurru, to the Thalanyji. The Tribunal also addressed the extent and significance of the likely impacts of the MARS project on the Aboriginal sites and the Thalanyji. In assessing the impact of the MARS project, the Tribunal found:
   1. The MARS project would change and disrupt the natural flow of Mindurru. The effect of the MARS project would be that, for between two and four months (or longer) each year, there will be an accumulation or pooling of water in Mindurru behind each weir, and that the pooling would extend for 5 to 6 km behind each weir.[53]
   2. The natural flow of Mindurru, and the role of the water snake in determining that natural flow, is of central importance in the Thalanyji's spiritual beliefs about Mindurru. Consequently, to interfere with the natural flow of Mindurru would be to interfere in a significant way with a central tenet of the Thalanyji's spiritual beliefs.[54]
   3. From the Thalanyji's perspective, implementation of the MARS project risks killing or harming the water snake or causing the water snake to become angry. That would have a significant adverse impact on the Thalanyji.[55]
   4. Implementation of the MARS project would adversely impact on the Thalanyji's appreciation of the aesthetics of Mindurru, which is a sacred place for them.[56]
   5. The Thalanyji feel a genuine sense of responsibility for Mindurru, that they are concerned about being spiritually punished if they do not speak out against the development of Mindurru, and would feel a sense of shame, or failure in their personal responsibility, for any adverse consequences if the MARS project were to proceed.[57]
   6. It would not be possible to construct and operate the MARS project in a way which minimised the impact on sites of significance to the Thalanyji.[58]
2. The Tribunal reviewed archaeological evidence and concluded that:
   1. Scatter sites and grinding patches on the riverbank in the locations of the proposed weirs were places of archaeological significance and were of importance and significance to the cultural heritage of the State.[59]
   2. The MARS project, through the construction of the weirs, will result in the destruction or loss of artefacts located in the riverbank at the location of each proposed weir. Increased pooling of water which will occur behind each weir will, over time, result in the deterioration of the grinding patches, or will obscure them, as a result of the build-up of sediment.[60]
   3. There is no feasible way to preserve the archaeological significance of the various places identified by the ACMC, if consent is given to the MARS project. The only viable course would be to endeavour to minimise the damage to the archaeological significance of those sites by imposing a condition requiring the opportunity for the salvage of as many artefacts as possible before the commencement of construction. Such a condition could be accommodated.[61]

1. In pt 5.2 of its reasons, the Tribunal made detailed findings in relation to technical hydrogeological and hydrological evidence, which is unnecessary to set out in detail in these reasons. Ultimately, the Tribunal found that the alteration to the natural flow of the river would be significant, observable and, depending on rainfall, may have the effect in any given season of turning an ephemeral pool into a permanent one. Over a stretch of the river of approximately 50 km, water will be present for longer than would otherwise be the case. This alteration of Mindurru, including its pools, would constitute an alteration of an Aboriginal site for the purposes of s 17 of the AH Act.[62]
2. In pt 5.3 of its reasons, the Tribunal made findings as to the impact of the MARS project on terrestrial flora and fauna and the river's aquatic ecosystem. Ultimately the Tribunal found that the magnitude of any environmental impact on Mindurru, as an Aboriginal site, was unlikely to be significant.[63]

1. In pt 5.4 of its reasons, the Tribunal conducted a detailed assessment of evidence relied on by the appellant to establish that the economic benefits of the MARS project would be such that it is in the general interest of the community to grant consent. The Tribunal later summarised its conclusions as to the extent of these benefits, identifying the following matters:[64]
   1. The primary and direct benefits of the MARS project will lie in enabling the appellant to increase horticultural production and beef production at Minderoo station. The MARS project has considerable merit as a novel means of seeking to utilise the natural supply of fresh water in the arid regions of northern Australia, so as to make more productive use of the land. In the end, however, the intended use of that water will be primarily directed to the appellant's private benefit, which did not warrant weight in the Tribunal's assessment of the overall general interest of the community.
   2. If the appellant is able to increase horticultural production and beef production as a result of the ability to draw more water from the aquifers at Minderoo station, that will have indirect benefits for the community. It is in the general interest of the community that a pastoral station is able to be put to its most profitable use for agricultural purposes. The MARS project would assist in the achievement of that objective. However, the Tribunal did not consider this warranted 'great weight' in the overall assessment of the general interest of the community.
   3. Greater horticultural production, and thus an increased food supply, would constitute a benefit to the community. However, the uncertainties associated with the extent of that benefit were such that this consideration did not warrant 'significant weight' in the overall assessment of the general interest of the community.
   4. The MARS project will protect beef production at Minderoo station from the effects of drought, and will thereby result in a more consistent turnover of cattle to the export and domestic consumption markets. However, because the source of such benefits will be confined to beef production at Minderoo station, which is responsible for only a percentage of the total volume of beef produced in Western Australia each year, the Tribunal gave this consideration 'only modest weight' in its overall assessment of the general interest of the community.
   5. The MARS project is likely to create jobs which involves a community benefit. However, the number of jobs likely to be created is such that 'only a modest weight' should be given to this consideration in the Tribunal's overall assessment of the general interest of the community.
   6. The possibility of an increase in gross domestic product as a result of the MARS project would constitute a benefit for the community. But because the evidence did not permit the quantum of that benefit to be estimated, the Tribunal did not give this consideration 'any significant weight' in its overall assessment of the general interest of the community.
   7. The MARS project has some potential to be used as a demonstration project, the lessons from which would assist in developing further proposals of this kind. There would be some community benefit in the increased knowledge about alternative forms of water resource management. However, in the Tribunal's overall assessment of the general interest of the community, this consideration did not warrant 'significant weight'.
   8. Because the suggested use of the additional water as a source of water for the town of Onslow was, on the evidence, no more than a theoretical possibility, the Tribunal gave that consideration no weight in its assessment of the general interest of the community.

1. Part 6 of the Tribunal's reasons contained the Tribunal's analysis on the review.

1. The Tribunal began with the first step noted at [162] above, giving proper, genuine and realistic consideration to the ACMC's recommendation. The Tribunal noted that there was little information in the ACMC's recommendation which expressly explained the basis for the recommendation. The Tribunal proceeded to draw four inferences as to the basis of the reco[65]endation:65
   1. The key basis for the recommendation was the importance and significance of Mindurru and the permanent pools in it to the Thalanyji, rather than the existence of sites of archaeological significance (by virtue of the presence of artefact scatters).[66]
   2. Primary considerations taken into account by the ACMC were the sacred beliefs of the Thalanyji in relation to Mindurru and the pools in it, and their continued significance for the Thalanyji.[67]
   3. The ACMC concluded that it was not a viable option to give consent on any condition.[68]
   4. The ACMC's evaluation of the importance and significance of Mindurru as a site was such as to outweigh any interests (including the appellant's interest, and the general interest of the community) in the pursuit of the MARS project.[69]

The Tribunal observed that there was nothing on the face of the material which was before the ACMC to suggest that its conclusions and recommendation were not supported by any evidence.[70]

The ACMC's conclusions are entirely consistent with the conclusions we have reached, having regard to the evidence, about the importance and significance of [Mindurru], as an Aboriginal site, and to the impact of the MARS project on [Mindurru] as an Aboriginal site.

1. The Tribunal then went on to summarise and reiterate the conclusions which it had reached, the general effect of which is noted at [115] and [[[72]](2024_96.html#_Ref1690 We are not bound by the ACMC's recommendation (just as the Minister was not bound). However, given the expertise of the ACMC's members, its statutory role under the AH Act (as compared with the Minister's role), and the fact that its conclusions and recommendation are entirely consistent with the findings we have reached, having regard to the evidence on the Review, we have concluded that we should give considerable weight to the ACMC's conclusions and its recommendation. They weigh strongly against the grant of consent to the use of the Land for the Purpose, namely the MARS project. The preservation of Aboriginal culture, through the preservation of sites of importance and significance to Aboriginal people, is an important aspect of the preservation of the cultural heritage of the State. We have found that interfering with the natural flow of [Mindurru] will cause spiritual harm to the Thalanyji people, by virtue of their concern that the water snake may die or leave [Mindurru], or become angry, and because the Thalanyji people will feel that they have failed in their duty as the custodians of [Mindurru]. To permit a development of [Mindurru] which would produce that outcome would be contrary to the objective of the AH Act to preserve Aboriginal culture as part of the cultural heritage of the State. (emphasis added)

1. The Tribunal then turned to consider whether the implementation of the MARS project would destroy, damage or alter the Aboriginal sites. The Tribunal summarised and reiterated its previous findings as to that impact, the general effect of which is noted at [169] - [[[75]](2024_96.html#_Ref1690 We take into account the Minister's decision, which was to refuse consent. We are not obliged to follow the Minister's decision. However, we consider that it warrants some weight in our evaluation of the general interest of the community, because it constitutes the opinion, formed by the Minister, as an elected Member of Parliament and as the Minister with responsibility for the operation of the AH Act, that the general interest of the community did not warrant consent being given to the use of the Land for the ... MARS project.

1. The Tribunal referred to its findings as to hydrological and environmental impacts of the MARS project. It said that the hydrological and hydrogeological impacts of the MARS project, other than the alteration of the natural flow of Mindurru, were neutral in its assessment of the general interests of the community. The environmental impacts were also neutral in that assessment.[78]
2. The Tribunal summarised its earlier findings as to the potential benefits from the implementation of the MARS project and their relevance to the general interest of the community, as noted at [172] above. The Tribunal concluded this aspect of its analysis by[79]bserving:79

Taking these various considerations relevant to the general interest of the community into account, our assessment is that the general interest of the community provides some support, but not to a compelling degree, for the implementation of the MARS project.

1. The Tribunal reached its ultimate conclusion as to the general interest of the community in the following terms:[80]

(a) the ACMC formed the view that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;

(b) the implementation of the MARS project will have the permanent effect of interfering with the natural flow of [Mindurru], and will thereby alter [Mindurru] as an Aboriginal site. It will also result in destruction of some of the artefacts found at the location of the proposed weirs, and will, over time, damage the Jiminu Pool Grinding Patches. Alteration of [Mindurru] in this way will cause spiritual harm to the Thalanyji people in the manner we have described, and would be contrary to the underlying objective of the AH Act of preserving Aboriginal culture as part of the cultural heritage of the State;

(c) the Minister concluded, having had regard to the general interest of the community, that consent to the use of the Land for the Purpose, namely the MARS project, should be refused;

(d) the considerations to which we have had regard as relevant to the general interest of the community provide some support, but not to a compelling degree, for the implementation of the MARS project;

we have concluded that the general interest of the community overall does not warrant consent being given to the use of the Land for the Purpose, namely the MARS project. (emphasis added)

1. The Tribunal said that, in reaching this conclusion, it took into account its finding that the MARS project cannot be implemented in any way (including by the imposition of conditions on the grant of consent) which will avoid the alteration of Mindurru as an Aboriginal site, the destruction of artefacts at the location of the proposed weirs, and damage to the grinding patches.[81] The Tribunal considered whether consent should be given for only some of the proposed weirs, but concluded that, because the river itself is an Aboriginal site, alteration of the site cannot be avoided by proceeding only with the construction of some, but not all, of the weirs.[82]
2. The Tribunal concluded:[83]

For all of these reasons, we have reached the conclusion that the correct and preferable decision is that consent to the MARS project should be refused, and thus that the Minister's decision should be affirmed.

The order which should be made is:

Ground 1: giving weight to the fact of the Minister's decision

In determining whether to give or refuse approval of the Appellant's application, the Tribunal erred in law by giving weight to the decision under review, namely the Minister's decision of 25 March 2019 to refuse consent under s 18(3)(b) of the AH Act.

The question of law raised by this ground of appeal is: Could the Tribunal lawfully give weight to the decision under review?

1. For the following reasons, in my view this ground of appeal is established.

1. Each of the ACMC, the Minister and the Tribunal have distinct roles in the statutory process of granting or refusing consent to use land under s 18 of the AH Act.
2. The fact that the ACMC must make a recommendation to the Minister does not necessarily mean that the ACMC and the Minister may take into account the same factors. This is illustrated, albeit in a very different statutory context, by the decision in Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority.[84] That case was concerned with the EPA's recommendations to relevant Ministers as to whether environmental approval should be granted to a proposal under pt IV of the Environmental Protection Act 1986 (WA). The Full Court of this court held that, while the Ministers could take account of social and economic considerations, the EPA's report needed to be limited to environmental factors.
3. Under the AH Act, the role of the ACMC is focussed on determining the existence and significance of an Aboriginal site and the impact of a proposed use on the Aboriginal site. That emerges from the qualifications of the appointed members of the ACMC, the matters about which the ACMC is required to form a view under s 18(2) of the AH Act and the matters to which the ACMC must have regard under s 39(2) and s 39(3) of the AH Act. In contrast to the position of the Minister, the ACMC is not given any role in assessing where the general interest of the community lies. It follows that the recommendations of the ACMC under s 18(2) of the AH Act will be informed by the ACMC's assessment of the existence of an Aboriginal site on the relevant land, the importance and significance of that Aboriginal site and the impact which the proposed use of the land will have on the Aboriginal site if consent is granted.
4. The Minister's role under s 18(3) of the AH Act is broader than the role of the ACMC. The Minister determines, as opposed to recommends, whether consent should be granted and, if so, the conditions to which consent should be subject. In making that determination, the Minister is required to consider, but is not bound by, the ACMC's recommendation. Further, unlike the ACMC, the Minister is required to have regard to the 'general interest of the community'.
5. The statutory reference to the 'general interest of the community' is a broad concept which encompasses an evaluation of a range of social and economic factors. It is a concept akin to the identification of the public interest, which generally imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter, scope and purpose of the legislation may enable given reasons to be pronounced definitely extraneous to any objects the legislature could have had in view.[85] Having regard to the subject matter and object of the AH Act, evaluation of the general interest of the community will have regard to the public interest in preserving important and significant Aboriginal sites. However, it may also comprehend other social and economic factors, such as community benefits which derive from the use of the land for the purpose identified in the Appellant's s 18 Notice. The vesting of the discretion in a Minister also indicates that the Minister may act in accordance with government policy and the Minister's decision is to be evaluated in light of his political role, responsibility and accountability.[86] Where there are factors counting both towards and against the grant of consent, the Minister will be required to evaluate and weigh those competing factors to determine where the general interest of the community ultimately lies.
6. When reviewing the Minister's decision, the Tribunal has, by s 29(1) of the SAT Act, the functions and discretions corresponding to those exercisable by the Minister. In a review of the Minister's decision under s 18(3) of the AH Act, the Tribunal is required to consider the ACMC's recommendation and, having regard to the general interest of the community, decide to either consent or decline to consent to the use of the land. Section 27(2) of the SAT Act requires the Tribunal to make what in its view is the correct and preferable decision at the time of review. Apart from this temporal difference, the Tribunal's function under s 18(3) of the AH Act read with s 29(1) of the SAT Act corresponds to that of the Minister under s 18(3) of the AH Act.
7. Section 27(1) of the SAT Act requires that the review be by way of a hearing de novo. The review is not confined to matters that were before the Minister or material which existed at the time of the Minister's decision.
8. Under the above provisions, the Tribunal is not concerned with identifying error in the Minister's decision. Rather, the Tribunal is required to consider the matter afresh to form its own view as to the correct and preferable decision at the time of the Tribunal's decision upon the review based on the material before the Tribunal. There is no presumption that the decision under review is correct or onus on the applicant for review to prove that a different outcome should follow. The fact that a decision under s 18(3) of the AH Act was made grounds the Tribunal's jurisdiction to determine whether consent should be granted or withheld. But the fact that the Minister made a certain decision under s 18(3) of the AH Act is not probative of what decision the Tribunal should make.
9. This point was made by the Full Court of the Federal Court, in a very similar statutory context of the Administrative Appeals Tribunal (AAT), in Collins v Minister for Immigration and Ethnic Affairs.[87] That case concerned a review of a decision by the relevant Minister to order the deportation of an immigrant from Australia. An AAT member indicated that he gave some weight to the Minister's decision in deciding to affirm the decision. It was unclear whether the member was referring to the decision itself or the Minister's subsequent statement of reasons for the decision. The court (Fox, Deane and Morling JJ) regarded the distinction as fundamental and of critical importance in the appeal, observing:[88]

It seems to us to be unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness. The decision is, of course, a necessary jurisdictional basis for the making of an application for review. But it is no more than that.

As can be seen from the terms of the deportation order, the Minister's decision gives no reasons and is a mere statement to the effect that the Minister has exercised the power conferred upon him by the Migration Act. The relevance of the order is, for present purposes, that it gives rise to a right to invoke the jurisdiction of the Administrative Appeals Tribunal. In our opinion it does not have any further probative significance in the determination of the question whether, on the material before the Tribunal, the decision was the correct or preferable one.

1. In drawing the distinction between giving weight to the decision under review and having regard to the decision-maker's reasons for that decision, the court in Collins observed:[89]

[W]e do not doubt that, in an appropriate case, the expressed reasons of the Minister may carry weight with the Tribunal because of the fact that the Tribunal is impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain. In such circumstances, the Tribunal may give weight to the Minister's reasons in the same way as it gives weight to the oral argument of the legal or other representatives of the parties appearing before it. There is, however, no presumption that the Minister's decision is correct and the Tribunal is neither required nor entitled to place weight, in the ultimate weighing process, upon the fact that the Minister has decided the issue before him, on the material before him, in a particular way. Putting to one side the position where the decision-maker is a person or Tribunal having special expertise where the position may conceivably be different, the actual decision does not, in itself, carry any weight.

1. In Commissioner for Consumer Protection v Murphy,[90] this court recognised the distinction, drawn in Collins, between the order or actual decision and the process of reasoning of a decision-maker. It held that the Tribunal may take account of a decision-maker's process of reasoning in the same way it gives weight to the submissions of the parties. However, the Tribunal cannot give weight to an order or actual decision of a decision-maker as it must conduct a hearing de novo and make its own decision.
2. Previously, in Re Control Investment,[91] Davies J, sitting as President of the AAT, had observed that the Tribunal could have regard to the findings of fact and reasons for decision of the decision-maker. In my view, the later statements of the Full Federal Court in Collins overtook Davies J's observations to any extent they suggested that the decision under review might be probative of its own correctness. I note that Davies J's approach was referred to with approval by Kirby J in Shi,[92] to which the Tribunal in the present case referred in the passage quoted at [164] above. However, Kirby J was the only judge in that case who adopted those observations, which do not appear to have been necessary for his Honour's decision. Other members of the High Court in Shi affirmed that the question for the AAT was whether the Tribunal was satisfied that the decision was the correct or preferable one on the material before th[93]Tribunal.93
3. The answer to the question of law raised by ground 1 is that the Tribunal may not lawfully give weight to the fact of the Minister's decision under s 18(3) of the AH Act, as opposed to any reasons expressed by the Minister for making that decision. While the Tribunal may consider and agree with the process of reasoning adopted by the Minister in making the decision, the Tribunal will make an error of law if it treats the Minister's decision under s 18(3) of the AH Act as being probative of its own correctness.

1. The Tribunal was required to form its own view, on the material before the Tribunal, as to where the general interest of the community lay at the time of the Tribunal's decision upon the review. The Minister had declined to give consent and must therefore have formed the view that the general interest of the community was against the appellant's proposed use of the land. However, the Tribunal was not entitled to give weight to the fact of the Minister's decision as supporting the proposition that this was the general interest of the community.
2. This was not a case of the kind adverted to in Collins, where the decision under review was made by a person or tribunal having 'special expertise'. The only basis for the decision revealed by the Minister's letter referred to above at [154] was the importance and special significance of Mindurru to the Thalanyji. The Tribunal was in no worse position to make its own assessment of that matter. The Minister's letter did not indicate that the Minister had regard to any other facet of the public interest which informed his assessment of the general interest of the community. Nor was it apparent from the Minister's letter whether he had identified competing aspects of the general interest of the community or how he had balanced those matters in forming his ultimate view of where the general interest of the community lay. While the Minister might be regarded as better able to take account of political matters which may legitimately inform his decision under s 18(3) of the AH Act, there is nothing to suggest that the Minister had regard to any political considerations in the present case. Otherwise, the Tribunal is in no worse position than the Minister to evaluate any competing facets of the public interest and determine where the general interest of the community lies. It is unnecessary for this court to consider the position of the Tribunal when reviewing a decision of a person who exercised special expertise to reach his or her conclusion.
3. Considered as a whole, the Tribunal's reasons indicate that it did regard the Minister's decision as probative of its own correctness. While the Tribunal recognised that it was not bound by the Minister's decision it did give the fact of the decision weight in determining where the general interest of the community lay. That emerges from the passage of the Tribunal's reasons quoted at [178] read with par (c) of the passage quoted at [181] above. The Tribunal erred in law in doing so.
4. It is established that only an error of law that affects the Tribunal's decision can be the subject of an appeal on a question of law, and that an immaterial error of law will not suffice.[94] The error of law made by the Tribunal was material to its decision, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.[95] The Tribunal did not, independently of the conclusion reached by the Minister, express its own view as to where the general interest of the community lay and whether facets of the public interest which the Tribunal found to support the implementation of the MARS project were outweighed by the impact of the project on Mindurru and the Thalanyji. In determining where the general interest of the community lay, the Tribunal placed some reliance on the Minister's conclusion. Given that reliance, there is a realistic possibility that the Tribunal's decision to refuse consent could have been different if it had not erred in law by giving weight to the fact of the Minister's decision when making its own evaluation of where the general interest of the community lay.
5. The error of law identified by ground 1 is established and was material to the Tribunal's decision to affirm the Minister's decision to decline to consent to the use of land for the MARS project. Given its limited role in an appeal on a question of law under s 105 of the SAT Act,[96] this court cannot substitute its own decision as to whether consent should be granted under s 18(3) of the AH Act. It will be necessary for this court to send the matter back to the Tribunal for reconsideration under s 105(9)(c) of the SAT Act.

1. In light of the conclusion that the appeal should be allowed on the basis that ground 1 is established, the other grounds of appeal will not affect the outcome of the appeal. For the following reasons, none of the other grounds of appeal are established.

1. Ground 2 contends that, in giving weight to the ACMC's recommendation, the Tribunal erred in law by:

(a) failing to review the Minister's decision de novo, as required by s 27(1) of the SAT Act in order to reach the correct and preferable decision as required by s 27(2) of that Act; and

(b) relying on a legally irrational process of reasoning.

1. The appellant accepts that the Tribunal, like the Minister, is required to consider the ACMC's recommendation.[97] However, the appellant contends, in effect, that the Tribunal is bound by s 27 of the SAT Act read with s 18(3) of the AH Act not to give any weight to the ACMC's recommendation.[98] Nor, on the appellant's submission, is the Tribunal entitled to draw inferences as to the basis for the ACMC's recommendation.[99] This latter complaint concerns the impermissibility of the process of drawing inferences rather than the reasonableness of particular inferences drawn by the Tribunal if that process was permissible.[100]
2. I do not accept the submissions summarised in the previous paragraph. Section 29(1) of the SAT Act provides for the Tribunal to exercise a function corresponding to the Minister's function under s 18(3) of the AH Act. Section 18(3) requires the Minister to consider the ACMC's recommendation. As the appellant accepts, the Tribunal has the same obligation. A prohibition against the Tribunal giving any weight to the ACMC's recommendation is inconsistent with the Tribunal's obligation to consider the recommendation. The Tribunal, like the Minister, is not bound to follow the ACMC's recommendation, and may decide to give the recommendation no weight where there is good reason for doing so. However, there is no proper basis in the text, context or purpose of the AH Act read with the SAT Act for concluding that the Tribunal is always prohibited from giving any weight to the ACMC's recommendation. In determining the weight, if any, to be given to the ACMC's recommendation, the Tribunal may consider the basis of the ACMC's recommendation and may draw reasonable inferences as to the reasons for the recommendation when they are not expressed. The Tribunal did not err in law in adopting this approach.
3. The appellant also contends that it was unreasonable, in the sense that term is used in Minister for Immigration and Citizenship v Li,[101] for the Tribunal to accord significant weight to the ACMC's recommendation when:[102]

(a) the ACMC had before it, but never resolved, important allegations of pools drying out and cultural damage, which the SAT itself rejected;

(b) the inference was open, and could not be resolved by SAT, that the ACMC did not consider changes to river flow were significant to its recommendation; and

(c) SAT had to construct the ACMC's reasons by inference backwards from its recommendation ... so as to allow the ACMC recommendation to be relied upon.

1. This argument appears to me to seek a merits review under the guise of an unreasonableness ground of review. As noted above, it is not an aspect of the appellant's argument on ground 2 that the inferences drawn by the Tribunal as to the basis of the ACMC's recommendation were not reasonably open. Whether those inferences should be drawn was a question of fact for determination of the Tribunal. Nor is any error of law involved in not drawing an inference as to what the ACMC did not consider on the basis that it was merely open for the Tribunal to draw that inference. The approach taken by the Tribunal in giving weight to the ACMC's recommendations, which accorded with the Tribunal's own independently formed view, is not irrational or lacking any evident and intelligible justification.
2. Even if the error of law asserted by ground 2 was established, it would not have been material in the circumstances of this case. The Tribunal recognised that the ACMC's conclusions and its recommendation were entirely consistent with the conclusions which the Tribunal reached on the material before the Tribunal.[103] Given the conclusions reached by the Tribunal independently of the ACMC's recommendation, as to the significance of Mindurru as an Aboriginal site and the impact of the MARS project upon it, there is no realistic possibility that the Tribunal's decision could have been different if it had given no weight to the ACMC's recommendation.
3. For these reasons, ground 2 is not established.

1. By ground 3, the appellant contends that the Tribunal erred in law by misinterpreting the AH Act as having a legislative object of preserving Aboriginal beliefs and/or culture from harm. The appellant says that the Tribunal made this error in the last sentence of the passage quoted at [176] above and the last sentence of par (b) of the passage quoted at [181] above. The appellant says that the Tribunal construed the object of the AH Act as being to preserve Aboriginal beliefs [104] culture from harm.104 The appellant accepts that the significance of the effect of the MARS project on the Thalanyji's beliefs and culture may be considered in determining where the general interest of the community lies. However, the appellant says that elevating the preservation of Aboriginal beliefs and culture from harm to an object of the AH Act would make that consideration 'inviolable, undefea[105]le, unsurpassable'.105
2. The appellant says that the AH Act treats any enduring Aboriginal belief as one fact by which to assess the worthiness of a place or object for preservation but does not protect places or objects in order to preserve Aboriginal beliefs. Rather, the appellant says that the AH Act has the character of a museum Act or a heritage Act, albeit with many 'museum pieces' to remain in situ, and with provisions for places and objects to be still used by people living traditionally. The appellant submits that Thalanyji beliefs and fears are relevant to what is put into the 'outdoor museum' or heritage register, for protection, but that 'protection is not for the purpose of preserving Thalanyji supernatural beliefs'.[106]
3. The object of the AH Act stated in the long title identified at [126] above includes the preservation of places used by the descendants of the original inhabitants of Australia. One category of protected place, specified in s 5(b) of the AH Act, is 'any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent'. In evaluating the importance of a place, the ACMC is required by s 39(2)(a) of the AH Act to have regard to 'any existing use or significance attributed under relevant Aboriginal custom'. Section 39(3) of the AH Act requires sacred beliefs associated with a place to be regarded as a primary consideration to be taken into account in the evaluation of any place for the purposes of the AH Act.
4. The provisions referred to in the previous paragraph indicate that Parliament's concern in enacting the AH Act was not merely to preserve places of historical significance. One of the kinds of places which the AH Act seeks to preserve is places of current ongoing spiritual significance of persons of Aboriginal descent presently in the community. I cannot accept the appellant's submission to the effect that the object of the AH Act is merely to establish a museum with outdoor components. In the present case, current Thalanyji beliefs give Mindurru the status of an Aboriginal site of the kind referred to in s 5(b) of the AH Act and attract the protection of s 17, subject to the grant of consent under s 18 of that Act.
5. The preservation of Aboriginal beliefs and culture from harm is not, in isolation, an object of the AH Act. But the AH Act does have the object of preserving places of current spiritual significance to Aboriginal people. An Aboriginal site of the kind identified in s 5(b) of the AH Act may gain its status by reason of the current spiritual significance of the places to members of the Aboriginal community. The Tribunal accurately encapsulated the purpose of the AH Act in the following passage of its reasons:[107]

The AH Act establishes processes by which places and objects of special significance to Aboriginal people, past or present, can be protected and preserved as part of the cultural heritage of the State, and made available to Aboriginal people for purposes which accord with Aboriginal tradition.

1. A legislative object of the AH Act may also be described as the preservation of Aboriginal culture through the preservation of sites of importance and significance to Aboriginal people. That is the way the purpose was described in the fourth sentence of the passage of the Tribunal's reasons quoted at [176] above, whe[108]t noted:108

The preservation of Aboriginal culture, through the preservation of sites of importance and significance to Aboriginal people, is an important aspect of the preservation of the cultural heritage of the State.

1. In my view, the Tribunal's later reference to the objective of 'preserving Aboriginal culture as part of the cultural heritage of the State' quoted at [181] above is to be read in context as shorthand for 'preservation of Aboriginal culture, through the preservation of sites of importance and significance to Aboriginal people, as part of the cultural heritage of the State' (emphasis added). The Tribunal did not identify an object of the AH Act as being to preserve Aboriginal culture independently of, relevantly, the preservation of sites of importance and significance to Aboriginal people as part of the cultural heritage of the State.
2. Nor did the Tribunal regard the object of the AH Act which it accurately identified as making sacred, ritual or ceremonial sites inviolable. As the Tribunal recognised:[109]

Ultimately, the question for the Tribunal is whether the general interest of the community warrants consent being given to a proposed use of land which necessarily will involve the destruction, damage or alteration of an Aboriginal site, with a consequential potential adverse impact on Thalanyji culture.

1. While Aboriginal spiritual beliefs about a place may give it the status of an Aboriginal site of the kind identified in s 5(b) of the AH Act, s 18 of the AH Act also recognises that consent to destroy or alter the site may be given in some circumstances. Whether this will be the case will depend on whether the Minister, and on review the Tribunal, considers the proposed use of the land to be in the general interest of the community. The mere fact that a proposed use will impact on Aboriginal beliefs and culture does not necessarily preclude the grant of consent. Whether consent is granted will turn on the Minister's, and on review the Tribunal's, evaluation of all the circumstances of the case. Those circumstances may include the nature and extent of the proposed alteration of the site, the impact of the alteration on Aboriginal beliefs and culture, and community benefits which may flow from the proposed use. That is the approach which the Tribunal can be seen to have taken when its reasons are considered as a whole. The Tribunal's approach did not involve treating Aboriginal beliefs and culture as 'inviolable, undefeatable, unsurpassable'. It did not involve the error of law which ground 3 seeks to attribute to the Tribunal.
2. For the above reasons, ground 3 is not established.

Ground 4: evidence of harm to Thalanyji spiritual beliefs and culture

1. Ground 4 contends that the Tribunal erred in law in determining that the MARS project would harm Thalanyji spiritual beliefs and culture, when there was no evidence that such harm would occur.
2. The finding sought to be attacked by this ground was expressed by the Tribunal in the following terms:[110]

While we have found that if the MARS project proceeds, that would not 'devastate' the Thalanyji culture, we have nevertheless found that the consequences of the MARS project represent potential adverse impacts on the spiritual beliefs and the culture of the Thalanyji people. We have found that those impacts warrant significant weight in assessing the potential impact of the MARS project on Thalanyji culture.

1. In oral submissions, senior counsel for the appellant indicated that ground 4 depended on reading the reference to 'adverse impacts on the spiritual beliefs and the culture of the Thalanyji people' in this passage as an alteration of the Thalanyji beliefs and culture as opposed to the emotional impact of the alteration of a sacred site on people who hold the relevant beliefs.[111] Counsel accepted that the emotional impact of the alteration of a sacred site was a relevant factor to consider when deciding whether or not to consent to the alteration of a sacred site.[112] However, while there was evidence that the proposed alteration of Mindurru would emotionally impact on the Thalanyji, there was no evidence that their beliefs or culture would themselves be destroyed.[113] On that basis, the appellant submits that the finding in the passage quoted at [223] above was made withou[114]vidence.114
2. I do not accept the submission that the Tribunal's finding was that Thalanyji beliefs or culture would themselves be harmed. The Tribunal's reference in the passage quoted at [223] above was to findings which the Tribunal made in its earlier discussion of the cultura[115]vidence.115 That section of the Tribunal's reasons concluded with the following observations:

It suffices for us to say that we are satisfied, and we find, that the concerns of the Thalanyji about the MARS project, to which we have referred, are genuinely held. Given the central place of [Mindurru], and of the water snake, in Thalanyji culture, and in their spiritual beliefs, the emotional and spiritual harm which the MARS project may cause the Thalanyji people, in the ways we have described above, and their concerns about their sense of shame and failing if they are unable to prevent the project from proceeding, represent significant potential impacts on the spiritual beliefs and the culture of the Thalanyji. We find that those concerns warrant significant weight in assessing the potential impact, on Thalanyji culture, of the MARS project.

1. The reference to 'adverse impacts on the spiritual beliefs and the culture of the Thalanyji people' in the passage quoted at [223] above was to the emotional impact of the alteration of a sacred site on people who hold the relevant beliefs, as described in the passage quoted at [225] above. Ground 4 proceeds on a misconstruction of the Tribunal's reasons. As there was evidence capable of supporting the finding which the Tribunal actually made, ground 4 is not established.

1. Ground 5 contends that the Tribunal, by finding that the MARS project will result in the destruction or loss of artefacts in the riverbank at the location of each proposed weir, erred in law by failing to address a part of the appellant's case which was of significance to that finding.
2. Ground 5 attacks the findings noted at [169.2] and [169.3] above. The appellant says that, in making these findings, the Tribunal failed to address the part of the appellant's case which contended that there was no warrant for refusing consent on the ground of the destruction of potential artefact sites when keying in weirs to the [116]ls of the riverbed.116 The submission was noted by the Tribunal in the following p[117]age of its reasons:117

The [appellant] made two submissions in response [to the archaeological evidence of Ms Hook in relation to artefact sites]. First, the [appellant] submitted that the mere possibility of an Aboriginal site existing at the location of any or all of the proposed weirs was too remote to sensibly stand against the proposed weir sites. Secondly, the [appellant] submitted an archaeologist could not determine whether the areas for keying were significant without themselves simultaneously destroying the possible site.

1. In my view, the Tribunal effectively accepted this submission when it said that a condition requiring the opportunity for the salvage of as many artefacts as possible before the commencement of construction could be accommodated.[118] The Tribunal inferred that the reason for the ACMC's recommendation was the importance and significance of Mindurru, and the permanent pools in it, to the Thalanyji, rather than the existence of sites of archaeological significance (by virtue of the presence of artefact scatters).[119] The Tribunal repeated its finding, that 'the MARS project will result in the destruction or loss of artefacts at the location of each proposed weir',[120] for the purpose of explaining why the ACMC's recommendations were entirely consistent with the conclusions reached by the Tribunal.[121] While the Tribunal referred to destruction of artefacts at par (b) of the passage quoted at [181] above, it was the alteration of Mindurru rather than the impact on artefacts which the Tribunal found in that paragraph to be contrary to the underlying objective of the AH Act.
2. This aspect of the Tribunal's reasons is not easy to construe. There is some merit to the appellant's criticism that the reasons at times seem to treat evidence of the possibility of destruction of any artefacts that may be located where it is proposed to key weirs into Mindurru's walls as evidence of the certainty that artefacts will be destroyed. The reference to the destruction of artefacts in the passage quoted at [181] above is capable of being seen as indicating that this is a reason why consent should be refused.
3. However, when the reasons are construed as a whole, the better view is that the Tribunal accepted the appellant's contention that the risk of destruction of any artefacts could be accommodated by a condition and was not itself a reason for refusing consent. In that way, the Tribunal effectively accepted this aspect of the appellant's case. The contention in ground 5 that the Tribunal erred in law in failing to deal with an aspect of the appellant's case is not established.

The Tribunal erred in law by failing to address the [appellant's] case, and thereby attributing weight to evidence that the MARS project risked alteration of Peepingee Pool, when the case fell to be determined on the basis that the parts of the MARS project which could have had such effect had been withdrawn from the application under s 18 of the AH Act.

1. Peepingee Pool (also known as Bibinji Pool[122]) is a permanent pool located upstream of proposed weir 9 and downstream of proposed weir 10. The appellant removed the proposal to construct weir 10 as part of the MARS project during the course of the primary proceedings. The appellant contends that the Tribunal nevertheless relied on evidence as to the significance of Peepingee Pool in refusing consent. The appellant says that the Tribunal erred in law by taking account of a consideration irrelevant to the case.[123]
2. In my view, this ground is not established for the reasons explained in the Minister's written submissions.[124] In summary, the Tribunal recognised that the proposal it was considering involved the construction of only nine weirs.[125] The Tribunal referred to evidence concerning Peepingee Pool, which the appellant accepts will still be affected by the MARS project to some extent,[126] when assessing the broader significance and importance of Mindurru.[127] The Tribunal also inferred that the significance of pools including Peepingee Pool was a reason the ACMC attributed significance to Mindurru as an Aboriginal site.[128]
3. However, when the Tribunal then proceeded to state its own findings in relation to the impact of the MARS project on Mindurru as an Aboriginal site (as opposed to its findings in relation to the importance and significance of Mindurru as an Aboriginal site), it referred only to the effect of the MARS project on the natural flow of Mindurru and did not refer to any specific impact on Peepingee Pool.[129] Further, in considering whether the implementation of the MARS project would destroy, damage or alter Aboriginal sites, the Tribunal made no findings in relation to any specific impact on Peepingee Pool.[130]
4. As the Minister submits, given:[131]

(a) the Tribunal did not make any findings in relation to the specific impact of the MARS project on Peepingee Pool;

(b) the Tribunal placed no reliance on any evidence as to specific impact of the MARS project on Peepingee Pool; and

(c) the Tribunal expressly noted that the MARS project had been amended by the appellant so as to exclude weir 10 and its impact on Peepingee Pool,

it cannot be concluded that the Tribunal failed to address the appellant's case based on an amended proposal which did not include the construction of weir 10.

1. The appellant submits that it also offered to accept whatever number of weirs the Tribunal considered appropriate.[132] That submission could be taken as an impermissible invitation for the Tribunal to reformulate the proposal rather than consider whether consent should be given to a use of land proposed by the appellant. In any event, the Tribunal dealt with this submission in the manner noted at [182] above, concluding that alteration of Mindurru could not be avoided by proceeding only with the construction of some weirs.
2. Ground 6 is not established.

1. As noted above, the success of ground 1 means that this court is required to set aside the decision of the Tribunal and send the matter back to the Tribunal for reconsideration. Two issues as to the terms of the remittal were debated at the hearing:
   1. whether the court should order reconsideration with or without further evidence, pursuant to s 105(9)(c) of the SAT Act; and
   2. what directions the court should give as to whether the Tribunal should be constituted by the members who made the original decision, pursuant to s 105(10) of the SAT Act.
2. The questions are related. Given that many of the Tribunal's factual findings were based on an assessment of the credibility of witnesses who the Tribunal saw and heard give evidence, reconsideration by a differently constituted Tribunal would require an opportunity for the parties to call oral evidence. However, if the Tribunal were to be constituted by the same members who made the original decision, then in my view there would be no warrant for providing for the parties to revisit factual findings which were not affected by the error identified in ground 1 except so far as those findings may be affected by matters arising since the original hearing.

Whether reasonable apprehension of bias would arise on reconsideration

1. A threshold question is whether the original members would be subject to a reasonable apprehension of bias on reconsideration by reason of the conclusion they reached in making the original decision. The appellant contends that a reasonable apprehension of bias would arise in this case.[133] If that were so, it would be inappropriate for this court to direct that the same members conduct the reconsideration.[134]
2. Reasonable apprehension of bias in a court will be established if a fair‑minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.[135] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[136] However, the observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.[137]
3. These principles apply equally to the members constituting the Tribunal in the present case. The presiding member of the Tribunal is a judge of this court and the other two members are legally qualified members whose training equips them to disregard irrelevant matters.
4. In Livesey v New South Wales Bar Association,[138] the High Court recognised that a reasonable apprehension of bias can arise in some cases where a judge had expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact. In the present case, the Tribunal members made credibility based factual findings in pt 5 of the primary decision. However, the error of law identified in ground 1 of the appeal could not have had any influence on those findings. Further, the matter to which the Tribunal inappropriately gave weight was not an aspect of its own assessment of the evidence but rather involved giving weight to a view reached by the Minister. The risk of unconscious bias is much reduced when the matter to be left out of account on reconsideration is a view expressed by a third party rather than one formed by the Tribunal, and where the Tribunal is left to form and give effect to its own view of the matter.
5. In my view, the members of the Tribunal will be capable, and will be seen to be capable, of conducting the evaluation required by s 18(3) of the AH Act leaving out of account the view adopted by the Minister. That will involve the Tribunal acting on its own view of the matter without giving any weight to the position adopted by the Minister. A fair‑minded observer would not doubt their capacity to do so. Nor would a fair‑minded observer doubt the capacity of the Tribunal to conduct the evaluation of where the general interest of the community lies at the date of reconsideration having regard to the findings of primary fact already made by the Tribunal and any findings of primary fact based on evidence of matters arising since the Tribunal hearing. In all the circumstances, this is not a case in which a fair‑minded lay observer might reasonably apprehend that the Tribunal members who sat on the original hearing might not bring an impartial mind to the resolution of the question the Tribunal is required to decide in reconsidering the matter.

1. Having regard to the above conclusion, it is necessary to consider how the discretion conferred on this court by s 105(9) and s 105(10) of the SAT Act should be exercised in this case. Ultimately, whether such an order is made must be determined by reference to the interests of justice (which include the 'appearance of justice') in the particular case.[139] The power to remit the matter to a differently constituted panel is to be exercised sparingly and only where it appears to the appellate court that it is appropriate in the interests of justice to do so.[140]
2. This is a not a case where justice requires the review process to begin again, with all evidence being heard afresh. Ordering a retrial is recognised as the most deplorable result, even in cases where it is necessary.[141] As was recognised in McKay (where a limited retrial was ordered):[142]

The exercise of the power to order a retrial ultimately depends upon the demands of justice. The question of whether to order a new trial limited to certain issues or to order a new trial generally also depends on what is just in all the circumstances. Generally speaking, the starting point is that if there is to be a new trial, it ought to be of the case as a whole unless the court thinks that it will do more injustice by setting the matter at large again. Thus, where the court considers that it is difficult to 'disjoin' the issue which makes the retrial necessary from other issues in the case, it will be appropriate to order a retrial of all such issues. Similarly, a new trial should not be limited if there is a 'real chance' of the primary court having erred in the wider case. (citations omitted)

1. As noted above, pt 5 of the primary decision in the present case contains a detailed analysis of a large volume of very technical evidence from which the Tribunal made findings as to the primary facts. None of those findings are infected by the Tribunal's error of law in giving weight to the fact of the Minister's decision. There is no good reason why the Tribunal's reconsideration should not proceed by reference to those detailed factual findings. Nor is it in the interests of justice for the parties to be at liberty to recast their cases in relation to facts which have been found by the Tribunal contrary to their position by calling evidence which could reasonably have been adduced at the original hearing. This court has a general power under s 105(9) of the SAT Act to make directions and orders it considers appropriate for the rehearing. It is within the scope of that power to direct that the Tribunal reconsider the matter by reference to facts already found by the Tribunal. It is appropriate for this court to exercise that power when those factual findings are not infected by the error of law which leads this court to set aside the primary decision.
2. The position where the court makes such a direction under s 105(9) of the SAT Act is distinguishable from the position where the court orders the whole review to be undertaken afresh. In the latter case, factual findings previously made by the Tribunal have no status and it would be an error for this court to direct reconsideration be by the same members for the purposes of giving one party the benefit of favourable factual findings.[143] However, where this court orders the reconsideration to proceed by reference to factual findings which are unaffected by the relevant error of law, the limits on the review on reconsideration arise from a direction or order made by this court pursuant to s 105(9) of the SAT Act.
3. Requiring the Tribunal's reconsideration to proceed by reference to factual findings already made, and which are not infected by error of law, is consistent with the main objects of the Tribunal provided for by s 9 of the SAT Act. Those objects include the Tribunal reviewing decisions fairly and according to the substantial merits of the case, acting as speedily and with as little formality as possible and minimising the costs to the parties. Allowing the Tribunal as previously constituted to conduct the review on reconsideration by reference to the factual findings made in pt 5 of the primary decision would advance those objectives. Those objectives would be impeded by requiring the parties to effectively begin the process again before a differently constituted panel.
4. It must be acknowledged that the objective of a speedy determination of the review has not been achieved in this case. It took almost two years from the institution of the primary proceedings for the hearing to commence and a further two years after the hearing for the Tribunal to deliver its decision upon the review. Although the hearing before the Tribunal only lasted seven days, there was a large volume of documentary evidence and a multiplicity of issues presented for the Tribunal's assessment. That no doubt contributed to the length of time taken by the Tribunal to deliver its decision. It is not in the interests of justice to compound the delay which has already occurred by requiring a differently constituted Tribunal to undertake the exercise of hearing and considering the evidence, and making findings on the matters dealt with in pt 5 of the primary decision, afresh.
5. The appellant notes that, on reconsideration, the Tribunal will be required to arrive at the correct and preferable decision at the time of the reconsideration of review.[144] The appellant also notes that it has already been five years since the original hearing. It makes the point that the original Tribunal members' recollection of the evidence given at the original hearing is likely to be limited by the time the Tribunal reconsiders the matter. The appellant also submits that this court can infer that some circumstances will have changed since the original hearing. I agree that these are factors which count in favour of this court ordering a fresh hearing by a Tribunal constituted by different members.
6. However, in my view the interests of justice are not served by the parties being given a general opportunity to address shortcomings in the evidence they adduced at trial on issues on which they were unsuccessful. It will be necessary to allow the parties to adduce evidence of matters arising since the original hearing which could not reasonably have been adduced at the original hearing. But the remittal for reconsideration should be for the purposes of correcting the decision so far as it may have been infected by an error of law rather than allowing parties to adduce new evidence which could reasonably have been tendered at the original hearing.
7. I also accept the appellant's submission that on reconsideration the Tribunal will be required to apply the current provisions of the AH Act.[145] New provisions include the right of a native party to seek review of a decision under s 18(5), conditions imposed on consents by s 18(6), the Minister's powers to vary or revoke a consent on becoming aware of new information about an Aboriginal site under s 18(6A) and the power of the Premier to call in a review application under s 18A of the AH Act. However, the critical provisions governing review by the Tribunal, in particular the definition of 'Aboriginal site' in s 5, the offence created by s 17 and the terms of s 18(2) and s 18(3) of the AH Act are materially the same. The Tribunal performs materially the same function under the current version of the AH Act.
8. Senior counsel for the appellant also submitted that it would be open to the appellant to make a new application for consent at least if there was a material change in circumstances.[146] That course might be open to the appellant and may be the appropriate course if the MARS project is varied in a manner that makes that proposal different in essence.[147] However, this court is concerned with the course which should be adopted by the Tribunal on reconsideration of the existing request for consent. Nothing in these reasons prevents the appellant from withdrawing the remitted review application and giving a new notice under s 18(2) of the AH Act by reference to a substantially modified MARS project.
9. In my view, it is in the interests of justice in the present case for the review on reconsideration by the Tribunal to be undertaken by the original members by reference to the factual findings in pt 5 of the primary decision. The directions should give the Tribunal the capacity to receive evidence of matters arising since the original hearing but leave it to the Tribunal to determine whether to receive any tendered evidence. I would also give the parties liberty to apply to vary the directions, so that any events which make a review in the manner contemplated by the directions impractical (such as one of the original members becoming unavailable to sit on the review) can be accommodated.

1. For the above reasons, I would make the following orders:
   1. Leave to appeal is granted.
   2. The appeal is allowed.
   3. The order made by the Tribunal in DR 82/2019 on 18 April 2023 is set aside.
2. The matter is sent back to the Tribunal for reconsideration based on:

(a) The factual findings contained in pt 5 of the Tribunal's reasons Forrest and Forrest Pty Ltd and Minister for Aboriginal Affairs [2023] WASAT 28; and

(b) any other factual findings which the Tribunal makes by reference to the evidence adduced at the original hearing and/or such further evidence of matters arising since the original hearing as the Tribunal sees fit to receive.

1. On reconsideration the Tribunal shall be constituted by the members who made the original decision.
2. The parties have liberty to apply to vary orders 4 and 5 of these orders.

I would hear from the parties as to the costs of the appeal.

1. I have the considerable advantage of having read the separate reasons for decision of Buss P and Mitchell JA in draft.
2. I agree with Buss P, for the reasons that his Honour gives, that ground 1 must be allowed: the error the subject of ground 1 is made out and there is a real possibility that the error could have affected the Tribunal's decision. The merit of ground 1 satisfies me that it is in the interests of justice that the appellant be granted leave to appeal pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA). I reject the second respondent's contention that there is no substantive injustice in any error affecting the Tribunal's decision going uncorrected as there is nothing preventing the appellant making further application for consent under s 18 of the Aboriginal Heritage Act 1972 (WA) to facilitate the MARS project. The Tribunal's decision stands as a practical impediment to the success of any such application for consent unless the application is in materially different terms.
3. The other grounds of appeal should be dismissed for the reasons given by Mitchell JA.

The parties' position on the appropriate orders

1. The more acute issue, to my mind, concerns the appropriate orders to be made by this court under s 105(9) and s 105(10) of the State Administrative Tribunal Act.
2. The appellant's case and respondent's answers did not address the issues that arose in relation to the relief that should be ordered if the appeal was allowed. The appellant did no more than state that its orders wanted included the matter being sent back to the Tribunal for reconsideration with the hearing of 'such further evidence arising as the Tribunal may receive since 4 June 2021'. The appellant's orders wanted were silent on whether the matter should be sent back to the Tribunal as originally constituted or whether the Tribunal should be reconstituted. It appears that this was by design rather than inadvertence.[148] That omission is unhelpful given the terms of s 105(10) of the State Administrative Tribunal Act.
3. At the appeal hearing it emerged that the appellant sought that the matter be sent back to the Tribunal differently constituted. Also, notwithstanding that the appellant's orders wanted suggested a temporal limitation on the evidence that might be permitted at any reconsideration of the matter, the appellant sought that the Tribunal itself be permitted to determine what additional evidence might be allowed.[149]
4. The appellant submitted that:[150]
   1. The 'general interest of the community' inquiry under s 18(3) of the Aboriginal Heritage Act involved a multifactorial evaluative public interest inquiry that, consistently with Osland v Secretary, Department of Justice [No 2],[151] should be sent back to the Tribunal for reconsideration.
   2. By s 27(2) of the State Administrative Tribunal Act the purpose of sending the matter back to the Tribunal for reconsideration would be to produce the correct and preferable decision 'at the time of the decision upon the review'.
   3. Additional evidence might be adduced at the rehearing insofar as things were likely to have developed after the original hearing ‑ that having been conducted over 22 ‑ 26 March and 3 ‑ 4 June 2021 (ie more than three years ago). The parties ought to be allowed to rely on such evidence given the statutory purpose of review proceedings in the Tribunal as evinced by s 27(2) of the State Administrative Tribunal Act. Also, to the extent that the Aboriginal Heritage Act had been amended, the Tribunal would have to carry out its review based on the provisions of the Aboriginal Heritage Act as amended.
   4. There would be a reasonable apprehension of bias were the Tribunal as originally constituted to carry out the reconsideration of the matter.
   5. The predominant consideration ought to be that of 'doing justice' and any considerations of cost or inconvenience to the parties, the witnesses or the Tribunal were a 'very distant second' to that objective.
5. The appellant suggested that the rehearing might be confined by the parties 'sensibly' agreeing to accept the Tribunal's determination of aspects of the controversies in the evidence where that determination could not have been affected by any error of law as asserted in the appeal.[152]
6. The first respondent submitted that, if the appeal was upheld on ground 1, this court should send the matter back to the Tribunal as originally constituted to decide the application on the same evidence.[153] That was also the position of the second respondent.[154] It was said that, in these circumstances, there could be no reasonable apprehension of bias. That followed as there was no question of additional evidence or further intermediate fact-finding. It was simply a question of the Tribunal considering the question under s 18(3) of the Aboriginal Heritage Act according to law on the facts as previously found. The respondents contended that this course was consistent with the interests of justice in the circumstances of the case and the main objectives of the Tribunal as specified in s 9 of the State Administrative Tribunal Act.[155]

1. The starting point in determining the orders that should now be made is to consider the terms of s 105(9) of the State Administrative Tribunal Act. Section 105(9) provides:

(a) affirm, vary, or set aside the decision of the Tribunal; or

(b) make any decision that the Tribunal could have made in the proceeding; or

(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

and, in any case, may make any order the court considers appropriate.

1. Section 105(10) of the State Administrative Tribunal Act becomes applicable where, under s 105(9)(c), an appeal court sends a matter back to the Tribunal for reconsideration. It provides:

If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.

1. Senior counsel for the second respondent submitted that sub‑pars (a) ‑ (c) of s 105(9) provided for three alternatives which meant that an appeal court had the power, in effect, to reopen the Tribunal's jurisdiction by way of reconsideration.[156] I do not accept that submission. There are three alternatives in s 105(9)(a). The appeal court may affirm, vary or set aside the Tribunal's decision. Where the Tribunal's decision is affirmed there can be no basis for exercise of the power under s 105(9)(b) or (c). Separately the appeal court may, pursuant to s 105(9)(b), make any decision that the Tribunal could have made in the proceedings; but there is, in that event, no reason to send the matter back to the Tribunal. So too, where the appeal court varies a Tribunal decision under s 105(9)(a), there is no reason to send the matter back to the Tribunal for reconsideration. The decision as varied is the final decision (subject to any further appeal).
2. Sometimes, in varying a Tribunal decision under s 105(9)(b), it might be that the appeal court is in substance and reality exercising the power under s 105(9)(b) to make a decision that the Tribunal could have made. But, in any case, it is difficult to see how an appeal court could vary the Tribunal's decision unless the decision as varied is a decision that the Tribunal could have made in the proceedings.
3. There is, however, no free‑standing power to send the matter back to the Tribunal for reconsideration without having set aside the decision of the Tribunal. The setting aside of the Tribunal's decision under s 105(9)(a) is a pre‑condition to the exercise of the power under s 105(9)(c) to send the matter back to the Tribunal for reconsideration. In this respect, unlike the reconsideration process that the Tribunal may invite under s 31(2) of the State Administrative Tribunal Act, s 105(9)(c) is expressed in terms of sending the matter back for reconsideration rather than inviting the Tribunal's reconsideration of the decision. Where there is a subsisting decision quelling the controversy there can be no matter to be sent back to the Tribunal for reconsideration.
4. The power to send a matter back to the Tribunal for reconsideration under s 105(9)(c) contemplates that the appeal court may make directions as to whether the reconsideration will be 'with or without the hearing of further evidence'. In that respect it is necessary to refer to two other provisions of the State Administrative Tribunal Act. First is s 9:

The main objectives of the Tribunal in dealing with matters within its jurisdiction are:

(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and

(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and

(c) to make appropriate use of the knowledge and experience of Tribunal members.

1. The main objectives of the Tribunal as specified in s 9 will inform the exercise of the appeal court's powers under s 105(9). A consideration of the objectives in s 9 may, in some cases, persuade an appeal court that it should provide for a reconsideration of the matter without the hearing of further evidence. That said, conformably with the generality of s 105(9)(c) and the nature of the power conferred thereby, the ultimate consideration for an appeal court in determining whether the Tribunal's reconsideration of a matter should be with or without the hearing of further evidence must be the interests of justice in the circumstances of the particular case.
2. The second provision that should be referred to is s 27(2) of the State Administrative Tribunal Act. The appellant relied on s 27(2) as requiring that it (and the other parties) be afforded an opportunity to adduce additional evidence at any reconsideration of the matter. Section 27(2) provides:

The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

1. Section 27(2) concerns the nature of a review proceeding in the Tribunal. A review proceeding is by way of a hearing de novo and is not confined to matters that were before the decision maker; it may involve the consideration of new material whether or not it existed at the time the decision was made.[157] Neither the reasons for decision provided by the decision maker, nor the applicant's grounds for review, limit the Tribunal in conducting a review proceeding.[158]
2. The appellant's argument was that, if the purpose of review proceedings is to produce the correct and preferable decision 'at the time of the decision upon the review', the parties must be allowed to rely on all probative evidence as becomes available before the Tribunal's review decision. Hence, in the appellant's submission, an appeal court sending a matter back to the Tribunal for reconsideration must make provision for the hearing of further evidence.
3. The appellant's initial proposition is overly broad. There may be limits on the evidence that a party may have admitted in the Tribunal even where a review proceeding involves an original hearing rather than a rehearing following an appeal court sending a matter back to the Tribunal for reconsideration. The Tribunal is bound by the rules of natural justice.[159] In that connection the Tribunal is to take reasonably practicable measures to ensure that the parties have the opportunity in the proceedings to call or give evidence.[160] But there is no absolute right or entitlement of the kind asserted by the appellant. Where a party has had a sufficient opportunity to give or call evidence, but has not availed itself of that opportunity in a timely way, the party may in some cases be precluded from having evidence admitted where doing so would be inconsistent with the main objectives of the Tribunal.
4. Similar considerations apply where an appeal court is determining whether to give directions for the hearing of further evidence having decided to send a matter back to the Tribunal for reconsideration. For example, where with the benefit of hindsight ‑ in the form of the Tribunal's reasons ‑ a party's case is not as fulsome as it might have been on a particular point, a successful appeal on a question of law under s 105 of the State Administrative Tribunal Act ought not ordinarily become the means to supplement the party's factual case. The interests of justice are seldom served by allowing a party free rein to recast or improve its case on a rehearing by adducing evidence that could and should have been presented at the original hearing.
5. In answering the appellant's submissions, senior counsel for the second respondent submitted that s 27(2) should be read as qualified by the power of this court under s 105(9)(c).[161]
6. I do not construe s 27(2) as being qualified by s 105(9)(c). To say that one statutory provision qualifies another statutory provision suggests that the first provision has primacy and the other provision is subservient; it suggests that the first provision alters, limits or modifies the other provision. That is not an apt descriptor of the relationship between s 105(9) and s 27(2). Rather, in describing the purpose of a review proceeding, s 27(2) establishes the primary duty or obligation imposed on the Tribunal when exercising its review jurisdiction. The Tribunal's review is to produce the correct and preferable decision at the time of the decision on the review. In substance, on a merits review of a reviewable decision the Tribunal must make the correct and preferable decision on the basis of the materials before the Tribunal at the time the Tribunal hears the review proceedings. Those materials may, given s 27(1), include new material coming into existence after the decision-maker's decision and are not confined to materials that were before the decision-maker.
7. The duty or obligation under s 27(2) is necessarily to be performed in the context of the statutory regime provided for by the State Administrative Tribunal Act. That statutory regime includes s 105(9)(c). Where, on a rehearing following a successful appeal, the Tribunal's reconsideration is to occur without the hearing of further evidence, it remains incumbent on the Tribunal to produce the correct and preferable decision at the time of the decision on the review. However, the materials before the Tribunal at the time the Tribunal rehears the review proceedings will be confined to those admitted into evidence at the original hearing. The duty or obligation under s 27(2) is unchanged - it is simply that, by reason of the direction of the appeal court under s 105(9)(c), the duty or obligation is to be performed on the basis of the materials that were before the Tribunal on the original hearing.
8. While, for these reasons, I do not accept that s 27(2) is 'qualified' by s 105(9)(c), nor do I accept the appellant's submission that s 27(2)'s stipulation compels an appeal court to make a direction under s 105(9)(c) permitting the hearing of further evidence. That would see s 27(2) controlling s 105(9)(c). There is no foundation in the statutory text, context or purpose for that approach. To the contrary, in as much as it confers a power on a court, s 105(9)(c) is to be construed and applied as liberally as its terms and context permit. Section 105(9)(c) should not be read down on the basis that its application is controlled by s 27(2). That is all the more so when it is recalled that s 105(9) applies not only to appeals against a decision of the Tribunal in review proceedings but also to decisions made in the exercise of the Tribunal's original jurisdiction. It cannot be supposed that s 105(9)(c) is to be applied one way in the context of an appeal against a decision in the Tribunal's review jurisdiction and another way in the context of an appeal against a decision in the Tribunal's original jurisdiction.
9. It should be observed that this understanding of the relationship between s 105(9)(c) and s 27(2) is consistent with, and inexorably follows from, the proper construction and application of s 105(9)(c) (as to which see [273] above).

1. Having recited the parties' submissions and considered the relevant statutory framework in the context of those submissions it is convenient to determine the orders that should now be made by reference to the possibilities under s 105(9). It is logical to commence by considering and determining the orders to be made under s 105(9) and then, to the extent necessary, to consider and determine any question arising under s 105(10). Depending on the orders made under s 105(9) it may or may not be necessary to give a direction under s 105(10). Moreover, the appropriate direction under s 105(10) will be informed by the orders to be made under s 105(9).
2. Turning, then, to the orders to be made under s 105(9). First, in circumstances where the Tribunal's decision is legally erroneous by reason of the error the subject of ground 1, it is appropriate to set aside the Tribunal's decision pursuant to s 105(9)(a). As the decision is to be set aside the other alternatives under s 105(9)(a) fall away. Second, as to s 105(9)(b), this is not an appropriate case for this court to make a decision that the Tribunal could have made in the proceedings. The inquiry under s 18(3) of the Aboriginal Heritage Act involves a judgment based on considerations of public interest that is essentially 'factual, evaluative and ministerial' which - if it is to be determined - should be sent back to the Tribunal for reconsideration.[162] Third, consistent with the conclusion that this court should decline to make a substituted decision, it is appropriate in terms of s 105(9)(c) that the court send the matter back to the Tribunal for reconsideration.
3. It should not be thought that where the court declines to make a substituted decision under s 105(9)(b) it must always send the matter back to the Tribunal for reconsideration under s 105(9)(c). There will be cases, perhaps rare, where the appropriate relief is limited to setting aside a legally erroneous decision. For example, in some cases there may be no utility in sending a matter back to the Tribunal for reconsideration. While, in the present case, the second respondent argued that leave to appeal should be refused because there was nothing preventing the appellant making a further application for ministerial consent, there was no suggestion that this possibility might provide a discretionary reason not to send the matter back to the Tribunal for reconsideration.
4. The next issue is what, if any, directions or recommendations should be made in sending the matter back to the Tribunal for reconsideration.
5. The purpose in sending the matter back to the Tribunal for reconsideration is to bring about the making of a decision according to law on the appellant's review application. Accordingly, first and foremost, this court must make any directions or recommendations as are necessary or appropriate to overcome and eliminate the legal error which has been found to infect the Tribunal's original decision. Nothing specific is required in the present case. This court's reasons for decision suffice to identify the error and to inform the Tribunal how it ought not to reason in its reconsideration. In reconsidering the matter the Tribunal must not give weight to the Minister's decision of 25 March 2019 to refuse consent under s 18(3)(b) of the Aboriginal Heritage Act.
6. Finally in terms of the orders under s 105(9), in sending the matter back to the Tribunal for reconsideration the appellant seeks an order that the Tribunal's reconsideration proceed with the hearing of further evidence.
7. The respondents oppose that order. The respondents say, in effect, that it suffices if the Tribunal as originally constituted now provides a legally correct decision on the basis of the facts as found on the evidence admitted in the original hearing. In this respect I, like Buss P and Mitchell JA, accept that the Tribunal's intermediate factual findings as recounted in pt 5 of the Tribunal's reasons are not impugned by the error of law the subject of ground 1. That is a powerful reason for proceeding as proposed by the respondents. So too it is plainly the case that the respondents' preferred form of orders is supported by some of the main objectives of the Tribunal in s 9 of the State Administrative Tribunal Act. Allowing the hearing of further evidence is inconsistent with acting as speedily as is practicable and minimising the costs to the parties. That is particularly the case where, as will be seen, the consequence of allowing the hearing of further evidence is to necessitate a rehearing that amounts to a fresh de novo hearing - a 'most deplorable result'[163] that 'inflicts great hardship on parties and witnesses'.[164]
8. Ultimately, however, I am persuaded that the interests of justice in the circumstances of this particular case require that the parties be afforded the opportunity of the matter being reconsidered with the hearing of further evidence.
9. The passage of time since the original hearing in the Tribunal means that it is highly likely that there is additional probative evidence that will have become available to the parties, such evidence having come into existence after the conclusion of the original hearing. The original hearing was concluded more than three years ago. Since that time it is to be expected that additional probative evidence informing the general interest of the community will have arisen. Certainly there is no evidence by which it could be concluded that there has not been a material change in the circumstances pertaining to the general interest of the community.
10. Largely, but not exclusively, at the original hearing the appellant advanced a case that the economic benefits of the MARS project were such that it was in the general interest of the community to grant consent. The potential benefits were broken down into six different groupings. The Tribunal addressed the evidence admitted at the original hearing, making numerous findings, in pt 5.4 of its reasons. At the appeal hearing senior counsel for the appellant (who was senior counsel for the appellant in the review proceedings before the Tribunal) informed the court that there were subsequent developments in at least one of those matters which the appellant would seek to bring to the attention of the Tribunal.[165] A statement to this effect by senior counsel should be given weight unless it is unreasonable or improbable. There is nothing unreasonable or improbable in senior counsel's statement. To the contrary, having reviewed the Tribunal's recitation of the evidence and having considered the Tribunal's findings as set out in pt 5.4 of the Tribunal's reasons, I am satisfied that it is highly likely that additional probative evidence will have arisen on many of these subjects since the original hearing in the Tribunal. To state the obvious, that additional probative evidence is evidence that could not reasonably have been adduced at the original hearing.
11. This is a very unusual case. It is very unusual for this court to be sending a matter back to the Tribunal for reconsideration more than three years after the original hearing. In these circumstances ‑ and being satisfied that the passage of time means that it is highly likely that there is additional probative evidence now available relevant to an inquiry as to 'the general interest of the community' ‑ it is in the interests of justice that the Tribunal's reconsideration of the matter proceeds with a hearing of further evidence. I am of this view despite the powerful countervailing factors relied on by the respondents. It is, in my opinion, necessary to give substantial weight to the main objective that the Tribunal review decisions fairly and according to the substantial merits of the case.
12. My conclusion that the Tribunal's reconsideration ought to proceed with the hearing of further evidence has implications for the constitution of the Tribunal on the reconsideration.
13. Section 105(10) of the State Administrative Tribunal Act requires that this court give directions about whether in reconsidering the matter the Tribunal is to be constituted by the members who made the original decision. In some ways this is a curious provision. It might have been thought that the Tribunal is well placed to organise its own affairs and determine whether a reconsideration by the Tribunal as originally constituted will be lawful and appropriate. Indeed, as in the present case the Tribunal will be able to make that determination based on a fuller understanding of the additional evidence to be relied on at the reconsideration of the matter, it might be thought that the Tribunal will be better placed than this court to determine how it ought to be constituted. Be that as it may, the legislature has determined that the question should not be left to the Tribunal. It is necessary that this court make a determination.
14. The Tribunal must implement any direction that the reconsideration of a matter is to be by the Tribunal differently constituted. Difficulties may arise, however, if an appeal court directs that the reconsideration is to be by the Tribunal as originally constituted. It may not be possible to reconstitute the Tribunal by the same members. Alternatively, issues may emerge which are not apparent at the time that the question under s 105(10) is considered by the appeal court. Accordingly, where an appeal court is satisfied that there should not be an exclusionary direction, it is ordinarily prudent to direct that the reconsideration of the matter may be by the Tribunal as originally constituted. The ultimate constitution of the Tribunal is then in the hands of the Tribunal.
15. The making of a direction under s 105(10) involves a broad discretion. In other contexts it is said that the court's power to remit a matter to a different judicial officer is to be exercised 'sparingly'.[166] In the context of s 105(10) the discretion requires an appeal court to assess what best facilitates the interests of justice ‑ including, in this respect, the appearance of justice.[167] Accordingly, while a reasonable apprehension of bias on the part of the Tribunal as originally constituted will commonly provide a reason for an appeal court to direct that the reconsideration be by the Tribunal differently constituted, the inquiry is not limited by that consideration.
16. Indeed, it will often not be possible for an appeal court to state definitively whether there will be a reasonable apprehension of bias if the reconsideration proceeds before the Tribunal as originally constituted. Where the reconsideration is to proceed with the hearing of further evidence whether or not there will be a reasonable apprehension of bias may not become clear until the parties file their additional evidence and there is a full exposition of the issues for determination. In such a case the question raised by s 105(10) should be assessed in terms of whether there is an unacceptable risk of reasonable apprehension of bias such that it is in the interests of justice that the reconsideration be by the Tribunal differently constituted. This allows the issue to be approached as a matter of impression as opposed to the more detailed consideration which commonly will be applicable to a recusal application.
17. The present appeal involves a case of the kind referred to in the preceding paragraph. For the reasons I have given the Tribunal's reconsideration of the matter must allow for the hearing of further evidence. There is at least a reasonable likelihood that such further evidence may impact on the continued validity of the findings that the Tribunal made in pt 5.4 of its reasons as to the general interest of the community. In the circumstances, as Buss P's reasons demonstrate, there is an unacceptable risk of reasonable apprehension of bias if the reconsideration of the matter is conducted by the Tribunal as originally constituted. It follows that it is in the interests of justice that the reconsideration of the matter be by the Tribunal differently constituted.
18. This point having been reached it becomes necessary that the Tribunal's reconsideration of the matter be by way of a rehearing that amounts to a fresh de novo hearing.
19. In adversarial litigation it is sometimes possible to order that a new trial be limited to certain issues. Even there, however, the starting point is generally that if there is to be a new trial it ought to be of the case as a whole unless the court considers that it will do more injustice by setting the matter at large again.[168] While, no doubt, many persons in review proceedings in the Tribunal conduct themselves as if they are involved in adversarial litigation, the proceedings are not adversarial in the same sense as inter partes curial litigation. That is evident from s 27(2) of the State Administrative Tribunal Act. In this respect it is dangerous to seek analogies in the field of adversarial litigation.[169]
20. I have considered whether it might be directed that the reconsideration be based on the factual findings contained in pt 5 of the Tribunal's reasons. This would have considerable benefits in terms of time, cost and inconvenience to the parties and the witnesses. There are two reasons why I consider this possibility to be inappropriate. First, to the extent that the further evidence impacts on the continued validity of the findings that the Tribunal made in pt 5.4 of its reasons as to the general interest of the community, there will be great difficulty for the Tribunal in navigating between the direction and its duty or obligation under s 27(2) of the State Administrative Tribunal Act. Second, assuming that some solution can be found to the first problem, the Tribunal as reconstituted will be called on to make further intermediate factual findings (including, depending on the further evidence, perhaps making substituted findings on one or more of the six groups of potential benefits mentioned in pt 5.4 of the Tribunal's reasons) where the members of the Tribunal did not see and hear the witnesses give the evidence that resulted in the original findings. That will present real difficulties for fact finding on the Tribunal's reconsideration of the matter.
21. I have noted the appellant's suggestion that the Tribunal's reconsideration of the matter might be confined by sensible agreement between the parties (see [265] above). In forming my view on the orders that should be made pursuant to s 105(9) and s 105(10) of the State Administrative Tribunal Act I have not relied on or given any weight to that suggestion. It may prove no more than a pious hope. I would, however, encourage the parties to consider carefully the evidence admitted at the original hearing, and the findings made by the Tribunal, with a view to reducing the burden of the rehearing. It should, for example, be possible for the parties to agree many factual matters, thus obviating the need to call all of the evidence that was admitted at the original hearing.

1. For these reasons I agree with the orders proposed by Buss P. Counsel for the parties should be heard on the precise form of the orders. Counsel should also be heard on the costs of the appeal.

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

[1] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 96 (Mason CJ & Deane J), 124 ‑ 125 (Dawson J).

[2] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 [61] (Buss P, Murphy & Beech JJA).

[3] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [121] (Buss P, Murphy & Mitchell JJA).

[4] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

[5] Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407.

[6] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

[7] Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 [8] ‑ [9] (Allsop P), [108] ‑ [109] (Tobias JA), [191] (Sackville AJA).

[8] Development Consent Authority v Phelps [2010] NTCA 3; (2010) 27 NTLR 174 [23] (Martin (BR) CJ, Mildren & Reeves JJ).

[9] Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [94] ‑ [100] (Mitchell J).

[10] Young v Legal Profession Complaints Committee [2022] WASCA 52; (2022) 59 WAR 1 [222] (Buss P).

[11] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA; Wheeler & Pullin JJA agreeing).

[12] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [20] (French CJ, Gummow & Bell JJ).

[13] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [166] (Buss JA).

[14] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214] (Newnes & Murphy JJA), [273] (Mitchell JA).

[15] Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [205] (Buss P, Mitchell & Beech JJA).

[16] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 [55] and the cases there cited (Nettle & Gordon JJ).

[17] Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 [16] (Mazza & Mitchell JJA).

[18] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 67 ‑ 68 (Deane J).

[19] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

[20] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).

[21] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [31] (Gummow A‑CJ, Hayne, Crennan & Bell JJ).

[22] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 [37] (Kiefel CJ & Gageler J), [67] (Gordon J), [162] (Edelman J), [274] (Jagot J).

[23] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).

[24] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [36] (McHugh, Kirby & Callinan JJ).

[25] British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 [45] (French CJ), [71] (Gummow J).

[26] Re Polites; Ex parte The Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, 86 (Brennan, Gaudron & McHugh JJ).

[27] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23] (Kiefel, Bell, Keane & Nettle JJ).

[28] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 299 (Mason, Murphy, Brennan, Deane & Dawson JJ).

[29] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87 ‑ 88 (Mason CJ & Brennan J), 95 (Deane J).

[30] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [185].

[31] Forrest and Forrest Pty Ltd and Minister for Aboriginal Affairs [2023] WASAT 28 (primary decision) [203], [231] ‑ [232], [603] - [604].

[33] Section 340 of the 2021 Act introduced s 18(6) to the AH Act which provided for conditions to consent given by the Minister for notices given between 23 December 2021 and 1 July 2023, but this provision did not apply to the present matter where notice was given before 23 December 2021. Section 18(6) of the AH Act was repealed by s 14(6) of the Aboriginal Heritage Legislation Amendment and Repeal Act 2023 (WA) discussed below.

[34] Section 11 and s 11A of the AH Act.

[38] Section 105(1) - s 105(3) of the SAT Act.

[44] Exhibit 2.2 in the primary proceedings.

[48] Primary decision [133] - [149].

[49] Primary decision [150] - [151].

[51] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [33] - [37] (Kirby J) referring to Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 (Davies J).

[58] Primary decision [334], [341].

[62] Primary decision [467] - [469].

[64] Primary decision [623] - [630].

[65] Primary decision [595] - [600].

[66] Primary decision [596] - [597].

[72] Primary decision [603] - [610].

[73] Primary decision [611] - [612].

[75] Primary decision [614] - [617].

[78] Primary decision [620] - [622].

[83] Primary decision [635] - [636].

[84] Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136.

[85] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216.

[86] Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [63].

[87] Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407.

[90] Commissioner for Consumer Protection v Murphy [2013] WASCA 89 [50]. To similar effect in a similar statutory context, see also Aung v Minister for Immigration [2000] FCA 1562 [7].

[93] Shi [96] - [98] (Hayne & Heydon JJ), [141] ‑ [142] (Kiefel J, Crennan J agreeing at [117]).

[94] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [130] - [132].

[95] Cf LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610 [7], [9] - [16] in relation to the analogous exercise of reviewing administrative decisions for jurisdictional error.

[96] See Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [205] - [206].

[101] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

[102] Appellant's written submissions, par 40; appeal ts 34.

[103] Primary decision [602] - [613].

[106] Appellant's written submissions, pars 68 - 69.

[107] Primary decision [81], citing the presiding member's decision, as a judge of this court, in Abraham v Minister for Aboriginal Affairs [2016] WASC 269 [12].

[113] See appellant's written submissions, pars 72 - 77.

[115] Primary decision [298] - [303].

[123] Appellant's written submissions, pars 85 - 88.

[124] First respondent's written submissions, pars 76 - 81.

[125] Primary decision [2], [405] - [406].

[126] Appellant's written submissions, par 96.

[127] See, for example, primary reasons [221] - [223], [232], [239], [268].

[128] Primary decision [597] - [599].

[129] Primary decision [606] - [609].

[131] First respondent's written submissions, par 80.

[132] Appellant's written submissions, par 97.

[134] See Mustac v Medical Board of Australia [2007] WASCA 128 [66].

[135] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]; QYFM v Minister for Immigration [2023] HCA 15; (2023) 97 ALJR 419 [37] - [38], [67], [162], [194], [225].

[136] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

[137] Ebner [8]; CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].

[138] Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 300.

[139] Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 (S) [13] (Quinlan CJ), adopted by Smith J in Commissioner of Police v Thayli Pty Ltd [2020] WASC 43 [152] (affirmed on appeal in Thayli Pty Ltd v Commissioner of Police [2021] WASCA 46 [52] - [56]) and by the New South Wales Court of Appeal in Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271; (2022) 254 LGERA 274 [159].

[140] Broken Hill Cobalt Project Pty Ltd v Lord [159] - [160].

[141] See, for example, McKay v Commissioner of Main Roads [2013] WASCA 135 [356] (Murphy JA, Martin CJ & Buss JA agreeing).

[143] See, by analogy, Minister for Immigration v Wang [2003] HCA 11; (2003) 215 CLR 518.

[144] See, for example, appeal ts 170 - 171.

[151] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [20].

[157] State Administrative Tribunal Act s 27(1).

[158] State Administrative Tribunal Act s 27(3).

[159] State Administrative Tribunal Act s 32(1).

[160] State Administrative Tribunal Act s 32(6)(c). Among other things the Tribunal may give directions for the filing of evidence: State Administrative Tribunal Act s 34(1).

[162] Osland v Secretary, Department of Justice [No 2] [20].

[163] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 [36], [122].

[164] Waterways Authority v Fitzgibbon [135].

[166] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1 [12].

[167] Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 (S) [13], [23]. See also: Seltsam Pty Ltd v Ghaleb [12] - [13], [17], [141], [239]; McKay v Commissioner of Main Roads [2013] WASCA 135, [362] - [366].

[168] Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521, 527; Waterways Authority v Fitzgibbon [119], [181].

[169] Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 [17] - [18].