THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES AND PETROLEUM

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : FORREST & FORREST PTY LTD -v- THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES & PETROLEUM [2016] WASC 270

Administrative law - Decision of Minister to grant or refuse exploration licence under s 57 of the Mining Act 1978 (WA) - Apprehended jurisdictional error - Whether decision under s 57 of the Mining Act 1978 (WA) in fact made - Whether hearing before warden not concluded resulting in precondition to the exercise of the Minister's power not being present - Whether most current information as to applicant's financial capacity not included in the mining warden's report or application for exploration license is a mandatory relevant consideration for the Minister - Whether Minister required to make decision under s 57 of the Mining Act 1978 (WA) on most current information

Appellant : Mr S M Davies S C and with him Mr A J Papamatheos

Third Respondent : Hunt & Humphrey until 6 July 2017

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231

Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72; (2005) 225 CLR 88

Cauldron Energy Ltd and Forrest and Forrest Pty Ltd [2014] WAMW 3

Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22; (2016) 110 ACSR 576

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602

Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 77 ALJR 1088

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

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

Hunter v Minister for Planning [2012] WASC 247

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2015] WASC 237

Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194

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

Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287

Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326

NAIS v Minister for Immigration [2005] HCA 77; (2005) 228 CLR 470

Nova Resources Ltd v French (1995) 12 WAR 50

Plaintiff M61/2010E v The Commonwealth (The Offshore Processing Case) [2010] HCA 41; (2010) 243 CLR 319

Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636

Plaintiff S4/2014 v Minister for Immigration [2014] HCA 34; (2014) 253 CLR 219

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327

R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170

Re Griffiths; Ex parte Homestyle Pty Ltd [2005] WASCA 103; (2005) 139 LGERA 178

Re Minister for Immigration; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Re Minister for Mines; Ex parte Roberts (1997) 18 WAR 408

Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343

Re Warden Heaney; Ex parte Serpentine-Jarrahdale Ratepayers' and Residents' Association (Inc) (1997) 18 WAR 320

Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514

South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378

SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152

SZJTQ v Minister for Immigration [2008] FCA 1938; (2008) 172 FCR 563

Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87

Tomson v Minister for Finance [2013] FCA 664; (2013) 136 ALD 610

Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446

1 Cauldron Energy Ltd has applied for exploration licences over land, east of Onslow, held by Forrest & Forrest Pty Ltd under a pastoral lease. Cauldron plans to explore for uranium on the subject land.

2 Forrest objected to Cauldron's applications and the second respondent, the warden, conducted a hearing of the applications. On 14 February 2014, the warden recommended that Cauldron's applications be refused. The recommendation was made on the basis that, at the time of the warden's report, Cauldron did not have the financial capacity to undertake the proposed exploration.

3 On 22 December 2014, after receiving further submissions from the parties, the Minister decided that, despite the warden's recommendation, there was sufficient reason to allow Cauldron's applications to proceed through the determination processes under the Mining Act 1978 (WA) and the Native Title Act 1993 (Cth).

4 Forrest then sought judicial review of the Minister's decision. The primary judge dismissed Forrest's judicial review application.

5 Forrest now appeals against the primary judge's decision. Broadly speaking, its grounds of appeal raise two matters. First, Forrest contends that the hearing before the warden was not complete, so that the warden had no power to make the report which is a precondition to the existence of the Minister's power to grant exploration licences. Secondly, Forrest contends that the Minister has indicated that he will grant an exploration licence without taking account of information about Cauldron's financial capacity which Forrest submitted to the Minister. Forrest argues that this will involve jurisdictional error, and that this court should grant declaratory relief in relation to that apprehended exercise of the Minister's statutory power in an invalid manner.

6 In our view, none of Forrest's grounds are made out. The hearing before the warden was complete when he delivered his report to the Minister. The valid exercise of the Minister's power to grant an exploration licence is not conditioned by a requirement that the Minister have regard to the information about Cauldron's financial capacity submitted by Forrest. In any event, the Minister has not yet decided whether to grant or refuse Cauldron's exploration licences or determined the material to which he will have regard when the time comes to make that decision. Forrest has not established any apprehended jurisdictional error or circumstances which would warrant the exercise of the court's discretion to grant declaratory relief.

Statutory background Application for exploration licence

7 Section 57(1) of the Mining Act gives the Minister the power to grant an exploration licence in the following terms:

Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.

The mining registrar or the warden shall not recommend the grant of an exploration licence under this section unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.

9 Section 58(1) of the Mining Act imposes various requirements for an application for an exploration licence. One of those requirements, subject to a presently immaterial exception, is that the application be accompanied by a statement specifying the following matters:

(i) the proposed method of exploration of the area in respect of which the licence is sought; and

(ii) the details of the programme of work proposed to be carried out in such area; and

(iii) the estimated amount of money proposed to be expended on the exploration; and

(iv) the technical and, subject to subsection (1aa), financial resources available to the applicant;

10 Section 58(1aa) provides that an applicant who is a natural person does not have to specify his or her financial resources where the application is in respect of not more than four blocks and the statement specifies that he or she intends to utilise his or her own labour to carry out the programme of work.

11 Section 59(1) of the Mining Act provides for a person who wishes to object to the granting of an application for an exploration licence to lodge a notice of objection. Where an objection is properly lodged and is not withdrawn, s 59(4) provides that:

the warden shall hear the application for the exploration licence on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard.

12 Section 59(5) and (6) provide for what is to follow the warden's hearing of the application:

(5) The warden shall as soon as practicable after the hearing of the application forward to the Minister for the Minister's consideration:

(a) the notes of evidence; and

(b) any maps or other documents referred to in the notes of evidence; and

(c) a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.

(6) On receipt of a report under subsection ... (5), the Minister may grant or refuse the exploration licence as the Minister thinks fit, and irrespective of whether -

(a) the report recommends the grant or refusal of the exploration licence; and

(b) the applicant has or has not complied in all respects with the provisions of this Act.

13 This application process is subject to the Minister's power, contained in s 111A of the Act, to terminate or refuse an application. The Minister relevantly may do so if satisfied on reasonable grounds in the public interest that the subject land should not be disturbed or the application should not be granted.

14 Section 66 of the Mining Act provides for the rights conferred on the holder of an exploration licence. In general terms, the authority is to enter the subject land and, subject to conditions imposed under s 24, s 24A or s 25 of the Act, to explore for minerals and extract material from the land up to a prescribed or approved limit. The authority also extends to taking, diverting and using water subject to the limits defined in s 66(d) of the Mining Act.

15 Under s 61(1) of the Mining Act, an exploration licence shall, subject to the Act, remain in force for five years from the date on which it is granted. Section 61(2) of the Act gives the Minister the power to extend the term of an exploration licence 'if satisfied that a prescribed ground for extension exists'. Regulation 23AB of the Mining Regulations 1981 (WA) provides for the prescribed grounds for an extension. Those grounds include:

1. For specified reasons not attributable to the holder, the exploration programme could not be undertaken or completed.
2. The subject land has, for reasons the Minister considers to be sufficient, been unworkable for the whole or a considerable part of any year of the term.
3. Work already carried out under the licence justifies further exploration.
4. If the exploration licence has retention status, the grounds for approval of retention status continue to exist.

16 The Mining Act provides for a number of mechanisms by which conditions are, or may be, imposed on the grant of an exploration licence:

1. Section 57(1) gives the Minister a power to grant an exploration licence 'on such terms and conditions as the Minister may determine'.
2. Sections 24, 24A and 25 provide for the Minister to give his written consent to carry out mining in certain areas such as reserves subject to such terms and conditions as the Minister may specify in his consent.
3. Section 62 requires the holder of an exploration licence to comply with prescribed expenditure conditions.
4. Section 63 deems every exploration licence to be subject to the condition that the holder will explore for minerals and will comply with specified reporting and environmental requirements.

17 Section 63AA empowers the Minister, when granting an exploration licence or at any subsequent time, to impose reasonable conditions for the following purpose:

preventing or reducing, or making good, injury to the land in respect of which the licence is sought or was granted, or injury to anything on or below the natural surface of that land or consequential damage to any other land.

18 In addition, s 108 and s 109 of the Mining Act make provision in relation to the payment of rent and royalties for mining tenements.

19 Section 60 of the Mining Act requires an applicant for an exploration licence to lodge a security 'for compliance with the conditions to which the exploration licence, if granted, will from time to time be subject'. The security is also for compliance with the provisions of pt IV of the Mining Act and the Mining Regulations.

20 Section 63A of the Mining Act identifies when an exploration licence is liable for forfeiture, including where the prescribed rent and royalty is not paid and where the holder fails to comply with conditions. Section 96A gives the Minister power to cause the licence to be forfeited in those circumstances. Further, any person may apply for the forfeiture of an exploration licence on the ground that the holder has failed to comply with requirements of the Act in respect of expenditure conditions.[1] Where the application leads to forfeiture, the applicant for forfeiture is given a priority right to apply for an exploration licence over the subject land.[2]

21 The mining activity that a tenement holder is ordinarily required to undertake on the tenement need not be undertaken personally. Section 118A of the Mining Act enables the holder of an exploration licence to authorise another person to carry out mining of the kind authorised by the tenement. Such mining is to be regarded as being carried out by the holder of the exploration licence for the purposes of the Act,[3] including compliance with expenditure conditions.[4] The mining tenement itself may also be used as security to raise funds, including for mining activities.[5]

22 Section 69A of the Mining Act provides for the holder of an exploration licence to apply to the Minister for approval of retention status. The Minister may approve retention status for the whole or part of the subject land if satisfied, under s 69B(1), that the mining of an identified mineral resource on the land is impracticable because:

(i) the resource is uneconomic or subject to marketing problems although the resource may reasonably be expected to become economic or marketable in the future; or

(ii) the resource is required to sustain the future operations of an existing or proposed mining operation; or

(iii) there are existing political, environmental or other difficulties in obtaining requisite approvals.

23 The standard expenditure conditions do not apply to an exploration licence while it has retention status.[6]

24 Section 69D of the Mining Act provides that, on approval of retention status or subsequently, the Minister may impose a condition requiring the holder to comply with a specified programme of work in respect of the land the subject of the licence within a specified period. The Minister is also given the power to require the holder to apply for a mining lease if, after being required to do so, the holder fails to show sufficient cause why the requirement should not be imposed.[7]

25 Section 102 of the Mining Act provides for the Minister to grant an exemption from expenditure conditions, after receiving a report from the warden where there is an objection. A number of permissible reasons for doing so are identified in s 102(2) of the Act. In addition, the Minister may grant an exemption for any other reason which is prescribed or 'which in the opinion of the Minister is sufficient to justify such exemption'.[8]

26 In considering the operation of the Mining Act, it is necessary to take account of other legislation. For example, in certain circumstances s 41 of the Environmental Protection Act 1986 (WA) will preclude the Minister from granting an exploration licence.[9] It may, for example, do so where granting an exploration licence could have the effect of causing or allowing a proposal which has been referred to the Environmental Protection Authority to be implemented. Although Forrest's objections raised environmental matters, there is no evidence as to whether Cauldron's proposal was referred to, or was being assessed by, the Authority in a way that would engage s 41 of the Environmental Protection Act.

Native Title Act

27 Of greater relevance in the present case is the Native Title Act. The grant of an exploration licence to Cauldron would be a 'future act' for the purposes of the Native Title Act. In general terms, div 3 of pt 2 of the Native Title Act provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of div 3, and invalid if not.[10] Division 3 provides for a number of mechanisms by which an exploration licence may validly affect native title. For example, the future act may be covered by a registered indigenous land use agreement.[11]

28 The grant of an exploration licence would ordinarily be a future act to which subdivision M applies,[12] so as to be valid subject to subdivision P.[13] Subdivision P applies to the grant of an exploration licence,[14] in an area not subject to an indigenous land use agreement.[15] Subject to the Act, an act to which subdivision P applies is invalid to the extent that it affects native title unless, before the act is done, one of the requirements of s 28(1)(a) - (h) is satisfied. That can include an absence of objection after a required notice is given, an agreement of the kind referred to in s 31(1)(b) or a determination by an arbitral body or the Minister.

29 Section 29 of the Native Title Act provides for notice of a future act to be given to various parties, and subsequent provisions deal with negotiations with native title holders and parties. A future act which attracts the expedited procedure is identified in s 237 of the Native Title Act. In general terms such a future act is one which is not likely to interfere with social or community activities of native title holders or significant sites and is not likely to create rights whose exercise is likely to involve major disturbance to relevant land or waters. A future act may be done under the expedited procedure provided for in s 32 of the Native Title Act where:

1. the notice under s 29 of that Act includes a statement that the government party considers that the act attracts the expedited procedure; and
2. either:

(a) no objection is lodged by a native title party within 4 months after the notification day; or

(b) the Tribunal determines that the act is one which attracts the expedited procedure.

30 It may be noted that the expedited procedure takes a minimum of four months after notification under the Native Title Act, even where no native title party objects to the act.

31 There is no evidence in the present case as to the native title rights and interests which have been claimed or determined to exist in the area which is the subject of Cauldron's exploration licence applications. There is a reference in some of Cauldron's submissions to the Minister to the exploration licences being within the Thalanyji (WC 99/45) claimant area.[16] Nor is there any evidence as to which mechanism the Minister will seek to engage to allow exploration licences to be validly issued, so far as they affect native title. The evidence does not indicate what steps have been taken to engage that mechanism, such as by issuing notices under the Native Title Act or negotiating an indigenous land use agreement or an agreement of the kind referred to in s 31(1)(b) of the Native Title Act.

Factual background Applications and objections

32 Although the applications and objections are not before the court, it appears that Cauldron made three applications for exploration licences over areas which included Forrest's Minderoo pastoral lease located east of Onslow. Forrest objected to the grant of those exploration licences on a number of grounds, including that Cauldron was unable to effectively explore the subject land. Forrest's reasons for objection also related to the impact on its pastoral lease and public interest issues relating to its impact on water resources.

33 The warden conducted a hearing of Cauldron's applications for exploration licences on 9 - 12 December 2013. During the course of submissions on 12 December 2013, senior counsel for Forrest referred to the issue of conditions, and submitted that:

[T]his issue about conditions shouldn't be debated now and in this hearing, that we should await your Honour's decision and depending on what your Honour's decision, we may or may not have to deal with conditions at all.

If our primary submission is accepted, we don't have to spend time debating conditions (ts 326). (emphasis added)

The reference to Forrest's primary submission is to the submission that the warden should recommend that the applications for exploration licences be refused. The substance of senior counsel's submission at this point was that it would be unnecessary to address the question of conditions at all if the warden recommended that the applications be refused.

34 The warden accepted this submission, when he observed, in the course of his discussions with Cauldron's counsel:

It's probably best to do it in those two stages. The original - initial decision, depending on what that outcome is, then we can go to the conditions because the conditions can be quite complex (ts 328). (emphasis added)

35 On 14 February 2014, the warden delivered reasons for his decision to recommend refusal of Cauldron's exploration licence applications. In broad terms, he concluded that 'exploration of the proposed leases can be carried out, with appropriate conditions'.[17] He recommended that the applications be refused on the ground that Cauldron did not have the financial capacity to undertake the proposed exploration.[18] The trial judge inferred that no submissions were made about conditions on this occasion.[19] That inference is not challenged on appeal.[20]

36 On 10 March 2014, Cauldron wrote to the Minister submitting that he should grant the exploration licences despite the warden's recommendation.[21]

37 The following submissions of the parties were subsequently received by the Department and provided to the other party:

1. 20 March 2014 (Cauldron).[22]
2. 15 April 2014 (appellant).[23]
3. 19 May 2014 (appellant).[24]
4. 19 May 2014 (Cauldron).[25]
5. 10 June 2014 (appellant).[26]

38 Forrest's submission of 10 June 2014 referred to an announcement which Cauldron had made to the Australian Securities Exchange (ASX) that day. The announcement was that Cauldron had secured a total of A$11 million in funding via a series of share placement agreements with a range of Chinese investors. Forrest anticipated that Cauldron would rely on that announcement to encourage the Minister to conclude that Cauldron's financial problems had been cured. Forrest made submissions in support of the proposition that the Minister should resist coming to that conclusion.[27]

39 On 13 June 2014, the Department provided a copy of Cauldron's ASX announcement to Forrest 'for information purposes only'. The Department informed Forrest that the 'matter will now be referred to the Minister with the information presently submitted'.[28]

40 On 3 December 2014, the Department submitted a memorandum to the Minister which briefly set out the background, and attached the warden's recommendation and the subsequent submissions made by Forrest and Cauldron.[29] The Department's memorandum invited the Minister to choose between the following two options:[30]

(1) determine to follow the recommendation of the Warden and refuse the applications pursuant to section 59(6) of the Mining Act 1978; or

(2) determine that despite the Warden's recommendation, there is sufficient reason for you to allow the applications to progress through the determination process.

The memorandum had earlier referred to the second option as allowing the applications to 'proceed through the determination processes' under the Mining Act and the Native Title Act.[31]

41 On 5 December 2014, Forrest wrote to the Minister, advising that it had come to Forrest's attention that the Chinese investors referred to in the 10 June 2014 ASX announcement had commenced litigation in the Supreme Court of New South Wales. Forrest attached a further ASX announcement dated 16 October 2014.[32]

42 The Department responded with the following email on 9 December 2014:[33]

I wish to advise that the [Minister] is at present considering all the submissions made by both parties in relation to this matter. The Minister will make his decision on the submissions currently before him.

Procedural fairness has been afforded to both parties with the exchange of submission process. Putting a submission before to the Minister at this late stage without giving the opportunity to all affected parties to provide comment is not in accordance with the principles of natural justice.

Your latest submission dated 5 December 2014 has been lodged too late for the Minister to consider, however the information will be placed on the relevant Departmental files.

43 On 22 December 2014, the Minister endorsed his selection of option 2 on the Department's memorandum.[34]

44 The Department advised Forrest of the Minister's decision on 5 January 2015.[35]

45 On 30 March 2015, Forrest wrote to the Minister and the warden stating its position that the warden had not completed his hearing, so that the Minister should not grant the applications.[36]

46 On 15 September 2015, the Minister advised Forrest that he would not make a determination to grant or refuse the applications pending the outcome of proposed proceedings in the Supreme Court.[37]

47 On 27 August 2015, Forrest commenced judicial review proceedings in this court. The application identified the decision or conduct to be reviewed as:

The decision by the [Minister] to progress each of application E08/2385, E08/2386 and E08/2387 by [Cauldron] for the grant of an exploration licence to the determination process under the Mining Act and the Native Title Act.

48 Forrest identified three grounds for seeking judicial review of the Minister's decision. Given the grounds of appeal to this court, only the first and third grounds are presently relevant.

49 Review ground 1 contended that the Minister made a jurisdictional error, or alternatively an error of law, in that at the time of the decision:

1. the warden had not completed the hearing of Cauldron's exploration licence applications under s 59(4) of the Mining Act; and/or
2. the Minister had not received a report under s 59(5)(c) of the Mining Act because the warden had not had a hearing as to conditions to be imposed for the grant of the applications.

50 Review ground 3 contended that the Minister made a jurisdictional error, or alternatively an error of law, in making the decision:

without taking into account a relevant consideration in determining the Exploration Licence Applications pursuant to s 59(6) of the Mining Act, namely the latest information on whether [Cauldron] was able to effectively explore the land in respect of which the Exploration Licence Applications had been made:

(a) at a reasonable time prior to the exercise of the [Minister's] jurisdiction under s 59(6) of the Mining Act; or

(b) alternatively, at the time immediately prior to the exercise of the [Minister's] jurisdiction under s 59(6) of the Mining Act.

51 The primary judge found that none of Forrest's grounds for judicial review were made out.

Review ground 1: allegation that hearing not complete

52 In relation to review ground 1, the primary judge concluded that the hearing before the warden of the applications for exploration licences and Forrest's objections to them was completed when the warden published his report on 14 February 2014. It followed that the primary judge was satisfied that the warden forwarded to the Minister a report within the meaning of s 59(5) of the Act recommending the refusal of the exploration licences. Thus, the Minister's power to grant or refuse the exploration licences was enlivened.[38]

53 The primary judge said that he reached this conclusion because, whilst the interchanges between counsel and the warden were slightly disjointed, it appeared plain that the parties agreed they would not make submissions on the issue of conditions if the warden recommended the refusal of the applications. This agreement was then reflected in the warden's ruling that he would not hear submissions on conditions on 12 December 2013 and that he would only hear submissions on conditions if his recommendation was that the applications should be granted. The agreement and the ruling emerge both explicitly and implicitly from the exchanges between counsel and the warden as recorded in the transcript of the closing stages of the hearing on 12 December 2013.[39]

Review ground 3: mandatory relevant considerations

54 In relation to review ground 3, the primary judge concluded that the Minister was not bound by the Act to consider any information about the financial resources available to Cauldron other than that contained in the statement accompanying the applications for exploration licences and contained in the warden's report and accompanying materials.[40] The primary judge gave a number of reasons for that conclusion.[41]

55 In reaching this conclusion, the primary judge said that nothing he had written should be taken as suggesting that the Minister is not permitted to take into account information that is more recent than that considered by the warden. Rather, the primary judge emphasised that his reasons were directed to the issue of whether the Minister is bound to take into account more recent information.[42] It followed that Forrest's third ground of review was not established.

56 Forrest appeals against the primary judge's dismissal of its judicial review application on the following three grounds:

(1) The learned Primary Judge erred in fact and law in concluding at [42] that the parties agreed that they would not make submissions on the issue of conditions on applications for [the exploration licences] if the [warden] recommended refusal of the applications, and that this agreement was reflected in a ruling made by the [warden] on 12 December 2013 to that effect, such that on publication of a decision on 14 February 2014, the hearing was complete under s 59(4)-(5) of the Mining Act 1978 thereby enlivening the [Minister's] jurisdiction under s 59(6) when he received the [warden's] decision.

(2) Further or alternatively, the learned Primary Judge erred in law in concluding at [50] that the [Minister] was not bound by the Mining Act 1978 to consider information about the financial resources available to [Cauldron] other than that contained in the statement accompanying the applications for exploration licences and contained in a warden's report and accompanying materials, for the purpose of the exercise of the [Minister's] power under s 59(6) (with s 57(1)).

(3) Further or alternatively, the learned Primary Judge erred in law in concluding at [55] that the implied statutory requirement for administrative decision-makers to have regard to the most current information available does not apply to the exercise of the [Minister's] power under s 59(6) (with s 57(1)) of the Mining Act 1978.

57 Forrest does not contend that s 59(5) of the Mining Act requires the warden to deal with and make recommendations about conditions in every case.[43] Nor does Forrest contend that it was denied procedural fairness by being deprived of an opportunity to make submissions about conditions which it thought it would be given after the warden made a decision about whether to recommend grant or refusal.[44]

58 Forrest rather submits that it was inapposite for the primary judge to analyse the matter on the basis of an 'agreement' between the parties. The relevant question, on Forrest's submissions, was how the matter was conducted. Forrest submits that the answer to that question requires consideration of what the warden did or, to the extent the warden made a ruling as to how the matter would proceed, what that ruling was. Forrest says that the correct focus was not on what the parties may have said in a search for an 'agreement' between the parties but, rather, on the manner in which the warden determined he would proceed after hearing from the parties.[45]

59 Forrest accepts that the hearing would be complete if the warden, having decided to recommend refusal of the application, said that he was not going to deal with conditions.[46] However, Forrest contends that this is not what happened in the present case. Forrest says that there is no doubt that the warden left the matter on the basis that there would be further consideration in relation to conditions after he made a preliminary determination as to whether to recommend grant or refusal of the exploration licences.[47]

1. The warden did not complete the hearing of the applications, as required by s 59(4) - (5) of the Mining Act.
2. The warden was not in a position to forward the material required by s 59(5) to the Minister (including a report and notes of evidence of a completed hearing) and did not do so.
3. The material required by s 59(5) of the Act was a necessary precondition to engage the jurisdiction of the Minister under s 59(6).
4. The Minister does not have jurisdiction to purport to determine the applications under s 59(6) and 57(1) of the Act.

61 In our view, Forrest has not made out appeal ground 1. That is so accepting that the question of whether the hearing is complete must, as Forrest submits, be determined by reference to the conduct of the warden in the court rather than any agreement between the parties.

62 It is by no means clear that the primary judge decided the point by reference to the agreement of the parties rather than the conduct of the warden. Rather, it appears that the judge took both into account: his Honour found that the parties agreed a position and that position was reflected in the warden's ruling.[49] In any event, for the reasons that follow, when the question is analysed by reference to the conduct of the warden, the proper conclusion is that the hearing was complete.

63 The better reading of the transcript of the hearing on 12 December 2013 is that the warden determined that there would be a hearing in relation to conditions only in the event that he decided to recommend that exploration licences be granted. To the extent that there was any doubt about that fact, it was resolved by what the warden did and did not do when he published his reasons on 14 February 2014. The warden did not programme the matter for a hearing in relation to conditions, and shortly thereafter sent his report to the Minister. It can be inferred from this that the warden determined that the hearing of the application was at an end and that, in light of his decision to recommend refusal of the applications, the hearing would not address the issue of conditions.

64 That inference as to what the warden decided is reinforced by the conduct of the parties after reasons were delivered on 14 February 2014. None of the parties suggested that there be a hearing about conditions when reasons were delivered, or shortly thereafter, or when they made submissions to the Minister. Forrest belatedly indicated its position that the warden had not completed the hearing in letters dated 30 March 2015, over a year after the warden published his reasons. We infer that those letters from Forrest were a reaction to the Department's advice, on 5 January 2015, that the Minister had determined that there were sufficient grounds to allow the applications to proceed through the determination process. The parties' conduct, prior to being advised of the Minister's decision adverse to Forrest's interests, was consistent with their understanding that the warden had completed the hearing. Even though, as Forrest submits, the question of whether there had been a completed hearing of the application was to be answered by reference to what the warden did in court, the fact that the parties, who were present at the hearings, drew the same inference as we have as to the warden's determination reinforces our conclusion.

65 In our view, by 14 February 2014 the warden determined that the hearing of Cauldron's application would not involve a consideration of conditions and was complete. It follows that ground of appeal 1 is not established.

Appeal grounds 2 and 3: appellant's submissions

66 Forrest accepts that the Minister has not yet exercised his power to grant an exploration licence to Cauldron.[50] Forrest submits that the Minister's decision of 22 December 2014 is a statement of his intention to make a grant in the future.[51] Forrest also submits that the court should infer that the Minister has decided 'that that is the end of the matter, in terms of what materials can be put'.[52] Forrest now seeks only declaratory relief in relation to an apprehended exercise of the Minister's power to grant an exploration licence in a manner that would be infected by jurisdictional error.[53]

67 The jurisdictional error which Forrest apprehends is the grant of exploration licences without taking a mandatory relevant consideration into account.[54]

68 Forrest contends that the implied mandatory relevant consideration for the Minister under s 59(6) of the Mining Act is the:[55]

most current information available as to the ability of an applicant for an exploration licence to explore the land the subject of the application.

We shall refer to this as the 'most current financial information'. Forrest submits that the implied mandatory relevant consideration is not limited to the Minister reading specific documents required to be lodged with the mining registrar and forwarded to him. Rather, Forrest submits that the actual subject matter and purpose of those mandatory documents is what informs identification of the subject matter of the relevant consideration. Forrest says that the subject matter, scope and purpose of the Act lead to the implication contended for by Forrest for the following reasons:[56]

1. Section s 58(1)(b)(iv) of the Mining Act requires an applicant for an exploration licence to lodge information about its financial ability to explore.
2. The warden's ability to call for further information during the application process, under s 58(3), is a further indication that the recent information about the applicant's current ability to explore is important.
3. Section 57(3) prevents the warden from recommending the grant of an exploration licence unless satisfied the applicant can effectively explore the land. While the Act does not say the application is refused if the warden is not so satisfied, if the warden does recommend refusal then the applicant's capacity is squarely an issue in the report and recommendation which the Minister is bound to take into account and consider.
4. The requirement in s 59(5) that a warden forward his report and recommendation 'as soon as practicable' after a hearing confirms the need for currency of the information which the Minister is to act upon, given that it includes financial ability of persons or companies which is not fixed and varies over time.
5. The primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, mineral deposits in the State.[57] The primary object of the statute, so identified, is furthered by granting exploration licences to those applicants who have the ability to explore for mineral deposits, rather than those who cannot.

69 Forrest submits that to limit the implied relevant consideration only to the documents as lodged is to not fully recognise the subject matter, scope and purpose of the Act.[58] Forrest submits that the factors relied on by the primary judge to reach a contrary conclusion were either neutral, not relevant or not compelling.[59]

70 Forrest also relies, in support of ground 3, on an implication drawn in statutes, unless excluded by the legislation, that an administrator must make his or her decision on the most current material available to him or her at the time the decision is made.[60] Forrest submits that the primary judge erred in finding that the Mining Act excluded this principle.

71 In this case, Forrest says that the Minister will exceed his authority by granting an exploration licence without taking into account the ASX announcement of 16 October 2014, which is more current information available to the Minister as to Cauldron's capacity to explore.

Appeal grounds 2 and 3: disposition Apprehended jurisdictional error

72 The first issue is the proper characterisation of the Minister's decision: what did the Minister decide? In our view Forrest's judicial review application proceeds on an erroneous premise as to the effect of the Minister's decision. We are not persuaded that the Minister has decided that no further information will be taken into account, or that exploration licences will be granted to Cauldron.

73 The Minister's decision does not in its terms resolve to grant any exploration licence to Cauldron. Rather, the recommendation which the Minister adopts is that there is 'sufficient reason' to 'allow the applications to progress through the determination process'. That language contemplates a future decision as to whether exploration licences will, or will not, be granted.

74 In the context of the memo, the 'determination process' referred to is a determination process under the Mining Act and the Native Title Act. There could be no grant validly affecting native title in the absence of agreement with the relevant native title party, unless there is no objection from a native title party after a required notice or a relevant determination is made by the National Native Title Tribunal. There is no evidence of any agreement having been reached with the Thalanyji claimant at the time of the Minister's decision. The outcome under the Native Title Act cannot be said to be assured in these circumstances.

75 Further, the Minister also contemplated a 'determination process' under the Mining Act. The only process to which the Minister could have been referring was a decision, under s 57(1) and s 59(6) of the Mining Act, to grant or refuse exploration licences. In that manner, the Minister was merely deciding that sufficient reason existed to allow the applications to progress to a point where the Minister would, at some time in the future, make a decision to grant or refuse to grant exploration licences. In other words, the Minister is not committed to a grant of the licences.

76 We are also not satisfied that the Minister had closed his mind to taking account of further information relevant to Cauldron's capacity to effectively explore the subject land at the time of any future grant of exploration licences. Forrest submits that it should be inferred from the Department's email of 9 December 2014, set out at [42] above, that the Minister will not take into account any further information.[61] There is no evidence that the Minister was aware of Forrest's letter of 5 December 2014. The Department's refusal to place the correspondence before the Minister was made in a context where it had, on 3 December 2014, sought the Minister's decision. The decision which the Department had sought was not whether to grant an exploration licence. Rather, the Department invited the Minister to consider the submissions which had been advanced and decide whether to refuse the applications or determine that there was sufficient reason to allow the applications to progress through the determination process under the Mining Act and the Native Title Act.

77 Further, it was significant that the requirements of the Native Title Act meant that any grant of exploration licences would take place at least some months after the Minister's decision of 22 December 2014. To any extent that the Minister was bound to, or chose to, consider Cauldron's capacity to effectively explore the subject land at the time of grant of an exploration licence, the time for that consideration had not arrived.

78 The Minister has not been shown to have determined the material to which he will have regard when the time comes to make that decision. The evidence does not support any secure prediction as to what information the Minister will take into account when he comes to consider the possible grant of exploration licences to Cauldron at some time in the future.

79 We recognise that the conclusion we have reached as to the effect of the Minister's decision of 22 December 2014 departs from the position adopted by both parties. Cauldron, like Forrest, contended that the effect of the Minister's decision was that exploration licences would be granted without considering any further information from the parties, subject to the completion of processes under the Native Title Act.[62] There are obvious forensic advantages to Forrest in adopting that position. There are also evident practical and commercial advantages to Cauldron in maintaining the view that the Minister has already made a final decision to grant the exploration licences. However, the court's response to a judicial review application does not proceed by reference to the parties' agreement as to what occurred.

80 In this context, there are a number of discretionary reasons for refusing to make the declaration sought by Forrest: that the Minister 'was, and is, obliged to take into account the most current material available as to the financial ability of [Cauldron] to explore' the subject land.[63]

81 First, the declaration was not sought before the primary judge. The declarations sought by Forrest at first instance, relevantly for these grounds of appeal, were that the Minister's decision was invalid.[64] The declarations sought by Forrest in the primary proceedings proceeded on the erroneous assumption that the Minister had purported to determine the exploration licence applications, and that his decision purported to have some legal effect.

82 Secondly, the declaration contemplates or is founded upon the threat of an event which has not happened and may never occur. That event is the Minister deciding to grant Cauldron exploration licences without having regard to information about Cauldron's financial capacity which is available to him. If processes under the Native Title Act allow for the valid grant of exploration licences and the Minister comes to consider whether to grant an exploration licence, he may decide to refuse to do so having reviewed the relevant material. The Minister may well seek and consider further information about Cauldron's financial capacity at that time, which will be over 3½ years after the warden's report and recommendation. There is no doubt that the Minister can do so, irrespective of whether the Act obliges him to have regard to particular information which is available to him.

83 Thirdly, the terms of the declaration do not identify any particular material to which the Minister is required to have regard in deciding to grant an exploration licence. The terms of the declaration leave open the question of when material concerns the ability of Cauldron to explore the subject land, and whether particular information is the 'most current material available'. Forrest's counsel submitted that the declaration 'could be refined, depending on what view this court took in relation to the grounds of appeal'.[65] It is not clear to us how the declaration could be appropriately confined. It would not be appropriate to declare that the Minister was obliged to have regard to the ASX announcement of 16 October 2014, which refers to litigation with Cauldron's Chinese investors. The record of this court shows that this litigation has been resolved,[66] so that the information in the ASX announcement is now redundant. The evidence does not identify any other information currently available to the Minister which may be characterised as concerning Cauldron's financial capacity to explore the subject land.

84 It is recognised that the court has a broad power to grant declaratory relief which it is neither possible nor desirable to fetter by the laying down of rules as to the manner of its exercise. It is a form of relief that is confined by the considerations which mark out the boundaries of judicial power.[67] We are prepared to assume that the present case is not so hypothetical as to fall outside of those boundaries. However, the relief is discretionary and the considerations to which we have referred lead us to the conclusion that this is not an appropriate case for the exercise of the discretion, even assuming that the matter to which Forrest refers was a mandatory relevant consideration.

85 Further, in our view Forrest has not established that failure to take account of additional information about Cauldron's financial capacity would involve jurisdictional error.

86 The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:[69]

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

87 This passage was quoted with approval by the plurality in Kirk v Industrial Court (NSW).[70]

88 It follows from this definition of the concept that, where action taken in the purported exercise of a statutory power is sought to be impugned for jurisdictional error, the only question will be whether what was done was authorised by the empowering legislation. The answer to that question will turn on the identification of the limits of the authority conferred by the relevant statutory provision, and an analysis of the facts to ascertain whether those limits have been exceeded. This may also be described as identifying the conditions for the valid exercise of the statutory power.

89 The identification of the conditions for the valid exercise of the relevant statutory power is entirely a question of statutory construction. That construction of the relevant statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.[71]

90 Those rules require primary attention to be directed to the text of the relevant provisions.[72] There must be regard to the language of the statutory instrument viewed as a whole, considered in its context.[73] An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions).[74] Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not promote the relevant purpose.[75]

91 Some rules of statutory construction concern what are often referred to as grounds of judicial review. For example, common law rules of statutory construction will start with the assumption that the rules of procedural fairness condition the valid exercise of certain statutory powers.[76] Grounds of review such as taking irrelevant considerations into account, or failing to take relevant considerations into account, are based on a construction of legislation as either prohibiting or requiring that regard be had to those matters.[77] A ground of review which asserts improper purpose asserts that a power was exercised for a purpose not authorised by the relevant Act.[78] A ground which asserts misapprehension of the nature or limits of the relevant statutory power[79] may be seen to reflect a requirement of the law that a decision-maker understand his or her statutory powers and obligations.[80]

92 An assertion of jurisdictional error in relation to the exercise of a statutory power therefore involves a contention that the decision-maker has purportedly exercised his or her power otherwise than in accordance with the conditions for the valid exercise of the relevant power. The identification of those conditions which mark the limits of the decision-maker's authority to decide is purely a matter of statutory construction. Those limits are to be identified by the application of common law and statutory rules of construction to the language which Parliament has chosen, understood in the context in which it appears.

93 The jurisdictional error which Forrest apprehends in the present case is the failure to take into account a mandatory relevant consideration. Forrest identifies the mandatory relevant consideration as being the most current financial information.[81] The question is whether the Mining Act, on its proper construction, conditions the valid exercise of the Minister's power to grant an exploration licence on the Minister having regard to the most current financial information that is available to the Minister.

94 As Buss JA noted in Re Minister for Resources; ex parte Cazaly Iron Pty Ltd:[82]

Section 59(6) of the Mining Act does not expressly state the matters which the Minister is entitled or obliged to take into account in deciding whether to grant or refuse an application for an exploration licence. The factors which the Minister is entitled or obliged to consider (in addition, of course, to the report, including the recommendation, of the Mining Registrar or the Warden) are to be ascertained by implication from the subject matter, scope and purpose of the provisions of the Act relating to exploration licences in the context of the Act as a whole.

Recognised constraints on the Minister's powers under the Mining Act

95 Courts considering administrative law challenges to the exercise of the Minister's and warden's powers under the Mining Act have made a number of observations about the scope of, and limits on the valid exercise of, those powers.

96 One of the recognised primary objects of the Mining Act is to ensure, as far as practicable, that land which has either known potential for mining or is worthy of exploration will be made available for mining or exploration subject to reasonably stringent conditions.[83] However, that is not its only object. Other objects or purposes identified by the courts include:

1. identifying circumstances in which a tenement holder will be allowed to hold a mining tenement without mining or giving it up for others who may wish to actively mine the land.[84]
2. protecting tenement holders who have defaulted in compliance with the Act in some minor respect, or because of some circumstances beyond the control of the tenement holder, against loss of the tenement.[85]
3. providing that, in general, the holder of a mining tenement should carry out the relevant mining activity on the tenement.[86]

97 The Minister is obliged to have regard to the information which the mining registrar or warden forwards to him under s 59(2) or s 59(5) of the Mining Act.[87] The warden's report may include an assessment of objections based on environmental or other public interest grounds.[88] However, the Minister is not bound by the warden's recommendations and the weight he gives to those considerations need not be decisive.[89] Further, the Minister's power is broader than that of the warden. The Minister's discretion extends to questions of policy and principle governing the exploration of mineral deposits in the State, which the warden does not address in making recommendations.[90]

98 The matters to which the Minister may have regard are broad. As Buss JA noted in Cazaly:

In my opinion, the Minister, in deciding whether to grant or refuse an application for an exploration licence, is entitled to take into account matters of policy and principle governing the exploration of mineral deposits in this State. Relevant matters of policy and principle include:

(a) the promotion of a strong and stable mining industry and economy generally;

(b) the reconciliation of exploration of mineral deposits with the protection and encouragement of competing land uses;

(c) environmental considerations; and

(d) any other matters that are in the public interest.

No doubt, in a particular case, some issues of policy and principle may conflict. It may be necessary for the Minister to reconcile competing issues or to accord precedence to one factor over another [72].

Of course, the matters to which the Minister may have regard in dealing with an exploration licence application are not to be equated with the matters to which the Minister must have regard for that purpose. There is also a distinction between matters which are simply logically relevant to the Minister's decision in a particular case and matters which, as a matter of construction of the Act, the Minister is required to consider as a necessary condition to the valid exercise of the Minister's statutory power.

99 The exercise of the Minister's discretions under the Act is also subject to the rules of procedural fairness. Forrest does not complain about a failure to accord procedural fairness in this appeal. However, it remains relevant to bear in mind the implied constraints on the Minister's powers reflected in the rules of procedural fairness in considering the proper construction of the Mining Act.

100 As the Full Court of the Federal Court of Australia observed in Commissioner for ACT Revenue v Alphaone Pty Ltd:[91]

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

101 In the ordinary case where no issue of confidentiality arises, the rules of procedural fairness require that a person whose individual interests are likely to be directly affected by the exercise of the discretion be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made.[92] The applicant for, or holder of, a mining tenement is clearly a person whose individual interests are likely to be affected by the Minister's decisions in relation to that tenement. The requirement may extend to other persons, such as an applicant for forfeiture who stands to gain a priority right to apply for a mining tenement over the subject land if forfeiture is ordered.[93] A person with proprietary rights in land the subject of an application for a mining tenement, whose rights may be affected by the grant of the tenement and who objects to the grant, is in the same position.

102 Depending on the terms of the relevant statute, a hearing in the course of an administrative process by an officer who reports to the ultimate decision-maker may satisfy the requirements of procedural fairness.[94] The Mining Act provides the opportunity for an applicant for, and objector to, the grant of a mining tenement to put forward and respond to information at the hearing of the application before the warden. The requirements of procedural fairness are provided for at that stage of the decision-making process. So long as the Minister does not take account of some new information not addressed in the warden's report, that opportunity will be sufficient to comply with the requirements of procedural fairness. However, a further opportunity must be given to interested parties where the Minister takes into account new credible, relevant and significant information which is not addressed in the warden's report.[95]

103 Where the Minister offers an interested party an opportunity to address adverse information which is credible, relevant and significant to the Minister's decision, the Minister is also obliged to consider the submissions which the party advances. Failure to do so may involve jurisdictional error. If the valid exercise of the Minister's statutory power is conditioned by a requirement to give a hearing to an affected party, then the condition will not be satisfied where the Minister does not listen to what a party says. Procedural fairness ordinarily requires that a decision-maker actually consider relevant submissions which a party has an opportunity to make.[96]

Mandatory relevant consideration not established

104 Against the above background, we turn to consider ground of appeal 2. Forrest's success on this ground depends on the proper construction of the Mining Act. Forrest must establish that the Minister is bound to consider information about the financial resources available to an exploration licence applicant which is not contained in the warden's report and accompanying material. For the following reasons, we do not accept Forrest's submission that the Mining Act requires the Minister to consider the most current financial information as a condition for the valid exercise of his power to grant an exploration licence.

105 First, the Mining Act does not expressly require the Minister to have regard to information about an applicant's financial resources at all. That is not fatal to Forrest's argument, as mandatory relevant considerations may be implied from the subject matter, scope and purpose of the Mining Act. However, the broad terms of the Minister's discretion under s 59(6) of the Act, to grant or refuse the exploration licence as he thinks fit, counts against too readily implying conditions on the valid exercise of the power.

106 Secondly, the express provision in s 57(3) of the Mining Act, on which Forrest principally relies, is directed to constrain the statutory power of the warden rather than that of the Minister. Section 57(3) requires the warden to be satisfied that the applicant is able to effectively explore the subject land before recommending the grant of an exploration licence. The warden will give reasons for that satisfaction in a report which recommends grant. The warden's report may address the issue even if the recommendation is for refusal. The Minister will be required to have regard to the contents of the warden's report and any accompanying material which addresses that issue. However, there is nothing in the terms of s 57(3) which requires the Minister to have regard to information not contained in the warden's report and accompanying material. Provision for the licence application and the warden's report to contain information about financial capacity does not carry with it a requirement to consider information of that kind in other sources.

107 Thirdly, the fact that an applicant's financial position may change over time counts against Forrest's argument. The important time for considering capacity to explore is over the 5 year term of the exploration licence and any extension of that term. Capacity may be lost or gained after the grant. The financial position of an applicant may be improved by the grant of a mining tenement which can be used as security for the raising of funds. In that context, the imperative for the valid exercise of the Minister's power to grant an exploration licence to be conditioned by a requirement to consider an applicant's financial position at the precise time of making the grant is less than compelling.

108 Fourthly, the Mining Act contains mechanisms to deal with an exploration licence holder who does not explore the subject land. An exploration licence will be subject to an expenditure condition, breach of which may lead to forfeiture of the licence. There is an incentive, in the form of a priority right to apply for a replacement tenement, for those who would wish to explore the land to apply for forfeiture of the current holder's tenement. A holder of an exploration licence who lacks the capacity to comply with the expenditure requirements of the Mining Act will be dealt with under these provisions. Thus, achievement of the object of ensuring that land worthy of exploration is explored does not depend on the Minister's assessment of an applicant's capacity at the time of granting an exploration licence.

109 Fifthly, as noted above, the object of the Act of ensuring that land which is the subject of an exploration licence is explored is not absolute. Under certain conditions, the Act provides for the grant of exemptions from expenditure conditions and for an exploration licence to be given retention status. The Act does not demand that exploration activities be carried out on the subject land in all circumstances. This tends against the Act implicitly requiring that the Minister consider financial capacity at the time of grant in all cases.

110 Sixthly, the Act does not demand the applicant itself undertake exploration. Section 118A of the Mining Act provides for the holder of an exploration licence to authorise another to explore the subject land. The fact that an applicant does not itself have the financial capacity to explore the land does not mean that it cannot enter into commercial arrangements for another entity to do so.

111 Seventhly, and importantly, the character of the Minister's decision counts against any requirement for the Minister to have regard to all potentially relevant information in the possession of his Department. There will often be a range of public interest and policy matters which may be relevant to the Minister's decision to grant or refuse to grant a mining tenement. The Department is likely to have a large volume of material in its possession which will be potentially relevant to issues of policy and public interest. For example, the iron ore policy considered in Cazaly was developed and applied over 40 years,[97] and would doubtlessly have been the subject of a significant number of documents held by the Department. Given the breadth of the Minister's discretion, the administration of the Act could become impracticable if the validity of the Minister's decision depended upon the Minister being provided with all potentially relevant documents and information which may be held by the Department. Forrest accepted in the course of argument that its contention that the Minister was obliged to consider the most up-to-date information related to all relevant information, not only information as to the applicant's financial resources.[98]

112 In our view, the language, structure and objects of the Mining Act combine to lead to a conclusion that the Minister is entitled, but not bound, to make a decision to grant or refuse an exploration licence having regard only to the warden's report and accompanying material. It follows from that conclusion that the valid exercise of the Minister's power to grant an exploration licence is not conditioned by a requirement to consider other information.

113 Of course, as occurred in this case, the Minister may, after receiving the warden's report, choose to accept or invite submissions from interested parties. Further, the Minister may choose to seek relevant information from other sources. If the submissions or information received contain material which is relevant, credible and significant to the Minister's decision, then the Minister will be obliged to give other interested parties an opportunity to respond. Having given parties an opportunity to make further submissions, the Minister must consider what is said. The rules of procedural fairness, which do condition the valid exercise of the Minister's power, require as much. However, we do not accept Forrest's submission that the Minister can never draw a line as to when submissions must close and must always consider new information which is relevant, after giving other interested parties an opportunity to respond to it.[99] The opportunity to provide further information is not unending. In according procedural fairness to the interested parties, the Minister may set a reasonable timetable for submissions and responses to submissions. If the Minister does so, he will not be obliged to consider material belatedly submitted by a party who has not taken advantage of the reasonable opportunity which the Minister has given.

114 As noted above, Forrest also relies on what counsel describes as 'a general principle [which] applies unless excluded',[100] being a requirement to make a decision based on the most current material available to the decision-maker.

115 In Peko-Wallsend, Mason J, with whom Gibbs CJ and Dawson J agreed on this point, referred to:

the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. (45)

a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. (45)

As this passage makes clear, Mason J was concerned with a question of statutory construction. The general principle to which Mason J referred is at most a presumption which is one of the principles of statutory construction to be taken into account in determining the proper construction of a particular statute. The application of the general principle is a part of, and not divorced from, the process of construing the Mining Act to identify the conditions for the valid exercise of the Minister's statutory power to grant an exploration licence.[101]

116 Further, identifying the material to which the decision-maker is bound to have regard is not divorced from the subject matters to which the decision-maker is to have regard and the issues which he or she is required to determine. The general statements made in Peko-Wallsend must be understood in the context in which they were made.

117 Peko-Wallsend itself involved an unusual legislative scheme. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provided for the Minister, when satisfied that it was appropriate to do so, to grant land on trust for the benefit of traditional aboriginal owners. The Minister only had power to do so when a report of an Aboriginal Land Commissioner recommended that an area of land should be granted.[102] In making a report, the Commissioner was required to comment on a number of matters, including the detriment to persons that might result if the traditional land claim were acceded to.[103] However, the Commissioner was neither bound nor entitled to have regard to those matters in making his or her recommendation.[104] In that context, it was clear that the Minister was bound to take into account the detriment which may result from a grant in deciding whether to make the grant. As Mason J noted:

Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand (44).

118 In Peko-Wallsend the Minister was not made aware of information in his Department's possession, received after the Commissioner's report, which indicated that a grant which he made covered the whole of an area of a uranium deposit. The failure to consider the detriment to Peko-Wallsend on the most current information available to the Minister involved jurisdictional error.

119 A significant distinction between Peko-Wallsend and the current case involves the nature of the statutory task that the Minister is authorised and required to undertake. In Peko-Wallsend, the Minister was required to assess detriment to another person. Where a decision-maker is required to assess a subject matter then the ordinary implication is that he or she must do so on the most current information available.[105] In the present case the only mandatory relevant consideration is the warden's report and accompanying materials. The Minister has a broad discretion to grant or refuse an exploration licence which is not confined by reference to his satisfaction of any particular matter.

120 The Full Court of the Federal Court has observed that the requirement for a decision to be made on the basis of the most current material available to the decision-maker is separate from the requirement to take mandatory relevant considerations into account.[106] That observation was not necessary for the Full Court's decision in circumstances where the provisions of the Migration Act clearly required the decision to be based on current information.[107]

121 Assuming that observation to be correct, the general principle is excluded in the present case. Having regard to all relevant provisions of the Act and the principles of statutory construction, the better view is that the Minister may grant an exploration licence having regard only to the contents of the warden's report and accompanying material. That construction is inconsistent with an implied requirement to have regard to other material as a condition for the valid exercise of the Minister's power to grant an exploration licence.

122 Having regard to all of the above matters, we agree with the primary judge's construction of the Mining Act. In our view, the primary judge was correct to hold that the Minister was not bound by the Act to consider any information about the financial resources available to Cauldron other than that contained on the statement accompanying the applications for exploration licences and contained in the warden's report and accompanying materials. That is subject to the qualification that, where the Minister gives interested parties an opportunity to make further submissions after the warden's report is received, and the parties exercise that opportunity, he must consider what the parties have to say. However, in that event, the Minister is not bound to consider material submitted after a reasonable deadline for doing so has passed.

123 Grounds 2 and 3 fail because the primary judge has not been shown to have erred in his construction of the Mining Act. Further, even if those grounds had been established, declaratory relief would be refused in circumstances described at [72] - [84] above.

124 For the above reasons, the appeal must be dismissed.

[3] Section 118A(4) of the Mining Act. Mining includes exploring: s 8 of the Mining Act.

[4] Section 118A(5) of the Mining Act.

[6] Regulation 21(4) and reg 21(5) of the Mining Regulations.

[8] Section 102(3) of the Mining Act. Special provision (not directly relevant in this case) is also made in s 102A for the holder an exploration licence who is authorised to explore for iron.

[9] As to the interaction between the Mining Act and the Environmental Protection Act, see s 6 of the Mining Act.

[10] Section 24AA(2) of the Native Title Act.

[11] Section 24EB of the Native Title Act.

[12] Section 24MB of the Native Title Act.

[13] Section 24MD(1) of the Native Title Act.

[14] Section 26(1)(a), (b) and (c)(i) of the Native Title Act.

[15] Section 26(2)(a) of the Native Title Act.

[17] Cauldron Energy Ltd and Forrest and Forrest Pty Ltd [2014] WAMW 3 [63] (Warden's reasons)

[37] Green AB 135. The reference to 'proposed proceedings' was evidently taken from Mr Forrest's solicitors' letter of 25 August 2015, to which the letter of 15 September 2015 responded.

[45] Appellant's written submissions par 4; appeal ts 23 - 27.

[48] Appellant's written submissions par 28.

[55] Appellant's written submissions par 32; see also appeal ts 19.

[56] Appellant's written submissions par 32 - 38.

[57] Citing Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [70].

[58] Appellant's written submissions par 39.

[59] Appellant's written submissions par 40 - 45.

[60] Appellant's written submissions par 47 - 49, citing Mason J, with whom Gibbs CJ and Dawson J concurred, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 45 as well as Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 609, 624; SZJTQ v Minister for Immigration [2008] FCA 1938; (2008) 172 FCR 563 [29]; Tomson v Minister for Finance [2013] FCA 664; (2013) 136 ALD 610 [49]; Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 [76] - [77] and Minister for Immigration v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 [27] - [28].

[63] Appellant's Orders Wanted (White AB 20).

[64] Minute of form of declarations sought by the applicant dated 7 October 2015.

[66] See Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22; (2016) 110 ACSR 576.

[67] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 - 582; Plaintiff M61/2010E v The Commonwealth (The Offshore Processing Case) [2010] HCA 41; (2010) 243 CLR 319 [102].

[68] What follows substantially reflects Mitchell J's reasons in Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2015] WASC 237 [96] - [104]. The relevant part of that decision was overturned on appeal in Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399. However, the Court on Appeal did not criticise this statement of general principle.

[69] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].

[70] Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [66].

[71] Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 [28].

[72] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39].

[73] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69]; Plaintiff S4/2014 v Minister for Immigration [2014] HCA 34; (2014) 253 CLR 219 [42].

[74] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26]; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21].

[75] Section 18 of the Interpretation Act 1984 (WA).

[76] Plaintiff S10/2011 v Minister for Immigration [2012] HCA 31; (2012) 246 CLR 636 [97].

[77] Peko-Wallsend (39 - 40); A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [88] - [90].

[78] Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87; R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 186, 233; Hunter v Minister for Planning [2012] WASC 247 [24].

[79] Kirk [72]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 - 178.

[80] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 [71].

[82] Cazaly [69], citing Peko-Wallsend, 40. To similar effect see Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 171.

[83] Cazaly [21], [70]; Nova Resources Ltd v French (1995) 12 WAR 50, 57 - 58.

[87] Cazaly [62]; Hot Holdings (174 - 175).

[88] Cazaly [65] - [68]; Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343; Re Warden Heaney; Ex parte Serpentine-Jarrahdale Ratepayers' and Residents' Association (Inc) (1997) 18 WAR 320, 331 - 332.

[91] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592. This passage has regularly been cited with approval: see, for example, Cazaly [352]; Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231 [215], [217]; Re Griffiths; Ex parte Homestyle Pty Ltd [2005] WASCA 103; (2005) 139 LGERA 178 [69] - [70], [73]; Re Minister for Immigration; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22]. We note the need for caution in applying this passage explained by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152 [30] - [32].

[92] Applicant VEAL of 2002 v Minister for Immigration [2005] HCA 72; (2005) 225 CLR 88 [16] - [17] applied in Cazaly [280] - [281].

[93] Re Minister for Mines; Ex parte Roberts (1997) 18 WAR 408.

[94] South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 389, 410; Plaintiff S10/2011 [100]; Ainsworth (578).

[95] Roberts (418); Cazaly [354]. Although the analysis in Roberts proceeded by reference to the concept of 'legitimate expectation' which has now been discarded (see Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326 [28] - [30]), the conclusion is consistent with other authority.

[96] Cases such as Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 77 ALJR 1088 [1], [23] - [25], [95]; NAIS v Minister for Immigration [2005] HCA 77; (2005) 228 CLR 470 [172]; Plaintiff M61/2010E v The Commonwealth [83], [84], [90] and Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 [93], [108] can be seen as applications of this more general principle.

[101] cf SZRMA [50] - [51], where the Full Court of the Federal Court considered the application of the general principle to be an exercise taken under and for the purposes of the Migration Act 1958 (Cth) which did not actually involve the exercise of a statutory power.

[102] Section 11 of the Aboriginal Land Rights (Northern Territory) Act.

[103] Section 50(3) of the Aboriginal Land Rights (Northern Territory) Act.

[104] Peko Wallsend (43) citing R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327.

[105] For applications of the principle in such a context, see Darling Casino (624).

[106] MZYTS [75] - [77], agreeing with Rares J in SZJTQ [37].