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[2026] NSWCA 138
respondent. Appeal dismissed. The appellant was ordered to pay the first respondent's costs of the appeal: [117].
The Court of Appeal dismissed Te-Kowhai's challenge to the appointment of an administrator to Cobowra. It accepted that the NSWALC had tacitly approved the appointment, found no basis to disturb the Minister's decision on the evidence or alleged improper purpose, and held that the Cobowra Board's later resolution did not authorise the proceedings. The racial discrimination issue was not decided on its merits because it had not been pleaded below and the relevant procedural ruling was not appealed.
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2,741 words · generated 07/10/2026
The appeal concerned the Minister's decision to appoint Richard Callaghan as administrator of Cobowra Local Aboriginal Land Council (Cobowra) under s 222 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). Hika Tarawa Te-Kowhai was Cobowra's former chief executive officer. The headnote records that, after taking office, the administrator dismissed him.
The statutory power permits the Minister to appoint an administrator in specified circumstances. The Minister relied on grounds in s 222(1)(b), (c), (d), (e) and (g), concerning financial statements and documents, compliance with statutory requirements, management of funds or property, substantial breaches, and failure to comply with a compliance direction: [12], [64]. Section 222(3) separately provides that the Minister “must not appoint an administrator” without NSWALC approval: [13].
The chronology mattered. On 5 August 2025, the NSWALC CEO wrote recommending an administrator for Cobowra and nominating Mr Callaghan: [17], [27]. The Minister notified the NSWALC of the proposed appointment in August. It did not make a written representation in response, while Cobowra Board members made a joint representation on 17 September: [17]-[18]. On 16 October, the Minister signed the Instrument of Appointment and related documents: [93]-[99]. The Court held that the appointment took effect that day.
Te-Kowhai brought judicial review proceedings challenging the appointment. The primary judge dismissed the grounds and removed Cobowra as a party, while allowing Te-Kowhai to continue in his own right: [4]-[7]. On appeal, he challenged the approval, delegation, evidentiary basis and purpose of the decision, the removal of Cobowra as a party, and the treatment of an alleged inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth) (RD Act): [5]-[10].
The Court of Appeal dismissed the appeal and ordered Te-Kowhai to pay the Minister's costs: [116]-[117]. Bell CJ and McHugh JA agreed with Preston CJ of LEC on the outcome and on the grounds they identified at [2]. They considered it unnecessary to decide the non-delegable-function and non-compliance-with-delegation grounds once the Minister succeeded on tacit approval, while agreeing that the CEO's letter communicated the NSWALC's views: [3].
The central issue was whether NSWALC had approved the appointment as required by s 222(3). The appellant argued, in substance, that approval had to be recorded in writing and given after the Minister notified NSWALC of the proposal. The Court rejected both assumptions. It found nothing in s 222(3) or the relevant division requiring written approval: [25]-[26].
The Court did not treat the 5 August letter, standing alone, as approval of the later appointment. Instead, it considered the sequence: NSWALC recommended Mr Callaghan; the Minister notified NSWALC of the proposal; and NSWALC did not object. In those circumstances, a further written response saying that NSWALC approved the Minister's proposal would have repeated its existing position. The Court inferred tacit approval from the combined evidence: [27]-[29].
That factual basis came to the Court through the Minister's notice of contention. Preston CJ held that the notice was permissible because it relied on inferences from evidence already before the primary judge, rather than introducing a new pleaded cause: [30]-[34]. The appeal under s 58 of the Land and Environment Court Act 1979 (NSW) was a full appeal, not limited to questions of law, and permitted review of factual findings as well as legal determinations: [32]. The Minister could also uphold the primary decision on another good ground appearing from the evidence: [33].
The delegation arguments were addressed by Preston CJ as alternative reasoning. First, the CEO's letter was written for and on behalf of NSWALC, rather than purporting to exercise a delegated function: [39]-[46]. A statutory body may act through a duly authorised officer. The Court relied on the practical need for representative bodies to perform their functions through officers, and explained that an express delegation power and an implied capacity to act through an authorised officer are different mechanisms: [41]-[45]. Secondly, even if the CEO had acted as a delegate, the Court considered the approval function delegable. “Function” is defined broadly in s 4(2), and s 116(1) permits delegation of NSWALC functions except those specified in its listed exceptions. Approval under s 222(3) was not among those exceptions: [47]-[50].
The alleged failure to consult the NSWALC Chairman and relevant Councillor also failed. The appellant bore the onus of proving that the delegation's conditions had not been met: [57]. He had not produced evidence establishing non-consultation. The Court held that Jones v Dunkel could not fill that gap, including because the Minister had no greater power than the appellant to call the NSWALC office-holders: [58]. It also applied the presumption of regularity to the CEO's compliance with the conditions of the delegation, while clarifying that this did not presume the validity of the Minister's appointment decision itself: [59]-[60].
On the no-evidence ground, the Court restricted the appeal to the case advanced below. The appellant's broader argument that the s 222(1) matters were jurisdictional facts had not been raised as a ground below, and leave had not been sought to raise it on appeal: [65]-[70]. For the case that was before it, the Court held that summaries and paraphrases could still be probative. The law did not exclude hearsay or secondary material from being capable of supporting the Minister's findings or opinion: [71]. The question was not whether further underlying material could have helped; the briefs contained some probative material relating to each statutory ground relied on: [72]-[73].
The improper-purpose ground turned on proof of actual purpose. The appellant alleged that the appointment was intended to intervene in a kinship or factional conflict, engineer a leadership change, or facilitate the removal of the CEO and Board: [79]-[80]. The Court accepted that those purposes would be extraneous if they fell outside s 222(1), but held that the appellant had to prove the Minister acted for one or more of them: [81]-[82]. The briefing material before the Minister addressed statutory grounds and did not reveal or discuss the alleged extraneous purposes. In the absence of contrary evidence, the Court inferred that the Minister acted for the purposes stated in that material: [83]-[88].
The party-status issue depended on when the appointment took effect. The signed Instrument said the appointment was effective from the date of signature, and that date was 16 October 2025: [94]-[95]. The Gazette notice was published later, but the Court held it did not postpone an appointment already effective under the Instrument: [100]-[103]. The Board resolution was passed on 24 October, after the Board members had ceased to have authority to authorise proceedings. In any event, the resolution appointed legal representatives but did not expressly authorise these proceedings: [103]-[105].
Finally, the Court did not decide the substantive merits of the RD Act argument. The amended summons did not plead a challenge based on s 10, Te-Kowhai did not seek leave to amend, and he did not appeal the primary judge's procedural ruling refusing to accept that ground: [110]-[115].
The judgment applies the statutory framework in the ALR Act as it stood in the case. Section 222(1) gives the Minister a power to appoint an administrator if one or more specified circumstances applies; s 222(3) makes NSWALC approval a condition of appointment: [12]-[13]. The judgment does not hold that the approval condition is optional. Its conclusion is that, on this evidence and in this sequence, the condition was satisfied by an approval inferred from NSWALC's recommendation and later non-objection: [28]-[29].
The decision also explains two ways in which an incorporated representative body may act through its CEO. It may delegate a function under the statutory delegation provision, or act through a duly authorised officer. The Court considered those routes distinct and held that the existence of express delegation powers did not exclude the latter: [43]-[46]. Its alternative finding was that this approval function could be delegated under s 116(1): [47]-[50]. The reasons do not establish that every function of every statutory body is delegable; they rely on the terms and structure of this Act.
For evidentiary review, the judgment confirms the distinction between a no-evidence argument and a contention that further or better evidence could have been put before the decision-maker. For the no-evidence ground before it, the Court treated summaries and secondary material as potentially probative and held that material capable of supporting the relevant matters was enough to defeat the ground: [70]-[73]. The Court did not decide the appellant's separate, broader jurisdictional-fact formulation because it had not been advanced below in that form: [67]-[70]. The judgment therefore should not be read as resolving that unargued issue.
On improper purpose, the Court required proof that the Minister in fact exercised the power for an extraneous purpose. It accepted that the identified alleged purposes would be outside the statutory grounds if they did not fall within s 222(1), but found the evidence did not establish that the Minister acted for them: [81]-[88]. The reasons do not dispense with the possibility of proving improper purpose by circumstantial evidence; rather, they assess the evidence in this case and draw an inference from the briefing material.
The decision also illustrates the importance of procedural posture. A new legal characterisation not advanced below may be unavailable on appeal where it could have changed the evidence and the case to be met: [68]-[70]. Similarly, an unpleaded constitutional ground is not converted into an appealable substantive decision simply because it is later argued on appeal: [110]-[115].
At [26], the Court says approval “may be given in writing” but may also be oral or inferred. In plain English, the statute did not prescribe one exclusive form of approval.
At [28]-[29], the Court explains why silence mattered in context. NSWALC had already recommended the same proposed appointment, and did not object after receiving the Minister's notice. The Court inferred tacit approval from that combined sequence, not from silence in isolation.
At [32]-[34], the Court explains why the Minister could rely on that inference on appeal. The relevant appeal allowed review of facts, and the Minister could defend the primary result on another good ground arising from the existing evidence. The Court also found the appellant was not prejudiced because the inference rested on evidence already in the record.
At [45]-[46], the Court distinguishes delegation from an authorised officer acting for an organisation. In plain English, the CEO need not always be exercising a formally delegated power when communicating a body's position; the CEO may instead be acting as the body's authorised representative. Preston CJ treated that as what happened with the 5 August letter.
At [59]-[60], the Court limits the operation of the presumption of regularity. It applied to whether the CEO complied with the delegation's consultation conditions, not to whether the Minister's appointment was legally valid. The appellant still had the burden of rebutting that presumption with evidence.
At [71]-[72], the Court explains that summaries or hearsay are not automatically incapable of supporting an administrative decision. The material must be probative, but the existence of more detailed underlying evidence does not itself make the material before the Minister “no evidence”.
At [86]-[87], the Court draws an inference about purpose from the material considered by the Minister. The briefs set out statutory grounds for appointment and contained no discussion of the alleged extraneous objectives. On the record before it, the Court treated the statutory grounds as the purposes for which the Minister acted.
At [102]-[104], the Court distinguishes the effective date of the signed Instrument from the later Gazette publication. In plain English, publication did not postpone the commencement date expressly specified in the Instrument. The Board's resolution was therefore too late to authorise proceedings on Cobowra's behalf, and its wording did not authorise those proceedings in any event.
The approval reasoning is most directly relevant where a statute requires one public body to approve another decision-maker's proposed action, but does not specify that approval must be written. The particular facts here included an earlier recommendation identifying the proposed appointee, later notice of the Minister's proposal, and no objection from the recommending body: [27]-[29]. The judgment does not say that silence will amount to approval in every statutory setting. The inference depended on the sequence and context.
The authorised-officer reasoning may be relevant where an incorporated statutory body communicates a position through its CEO and a party argues that only a formal delegation could authorise that communication. The Court considered the body's statutory structure, the CEO's management role, and the wording and letterhead of the communication: [39]-[46]. Its alternative delegation analysis depended on the particular text of ss 4, 106 and 116 of the ALR Act: [47]-[50].
The presumption-of-regularity reasoning arises where a challenger asserts that a public body's delegate did not comply with conditions attached to a delegation, but has not adduced evidence of non-compliance: [53]-[60]. The judgment treats the onus and the evidence as central. It does not suggest that the presumption overrides affirmative evidence to the contrary.
The no-evidence reasoning concerns challenges based on decision briefs or summaries rather than primary source material. The Court found that the briefs contained statements and inferences relevant to the statutory grounds, so the appeal's no-evidence argument failed: [70]-[73]. The decision does not resolve whether the Minister's statutory grounds were jurisdictional facts, because that formulation was not properly raised in the lower court: [65]-[70].
The party-authority reasoning applies to a corporate or representative body whose governing body's authority may be displaced by an administrator before a resolution is passed. The date an appointment instrument takes effect, and the exact terms of a board resolution, were decisive here: [93]-[105]. It may be important to distinguish a general appointment of legal representatives from express authority to bring particular proceedings.
The judgment supplies no information about how later courts have treated this decision. It was dated 20 July 2026, and the provided text identifies no subsequent decisions applying, distinguishing, or criticising it. The case list contains authorities cited by this Court, not later treatment of this judgment. Any account of subsequent treatment would therefore require sources beyond the judgment supplied here.
The judgment itself identifies authorities that informed its reasoning. For example, it relies on Parramatta City Council v Hale and ACR Trading Pty Ltd v Fat-Sel Pty Ltd for the scope of a s 58 appeal: [32]. It uses NRMA Insurance Ltd v B&B Shipping and Hannover Life Re of Australasia Ltd v Dargan for the respondent's ability to uphold a decision on another good ground appearing from the evidence: [33]. It refers to Carltona, Peko-Wallsend and Northern Land Council v Quall in discussing action through officers: [41]-[45]. Those are authorities considered in this judgment, not later treatment of Te-Kowhai.
The Court did not decide whether the matters in s 222(1) relied on by the Minister were jurisdictional facts requiring objective proof of their existence. The appellant advanced that argument on appeal, but the Court held it was a different case from the no-evidence ground advanced below and had not been raised by an application for leave: [65]-[70]. The judgment consequently does not resolve that issue.
The Court did not substantively determine whether the appointment decision was inconsistent with s 10 of the RD Act or invalid to the extent of inconsistency under s 109 of the Commonwealth Constitution. Its decision was procedural: the ground had not been pleaded, no amendment had been sought, and no appeal was brought against the ruling declining to accept it: [110]-[115]. The constitutional merits remain undecided in this judgment.
The reasons establish an inference of tacit approval on the particular sequence of recommendation, notice and non-objection. They do not state a general test for when silence will constitute approval under another statute or on different facts. The judgment also does not determine how the inference might operate if a statute expressly required written approval, or if the body had objected or reserved its position.
Finally, the Court found that the Minister's briefing materials supported the statutory grounds and did not disclose the alleged improper purposes. It did not decide what inference would be appropriate on a materially different evidentiary record, such as one containing evidence that the Minister considered or acted on an extraneous objective: [81]-[88].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hika Tarawa Te-Kowhai v Minister for Aboriginal Affairs and Treaty [2026] NSWCA 138
Hearing dates: 04 May 2026
Date of orders: 20 July 2026
Decision date: 20 July 2026
Before: Bell CJ at [1];
McHugh JA at [1];
Preston CJ of LEC at [4]
Decision: (1) The appeal is dismissed.
(2) The appellant is to pay the respondent’s costs of the appeal.
Catchwords: ADMINISTRATIVE LAW – judicial review – Minister’s appointment of an administrator to Local Aboriginal Land Council – appeal grounds of illegality, irrationality and procedural impropriety – appeal against decision to remove Local Aboriginal Land Council as party to proceedings – constitutional challenge requiring s 78B notice
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), Pts 7, 11, Div 2, ss 4, 104, 106, 116, 120, 138, 138A, 139, 222, 223A
Commonwealth Constitution, s 109
Corporations Act 2001 (Cth)
Judiciary Act 1903 (Cth), s 78B
Land and Environment Court Act 1979 (NSW), s 58
Racial Discrimination Act 1975 (Cth), s 10
Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Asset Energy Pty Ltd v Commonwealth Minister for Industry and Science [2025] FCA 1163
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs (2006) 147 LGERA 348; [2006] NSWLEC 291
Fordham v Environment Protection Authority [2018] NSWCA 167
G v H (1994) 181 CLR 387; [1994] HCA 48
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Golden v V’landys (2016) 339 ALR 610; [2016] NSWCA 300
Hannover Life Re of Australasia Ltd v Dargan [2012] NSWCA 185
Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
Industrial Equity Ltd v Deputy Commissioner of Taxation (NSW) (1990) 170 CLR 649; [1990] HCA 46
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Northern Land Council v Quall (2020) 271 CLR 394; [2020] HCA 33
NRMA Insurance Ltd v B&B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Parramatta City Council v Hale (1982) 47 LGRA 319
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74
Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland (1979) 142 CLR 460; [1979] HCA 50
Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40
Viscariello v Legal Practitioners Disciplinary Tribunal [2021] SASCFC 18
Category: Principal judgment
Parties: Hika Tarawa Te-Kowhai (Applicant)
Minister for Aboriginal Affairs and Treaty (First Respondent)
Richard Callaghan (Second Respondent)
Cobowra Local Aboriginal Land Council (Third Respondent)
Representation: Counsel:
P King (Applicant)
F Roughley SC and J Curtin (First Respondent)
Solicitors:
Eddy Neumann Lawyers (Applicant)
NSW Crown Solicitor’s Office (First Respondent)
File Number(s): 2026/122140
[This headnote is not to be read as part of the judgment]
The Minister for Aboriginal Affairs and Treaty appointed an administrator under s 222 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) to Cobowra Local Aboriginal Land Council (Cobowra). After taking office, the administrator dismissed Mr Te-Kowhai as the Chief Executive Officer of Cobowra. Cobowra and Mr Te-Kowhai brought proceedings to judicially review the Minister’s decision to appoint an administrator on grounds that fell within the categories of review of illegality, irrationality and procedural impropriety. The primary judge rejected all of these grounds and dismissed the proceedings. The primary judge also removed Cobowra as a party, leaving Mr Te-Kowhai as the applicant. The primary judge decided not to accept any challenge to the Minister’s decision to appoint the administrator on the basis of an alleged contravention of s 10 of the Racial Discrimination Act 1975 (Cth). Mr Te-Kowhai appeals against the primary judge’s decisions.
The Court (Preston CJ of LEC, Bell CJ and McHugh JA agreeing) held, dismissing the appeal:
No approval ground
Non-delegable function ground
Non-compliance with delegation ground
No evidence ground
Improper purpose ground
Removal of Cobowra as a party ground
Constitutional challenge ground
BELL CJ AND McHUGH JA: We have had the benefit of reviewing the reasons for judgment of Preston CJ of LEC and these short joint reasons assume familiarity with his Honour’s reasons for judgment.
We agree both with the orders proposed and his Honour’s reasons in respect of the “no approval” ground, the “no evidence” ground, the “improper purpose” ground, the “removal of Cobowra as a party” ground and the “constitutional challenge” ground.
In view of the success of the Minister’s Notice of Contention (see [30] below), it is unnecessary to consider the “non-delegable function” and “non-compliance with delegation” grounds other than to say that we agree with the Chief Judge’s observation at [39] below that, in writing the letter of 5 August 2025 recommending to the Minister the appointment of an administrator for Cobowra, the CEO of the NSWALC was communicating the views of the NSWALC and not acting as the delegate of the NSWALC.
PRESTON CJ of LEC: Mr Te-Kowhai appeals against the decision of Pritchard J of the Land and Environment Court dismissing his proceedings seeking to judicially review the decision of the Minister for Aboriginal Affairs and Treaty to appoint an administrator to Cobowra Local Aboriginal Land Council (Cobowra). Mr Te-Kowhai was the former Chief Executive Officer (CEO) of Cobowra, who was dismissed by the administrator.
Mr Te-Kowhai challenged the Minister’s decision to appoint an administrator under s 222 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) on grounds that fell within the categories of review of illegality, irrationality and procedural impropriety. The primary judge rejected all of these grounds. Mr Te-Kowhai appeals against the primary judge’s decision.
Mr Te-Kowhai also appeals against two other decisions of the primary judge, one procedural and one substantive. The procedural decision was to find that Mr Te-Kowhai had commenced the proceedings in the name of, but without the authority of, Cobowra and to order Cobowra to be removed as a party. The primary judge allowed, however, the proceedings to be continued by Mr Te-Kowhai personally on the basis that he had standing in his own right to bring the proceedings. Mr Te-Kowhai appeals against the primary judge’s decision to remove Cobowra as a party.
The substantive decision of the primary judge was not to accept any challenge to the Minister’s decision to appoint the administrator on the basis of an alleged contravention of s 10 of the Racial Discrimination Act 1975 (Cth) (RD Act). The primary judge found that Mr Te-Kowhai had not pleaded this ground or applied to amend his judicial review summons to raise this ground. Accordingly, that challenge to the Minister’s decision to appoint the administrator was not before the Court.
“(1) The Minister may at any time appoint, from a list of persons prepared, in accordance with the regulations, by the New South Wales Aboriginal Land Council, an administrator for a Local Aboriginal Land Council—
(a) if there are not sufficient members of that Council to form a quorum of the Council, or
(b) if the Council fails to furnish satisfactory financial statements and documents to the New South Wales Aboriginal Land Council in accordance with Division 2 of Part 8, or
(c) if the Council otherwise fails to comply with section 153 or 158, or
(d) if the Minister is of the opinion, on the receipt of a report by an investigator appointed in accordance with Division 1, or a report by the New South Wales Aboriginal Land Council, or otherwise, that the funds or other property of the Council have not been properly applied or managed, or
(e) if the Council has substantially breached the requirements of this Act or the regulations or the rules of the Council, or
(f) if the Minister is of the opinion that the Council has ceased for 6 months substantially to exercise its functions, or
(g) if the Council has failed to comply with a compliance direction given under section 235, or
(h) if the Council operates a community benefit schemes for the provision or acquisition of residential accommodation for Aboriginal persons in its area in contravention of a requirement under section 52A that the scheme be approved by the New South Wales Aboriginal Land Council.”
“(3) The Minister must not appoint an administrator under this section without the approval of the New South Wales Aboriginal Land Council.”
“(1) The Minister may, before appointing an administrator of an Aboriginal Land Council under this Division, give not less than 14 days notice in writing of the appointment to—
(a) in the case of a Local Aboriginal Land Council—each Board member and the New South Wales Aboriginal Land Council, and
(b) in the case of the New South Wales Aboriginal Land Council—each councillor.”
“(2) The Minister must, before appointing an administrator, take into account any written representations received from any person or body to whom notice was given under this section.”
Mr Te-Kowhai’s illegality grounds of review concerned the Minister’s alleged failure to comply with the mandatory condition in s 222(3) of the ALR Act by appointing the administrator without the approval of the New South Wales Aboriginal Land Council (NSWALC). Mr Te-Kowhai did not contend that the Minister failed to comply with s 223A(1) and (2) of the ALR Act.
Mr Te-Kowhai contended that, as a matter of fact, the Minister appointed the administrator without the approval of the NSWALC. The Chief Executive Officer (CEO) of the NSWALC, Ms Clare McHugh, had written to the Minister on 5 August 2025 recommending that the Minister appoint an administrator to Cobowra for a period of 3 months. Ms McHugh nominated a person on the list of persons prepared by the NSWALC, Mr Richard Callaghan, to be the person who should be appointed as the administrator. The Minister accepted that recommendation on 19 August 2025. On that day, the Minister approved the giving of notice under s 223A(1) to each Board member of Cobowra and the NSWALC of the proposed appointment of Mr Callaghan as the administrator for Cobowra. The notice to the NSWALC was sent on 20 August 2025 and the notices to the Cobowra Board members were sent on 20 and 21 August 2025. The Cobowra Board members provided their joint written representation to the Minister on 17 September 2025. The NSWALC did not make a written representation in response to the Minister’s notice.
On 16 October 2025, the Minister decided to appoint Mr Callaghan as the administrator for Cobowra. Before appointing the administrator, the Minister took into account the joint written representation received from the Board members of Cobowra, as required by s 223A(2) of the ALR Act. The Minister again took into account the letter of 5 August 2025 from the NSWALC recommending the appointment of an administrator for Cobowra.
Mr Te-Kowhai contended that, on this sequence of events, the Minister appointed the administrator without the approval of the NSWALC, in breach of s 222(3) of the ALR Act. Mr Te-Kowhai argued that, for the purposes of s 222(3) of the ALR Act, the approval of the NSWALC must be given after the Minister gives notice to the NSWALC that he is considering appointing an administrator to a Local Aboriginal Land Council, in this case Cobowra. This notice could be, but need not necessarily be, the notice the Minister may give under s 223A(1) of the ALR Act. In this case, the Minister did give notice to the NSWALC under s 223A(1)(a). The NSWALC therefore had the opportunity to make a written representation to the Minister approving the appointment of an administrator for Cobowra, but did not take advantage of that opportunity to make a written representation giving its approval to the appointment of the administrator. Mr Te-Kowhai submitted that the NSWALC did not otherwise notify the Minister that it approved of the appointment of the administrator.
Mr Te-Kowhai submitted that the NSWALC’s letter of 5 August 2025 recommending that the Minister appoint an administrator for Cobowra could not itself be an approval for the purposes of s 222(3) of the ALR Act because it pre-dated the Minister’s decision of 16 October 2025 to appoint the administrator. Mr Te-Kowhai submitted that s 222(3) “looks to the result – the appointment of an administrator. It is that result with which the NSWALC must grant its approval”: (2006) 147 LGERA 348; [2006] NSWLEC 291 at [91]. Mr Te-Kowhai argued that approval could not be given to the result, the appointment of the administrator, until the result occurred. Hence, the letter of 5 August 2025 could not give approval to the appointment of the administrator on 16 October 2025.
Mr Te-Kowhai’s no approval ground is essentially a factual challenge, that the Minister appointed the administrator for Cobowra without the approval of the NSWALC. Mr Te-Kowhai contended that the NSWALC did not give its approval after it was notified by the Minister that he was proposing to appoint an administrator for Cobowra. Mr Te-Kowhai’s argument is dependent on his construction of the concept of “approval” in s 222(3) as requiring, first, that the approval be given in writing and, secondly, that the approval be given after the Minister notifies the NSWALC of the proposal to appoint an administrator to Cobowra. Both interpretative assumptions are incorrect.
First, neither s 222(3) nor any other provision in Part 11 Division 2 of the ALR Act mandate that the approval of the NSWALC to the Minister’s appointment of the administrator must be in writing. The approval of the NSWALC may be given in writing, but it may also be given orally, by a NSWALC representative speaking to the Minister’s representative, or inferred as explained below.
The third mode of approval is the mode that was applicable in this case. The NSWALC had written to the Minister on 5 August 2025 recommending that the Minister appoint Mr Callaghan, being a person who was eligible to be appointed, as the administrator of Cobowra under s 222(1) of the ALR Act. The Minister, accepting that recommendation, gave notice in writing to the NSWALC on 19 August 2025 under s 223A(1)(a) of the ALR Act of the proposed appointment of the recommended person as the administrator for Cobowra and invited the NSWALC to make any representations it wished on that proposed course of action.
The NSWALC did not make, and did not need to make, any written representation to the Minister in response to his proposed notice of appointment of the administrator, as the Minister’s proposed action accorded with the NSWALC’s recommendation. That is to say, it was not necessary for the NSWALC to say “we approve your proposal to implement our recommendation”, at least in circumstances where the proposal was made so soon after the recommendation. In these circumstances, the NSWALC through its non-response ought be taken to have approved, albeit tacitly, the appointment of the administrator for Cobowra.
The tacit approval of the NSWALC to the appointment of the administrator was evidenced by, in temporal order, the action of the NSWALC in recommending to the Minister the appointment of the administrator, the action of the Minister in notifying the NSWALC of the proposed appointment of the administrator, and the non-objection of the NSWALC to that course of action. The NSWALC’s letter of 5 August 2025 recommending the appointment of the administrator did not by itself and at that date constitute the approval of the NSWALC, but it did form part of the evidentiary foundation for the inferred approval by the NSWALC of the Minister’s proposal that the specified person should be appointed as the administrator for Cobowra.
Mr Te-Kowhai’s non-delegable function ground is founded on his argument that the letter of 5 August 2025 of the CEO of the NSWALC could not constitute the approval of the NSWALC under s 222(3) of the ALR Act. The reason for the second ground was not that the letter could not by itself constitute the NSWALC’s approval under s 222(3) – that was the first ground of appeal. Rather, the reason advanced for the second ground of appeal was that the letter was written by the CEO of the NSWALC who did not have the authority to give the approval of the NSWALC under s 222(3). Mr Te-Kowhai contended that the NSWALC’s function of giving approval under s 222(3) is non-delegable, so that the NSWALC’s purported delegation of the function to its CEO by resolution on 8 May 2025 was ineffective in law.
Mr Te-Kowhai submitted that s 222(3) mandates the approval of the NSWALC as an institution, citing Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland (1979) 142 CLR 460 at 481; [1979] HCA 50. There, Gibbs J said:
“When a discretionary power is conferred by statute upon the Executive Government, or indeed upon any public authority, the power can only be validly exercised by the authority upon whom it was conferred. Its exercise cannot be delegated to someone else, unless the statute, upon its proper construction, permits such delegation.”
Mr Te-Kowhai submitted that the ALR Act does not permit the delegation of the power under s 222(3) to give the approval of the NSWALC to the Minister’s appointment of an administrator. On a proper construction of the ALR Act, the giving of approval under s 222(3) is not a function capable of being delegated. The functions of the NSWALC are specified in Part 7 of the ALR Act. These are the functions that the NSWALC may delegate to its CEO under s 116(1) of the ALR Act. The giving of approval under s 222(3) is not a function in Part 7 of the ALR Act, s 222 instead being within Part 11 Division 2 of the ALR Act.
I reject this argument. First, as a matter of fact, the CEO of the NSWALC did not purport to give the approval of the NSWALC under s 222(3) as the delegate of the NSWALC. True it is that Ms McHugh, the CEO of the NSWALC, wrote the letter of 5 August 2025 recommending to the Minister the appointment of an administrator for Cobowra. But Ms McHugh was writing for and on behalf of the NSWALC, not as the delegate of the NSWALC. The letter is on the letterhead of the NSWALC. After setting out the grounds for appointment under s 222 of the ALR Act, Ms McHugh speaks on behalf of and in the name of the NSWALC to recommend the appointment of an administrator to Cobowra:
“In light of these serious and ongoing breaches across multiple provisions of Section 222 of the ALRA, NSWALC recommends that an Administrator be appointed to the Cobowra LALC as a matter of urgency. The appointment is necessary to stabilise the Council’s operations, safeguard community assets, and restore sound governance and financial practices in the best interests of the members.
NSWALC is of the view that a three (3) month period of Administration with full functions is required at CLALC to resolve compliance issues, financial management and misappropriation issues, poor governance, failure to comply with a compliance direction from the Registrar’s office and compliance with a PIO issued by NSWALC.
NSWALC has obtained a fee estimate from Richard Callaghan of Yaran Business Services Pty Ltd. Mr Callaghan is on the approved NSWALC List of Administrators for LALCs and has provided an estimate of fees at approximately $57,224.00 ex GST per month including travel and accommodation over a 3-month appointment period.”
The letter therefore clearly establishes that the NSWALC was acting through Ms McHugh as the CEO of the NSWALC in recommending to the Minister that he appoint under s 222(1) of the ALR Act an administrator for Cobowra.
Acting through a duly authorised officer of a public authority is an accepted way in which a public authority can discharge its statutory responsibilities: see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563; Racecourse Co-operative Sugar Association Ltd v Attorney-General of the State of Queensland at 481; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 37-38; [1986] HCA 40. It is also the way in which a company acts by its duly authorised officers such as its directors or chief executive. As Nettle and Edelman JJ explained in Northern Land Council v Quall at [82]:
“A company director or chief executive who has authority to bind the company in its legal relations with third parties is an agent in this strict sense. Since a company ‘cannot act in its own person for it has no person … it must of necessity act by directors, managers, or other agents’.”
“(1) The Chief Executive Officer is generally responsible for the efficient and effective operation of the New South Wales Aboriginal Land Council’s organisation and for ensuring the implementation, without undue delay, of decisions of the Council.
(2) The Chief Executive Officer has the following particular functions—
(a) the day-to-day management of the Council’s affairs,
(a1) to assist in the preparation and implementation of the Council’s community, land and business plan,
(b) the exercise of such of the functions of the Council as are delegated by the Council to the Chief Executive Officer,
(c) the appointment of members of staff in accordance with the staff organisation structure and resources approved by the Council,
(d) the direction and dismissal of members of staff.
(3) The Chief Executive Officer has such other functions as may be conferred or imposed on the Chief Executive Officer by or under this or any other Act.”
The functions of the NSWALC that may be delegated by the NSWALC to the CEO, referred to in s 139(2)(b), are the functions specified in s 116(1) of the ALR Act.
This statutory constitution and organisation of the NSWALC empowers it, as an incorporated representative body, to perform many, if not all, of its important functions by its duly authorised officers, especially its CEO. As Nettle and Edelman JJ observed in Northern Land Council v Quall at [93], with reference to another representative body incorporated under the Corporations Act 2001 (Cth):
“Given the myriad functions of a representative body, there exists a practical necessity that those functions be performed by officers of the corporation acting as its authorised agents rather than requiring those functions to be performed by the corporation in general meeting or always by decision of its entire governing body. It would reduce the exercise of a representative body's functions to chaos if a representative body could not perform its functions by its duly authorised officers…”
The existence of an express statutory power of delegation of specified functions of the NSWALC to the CEO does not exclude the existence of an implied power of the NSWALC to act through its CEO: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 37-38. They are simply two different ways in which the NSWALC may act, one through the acts of the CEO as delegate of the NSWALC and the other through the acts of the CEO as a duly authorised officer of the NSWALC.
In these circumstances, regardless of whether the function of the NSWALC under s 222(3) of the ALR Act to approve the appointment of an administrator is or is not a non-delegable function, it could be performed by the NSWALC through its duly authorised officers. This is what occurred in this case. The NSWALC performed the function under s 222(3) through Ms McHugh, the CEO of the NSWALC, who was authorised to act for and on behalf of the NSWALC. On this basis, no issue concerning the power to delegate the function of giving approval to the appointment of the administrator under s 222(3) of the ALR Act arose.
Secondly, even if Ms McHugh was purporting to exercise the power to give approval to the appointment of the administrator under s 222(3) of the ALR Act under delegation, that power was capable of being delegated. The express statutory power of delegation in s 116 of the ALR Act is ample in scope.
Pursuant to s 116(1) of the ALR Act, the NSWALC may delegate to the CEO “any of the functions” of the NSWALC, other than the functions specified in (a) to (j). The function of giving approval under s 222(3) of the ALR Act is not one of the functions specified in (a) to (j).
The term “function” is broadly defined in s 4(2)(a) of the ALR Act to include “a power, authority and duty”. The giving of approval under s 222(3) is the exercise of a discretionary power or authority, and hence is the exercise of a function. Section 106(1) of the ALR Act provides that the NSWALC “has the functions conferred on it by or under this or any other Act”. The function of giving approval under s 222(3) is conferred by that subsection on the NSWALC. Accordingly, the function of giving approval under s 222(3) of the ALR Act is a function that the NSWALC may delegate to the CEO under s 116(1) of the ALR Act.
Thirdly, on a proper construction of the ALR Act, the function of giving approval under s 222(3) of the ALR Act is not a function that can only be exercised by the NSWALC as an institution. Neither the text nor the context of s 222(3) of the ALR Act excludes the function of giving approval under s 222(3) from the functions that may be delegated under s 116(1) of the ALR Act. All of the functions conferred or imposed on the NSWALC by or under the ALR Act are functions of the NSWALC as an institution, for the simple reason that the NSWALC is an institution. There is nothing about the nature, scope or purpose of the function of giving approval under s 222(3) that is different to the nature, scope or purpose of any other function conferred or imposed on the NSWALC by or under the ALR Act, such as would exclude the function under s 222(3) from the power of delegation in s 116(1).
Mr Te-Kowhai’s non-compliance with delegation ground assumes that the function of giving approval under s 222(3) of the ALR Act is capable of being and was delegated by the NSWALC to its CEO, Ms McHugh. The delegation of that function was on terms: “Delegate subject to prior consultation with the Chairman of NSWALC and the relevant Councillor”.
Mr Te-Kowhai contended that the delegate, Ms McHugh, did not comply with the terms of the delegation before she exercised the function under s 222(3) of giving approval to the appointment of an administrator by sending the letter of 5 August 2025 to the Minister. Mr Te-Kowhai submitted that there was no proof of prior consultation by Ms McHugh with either the Chairman of the NSWALC or the relevant Councillor.
As far as the Chairman of the NSWALC, Mr Kelly, was concerned, Mr Te-Kowhai noted that no documentary proof of consultation with Mr Kelly was produced. Neither Mr Kelly nor Ms McHugh was called to give evidence. In those circumstances, Mr Te-Kowhai submitted, an inference under Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 321; [1959] HCA 8 should be drawn that the terms of the delegation requiring prior consultation with the Chairman of the NSWALC were not satisfied.
As far as the relevant Councillor, Mr Chapman, was concerned, Mr Te-Kowhai submitted that the statement in the CEO Brief attached to Ms McHugh’s letter to the Minister of 5 August 2025, that “Councillor Chapman is aware of and has provided his support for the appointment of an Administrator”, is not proof of prior consultation with Mr Chapman in accordance with the terms of the delegation. Again, Mr Te-Kowhai submitted that the fact that neither Ms McHugh nor Mr Chapman were called to give evidence justified drawing an adverse Jones v Dunkel inference.
I reject this argument. First, the onus of proving that the terms of the delegation of the function under s 222(3) of the ALR Act were not satisfied rested on Mr Te-Kowhai as the challenger. An applicant for judicial review of a decision bears the onus of proving that a jurisdictional error has occurred, which vitiates the decision: see, for example, Minister for Immigration and Border Protect**ion v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [41]. Here, the jurisdictional error alleged was the Minister’s exercise of the power under s 222(3) of the ALR Act to appoint the administrator for Cobowra without the approval of the NSWALC. The reason Mr Te-Kowhai advanced for the approval of the NSWALC not being given was that Ms McHugh, the CEO of the NSWALC, purported to act as delegate of the NSWALC without complying with the terms of the delegation. Mr Te-Kowhai bore the onus of proving these facts. Mr Te-Kowhai’s argument sought impermissibly to shift that onus of proof to the Minister to prove that Ms McHugh did satisfy the terms of the delegation.
Secondly, Mr Te-Kowhai’s reliance on was misplaced. Mr Te-Kowhai first needed to adduce some evidence establishing that Ms McHugh did not comply with the terms of the delegation before an adverse inference could be drawn. Second, Mr Te-Kowhai needed to establish that the Minister had it within his power to rebut Mr Te-Kowhai’s evidence by calling Ms McHugh, Mr Kelly and Mr Chapman to give evidence but failed to do so. That is not self-evident. Ms McHugh, Mr Kelly and Mr Chapman were the CEO, Chairman and relevant Councillor of the NSWALC and were not employed by or accountable to the Minister or his Department. The Minister had no greater power to call these people to give evidence than Mr Te-Kowhai had. Third, even if a inference was able to be drawn, the inference would simply be that the evidence of Ms McHugh, Mr Kelly and Mr Chapman would not have helped the Minister’s case, so that the Court could more readily accept Mr Te-Kowhai’s evidence: see (1994) 181 CLR 387 at 391-392; [1994] HCA 48. But this presupposes that Mr Te-Kowhai has called evidence in the first place, which he did not. In these circumstances, no adverse inference could be drawn.
Mr Te-Kowhai’s no evidence ground in the court below was that the Minister exercised the power in s 222(1) of the ALR Act to appoint the administrator for Cobowra without any or any sufficient evidence of the matters in s 222(1)(b), (c), (d), (e) and (g) relied upon by the Minister (see [74] of judgment). The primary judge rejected that ground, finding that there was probative evidence before the Minister on each of these matters to support his decision of 16 October 2025 to appoint the administrator for Cobowra (at [74], [75]). Ground 6 of the notice of appeal challenged this decision in the following terms: “The primary judge erred in holding that each dismissal was validly made and/or was not impaired by legal unreasonableness or other vitiating consideration, including but not limited to relying on summaries without the underlying material necessary to support the critical findings and/or assertion and not evidence”. The no evidence ground within ground 6 is, therefore, that the Minister exercised the power in s 222(1) to appoint the administrator “relying on summaries without the underlying material necessary to support the critical findings and/or assertion and not evidence”.
Section 222(1) of the ALR Act empowers the Minister to appoint an administrator if one or more of the matters in paragraphs (a) to (h) is or are established. The Minister relied on the matters in paragraphs (b), (c), (d), (e) and (g) in deciding to appoint the administrator on 16 October 2025. Those were the five matters on which the NSWALC’s recommendation to appoint the administrator on 5 August 2025 were based (see the CEO Brief attached to the letter of 5 August 2025) and which were summarised in Attachment F to the Briefing for the Minister on the appointment of the administrator, which he approved on 16 October 2025. These matters are stated in s 222(1) of the ALR Act to be:
“(b) if the Council fails to furnish satisfactory financial statements and documents to the New South Wales Aboriginal Land Council in accordance with Division 2 of Part 8, or
(c) if the Council otherwise fails to comply with section 153 or 158, or
(d) if the Minister is of the opinion, on the receipt of a report by an investigator appointed in accordance with Division 1, or a report by the New South Wales Aboriginal Land Council, or otherwise, that the funds or other property of the Council have not been properly applied or managed, or
(e) if the Council has substantially breached the requirements of this Act or the
(g) if the Council has failed to comply with a compliance direction given under section 235.”
In his written and oral submissions in this Court, but not in the court below, Mr Te-Kowhai submitted that these matters are jurisdictional facts. The expression “jurisdictional fact” refers to a criterion that needs to be satisfied to enliven the exercise of a statutory power. The criterion can be of two types. First, a fact in the ordinary meaning of that term, such as an identified state of affairs, which must exist to enliven the exercise of the statutory power. Second, an opinion or state of satisfaction of the decision-maker as to an identified state of affairs: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [20]-[24]; Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 at [13]. With respect to the matters in s 222(1) of the ALR Act relied on by the Minister, Mr Te-Kowhai submitted that the matters in (b), (c), (e) and (g) are facts that must exist, while the matter in (d) is an opinion that the Minister must form, in order to enliven the Minister’s exercise of the power under s 222(1) to appoint an administrator for Cobowra.
Mr Te-Kowhai submitted that none of these jurisdictional facts were established by “admissible, probative evidence” before the Minister at the time of making his decision on 16 October 2025. Mr Te-Kowhai submitted that the two Ministerial briefs, one provided before the Minister approved the giving of notice under s 223A of the ALR Act on 19 August 2025 and the other provided before the Minister appointed the administrator under s 222(1) of the ALR Act on 16 October 2025, contained assertions as to those jurisdictional facts but not “the underlying material said to justify them”. Mr Te-Kowhai submitted that “administrative assertion does not constitute proof of jurisdictional fact”, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356-358, 366-367; [1990] HCA 33. Mr Te-Kowhai submitted that a decision founded on material that is not logically probative of a jurisdictional fact amounts to a decision made on no evidence, citing Minister for Immigration and Multicultural Affairs v Eshetu at [137]-[147], amongst other decisions. Mr Te-Kowhai submitted the underlying financial or compliance materials probative of the matters in s 222(1) relied on by the Minister to appoint the administrator were not before the Minister when he made his decision on 16 October 2025. What was before the Minister were summaries and assertions about those matters, but they were not evidence.
Mr Te-Kowhai’s re-packaging of the no evidence ground, which was run in the court below and is the subject of ground 6 of the notice of appeal, as a non-satisfaction of jurisdictional facts ground, was contested by the Minister. The Minister submitted that Mr Te-Kowhai’s argument that the matters in s 222(1) relied on by the Minister to exercise the power to appoint the administrator were jurisdictional facts, and that the evidence did not establish such facts, goes well beyond the case advanced in the court below, which was recorded by the primary judge in [74] of the judgment.
Mr Te-Kowhai contended that the primary judge erred in rejecting the improper purpose ground by framing the inquiry as turning on the Minister’s subjective intention, holding that whether the power was vitiated by improper purpose was to be determined by reference to the Minister’s subjective state of mind and that absent evidence of such intention, the improper purpose ground must fail (at [105]-[107]).
Mr Te-Kowhai submitted that the primary judge’s approach misstated the law. A statutory power, such as the power in s 222(1) of the ALR Act to appoint an administrator to a Local Aboriginal Land Council, may be exercised only for the purposes for which it is conferred: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186; [1981] HCA 74. The onus of proving that the decision-maker acted for an improper purpose lies on the applicant for judicial review who makes that assertion: R v Toohey; Ex parte Northern Land Council at 193. Mr Te-Kowhai submitted that proof that a decision-maker exercised the statutory power for an improper purpose is not confined to direct proof of the decision-maker’s mental processes. Mr Te-Kowhai cited R v Toohey; Ex parte Northern Land Council as authority for this proposition. Amongst other statements in that case, Aickin J said at 233:
“I use the term ‘improper purpose’ to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power. In the case of legislative powers it is not always possible to discern a purpose, as distinct from subject matter or content. A belief that the act done is being done for an authorized purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law.”
Mr Te-Kowhai submitted that to require evidence of subjective intention, as the primary judge did, was to substitute an impermissibly narrow test for the settled approach of operative purpose.
Mr Te-Kowhai submitted that the primary judge also erred in reasoning that because material existed capable of satisfying one or more of the grounds in s 222(1) of the ALR Act, the improper purpose argument necessarily failed (at [106]-[107]). Mr Te-Kowhai submitted that the existence of material capable of satisfying the statutory grounds does not answer the question of whether the power in s 222(1) was exercised for an improper purpose. The exercise of a statutory power is vitiated where the decision-maker exercises the power for a purpose extraneous to the statutory purpose, even though the power was available to be exercised for the statutory purpose.
Mr Te-Kowhai submitted, in the alternative, that if the Minister’s subjective intention were to be relevant, the primary judge failed to examine whether the evidence supported the inference that the Minister’s decision was actuated by an improper purpose. Mr Te-Kowhai had adduced evidence in the court below in support of his case that the appointment of the administrator to Cobowra was done to resolve or intervene in a kinship or factional conflict within Cobowra; to engineer a forced change of leadership or reset of governance of Cobowra; and to facilitate the removal of Mr Te-Kowhai as the CEO of Cobowra and the elected Board as a matter of political or administrative convenience. Mr Te-Kowhai submitted that each of these purposes is extraneous to the purposes for which the power in s 222(1) of the ALR Act may be exercised. That power may only be exercised if one or more of the matters in s 222(1) are satisfied.
Mr Te-Kowhai referred this Court to the evidence in the court below which he said supported a finding that the appointment of the administrator for Cobowra was made for these extraneous purposes. Mr Te-Kowhai submitted that the primary judge erred in failing to consider whether this evidence supported the inference that the appointment was made for an improper purpose.
I reject this ground. There was no contest in the court below, or in this Court, that the purposes identified by Mr Te-Kowhai of intervening in a kinship conflict, engineering a forced change of leadership or facilitating the removal of the CEO and Board of Cobowra were likely to be extraneous to the purposes for which the power in s 222(1) of the ALR Act could be exercised, insofar as they did not fall within the scope of any of the matters in paragraphs (a) to (h) of s 222(1) of the ALR Act. The power in s 222(1) to appoint an administrator for Cobowra could only be exercised if one or more of the matters in s 222(1)(a)-(h) were satisfied. But that was not the issue raised by this improper purpose ground. The absence of evidence establishing the matters in s 222(1) relied on by the Minister was the basis of the no evidence ground. I have explained earlier why that ground has not been made out.
Mr Te-Kowhai not only appealed against the primary judge’s decision to reject his challenge to the Minister’s decision to appoint the administrator to Cobowra on grounds of illegality, irrationality and procedural impropriety, he also appealed the primary judge’s decision to remove Cobowra as an applicant to the judicial review proceedings (at [47]-[51]). This was ground 10 of the notice of appeal.
Mr Te-Kowhai contended that the Cobowra Board had resolved to appoint legal representatives to challenge the Minister’s decision to appoint an administrator for Cobowra before the Minister’s decision took effect. Mr Te-Kowhai submitted that this resolution authorised Mr Te-Kowhai to bring the judicial review proceedings in Cobowra’s name. The minutes of the 6th Extraordinary Board Meeting held on 24 October 2025 record the following resolution being passed:
“The Board appoints:
1. Peter King
2. Eddy Neumann
3. Gary Cains
Legal and Paralegal Officers and Legal Counsel of Cobowra Local Aboriginal Land Council, effective immediately, 24/10/2025.”
The Minister’s decision to appoint the administrator for Cobowra was made on 16 October 2025. However, the notice of appointment of the administrator was not published in the NSW Government Gazette until 31 October 2025. Mr Te-Kowhai submitted that the notice stated that the appointment of the administrator was effected by the notice (“do by this notice appoint”), and hence the appointment took effect from 31 October 2025. This post-dates the Cobowra Board’s resolution to bring the proceedings.
Furthermore, Mr Te-Kowhai submitted that the question of whether Cobowra had authority to commence the proceedings cannot be resolved by assuming the legal efficacy of the Minister’s decision to appoint the administrator, which the Court is asked to review. Mr Te-Kowhai submitted that the primary judge erred by determining the authority of Cobowra to bring the proceedings by reference to the asserted operation of the impugned decision rather than first determining whether that decision was legally capable of operating at all.
I reject this ground. First, the sequence of events is different to that put by Mr Te-Kowhai. The Minister’s decision to appoint the administrator for Cobowra, which was made on 16 October 2025, in fact took effect on 16 October 2025, not when the decision was published in the NSW Government Gazette on 31 October 2025. On 16 October 2025, the Minister signed his name, wrote “approved” and put the date of “16/10/2025” on the Ministerial briefing; signed and dated the Instrument of Appointment; signed and dated the NSW Government Gazette notice; signed and dated the letter to Mr Callaghan advising of his appointment as the administrator; and signed and dated the letter to the NSWALC notifying of the appointment of Mr Callaghan as the administrator.
The Instrument of Appointment stated in paragraph 1.1 that:
“I hereby appoint Richard Callaghan as administrator with all the functions of Cobowra Local Aboriginal Land Council (‘the Cobowra LALC’), the Board of the Cobowra LALC and the members of the Cobowra LALC exercised by resolution of the members of the Cobowra LALC for a period of three (3) calendar months effective from the date I have signed this instrument.”
The date the Minister signed the Instrument was stated on the Instrument to be “16/10/2025”.
The Minister’s letter to Mr Callaghan advising of his appointment as the administrator for Cobowra was dated “16/10/2025” and stated:
“Pursuant to section 222(1) of the Aboriginal Land Rights Act 1983 (ALRA), I confirm your appointment as administrator to the Cobowra Local Aboriginal Land Council. The term of the appointment is three (3) months commencing from the date of execution of the attached Instrument of Appointment.”
As earlier noted, the attached Instrument of Appointment stated that the date of execution was 16 October 2025.
Likewise, the letter notifying the NSWALC of the appointment of Mr Callaghan as the administrator for Cobowra was dated “16/10/2025” and stated that:
“… I have appointed Mr Richard Callaghan as administrator of the Cobowra Local Aboriginal Land Council for a period of three (3) months to perform all of the functions of the Cobowra Local Aboriginal Land Council, effective from the date that I have signed the Instrument of Appointment”.
The date the Minister signed the Instrument of Appointment was 16 October 2025.
It is in this context that the Minister’s statement in the notice published in the NSW Government Gazette needs to be considered. That notice stated:
“I … do, by this notice pursuant to section 222(1) of the Aboriginal Land Rights Act 1983 (the Act), appoint Mr Richard Callaghan as Administrator to the Cobowra Local Aboriginal Land Council (Cobowra LALC), for a period of three calendar months”.
The words “I … do, by this notice … appoint” are not to be construed as making the appointment of the administrator effective from the date that the notice was published in the NSW Government Gazette for two reasons.
First, the appointment of the administrator was already effective from the date that the Minister had signed the Instrument of Appointment. That is clear from the terms of the Instrument of Appointment and confirmed by the letters to the administrator and the NSWALC. Once the appointment of the administrator became effective, the notice later published in the NSW Government Gazette could not operate to cause the appointment to become effective from the date of publication.
The consequence is that the Cobowra Board members ceased to have authority from 16 October 2025 to authorise the bringing of judicial review proceedings challenging the Minister’s appointment of the administrator for Cobowra. The Cobowra Board purported to meet and pass the resolution on 24 October 2025, six days after the appointment of the administrator to Cobowra took effect.
Secondly, the purported resolution of the Cobowra Board on 24 October 2025 did not in terms authorise the bringing of the judicial review proceedings to challenge the Minister’s appointment of the administrator. The resolution merely appoints the named persons as “Legal and Paralegal Officers and Legal Counsel”, without specifying that those persons are authorised to commence any particular legal proceedings. That resolution was insufficient to authorise the bringing of the judicial review proceedings in the court below.
The primary judge was therefore correct to remove Cobowra as an applicant to the proceedings, as Mr Te-Kowhai had no authority to bring the proceedings on behalf of Cobowra.
I reject ground 10.
“(a) misdirecting herself as to the statutory question required to be answered; and
(b) failing to perform the constitutional task required where Commonwealth and State laws intersect, in particular the operation of s 10(1) and (3) of the Racial Discrimination Act 1975 (Cth) (“RDA”) and s 109 of the Constitution.” (Appellant’s Written Submissions, [87]).
As these grounds of appeal raised a constitutional question, notices under s 78B of the Judiciary Act were required to be given. At the commencement of the hearing in this Court, the Minister raised an issue that Mr Te-Kowhai had not demonstrated that s 78B notices had been given to all of the Attorneys-General of the Commonwealth and of the States and that a reasonable time has elapsed since the giving of the notices for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court. The Minister submitted that this Court should not proceed to hear these grounds in these circumstances.
As the Minister submitted correctly, s 78B(1) of the Judiciary Act would preclude this Court embarking on a substantive hearing of grounds 8 and 9, which raise constitutional issues, whilstsoever there is inadequate notice to, and time for consideration by, the Attorneys-General. Nevertheless, this Court can proceed to decide whether to dismiss the grounds on the procedural basis that the grounds were not raised in the court below and should not be allowed to be raised in this Court for the first time. This is the course that I consider should be followed.
The primary judge held that Mr Te-Kowhai had not pleaded in his amended summons in the court below, any ground challenging the Minister’s decision to appoint the administrator to Cobowra “on the basis of a breach of the rights of the CLALC and its senior officers to equality before law contrary to s 10 of the RDA” (at [125]). Moreover, Mr Te-Kowhai did not apply to amend the amended summons to raise such a challenge (at [125]). In this circumstance, the primary judge declined to “accept any challenge to the appointment decision on the basis of an alleged contravention of s 10 of the RDA” (at [125]).
The primary judge’s ruling was demonstrably correct. The amended summons did not raise any ground that the Minister’s decision was invalid by reason of it being inconsistent with s 10 of the RD Act. Mr Te-Kowhai submitted in this Court that the ground was implicit in ground 1 of the amended summons. That ground stated: “The appointment was made ultra vires, beyond the power conferred by the Act.” The Act referred to was the ALR Act. The primary judge rightly queried how ground 1 could encompass any challenge based on s 10 of the RD Act: see Transcript, 2 December 2025, AB 243-244.
Self-evidently, ground 1 could not encompass a challenge to the Minister’s appointment decision on the basis that it was inconsistent with s 10 of the RD Act, and hence, invalid to the extent of the inconsistency by reason of s 109 of the Constitution. Ground 1 only concerned the Minister’s appointment decision being beyond the power conferred by the ALR Act.
The issue that any ground of review based on s 10 of the RD Act had not been pleaded and would need leave to be able to be advanced was squarely raised at the hearing in the court below: s [7], [10], and [122]-[125] of the primary judge’s judgment. Mr Te-Kowhai made the forensic decision not to seek leave to further amend the amended summons to raise this ground: see [7], [123]. Indeed, Mr Te-Kowhai’s revised identification of the issues to be tried had deleted any reference to s 10 of the RD Act. The Applicant’s Revised Statement of Issues deleted the former issue 8, which had stated:
“Whether leave should be granted to the CLALC to amend the summons to include the fifth ground of review advanced in the CLALC’s written submissions dated 14 November 2025 (being that the Minister’s decision breached the rights of the CLALC and its senior officers to equality before the law contrary to s 10 of the Racial Discrimination Act 1975 (Cth))?”
In these circumstances, there was no substantive decision of the primary judge rejecting any ground of review by Mr Te-Kowhai based on any inconsistency of the Minister’s decision to appoint the administrator for Cobowra with s 10 of the RD Act, which could found an appeal to this Court in terms of grounds 8 and 9 of the notice of appeal. The only decision the primary judge made was the procedural decision not to accept any challenge to the appointment decision on the ground of an alleged contravention of s 10 of the RD Act. At most, Mr Te-Kowhai could have sought to appeal against that procedural decision, so as to seek a remitter to the court below, if successful, in order to afford Mr Te-Kowhai an opportunity to apply for leave to amend the summons to raise such a challenge. But Mr Te-Kowhai has not sought to appeal this procedural decision.
For these reasons, I reject grounds 8 and 9 of the notice of appeal.
Mr Te-Kowhai has been unsuccessful in establishing any of the grounds of appeal. The appeal should be dismissed with costs.
I propose the Court make the following orders:
The appeal is dismissed.
The appellant is to pay the respondent’s costs of the appeal.
**********
Hika Tarawa Te-Kowhai
Minister for Aboriginal Affairs and Treaty
[2025] FCA 1163
[1990] HCA 33
[1986] HCA 33
[2008] HCA 43
(1987) 11 NSWLR 67
(1990) 170 CLR 321
(1986) 162 CLR 1
(2006) 147 LGERA 348
(1994) 181 CLR 387
(2008) 236 CLR 120
(2016) 339 ALR 610
(1990) 170 CLR 649
(1959) 101 CLR 298
(1986) 162 CLR 24
(2019) 264 CLR 421
(2010) 240 CLR 611
(1999) 197 CLR 611
(1987) 9 NSWLR 154
(2020) 271 CLR 394
(1950) 81 CLR 418
(1981) 151 CLR 170
(1979) 142 CLR 460
Appeal dismissed. The appellant was ordered to pay the first respondent's costs of the appeal: [117].
Mr Te-Kowhai contested that finding, arguing that the challenge was implicit in other grounds of review. In any event, Mr Te-Kowhai argued, the primary judge was bound to, but failed to, perform the constitutional task required where Commonwealth and State laws intersect, which was to determine whether the statutory power in s 222 of the ALR Act, and the Minister’s exercise of that power, were invalid to the extent of any inconsistency with s 10(1) and (3) of the RD Act.
This constitutional challenge necessitated Mr Te-Kowhai giving notice in accordance with s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act), but there was an issue on the appeal of Mr Te-Kowhai’s compliance with this obligation. A number of the notices were sent to incorrect email addresses for s 78B notices. An affidavit of service stated that steps were taken on 1 May 2026, the Friday before the hearing in this Court, to send the s 78B notices again, this time to the correct email addresses. This second attempt elicited an automatic reply from the Commonwealth Attorney-General but no reply yet from the Victorian Attorney-General. The Minister drew attention to the terms of s 78B(1) that “it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court”. The Minister submitted that in circumstances where there has been inadequate notice and time for consideration, this Court should not proceed to hear the constitutional challenge, citing Asset Energy Pty Ltd v Commonwealth Minister for Industry and Science [2025] FCA 1163.
This Court decided to proceed with the hearing of the unrelated other grounds of appeal and allow Mr Te-Kowhai to notify the Court if the Attorneys-General for the Commonwealth and Victoria advised of their position in the next few weeks. By the time of giving this judgment, no such notification had been received. For the reasons explained in the final section of this judgment, however, the constitutional challenge should be rejected on the procedural basis that it was not raised in the court below and should not be raised in this Court for the first time.
These grounds of appeal provide the structure of my judgment. I will first address the challenge to the Minister’s decision to appoint the administrator on the grounds of illegality, irrationality and procedural impropriety. I will next address the challenge to the primary judge’s decision to remove Cobowra as a party. I will finally deal with the challenge to the Minister’s decision to appoint the administrator on the constitutional ground of inconsistency with s 10 of the RD Act and explain why it should be dismissed on procedural grounds.
The primary judge rejected this ground, finding that the NSWALC’s approval of the appointment of an administrator for Cobowra was given by the CEO of the NSWALC, Ms McHugh, in her letter of 5 August 2025 (at [69]). Mr Te-Kowhai appeals against that decision. This is ground 1 of the notice of appeal (the no approval ground).
If, however, the letter of the CEO of the NSWALC of 5 August 2025 recommending the appointment of an administrator could constitute an approval of the appointment for the purposes of s 222(3) of the ALR Act, Mr Te-Kowhai contended that it did not for two reasons. The first reason was that the approval of the NSWALC under s 222(3) was not a delegable function, so that the NSWALC could not delegate to its CEO, Ms McHugh, the function of giving approval to the appointment of an administrator to Cobowra. The primary judge rejected this argument (at [71]). Mr Te-Kowhai appealed this decision. This is part of ground 2 and ground 5 of the notice of appeal (the non-delegable function ground).
The second reason, advanced in the alternative to the first reason, was that the NSWALC’s purported delegation of the function under s 222(3) to Ms McHugh by resolution of 8 May 2025 was on terms, but Ms McHugh did not comply with those terms in purporting to give approval to the appointment of the administrator. The terms required “prior consultation” by the delegate “with the Chairman of NSWALC and the relevant Councillor”. Mr Te-Kowhai contended that Ms McHugh did not consult with the Chairman of the NSWALC, Mr Kelly, or the relevant Councillor, Mr Chapman, regarding the Minister’s appointment of the administrator for Cobowra before Ms McHugh sent the letter of 5 August 2025 to the Minister. The primary judge rejected this argument relying in part on the presumption of regularity (at [70]-[71]). Mr Te-Kowhai appealed this decision. This is another part of ground 2 and ground 3 of the notice of appeal (the non-compliance with delegation ground).
I will deal with each of these grounds.
This was not the way Mr Te-Kowhai or the Minister argued their respective cases on the no approval ground before the primary judge, and hence how the primary judge decided the no approval ground, but it is the correct factual finding on the evidence in the court below. The Minister filed a notice of contention, with leave of this Court, seeking to sustain the primary judge’s rejection of Mr Te-Kowhai’s no approval ground on this factual basis. This notice of contention should be upheld.
I reject Mr Te-Kowhai’s submission that the notice of contention is impermissible in form and substance in that it advances a new ground not pleaded or relied on at trial. The notice of contention addresses the no evidence ground pleaded by Mr Te-Kowhai. It seeks to sustain the primary judge’s decision rejecting that ground on the basis of drawing other factual inferences from the same evidence that was before the primary judge.
This Court is able to draw these inferences in an appeal under s 58 of the Land and Environment Court Act 1979 (NSW). An appeal under s 58 relates to proceedings in Class 4 of the Land and Environment Court’s jurisdiction. Mr Te-Kowhai’s judicial review proceedings were in Class 4. An appeal under s 58 is a full appeal not limited to questions of law: Parramatta City Council v Hale (1982) 47 LGRA 319 at 338. This Court has power to review findings of fact as well as determinations of the applicable law: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 69 and Fordham v Environment Protection Authority [2018] NSWCA 167 at [7].
Moreover, the Minister as the respondent to the appeal is entitled to uphold the primary judge’s decision below on “any good legal ground appearing upon the evidence, although he did not present it in the Court below”: NRMA Insurance Ltd v B&B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 at 282 and Hannover Life Re of Australasia Ltd v Dargan [2012] NSWCA 185 at [23]-[24].
The Minister’s notice of contention is, therefore, permissible. Mr Te-Kowhai is not prejudiced as the factual inference which the Minister seeks to be drawn is based on the uncontested evidence in the court below of the NSWALC’s letter of 5 August 2025 to the Minister, the Minister’s notice to the NSWALC of 20 August 2025, and the absence of a written representation of the NSWALC in response to the Minister’s notice. Mr Te-Kowhai would not have been assisted had he sought production of the NSWALC records, such as minutes and resolutions, as the inference the Minister submitted should be drawn is not evidenced by any action of the NSWALC that might be recorded in its minutes or resolutions. Mr Te-Kowhai, therefore, is in the same position in this Court as he was in the court below to make whatever submissions he wishes to make on the factual inferences that should or should not be drawn from this evidence as to whether the NSWALC tacitly approved of the appointment of the administrator. Mr Te-Kowhai has made such submissions in this Court.
For these reasons, I reject the no approval ground.
As I have earlier explained, the NSWALC, as an incorporated representative body, needs for the efficient and effective performance of its functions, to act through its CEO, either as a duly authorised officer or by delegation. The function of approving the appointment of an administrator under s 222(3) of the ALR Act stands in no exceptional position to the other functions of the NSWALC which may be exercised by the CEO through these means.
For these reasons, I reject the non-delegable function ground.
Thirdly, as the primary judge found, the presumption of regularity operated to presume that the delegate, Ms McHugh, had exercised the delegated power under s 222(3) of the ALR Act to approve the Minister’s appointment of the administrator in accordance with the terms of the delegation, subject to evidence to the contrary: see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164; Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40 at [106]. The presumption of regularity serves an evidentiary purpose; it “operates to fill an evidentiary gap”: Viscariello v Legal Practitioners Disciplinary Tribunal [2021] SASCFC 18 at [191]. In this case, the presumption operated with reference to the condition or formality concerning compliance with the terms of the delegation to give the approval of the NSWALC to the Minister’s decision to appoint the administrator, not to the decision of the Minister itself. Hence, the presumption did not operate to confer a presumption of validity to the Minister’s decision to appoint the administrator under s 222(3) of the ALR Act, but only to the NSWALC CEO’s exercise of the delegated power to approve the Minister’s appointment of the administrator.
The onus of rebutting that presumption rested on Mr Te-Kowhai as the challenger to the validity of the Minister’s decision to appoint the administrator. Mr Te-Kowhai bore the legal burden of proving all necessary facts, including that Ms McHugh’s exercise of the delegated power under s 222(3) of the ALR Act to approve the Minister’s appointment of the administrator did not comply with the terms of the delegation: see Stolzenberg v Workers Compensation Nominal Insurer at [113]. Mr Te-Kowhai needed to adduce evidence establishing that Ms McHugh did not consult with the Chairman of the NSWALC, Mr Kelly, and the relevant Councillor, Mr Chapman, and hence did not comply with the terms of the delegation. Mr Te-Kowhai might have been able to establish these facts by calling Ms McHugh, Mr Kelly and Mr Chapman to give evidence that there was not the required consultation, but he did not do so. Accordingly, Mr Te-Kowhai did not rebut the presumption that the terms of the delegation were satisfied before the delegated power was exercised.
I reject the non-compliance with the delegation ground.
The Minister submitted that Mr Te-Kowhai should not be permitted to run this broader argument but instead should be confined to the no evidence case that he ran in the court below and that is raised in ground 6 of the notice of appeal. The Minister submitted that evidence, additional to that led by the Minister in the court below, might have been led in respect of this broader jurisdictional fact argument. On this basis, Mr Te-Kowhai should not be permitted to raise for the first time on the appeal his jurisdictional fact argument: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33.
I reject ground 6 of the notice of appeal. As the Minister submitted, the case Mr Te-Kowhai ran in the court below was a no evidence ground. The primary judge rejected that ground (at [74]). Mr Te-Kowhai appealed against this decision, limiting the scope of the ground of appeal to be a no evidence ground. Mr Te-Kowhai has not sought leave to raise a different ground that the matters in s 222(1) of the ALR Act relied on by the Minister should be classified as jurisdictional facts and that objectively those facts did not exist at the time the Minister made his decision on 16 October 2025 to appoint the administrator for Cobowra. Mr Te-Kowhai should be limited to the case he ran in the court below and that he has raised in ground 6 of the notice of appeal.
On this basis, Mr Te-Kowhai’s no evidence ground is not made out. It depends on Mr Te-Kowhai’s argument that the material before the Minister contained merely assertions as to the matters in s 222(1) of the ALR Act relied on by the Minister, which did not constitute proof of those matters. That argument is not maintainable.
The information in the Ministerial briefs considered by the Minister relating to the matters in s 222(1) of the ALR Act comprised statements of fact and inferences drawn from facts. Mr Te-Kowhai collectively termed these statements and inferences of fact as “assertions”. Some might fit that label. But that did not cause them not to be material capable of supporting the Minister finding that the facts in paragraphs (b), (c), (e) and (g) existed and forming the opinion in paragraph (d). Material that paraphrases, summarises or even asserts information can still be probative of the relevant matters in s 222(1) of the ALR Act. There is no legal rule excluding material that is hearsay or secondary evidence from being material that is capable of supporting the finding of facts or the forming of an opinion about the matters in s 222(1) of the ALR Act.
It is not to the point that other material, what Mr Te-Kowhai termed the underlying evidence, might have further assisted the Minister in finding the relevant facts or forming the relevant opinion regarding the matters in s 222(1) of the ALR Act. That is not the legal test for this no evidence ground. Provided there was some material before the Minister that was probative of the relevant matters in s 222(1), the Minister’s exercise of the power in s 222(1) is not amenable to judicial review. The material in the Ministerial briefs answered that description of being probative of the matters in s 222(1)(b), (c), (d), (e) and (g). The NSWALC’s letter of 5 August 2025 and the attached CEO Brief that were sent to the Minister and Attachment F to the Ministerial brief provided to the Minister before he made his 16 October decision summarising and assessing the submissions of the Cobowra Board members and the grounds in s 222(1)(b), (c), (d), (e) and (g) provided material upon which the Minister could find the facts in s 222(1)(b), (c), (e) and (g) and form the opinion in s 222(1)(d) of the ALR Act.
I reject the no evidence ground.
Rather, the issue raised by the improper purpose ground was a factual one: Did the Minister exercise the power in s 222(1) to appoint the administrator for Cobowra for any of the extraneous purposes identified by Mr Te-Kowhai? Mr Te-Kowhai, as the challenger, bore the legal burden of proving that the Minister did in fact exercise the power for one or more of these extraneous purposes. The primary judge found that Mr Te-Kowhai did not discharge this burden of proof. That is a factual finding, based on the briefing material before the Minister when, first, he decided on 19 August 2025 to give the notices under s 223A of the ALR Act that he was considering appointing an administrator for Cobowra and, second, he decided on 16 October 2025 to appoint the administrator for Cobowra.
The briefing material on the first occasion included: the Ministerial briefing which the Minister approved on 19 August 2025 and the attachments, being Attachments A to E which were the ‘show cause letters’ under s 223A(1)(a) to the Cobowra Board members; Attachment F, the Minister’s notice under s 223A(1)(a) in response to the NSWALC’s letter of 5 August 2025 recommending the appointment of an administrator for Cobowra; Attachment G, the NSWALC’s letter of 5 August 2025 and attached CEO Brief; and Attachment H, an overview of the grounds to appoint an administrator under the ALR Act, being the matters in paragraphs (b), (c), (d) and (g) of s 222(1).
The briefing material on the second occasion included: the Ministerial briefing which the Minister signed on 16 October 2025 and the attachments, being Attachment A, the draft Instrument of Appointment of Mr Callaghan as the administrator for Cobowra; Attachment B, the NSW Government Gazette notice of appointment; Attachment C, the letter to Mr Callaghan advising him of his appointment as administrator of Cobowra; Attachment D, the letter to the NSWALC notifying it of the appointment of Mr Callaghan as the administrator for Cobowra; Attachment E, the submissions received from the Cobowra Board members in response to the s 223A(1) notice; and Attachment F, the summary and assessment of submissions and analysis of the grounds to appoint an administrator under the ALR Act, being the matters in paragraphs (b), (c), (d), (e) and (g) of s 222(1). The NSWALC’s letter of 5 August 2025 and attached CEO Brief seemed to have again been included in the briefing material for the Minister before he made his 16 October 2025 decision.
None of the briefing material before the Minister on 19 August 2025 or 16 October 2025 revealed or discussed the matters claimed by Mr Te-Kowhai to be extraneous to the purposes of s 222(1) of the ALR Act. The evidence adduced by Mr Te-Kowhai in the court below, which he said established these matters, was not before the Minister when he made his decision under s 222(1) to appoint the administrator. The briefing material that was before the Minister only addressed the matters in s 222(1) relied on in support of the appointment of the administrator for Cobowra, being the matters in paragraphs (b), (c), (d), (e) and (g).
Although the Minister was not required to and did not give reasons for his decision to appoint the administrator for Cobowra, absent evidence to the contrary, the inference should be drawn that the Minister exercised the power in s 222(1) for the purposes stated in the briefing material considered by the Minister, being the grounds in s 222(1)(b), (c), (d), (e) and (g) of the ALR Act. In these circumstances, Mr Te-Kowhai did not establish that the Minister exercised the power in s 222(1) of the ALR Act to appoint the administrator for Cobowra for purposes other than those for which the power could be exercised.
This is not a case such as was considered in Golden v V’landys (2016) 339 ALR 610; [2016] NSWCA 300 at [41] where it was found that “the inference of improper purpose will only be drawn if the evidence cannot be reconciled with the proper exercise of the power”, referring to Industrial Equity Ltd v Deputy Commissioner of Taxation (NSW) (1990) 170 CLR 649 at 672; [1990] HCA 46. In the present case, as was the situation in Industrial Equity Ltd v Deputy Commissioner of Taxation (NSW), there is no need to draw any inference as to the purpose attending the Minister’s decision, as the briefing material before the Minister makes it clear that the Minister exercised the power in s 222(1) to appoint the administrator for Cobowra on the grounds stated in that material, being the matters in s 222(1)(b), (c), (d), (e) and (g) of the ALR Act.
For these reasons, I reject the improper purpose ground.