(a) The application of 13 January 2025.

(b) The applicant's submissions of 12 March 2025.

(c) The respondent's submissions of 7 April 2025.

(d) Mr Marshall's witness statement dated 7 April 2025.

(e) The Tribunal documents for this matter, which included (but were not limited to) copies of relevant agendas, minutes and other meeting papers from meetings of the Heritage Council and its Registration Taskforce, reports and background information, copies of public submissions, summaries of public submissions, the nomination for the listing of the Library, letters from the responsible Minister and of course, the decision itself as well as earlier decisions.

(f) The applicant's reply to those submissions of 14 April 2025.

1. The Tribunal takes its jurisdiction in respect of applications for administrative review, relevantly, from Division 6.3 of the ACAT Act. In particular, subsection 68(2) provides that the tribunal may exercise any function given by an Act to the entity for making the decision.
2. The jurisdiction of the Tribunal to review the decision of the Heritage Council in this matter is enlivened by a combination of the Heritage Act and the ACAT Act. The decision challenged by the applicant is the Council's decision to add the Belconnen Library to the ACT Heritage Register - this decision was made under section 40 of the Heritage Act. Part 17 of the Heritage Act (which includes section 113) sets out what decisions can be reviewed by the Tribunal, provided they are specified in the table in Schedule 1 to the Act. Decisions to register a place or object under section 40 are specified in the table and accordingly are reviewable decisions.
3. Correspondingly, the Tribunal has the same powers as the Council to assess the merits of the matter and make a decision based on those merits. That is, to use the well-used expression, the Tribunal stands in the shoes of the original decision-maker, the Council.[1] The function of the tribunal, in other words, is consider the matter de novo (i.e., anew) and "to do over again" that which was done by the primary decision-maker.[2] Accordingly, the Tribunal's role is not to find error, because it is re-making the decision, but I have considered the applicant's arguments about error because they inform the exercise of my discretion. I have considered the applicant's arguments that the respondent made a legal error, and I do not agree that the respondent made a legal error, and in any event, I consider that the respondent made the correct and preferable decision.

Failure to take into account relevant considerations

1. Arguments about a failure to take into account relevant considerations, or to consider them properly, were at the heart of the applicant's case. The applicant submitted that the Council failed to properly consider matters raised in his public submission and issues raised by others who made public submissions, and that its decision was infected by that failure. He cited the High Court's decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, to the effect that the fact that there was no direct and specific evidence on the face of the Council's decision that it considered the applicant's submission (and other submissions) to its public consultation about whether or not to add the Library to the Heritage List, and that this rendered the decision to be not the correct and preferable decision, due to the Council's failure to take relevant matters properly into consideration.
2. The applicant also cited section 179 of the Legislation Act 2001 in support of his submission. I do not think that it added anything materially relevant to the effect of Yusuf, and the other related decisions I have reviewed.
3. Based on the materials lodged by the Council and the statement and oral evidence at the hearing given by its Chair, Mr Marshall, it is clear that the issues raised by the applicant and by other public submissions were considered by the Council, including at more than one stage. So much is clear from Mr Marshall's statement and the submissions of the Council. I go on to describe this more fully below.
4. The evidence made clear that the Council did consider the public submissions at several stages of the process. Examples which are in evidence in Mr Marshall's statement were:

(a) The public consultation submissions were received and considered by the Registration Taskforce in July 2023 in preparing its report, as well as a summary of consultation submissions.

(b) The Taskforce considered further public submissions received in July 2024.

(c) The Taskforce report was circulated to the full Council in August 2024 and finalised.

(d) In September 2024, the Minister directed that it further consider submissions by the ACT Property Group, containing issues that were similar to those raised by Mr Leifer in his application to this Tribunal. Mr Marshall set out very helpfully in his statement, particularly at pages 9 and 10, how those matters were considered - they were not limited to heritage considerations but they were connected with them, as would be appropriate. They included the ability to make upgrades to the building, the library leaving the site and the building being sold. None of these were ruled out.

(e) In December 2024, the Council made its section 40 decision, that it met criteria (a) and (d). As Mr Marshall explained, in making its decision, the Council clearly considered the direction of the Minister to give further consideration to matters similar to those raised by Mr Leifer in this matter, namely whether the building was fit for purpose as well as its amenability to re-use.

1. The actual fact of consideration of the public submissions displaces any inference or assumption that they were not. Moreover, the Tribunal has observed that they were not merely considered in a cursory way, they were received, considered and given appropriate weight. The applicant and other persons, for example 'the man on the Clapham Omnibus', as cited by the Tribunal in the Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn v ACT Heritage Council & Others [2013] ACAT 62 at [107], may wish that the Council afforded more weight to economic or other factors, however that is not the role or function of the Council. It has a carefully defined statutory function based around satisfying itself on reasonable grounds that a place has heritage significance. I will discuss the place of economic and other arguments further below. However, the decision-making fundamentally involves assessing whether one or more of the criteria are met. This the Council did. Nothing that the applicant tendered or submitted has called that into question.
2. The Council's submissions helpfully set out some of the key principles in this area as decided by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, as cited in this jurisdiction by McWilliam J of the ACT Supreme Court in Campbell v ACT Planning and Land Authority [2024] ACTSC 10. It may be helpful to set some of these out where they are particularly germane. For the avoidance of doubt, this list is inclusive and not exhaustive.

(a) The obligation to consider a relevant matter is different from what weight might be given to it. Unless the statute indicates otherwise, it is a matter for the decision-maker and not the court to determine the weight to be given to various matters which must be taken into account in exercising the statutory power.

(b) A decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an "exhaustive list of all the matters which the decision-maker might conceivably regard as relevant"... It is largely for the decision-maker to decide what factors to pursue and the comparative importance to be accorded to them.

(c) Not every consideration which a decision-maker is bound to take into account but does not will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision.

(d) The final extract from that case I wish to cite here is that if a plaintiff attempts to prove a breach by reference to the written reasons of a decision-maker, such statements of reason should be read without "an eye keenly attuned to the perception of error"... A court may infer that a decision-maker regarded a certain issue as irrelevant to this decision if it was not mentioned in written reasons.

1. I have considered each of these factors and make the following findings in my consideration of what is the correct and preferable decision.
2. The Council considered the public submissions, including consideration of economic, re-purposing and related considerations posited in the public submissions at several stages in its decision-making process in arriving at its final decision to add the Library to the Heritage List. So much is clear from the respondent's submissions, from Mr Marshall's witness statement and from his evidence at the hearing where he stepped the Tribunal through the various points at which the public submissions were considered as part of the process.
3. I find that the Council gave appropriate weight to those submissions, given their nature and content, and given the Council's statutory functions and the purpose of the Heritage Act and the registration process.
4. I find that the Council accorded appropriate weight to the submissions, even though the applicant may have believed on genuine grounds that the considerations raised in his submission or in other submissions deserved to have greater weight accorded to them. The Council's function as set out by the Heritage Act was squarely centred on the heritage considerations of the building. Other considerations with which the applicant was focussed in his public submission, could feasibly be linked with these, such as the potential economic value of the re-development and re-use of the land on which the Library is located, the amenity of the building and its ability to optimally fulfil the function of a local Library. As Mr Marshall indicated very clearly in his evidence, such considerations were taken into account by the Council at the time of its decision as appropriate, given the purpose of the Heritage Act and the Council's statutory function. The respondent's submissions pointed out that some of those considerations may be more relevant to considerations under the Planning Act 2023. To put it another way, to have accorded those considerations the weight or significance which the applicant seems to suggest they should be accorded, would possibly have led the Council into error by according such considerations a significance to which they are not entitled consistent with the Council's explicit statutory functions and the purposes of the Heritage Act.
5. The High Court's decision in Peko-Wallsend should not be interpreted to mean simply that a decision-maker regarded a matter as irrelevant if it did not mention it. The point is more sophisticated than that; otherwise it would risk all sorts of administrative decisions being impugned for failure to set out every single consideration that went into their making. In Alexander v Australian Community Pharmacy Authority [2010] FCA 189, Bromberg J of the Federal Court analysed the authorities and stated that there ought to be no assumption made that the failure to have included a matter in a statement of reasons when obliged to do so leads to the conclusion that there was a failure to take that matter into consideration in the making of the decision itself. While such a factor is relevant for a court in drawing an inference that a consideration was not taken into account, in that case, his Honour pointed out that it was not determinative of the issue, and that there ought to be no assumption made that the failure to have included a matter in a statement of reasons when obliged to do so leads to the conclusion that there was a failure to take that matter into consideration in the making of the decision itself.[3] His Honour cited a range of superior court authorities to this effect, including the pithy observation from Wilcox J of the Federal Court in Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 485 that, as a matter of logic, it does not follow that inadequate reasons are necessarily the result of an inadequate decision.
6. In any case, in the instant matter, clear evidence has been furnished, through Mr Marshall's statement and the Tribunal documents, about the processes of the Council and when and how the public submissions of the applicant and others were taken into account by the Council in reaching its decision to register the Library, sufficient to displace any inference or assumption, and the applicant's assertion, that the applicant's submission and the considerations it raised, were not taken into account by the Council in reaching its decision to register the Library, and I so find.
7. I move now to consideration of the merits of the decision under section 68 of the ACAT Act, the substantive matter of this appeal. The long title of the Heritage Act is "to provide for the recognition, registration and conservation of places and objects of natural and cultural significance, and for other purposes". The conclusion that the purpose of the Act is to preserve, enhance or promote the ACT's heritage is bolstered by the first of the Objects of the Act, which is, under section 3(a), to establish a system for the recognition, registration and conservation of places that have natural or cultural heritage significance. Heritage significance is defined by a set of criteria set out in section 10.
8. The functions of the Council are set out in section 18 of the Heritage Act and they reinforce the above conclusion. They all relate to heritage significance. The first, section 18(a), confers on the Council the function of identifying and assessing places and objects in the ACT with natural and cultural heritage significance. As explained by Mr Marshall, quite correctly in my view, this is the primary consideration with which the Council must concern itself when considering whether or not to register a place. He clearly explained that considerations about its economic value, its amenity or ability to be "re-purposed" are relevant but they are ancillary to the central question of heritage value which is at the core. Other issues raised in public submissions are taken into account and were in this case. Mr Marshall gave powerful examples of where such non-heritage considerations might have a dramatic effect on heritage value. Namely, where a site contains loose-fill asbestos which would render the site unusable and which would affect its economic value. Mr Marshall went to some lengths to explain this in his statement, which was of considerable assistance to the Tribunal, and reinforced this in his evidence to the Tribunal.
9. This is not necessarily inconsistent with the finding of the Tribunal in 212 Northbourne Pty Limited v ACT Heritage Council & Anor [2016] ACAT 30 cited by the applicant in his submissions. The applicant noted that the Tribunal in its decision in that case agreed with the applicant in that case that meeting one of the criteria does not mandate registration, it simply enables it. In that case, the Tribunal went on to note that the Heritage Council had argued that the refusal to decide to register a place which is of heritage significance should be rare having regard to section 3(2)(a) of the Heritage Act, and also noted that section 18(a) of the Act provides that it is a function of the Council to conserve places with cultural heritage significance and section 18(b) to encourage the registration of heritage places. Importantly, in that case, like in this one, the applicant argues that if the discretion under section 40(2) arises, it should be exercised to decide not to register the Building. The Tribunal noted in that case that no basis for doing so was set out in the applicant's statement of facts and contentions. Given that the criterion was, in the Tribunal's view, met, the Tribunal did not see a basis for deciding not to register. The Tribunal therefore decided to register the building in that case.
10. Similarly, the applicant has raised points centred largely around economic and re‑development value; the Council considered these and determined that these points were not of sufficient significance to outweigh or override the heritage considerations, which were amply set out by the Council in its decision and repeated in the evidence for this case.
11. I would have expected that some evidence would have been produced which might have had dramatic consequence for the Council's decision, like an actual economic or development report about the site. The applicant indicated at the hearing that, in bringing his action, he thought some such document or report might have existed. However, all the evidence tendered for the purpose of preparation for the hearing demonstrated that no such document which might have been instrumental in changing the correct or preferable decision, was in existence and provided to the Council. This was confirmed by Mr Marshall at the hearing.
12. Informed by the Tribunal documents, including the minutes and other records of meetings and the evidence of Mr Marshall, I find that the Council appropriately discharged its statutory duty. It concerned itself with the relevant criteria.
13. This is not to say that the Council did not consider economic matters and the factors mentioned in the case of National Trust of Australia (ACT) v ACT Heritage Council & Anor [2016] ACAT 41 cited by the applicant. Indeed, it did. As Mr Marshall explained in his statement at paragraph 63, economic considerations are taken into account in the assessment of condition and integrity of a place. They were considered in relation to the Library and recorded in the minutes. Mr Marshall explained that they were taken into account in relation to the feasibility of any registration occurring and enduring. To not do so could be a waste of resources. However, its considerations in this regard were contingent upon being presented with clear, definitive and imminent evidence that an enduring registration would not be feasible. Mr Marshall provided the example of a site containing loose-fill asbestos. This was patently not the case here.
14. Mr Marshall explained that a second type of consideration arises when assertions of a more general nature are made, commonly centred around economic value impacts and that listing would limit all potential adaptive re-use options. In my view, Mr Marshall's statement amply explained how such submissions are considered and dealt with by the Council. Naturally, they hold less weight than economic arguments of the first type I have identified. They are intrinsically of less value or weight, and of course circumstances can change over time. Mr Marshall noted that the Heritage Act provides scope to address such matters following registration, when there is more clarity and certainty.
15. The table at page 13 of Mr Marshall's statement very helpfully explained in considerable detail how these public submissions were dealt with. This is of some assistance to persons wanting a more detailed understanding of how such considerations were considered by the Council. The public submissions were not dismissed as irrelevant and they were taken into account by the Council in arriving at its decision.
16. They were afforded appropriate weight, that is, compared with submissions concerned with matters squarely relating to the heritage significance of the site. Intrinsically, a submission concerned with economic or development matters would not have the same impact on or weight as the primary question with which the Heritage Council is concerned, namely, 'does the place have heritage significance?' Matters such as economic or development value could have had greater weight if there was more specific and substantive evidence about them but none of that was present in the instant case.
17. I also asked Mr Marshall at the hearing whether there was any doubt expressed by the Council about the registration of the Belconnen Library. He indicated that there was no doubt by the Council members about its decision, and that the decision to register it was unanimous and without dissent.
18. Having reviewed the evidence, I find that the Council gave due consideration to the public submissions in arriving at its decision to register the Belconnen Library on the heritage register. In his final submissions, the applicant proffered an 'alternative decision', to register the entrance way and external features. Such a proposal would not be consistent with the reasoning reached by the Council. In reaching its decision, it is obvious that the Council carefully considered a range of variations on what parts of the building should be registered; indeed it changed and refined its decision about this at several points in its decision-making process - including as the evidence shows, when the Minister asked it to re-consider matters like whether the building was fit for purpose, and its re-use and adaptability. Indeed, I heard no evidence to indicate to me that the comments were not appropriately considered and taken into account. Accordingly, I do not believe that to only register the entrance way and external features would be the correct and preferable decision - the Council made its decision based on its expertise, submissions and sound evidence and I do not disturb that.

1. The applicant made an argument about apprehended bias in his submissions in reply lodged on 14 April 2025. I did not find the argument compelling. At the hearing, Ms Costin drew the Tribunal's attention to evidence of minutes of meetings of the Council and of the Reference Taskforce which did not disclose any conflicts with respect to Mr Leifer. Mr Marshall also indicated in his evidence at the hearing that he was not aware that Mr Leifer was involved in a housing reform advocacy group until Mr Leifer lodged his appeal with the Tribunal.
2. I find nothing objectionable in the Council's statements about its expertise in determining heritage matters, nor in its statements about profit-making. I do not think that these statements would give rise to a reasonable apprehension of bias. These were illustrative of its role, functions and expertise and it was entitled to do so in the context of its public consultation report. I do not find anything in these statements to ground a reasonable apprehension of bias. Even if bias by the Council had been demonstrated, the Tribunal's role is to consider the decision afresh, so that any apprehension of bias on the part of the Council would not invalidate the Tribunal's decision.[4]

1. In his submissions in reply of 14 April 2025, the applicant also raised the power of the Council to investigate matters using section 95 of the Heritage Act (an 'information discovery order'), to ground an argument that it is obliged to use this power to investigate issues raised in the course of public consultation, or a subset of such issues.
2. First, I find nothing in the Act or the Explanatory Statement to the Bill to support that assertion. Under examination at the hearing, I asked Mr Marshall, as an experienced member of the Council, about these powers. He thought that they may have been intended or designed to assist with gathering information germane to taking action to protect Aboriginal heritage, but he could not be sure. He also indicated that as far as he was aware, the powers had never been used in all his time on the Council, and that the Council, naturally enough, sought to gather information it required for its deliberations and the discharge of its functions through non-statutory means, that is, asking and receiving, or following up with a written request, not using the statutory power.
3. The matter may end there, however for completeness I will go on to consider the applicant's further arguments about these powers. He cited taxation law and a Federal Court decision in support of his proposition. I did not find the analogy with powers under taxation law to be of any material assistance to the applicant's case in this matter.
4. The powers under tax law exist in order to support the Taxation Commissioner's compliance and enforcement powers. The context is very different. At its heart, obligations on regulatory agencies to enforce laws to obtain information in support of protection of the public revenue, are very specific, given the potential profound impacts to personal or commercial information and private property. They are designed to be applied to specific tax-paying entities, rather than more general research or 'discovery'.
5. Furthermore, there is a big difference between having statutory information-seeking powers and using them. The respondent did not argue that the Council did not have such powers. It was entirely in the Council's discretion as to whether it wished to inform itself further on the points raised by the applicant or other persons in the public consultation and secondly, whether it considered those points to be sufficiently germane to issue an information discovery order, and thirdly, whether it wished to use those powers, or simply to ask for the relevant reports, documents or information. Without deciding this point because it is not necessary to do so in the circumstances, I do not believe that the submissions raised any matters which were before the Council which would have justified it in using its information discovery order powers in this matter. For example, based on Mr Marshall's evidence at the hearing, it is easy to conceive that they might have been used in a case where quite specific financial, economic or development reports or information were known or suspected to exist. However, as Mr Marshall indicated, other than the report in the Tribunal documents referred to at the hearing as the 'Philip Leeson report', which was provided to the Council without the need for resort to the section 95 power, there was simply nothing else extant which was germane to the considerations raised in this application.
6. To impose a requirement that the Council must look for information which it doesn't know or suspect exists would be to impose a high bar, and one which I would expect to be supported by a clearer statutory foundation or intent. Otherwise, as indicated by Mr Marshall at the hearing and by counsel for the respondent, it could lead to "fishing expeditions" and a use of public resources for which the Heritage Council is not resourced.
7. Here, there were simply no documents that the Council suspected were in existence which might assist it in its considerations. Certainly none were disclosed by these proceedings. Mr Leifer indicated that when he first lodged his appeal, he thought that there might have been, but documents tendered for the purposes of the hearing have shown, and the Tribunal heard, that they did not exist. What did exist was a report which the Council sought - without the use of its statutory power - from the ACT Property Group which was provided and taken into account in the making of the Council's decision.
8. I do not find that the section 95 powers were not available to use here, but without deciding the matter because it is unnecessary to do so, I find that the use of these powers are likely intended to be used for matters more closely related to heritage, for example obtaining documents to support Indigenous or other heritage research and to enforce heritage decisions, where such information is known or suspected to exist, and where it has not been provided by consent. Those factors were not present here.
9. The respondent submitted that were the applicant's interpretation of this section accepted, it would impose an unreasonable burden on the Council to investigate in great detail and at expense, any (or almost any) public comment made about a heritage proposal. I think that the applicant sought to narrow his submission on this point by reference to the 'reasonable grounds to suspect' criterion in section 95, but it is not relevant to the determination of this case because, in any event, no such additional document or information was identified in the application or in the evidence.
10. In any case, the Council did conduct investigations into the potential heritage registration of the Library. It conducted public consultation rounds, it corresponded with persons from whom it sought to obtain more information in order to inform those considerations, and it convened a specific working group to give it detailed consideration.

1. I do not remit the matter to the Council to re‑consider; additional review by the Council of the submissions which it had already considered when it reached its decision would be inutile and a waste of public resources. I consider that the Council made the correct and preferable decision.

[1] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], citing Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at 271

[2] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50] (in relation to the then Administrative Appeals Tribunal), citing Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 315 [100], quoting Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 502

[3] Alexander v Australian Community Pharmacy Authority [2010] FCA 189 at [84]

[4] Minister for Immigration and Multicultural Affairs; Ex parte "A" [2001] HCA 77 at [35]- [39]