(See also Maroota at [24] and [73]).
121 Despite these considerations the Minister was asked to infer not only that Mr O' Toole had made that decision to develop the land in accordance with the TEC recommendations, but also that that decision about the development of the land was enough to equate to need or likely need under the ALRA. It is not the "government of NSW" which must make the relevant determination or form the relevant opinion, nor the officer of any department not directly involved, it is the Crown Lands Minister, and there is no evidence that that Minister delegated that function to anyone in this case.
122 Clearly governments need ministerial functions to be discharged, wholly or in part, by way of delegation to officers, or by way of agency or "alter ego" arrangements, "short of delegation", of the type considered in Carltona Limited v Commissioners of Works [1943] 2 All ER 560 (endorsed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24 at 37-38, and Re Patterson; ex parte Taylor (2001) 207 CLR 391 at 449). See also O'Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1983) 153 CLR 1, at 30 per Wilson J, and the discussion in both Aronson, Dyer, and Groves "Judicial Review of Administrative Action" (Third Edition, 2004), and per McClellan ChJ in Centro Properties Limited v Hurstville City Council and Another (2004) 135 LGERA 257. Statutes such as ALRA and CLA provide specifically for delegation by the Minister responsible. However, those provisions must be strictly construed, and strictly observed. An agency appointment by a minister, or a delegation by a Minister of a power, especially in favour of an officer of a department outside his/her ministerial portfolio should not be lightly inferred without firm evidence, probably written. As Dr Griffiths put it (T27.03.08, p158, L8-13):
"…at the root of the Carltona principle is the principle of ministerial responsibility. The minister carries the can for the actions of those for whom he is politically accountable. The Crown lands ministers had no ministerial responsibility for the actions of Landcom and for that reason alone, quite independently of all the other reasons that I'll come to, Carltona offers no comfort on this issue."
An agency arrangement would not be sufficient to bind the Crown Lands Minister in his/her functions under the ALRA - only a proven delegation would suffice.
123 The questions put to the Minister (in the brief at par 6.16) are clearly directed to "use" rather than "need" or "likely need", and I have come to the conclusion that the Minister was directed to ask himself the wrong question. As Jagot J held in Nambucca 2008, the question whether claimed land was needed or likely to be needed for a specified purpose is not the same issue as whether there is a decision, or some other manifestation of political will, that the land "be used" for such purpose, or whether there is a real and not remote chance of such a decision or manifestation of political will. In searching for such "use", the Minister was directed to the decision of Mr O'Toole, who it was said, had the authority to bind the NSW Government, but the Minister was not directed, and could not be directed, to any evidence that established that Mr O'Toole actually had that authority.
124 I have concluded that the residential lands certificates are void as the Minister asked himself the wrong question when directing his attention to use rather than need or likely need, and failed to consider some mandatory relevant considerations.
(c) Nature Conservation Certificates
125 There are similar considerations in play regarding the Minister's nature conservation certificates and I will not repeat my remarks in the previous section. Here again his Department presented him with a voluminous brief (Exhibit A1, tab 14), comprising a 17 page recommendation paper plus 75 pages of attachments.
126 The ESD study identified various lands which should not be developed, and canvassed various conservation options, involving either addition to existing reserves (like BVRP or Muogamarrra Nature Reserve), or fresh dedication. Neither the DLWC (the department responsible for crown land) nor the NPWS (the agency responsible for much of the government's activity in relation to nature conservation) was involved in the Study. Indeed, neither was aware of its recommendations until after the ALCs were made. Neither agency ever agreed that TEC could discharge their statutory land assessment functions. The Study reported to Landcom which had no powers to deal with lands under the regimes prescribed in the CLA or the NPW Act. Nor did Landcom have any specific nature conservation functions, except concerning matters clearly incidental to carrying out its land development work.
127 The NPW Act establishes an exclusive statutory scheme for the establishment, inter alia, of nature reserves and regional parks (see Nambucca 2008 at [78] and [106]). Some of the processes are quite specific and vest power to deal with the land in exclusive bodies, such as the Minister for Environment or the Governor (see ss.470 and 49 for examples relating to regional parks or nature reserves). The process for reservation or gazettal of land as a local reserve is contained in the CLA. I do not view any of these provisions as mere "mechanical steps", nor as requirements that can be otherwise circumvented.
128 None of these various statutory requirements or processes for the reservation of land for nature conservation were brought to the attention of the Minister in the brief. This is a significant omission, which is compounded by the fact that Mr O'Toole is put forward as the person with the authority to make decisions on nature conservation, which bind the NSW Government, with little more evidence than his subjective belief that he has that authority, and no comment made about the distinction between his real function as the Government's land developer, and the responsibility to make land conservation decisions on behalf of the government. Whether or not O'Toole had authority to deal with land under the NPW Act is centrally important to the consideration as to whether the subject land was needed or likely to be needed for nature conservation, and I have concluded that he did not.
129 Again this brief does not draw the Minister's attention adequately to the letter of Minister Refshauge, dated 9 February 2004, which puts into context the press release of 29 June 2000. The press release is referred to in par 6.3(29). Paragraph 6.3 outlines "the evidence filed by the respondent which the Minister may consider to be relevant" to the task at hand. Unlike the residential lands brief, the letter is, on this occasion, mentioned in the text of the nature conservation brief, but, somewhat peripherally, in a section dealing with submissions made by the Land Councils (par 7.14, beginning "[t]he Minister's attention is also drawn to the following submissions made by the applicants"). It would appear that the Minister's attention is actually diverted away from Dr Refshauge's letter, in the briefs on issuing both classes of the certificates, but especially those regarding nature conservation, by the emphasis placed by the briefs on drawing the inference that Mr O'Toole had the government's authority (See T.p24 L44ff and T.86 L1ff).
130 The Applicants also point to the fact that some of the evidence filed in the proceedings at the time the Minister was presented with the brief was not referred to in the brief, even though it reveals the views of the NPWS (a very relevant agency when dealing with land for nature conservation). Some of this evidence post-dates the date of claim, and is, therefore, subject to the Falconer principle (see par [36] above). I have earlier referred to some of this evidence - the NPWS disavowed any objection to the granting of these ALCs at various times (see Exhibit A4 , fols 10, 19, 26 and 33), other than expressing the view that "some or all" of the ALC 6465 land "may be suitable for nature conservation".
131 As with the residential lands certificates, the questions put to the Minister in the nature conservation brief (at par 7.12) are the wrong questions, directing his attention to whether the claimed land can be used for an essential public purpose, rather than whether the land was needed or likely to be needed for an essential public purpose. The error is compounded by the failure to consider several relevant mandatory considerations, which lead to the finding that the nature conservation certificates are void for jurisdictional error.