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[2009] WASC 296
respondent. Order nisi discharged; declaratory relief refused.
The court found that the Minister had not been given the Aboriginal Cultural Materials Committee's actual recommendation before granting consent for works at Gurrwaying Yinda. The department had changed a material condition concerning whose satisfaction was required about consultation with the Yindjibarndi people. This meant a precondition for valid consent under s 18 was not met. Even so, the court refused to quash the consent. It considered that the Minister would promptly make the same decision, and that quashing it could expose Robe to prosecution after it had relied on the consent without knowing of the defect. The order nisi was discharged and declaratory relief refused.
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2,308 words · generated 29/09/2026
This was the return of an order nisi in proceedings brought by Michael Woodley and the Yindjibarndi Aboriginal Corporation. They sought certiorari to quash the Minister for Indigenous Affairs' purported consent under s 18 of the Aboriginal Heritage Act 1972 (WA) for works at Gurrwaying Yinda. Robe River Mining Co Pty Ltd was the second respondent and the operator behind the railway works. The applicants' standing was accepted by the respondents because they had a special interest in maintaining the heritage value of the site [6].
1 cited instrument linked from this judgment.
The immediate background was flooding in February 2009. It damaged the pylons of Bridge 11, making the bridge unsafe. A temporary railway diversion was constructed next to the bridge, using approximately 130,000 cubic metres of rock and soil from nearby borrow pits [9]-[11]. The court described the risk that, if significant wet-season flows overwhelmed the culverts, the diversion could be swept downstream and cause substantial damage to the pools [11]. Robe later sought consent for a new bridge and removal of the temporary diversion [12].
The Aboriginal Cultural Materials Committee (the committee) first considered Robe's notice on 9 June. It recorded concerns about consultation and whether Robe had adequately informed it of the heritage impacts. The committee deferred making a recommendation because it considered the information insufficient and there was no evidence of adequate consultation with the Yindjibarndi people [13]-[15].
At its 1 July meeting, the committee resolved to recommend consent subject to conditions. One condition required a cultural heritage management plan to include consultation with and to the satisfaction of the applicants [16]-[17]. Departmental officer Christine Lewis was concerned that this wording could give the Yindjibarndi people an effective veto. The department changed the recorded wording so that consultation would be to the satisfaction of the Registrar on behalf of the Minister [19], [21]-[22].
That change mattered to the Minister. The version sent to him in the briefing materials was not the wording resolved upon by the committee [23]-[25]. The Minister granted consent on 20 July, with conditions reflecting the altered version [27]. Robe continued work on the new bridge. The evidence was that stopping or demobilising the work would incur considerable expense and that delay could increase the risk of the temporary diversion being washed away during the wet season [28]. Robe had not known about the discrepancy until it was disclosed in the proceedings [29].
Martin CJ found that s 18 required the Minister to have the substance of the committee's recommendation before him. Since he had not, a condition of valid consent was unmet [36]-[37]. The court nevertheless refused certiorari, discharged the order nisi and refused declaratory relief [48].
The decisive administrative-law question was not whether the department could alter the committee's recommendation, but whether the Minister had received the recommendation that the committee actually made. The court accepted that the two formulations were materially different. One made satisfaction with consultation a matter for the Yindjibarndi people; the other made it a matter for the Registrar on behalf of the Minister. The Minister's own evidence confirmed that this difference was significant to him: he said that, had the actual committee wording been presented, he would have sent the draft back to be changed [31]-[35].
The statutory reasoning rested on the structure of s 18 and the role given to the committee. The committee's membership and expertise, as described by the court, showed that Parliament treated it as an important source of advice to the Minister. The court concluded that the Minister had to receive the substance of its decision and recommendations before deciding whether to consent [36]-[37]. The judgment did not hold that a particular document or formal method of transmission was mandatory. It said the substance had to be before the Minister “one way or another” [37].
Finding invalidity did not automatically determine whether relief would issue. The court treated discretion as a separate question. It relied on authorities recognising discretion in the grant of prerogative relief, including Varney, Sasterawan and Dranichnikov [38]. It considered three proposed reasons to deny relief: the alleged lack of material effect, futility, and hardship to Robe [39]-[41].
On materiality, Martin CJ warned against refusing relief simply because the Minister would have reached the same result. The statutory process mattered, particularly because the committee provided expertise in a decision involving work that might otherwise contravene the Act. Non-compliance with that process was not to be dismissed lightly [42]. But materiality could be considered alongside other discretionary factors [42].
Futility carried substantial weight. The committee had completed its work, its recommendation was now known to the Minister, and the Minister's evidence was that he would make the same decision in substance, and quickly. The court found no factual basis to expect that the matter would go back to the committee [43]-[44]. Applying the distinction discussed in Varney and Sasterawan, the court considered relief pointless where the decision would promptly be made again in the same terms [45].
Hardship to Robe was an additional factor. Robe had relied on the purported consent without knowing it was affected by the altered recommendation. If the decision were quashed, it would be treated as invalid from 20 July 2009, potentially exposing Robe to prosecution for later work. The court did not decide whether s 24 of the Criminal Code (WA) would provide a defence. It regarded the answer as sufficiently uncertain that the possible prosecution represented potential prejudice and hardship [41], [46]-[47].
The result followed from weighing these matters together. The court found a statutory defect, but concluded that futility and potential hardship, considered with the circumstances concerning materiality, justified refusing relief [47]-[48].
The judgment's account of the law before this case is limited to the sources it cites. It identifies s 18 of the Aboriginal Heritage Act as the statutory framework, and explains that the Act made the committee an important source of advice to the Minister. It also records that Western Australian and other authorities recognised a judicial discretion over whether to grant prerogative relief [36], [38].
The judgment's principal clarification is about the content of the s 18 precondition. It was not enough for the Minister to receive a document labelled as committee minutes or a summary that had been materially altered by departmental officers. The relevant requirement was that the substance of the committee's decision and recommendation be before the Minister [34]-[37]. The court did not insist on a specific form of advice, but it did insist on accurate substance.
The decision also applied the discretionary principles described in Varney and Sasterawan. The court treated predicted sameness of outcome as a consideration that may contribute to refusing relief, while cautioning that it would rarely justify refusal on its own [42]. It treated futility as a stronger consideration where the evidence showed that the decision-maker would promptly remake the decision in the same terms [43]-[45]. It further accepted that prejudice to an affected third party could support refusal of relief [46]-[47].
The judgment does not purport to amend the text of s 18 or establish that every procedural error is harmless if an official says the outcome would be unchanged. On the contrary, its reasoning emphasises that the statutory advisory process must be followed. The eventual refusal of relief was tied to the specific evidence about the Minister's position, the likely prompt repetition of the decision, and Robe's reliance and potential exposure [42]-[48].
The judgment alone does not establish the subsequent state of the law or how later courts treated this decision. Its “after” position can therefore be described only as the rule and discretionary reasoning expressed by Martin CJ in this case, not as a claim about later precedent.
At [36], the court said that s 18 required the Minister to have the substance of the committee's decision and recommendations before him, although the statute might not require a particular form of transmission. In plain English, the important point was accurate communication of what the committee had decided, not whether that advice came in a particular document.
At [37], Martin CJ stated: “I conclude that it is a condition of the validity of any decision made by the Minister under s 18 that, one way or another, the Minister should have had before him or her the substance of the decision made by the committee.” This is the clearest statement of the statutory precondition applied in the case. The Minister did not need necessarily to receive formally adopted minutes, but the information supplied could not substitute a materially different recommendation.
At [42], the court warned that it would be “a very rare circumstance” to refuse relief merely because the decision would have been the same. In plain English, an official's claim that a procedural defect made no difference is not ordinarily enough by itself to excuse non-compliance with a statutory process. The committee's advisory role had legislative significance.
At [45], the court explained that quashing a decision that would promptly be made again in exactly the same terms could be pointless. This captures the futility reasoning. It depended here on the Minister's accepted evidence and the court's finding that he would not send the matter back to the committee [43]-[44].
At [47], the court treated futility and hardship as factors that could combine with the circumstances of the procedural departure. The court did not use any one consideration as a universal rule. It made a discretionary assessment based on the evidence in this matter, including Robe's reliance on the purported consent and possible exposure to prosecution.
The statutory reasoning is relevant where legislation makes a particular committee's advice or recommendation part of a decision-making process, and a decision-maker receives a version that differs materially from what the committee resolved. The key factual question is whether the decision-maker had the substance of the committee's actual position, rather than merely whether some account of committee proceedings was included in the briefing material [34]-[37].
The case particularly highlights circumstances where changes to a recommendation affect who controls the satisfaction or approval required by a condition. Here, the original wording placed satisfaction with the Yindjibarndi people, while the wording sent to the Minister placed it with the Registrar. The Minister's evidence established that the difference could affect his response [31]-[35].
The discretionary reasoning may become relevant where a court is asked for prerogative relief after a procedural defect is identified. Relevant factual questions, on the approach taken here, include whether the decision-maker would in fact make the same decision again, whether the matter would return to the statutory adviser, whether relief would change the practical outcome, and whether a third party relied on the decision without knowledge of the defect [40]-[47].
The decision does not establish that those factors will always outweigh a statutory failure. Martin CJ expressly cautioned against denying relief merely because the result would have been unchanged [42]. The result depended on the combined circumstances found in this case, including the accepted evidence of the Minister, the urgency and risks associated with the works, and Robe's lack of knowledge of the defect [28]-[29], [43]-[48].
The judgment identifies authorities that existed when it was decided, but the supplied judgment contains no later judicial decisions treating this case. It would therefore be unsupported to state that later courts followed, distinguished, approved or criticised Re Minister for Indigenous Affairs; Ex parte Woodley [No 2].
The authorities Martin CJ relied on were used for specific propositions. Varney and Sasterawan were cited for the discretion to refuse relief and for the distinction between a case where the decision would confidently be the same and one where a different result remains possible [38], [45]. Dranichnikov was cited as an example of the High Court acknowledging a general discretion in relation to prerogative relief [38]. Re Smith, Gavranich and Savage were identified as authorities supporting the relevance of third-party prejudice [46].
Those citations show the reasoning framework Martin CJ applied; they do not, by themselves, show how later courts interpreted this judgment. Establishing subsequent treatment would require sources beyond the judgment supplied here.
The judgment did not decide whether the department's alteration of the recommendation could ever be authorised through some other statutory or administrative process. It decided only that the Minister had not received the substance of the committee's actual recommendation before making this s 18 decision [36]-[37].
It also did not decide the precise legal effect of the committee's recommendation apart from its role as a required input to the Minister's decision. Nor did it decide whether a different evidentiary record, such as evidence that the Minister might have reconsidered the matter or referred it back to the committee, would change the discretionary assessment. The court's futility conclusion depended on its findings about this Minister's evidence and what he would do [43]-[45].
The potential operation of s 24 of the Criminal Code remained unresolved. Martin CJ expressly declined to express a concluded view on whether Robe could rely on the honest and reasonable mistake of fact defence. The point mattered only because the uncertainty contributed to the court's assessment of potential hardship if consent were quashed [41], [47].
Finally, the judgment did not determine how a court should weigh the competing considerations in a case with different third-party reliance, different consequences of quashing, or a realistic prospect that a lawful reconsideration could produce a different result. Its caution against treating predicted sameness as sufficient by itself remains important when assessing the limits of the discretionary reasoning [42]-[48].
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : RE MINISTER FOR INDIGENOUS AFFAIRS; EX PARTE WOODLEY [No 2] [2009] WASC 296
MATTER : Application for a writ of certiorari against the Minister for Indigenous Affairs
YINDJIBARNDI ABORIGINAL CORPORATION as trustee for YINDJIBARNDI PEOPLE
Prerogative writs - Application for a writ of certiorari - Decision of the Minister - Section 18 of the Aboriginal Heritage Act 1972 (WA) - Minutes presented to the Minister did not accurately reflect recommendation of the Aboriginal Cultural Materials Committee - Pre-conditions for valid grant of consent under s 18 were not met - Discretion - Whether material or significant - Futility - Hardship to third parties
First respondent : State Solicitor for Western Australia
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Gavranich v Shire of Wanneroo (Unreported, WASC, Library No 980473, 25 August 1998)
Re Smith and West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295
Sasterawan v Morris [2008] NSWCA 70
Savage v Tech Explorations Ltd (Unreported, WASC, Library No 7285, 16 September 1988)
Varney v The Parole Board (2000) 23 WAR 187; [2000] WASCA 393
1 MARTIN CJ: (This judgment was delivered extemporaneously on 18 September 2009 and has been edited from the transcript.)
2 This is the return of an order nisi granted to Mr Michael Woodley and to the Yindjibarndi Aboriginal Corporation relating to the grant of a writ of certiorari to quash the decision of the Minister for Indigenous Affairs (the Minister), purportedly made pursuant to s 18 of the Aboriginal Heritage Act 1972 (WA) (the Act) consenting to the performance of work at a site of Aboriginal heritage value which might otherwise contravene the Act.
3 The facts which I find are drawn from affidavit evidence which was largely undisputed. The only area of potential factual controversy concerned the evidence given by the Minister, Dr Hames, to which I will refer in due course.
4 The case concerns a site known as Gurrwaying Yinda which is an area of the Booyeemala Creek, known to the Yindjibarndi People as Thurdimarlu Wurndu. It is approximately 12 kilometres south of the Fortescue River crossing and approximately 126 kilometres south of Cape Lambert. The area includes an area known as Cowing Pool.
5 The site has been adequately described in the evidence. Gurrwaying Yinda comprises a series of permanent pools of considerable natural beauty in which freshwater mussels known to the Yindjibarndi People as 'gurrwa' can be found. As a layperson, and not professing any ethnographic expertise, it seems to me from the evidence that I have seen that the potential ethnographic significance of the site is and always has been obvious.
6 Mr Woodley, the first applicant, is a Yindjibarndi lawman and an officer of the Yindjibarndi Aboriginal Corporation, which is the second applicant. That corporation represents the interests of the Yindjibarndi People who are the traditional occupiers of the land which includes the site. It is unnecessary to make more detailed findings with respect to the status of the applicants as it is accepted by the respondents that they have a sufficient special interest in the maintenance of the heritage value of the site over and above that of the community as a whole so as to give them standing to bring these proceedings.
7 The site is crossed by a railway which connects Cape Lambert to Pannawonica. This railway is owned and operated by the second respondent, Robe River Iron Associates. Robe River Mining Co Pty Ltd (Robe) is the manager of the Robe River Iron Associates. The purpose of the railway is to provide a means by which the iron ore mined at Pannawonica, and in particular at the Mesa J mine operated by Robe River Iron Associates, can be taken to the port at Cape Lambert. A bridge is required for the railway to pass over the pools on the site. The original bridge, which was known as Bridge 11, was built in 1971.
8 At the time of the commencement of the events giving rise to these proceedings only part of the site, being generally that part of the site known as Cowing Pool, was a registered site under the Act. However, since the commencement of the events that have given rise to these proceedings the rest of the site, which includes the area which I have referred to as Gurrwaying Yinda, has been registered under the Act as a result of a decision made at the meeting of the Aboriginal Cultural Material Committee (the committee), on 9 June 2009. Although registration of the entire site was not achieved until that day, nothing turns on that in the context of this case because the operative provisions of the Act protecting sites of Aboriginal heritage value, as defined by s 5 of the Act, generally operate without being dependent upon registration of those sites.
9 In February of this year unusually large rainfall resulted in a flood which damaged the pylons at the base of Bridge 11. Particularly over the evening of 16 and 17 February 2009, the flow of water was of such strength as to damage the base of at least one of the pylons and to render the bridge unsafe, which meant that it could not be kept in operation.
10 In order to continue the transport of iron ore from the mine to the port after the flood, a party apparently acting with the authority of Robe commenced work on a deviation of the railway line and its placement over a temporary bridge or causeway (the Temporary Diversion), to be constructed adjacent to Bridge 11. The Temporary Diversion involved the deployment of approximately 130,000 cubic metres of rocks and soil which was taken from borrow pits in the immediate vicinity of the site. The creation of the Temporary Diversion was strenuously opposed by Mr Woodley and the Yindjibarndi people and took place over their opposition. The applicants say that the activities which I have described caused severe desecration of the site, constituted a breach of the Act and took place without adequate consultation with them.
11 The Temporary Diversion that I have described was not designed or constructed to last past the wet season which will commence later this year. In particular, the culverts that have been placed in situ under the rocks and soil are not of sufficient dimension to allow great volumes of water to pass through. The evidence before me, and which was also before the committee, suggested, and suggests to me, that if this year's wet is of a magnitude that could be expected to occur once in every eight years, the flow of water would be of such a magnitude that it would not pass through the culverts to which I have referred. Instead the water would bank up behind the Temporary Diversion and the rocks and soil to which I have referred with the risk that the rocks and soil in the Temporary Diversion might be swept downstream. That would, of course, disrupt all deliveries from the mine to the port but perhaps more significantly than that, if that were to occur, it would be likely to devastate the downstream area of the site by dispersing around 130,000 cubic metres of rocks and soil over the downstream pools.
Notice under s 18 of the Act
12 On 5 May 2009, a notice was filed by Robe under s 18 of the Act foreshadowing the performance of works which might, without the consent of the Minister, constitute a contravention of the Act. Those works involved the creation of a new bridge essentially on the same site as the old bridge that had been damaged (that is Bridge 11, which by then had been removed) and also encompassed the removal of what I have been calling the Temporary Diversion. The notice under s 18 was amended on 12 May 2009 and supported by various documents which it is unnecessary to detail.
13 The committee met on 9 June 2009. The committee considered the materials before it and, in addition, received oral presentations from representatives of Robe and representatives of the applicants. The minutes of its meeting record discussion to the effect that the committee was concerned that Aboriginal groups were not consulted when the Temporary Diversion had been built over a pool that would reasonably be expected to have ethnographic significance.
14 The minutes also record that members were concerned that the applicant for Ministerial consent - that is Robe - had not adequately advised the committee of the potential impact of the work proposed on heritage values. The minutes further record that the committee agreed to defer making a recommendation to the Minister as there was insufficient information to consider the notice lodged under s 18 and no evidence of adequate consultation with the Yindjibarndi people.
15 To assist with the process of consultation, the committee requested that mediation occur between the parties. There was then a dispute between Robe and the applicants about whether there was power to initiate a formal mediation process under the Act. No mediation occurred.
16 The committee met again on 1 July 2009. I rely for the events that occurred at that meeting upon an affidavit of Christine Julie Lewis who is an officer of the department of the Minister. She deposes that she was present at the meeting on 1 July 2009 where the committee resolved, in effect, to recommend to the Minister that consent be granted for the works the subject of the s 18 notice subject to certain conditions. The conditions which were resolved upon by the committee included a condition that Rio Tinto, which I take to be an inaccurate reference to Robe, develop and implement a cultural heritage management plan to the satisfaction of the Registrar of Aboriginal Sites (the Registrar) on behalf of the Minister and that plan include, but not be limited to consultation with and to, the satisfaction 'of the applicants'.
17 In the context of the affidavit of Ms Lewis, it is clear that 'the applicants' is a reference to Mr Woodley and the Yindjibarndi Aboriginal Corporation and that the cultural heritage management plan was to include a provision that consultation to their satisfaction was to occur prior to the construction of the new bridge so as to mitigate any detrimental impacts to the site. Various other conditions were also recommended and resolved upon by the committee.
The Department changes the terms of the Committee's decision
18 Ms Lewis deposes that it was agreed, amongst other things, that the committee's heritage project officer would prepare a briefing note to the Minister in accordance with that resolution. Ms Lewis further asserts that copies of the draft and final minutes of that meeting were annexed to her affidavit. When reference is had to the relevant annexure, there is only one set of those minutes and they do not appear to be in either draft or final form in the sense that they are simply a document that was brought into existence it seems some time during July and before the committee itself had the opportunity to meet and resolve to adopt those minutes.
19 The document which is annexed to the affidavit of Ms Lewis, and which purports to be the minutes of the committee, records the condition to which I have referred in rather different terms to that described by Ms Lewis in the text of her affidavit. In particular, the document which purports to be minutes of the committee's meeting refers to the relevant condition in the following terms:
The CHMP [Cultural Heritage Management Plan] shall include but not be limited to:
Consultation ... carried out with Yindjibarndi people to the satisfaction of the Registrar on behalf of the Minister prior to the construction of the new bridge for the purpose of mitigating detrimental impacts to the cultural significance of Gurrwaying Yinda.
20 Before I leave the document described as the minutes I should also note that that document records that the committee noted that the applicant for Ministerial consent, Robe, should be advised that the committee was concerned that if the Temporary Diversion was not removed before the beginning of the wet season then the heritage values of the site might be damaged. I take that to be a reference to the consequence of the prospect of destruction of the Temporary Diversion by flood, to which I have referred, which would create the risk of the deposit of up to 130,000 cubic metres of rock and soil over the site downstream. It seems from the document purporting to be the minutes of the committee that this was a significant factor in the mind of the committee in determining to recommend to the Minister that consent be granted.
21 In her affidavit Ms Lewis details the circumstances in which the document described as the minutes came to take its final form. She says that on or about 9 July 2009, she reviewed a memorandum which had been prepared by others within the department and as part of that review had cause to consider the minutes of the resolution and in particular the wording of the conditions. Ms Lewis says that she was concerned that a condition expressed in the terms which she set out in the text of her affidavit would in effect provide the Yindjibarndi people with the power of veto over the cultural heritage management plan.
22 It is accepted by counsel for the Minister that the decision of the committee was in fact in the terms referred to in the text of the affidavit of Ms Lewis and not in the terms set out in the document described as the minutes of the committee. There is an issue, to which I will turn, about whether there is any difference in substance between those two versions of the resolution. It is, however, clear there was a specific decision within the department to change the terms in which the resolution of the committee were expressed, without reference to the Committee.
23 Before the committee met again to consider the draft minutes, the Director-General of the department provided a briefing note to the Minister. That note was dated 17 July 2009. The Director-General's briefing note to the Minister had an attachment which was described as an extract from the minutes of the meeting. It is clear that what was provided to the Minister was the version of the minutes which did not accurately record the recommendation made by the committee but, rather, included the amended version of that recommendation which had been suggested by Ms Lewis.
24 The minutes that were presented to the Minister stipulated that the committee had resolved to recommend that the Minister grant consent subject to a condition which would require a cultural heritage management plan to be entered into to the satisfaction of the Registrar but which would include a provision that consultation would have to take place with the Yindjibarndi people to the satisfaction of the Registrar. The condition proposed was not in the form resolved by the committee, which was to the effect that the cultural heritage management plan should include a provision that consultation take place to the satisfaction of the Yindjibarndi people. The briefing note from the Director-General and its attachments comprised the materials before the Minister at the time he purported to grant consent pursuant to s 18 of the Act on 20 July 2009.
25 I mentioned during the course of the hearing which preceded the grant of the order nisi that it seemed surprising, given the statutory scheme, that no document from the committee itself was before the Minister and that there was no memorandum from the chair of the committee on behalf of the committee to the Minister confirming that the Minister had been given the committee's recommendations. All that the Minister had was a document purporting to set out the minutes of the committee's meeting, which had not been approved by the Committee and which was not in fact an accurate version of the recommendation made by the committee. That came about because decisions had been made within the department as to the terms in which that recommendation should be expressed. There was no reference back to the committee or any member of the committee before the officers of the department changed those terms.
26 The document sent to the Minister which was described as the minutes of the committee meeting had not been considered or adopted by the committee at the time it was sent to the Minister. I remain of the view there were significant deficiencies in the procedures adopted within the department in relation to the transmittal of advice to the Minister as to the decisions and recommendations of the committee.
27 On 20 July 2009 the Minister gave his consent to the works proposed subject to conditions which included a condition in the terms of the document purporting to be minutes of the committee meeting.
28 Work is continuing on the construction of the new bridge at the moment. This work is taking place under a relatively tight timetable in order to ensure that it is completed before the commencement of significant rainfall later this year. The evidence produced by Robe establishes that if there were to be any demobilisation of work at the site, considerable expense would be incurred as a result of demobilising human resources and equipment. The evidence also establishes that if the work constructing the new bridge is not completed before the onset of the wet, there would be a risk of the Temporary Diversion being washed away. That would of course disrupt all deliveries from the mine to the port but, perhaps more significantly than that, if that were to occur it would also create a significant risk of severe damage to the downstream area of the site by dispersing up to 130,000 cubic metres of rocks and soil over the downstream pools.
29 Evidence has also been produced from Robe, which I accept, to the effect that Robe had no knowledge whatsoever of the fact that the Minister had not received an accurate statement of the recommendations made by the committee until that fact was revealed in the affidavit of Ms Lewis which was filed in these proceedings. Therefore, from the time the Minister purported to grant consent under s 18 of the Act on 20 July 2009 until some time in the latter part of August, Robe had no notice of the matters which are now said to vitiate the grant of that consent and acted in reliance upon the validity of the consent when carrying out the various works to which I have referred.
30 I turn now to the evidence of the Minister. That evidence was given initially in chief through the form of an affidavit and subsequently by oral cross-examination. In the affidavit the Minister deposes that he has been the Minister since 23 September 2008 although he served in the same capacity in a previous government.
31 In his affidavit the Minister describes the general procedure adopted in relation to the consideration of recommendations of the committee made under s 18 of the Act. The Minister does not specifically recall reading the briefing note which was provided to him on 20 July 2009. However, he gave the following evidence:
I have noted that the wording of the conditions on the extract of the minutes, and the draft letter (which is a copy of the letter that I signed), is in a form different to the words at 'KDH2'. Specifically, I note that condition 2(a) of the conditions as set out in the minutes in the draft letter provides as follows:
(a) Consultation, subject to condition 1, carried out with the Yindjibarndi People to the satisfaction of the Registrar on behalf of the Minister for Indigenous Affairs prior to the construction of the new bridge for the purpose of mitigating detrimental impacts to the cultural significance of DIA 26768 (Gurrwaying Yinda) by works associated with the Purpose in forming the development of the CHMP.
However, the equivalent of condition 2(a) as set out in the annexure to the Minister's affidavit provides:
Subject to condition 1 consultation must be carried out with and to the satisfaction of the Yindjibarndi People prior to the construction of the new bridge for the purpose of mitigating detrimental impacts to the cultural significance of DIA26768 (Gurrwaying Yinda) by works associated with the Purpose.
If the recommendation made to me by the ACMC had been the latter (as set out in 'KDH2'), I would not have accepted the wording and therefore would not have signed the draft letter attached to the briefing note. Rather, it is my firm view that I would have referred the draft letter back to the Registrar to be altered with instructions that the wording 'to the satisfaction of the Yindjibarndi People' be replaced with 'to the satisfaction of the Registrar on behalf of the Minister', or words to the same effect. This is because it has been my practice as Minister, if imposing conditions to the grant of a s 18 consent, to ensure that the conditions should be to my satisfaction, or the Registrar acting on my behalf, not the Aboriginal group in question. I am concerned to avoid giving an Aboriginal group an effective veto which allows it, in effect, to hold the applicant to the s 18 consent to ransom by refusing to be satisfied.
Further, had I been made aware of the difference in wording between the two conditions, that is, had I been told in the briefing note that the ACMC had recommended consent subject to the second condition referred to above, but it was suggested to me in the briefing note that it might be more appropriate for the first condition referred to above to be imposed, I would have preferred the wording of the first condition (as set out 'KDH1') in the purported minutes for the same reasons as described in paragraph 17 above.
32 The Minister was cross-examined on this evidence and was not shaken in the assertions that I have set out. I accept those paragraphs of his affidavit to be a true and accurate statement of the Minister's position. The position adopted by the Minister and the policy that he adopts is plausible, coherent and can be readily accepted.
33 In the course of cross-examination the Minister also explained the various factors that he took into account in making his decision. The Minister gave that explanation in answer to the question of what he might do if this court were to quash his decision and remit the matter to him for further consideration. It was clear to me from the way in which he gave his evidence that the reason he answered that question by referring to those various factors was to make the point that the quashing of his decision would not impact upon or alter any of the factors which he regarded to be material to the determination he made. It was also clear from the terms in which he expressed the considerations which he regarded to be of significance that he regarded the expeditious determination of the issues before him to be significant, from which I infer that it is clear that not only would he make the same decision again if his decision were quashed, but he would make it very quickly.
Did the Minister have before him the recommendations of the committee?
34 The first question which must be addressed is whether the Minister had before him the recommendations of the committee when he made his decision. Counsel on his behalf assert that on the proper construction of the document presented to the Minister, the recommendation is no different in substance to that which was in fact resolved by the committee. However, there is a most material difference between the condition in the terms recommended by the committee, which was to the effect that the cultural heritage management plan was to include a clause requiring consultation to the satisfaction of the Yindjibarndi people, and a condition expressed in terms that were put to the Minister, namely that the cultural heritage management plan should include a condition requiring consultation with the Yindjibarndi people to the satisfaction of the Registrar.
35 The Minister's evidence clearly supports the significance of the distinction between those two conditions because a condition which would require the cultural heritage management plan to include a term requiring consultation to the satisfaction of the Yindjibarndi people would, on one view, give significant power, perhaps even equivalent to the power of veto, to the Yindjibarndi people. With respect to the submissions put on behalf of the Minister, I cannot construe the minutes that were put to the Minister in a way which would make them equivalent in substance to the recommendation actually resolved upon by the committee at its meeting on 1 July 2009.
What is the consequence of the failure to provide the Minister with the recommendation of the committee?
36 The next issue concerns the consequence of the failure to provide the Minister with the recommendation made by the committee. It may be that s 18 of the Act properly construed does not require, as a condition of validity, a particular form to be followed in relation to the provision of the advice of the committee to the Minister. But it is clear (and the Minister does not submit to the contrary) that s 18 properly construed does require the Minister to have before him, one way or another, the substance of the decision of the committee and its recommendations. It is clear from the way in which the Act is structured, and in particular the terms of s 18 and all the provisions of the Act relating to the composition of the committee and the expertise that is required to be included within the membership of those who comprise the committee, that the committee was seen by the legislature as an important mechanism for the provision of advice to the Minister, and to which he or she should have access prior to making a decision under s 18.
37 So I conclude that it is a condition of the validity of any decision made by the Minister under s 18 that, one way or another, the Minister should have had before him or her the substance of the decision made by the committee. I have already expressed the view that the substance of the decision made by the committee was different to the way in which the matter was presented to the Minister, from which it follows that a pre-condition for the valid grant of consent under s 18, being in particular the pre-condition that the Minister have before him the substance of the recommendation made by the committee, was not met.
38 That brings me to the third issue that arises for my determination. That issue is whether, notwithstanding my conclusions in relation to the first two issues, the order nisi should nevertheless be discharged. It is not contested in argument before me that the court has a discretion with respect to the grant of relief. The cases that sustain that view, at least in Western Australia and in some other jurisdictions, are conveniently set out in the decision of Ipp J in Varney v The Parole Board (2000) 23 WAR 187; [2000] WASCA 393 and in particular [85] - [89]. The existence of the discretion in the terms expressed in Varney has been acknowledged by the Court of Appeal in New South Wales in Sasterawan v Morris [2008] NSWCA 70 and the existence of a general discretion with respect to prerogative relief has been acknowledged by the High Court (see for example Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26).
39 The respondents submit that there are three grounds upon which the court should exercise a discretion to refuse relief, notwithstanding the departure from the requirements of the Act. The first is that the departure from the requirements of the Act was not material or significant in that the evidence of the Minister, which I have accepted, is that if the accurate terms of the committee's recommendation had been communicated to him, it would have made no difference to his decision. Another way of putting it, which is suggested by the terms of the Minister's affidavit, is that if the officers of the department, instead of taking it upon themselves to amend the recommendation of the committee, had provided to the Minister an accurate briefing note setting out what, in fact, the committee had resolved but drawing the Minister's attention to the issue which motivated them to alter the recommendation or the expression of the recommendation of the committee, then the Minister would readily have agreed with the amended recommendation. In other words it is submitted that it was only a matter of the form in which the department communicated its views to the Minister. Whatever one might speculate about what would have happened if this course had been followed, it is clear that even if the department had not drawn those matters to the Minister's specific attention, the firmness with which he holds the policy which he has expressed in his affidavit is such that he would not have accepted the recommendation of a condition in the terms resolved by the committee.
40 The second basis upon which it is said that discretion should be exercised to refuse relief, notwithstanding the invalidity of the decision, is that to grant relief in these circumstances would be futile because the only effect of the grant of relief would be to quash the decision of the Minister. The decision of the committee and its recommendation would remain intact. The Minister is now aware of the terms of that recommendation and made it clear in evidence that it would make no difference to the decision to which he would come in substance. As I have said, it is also clear from the Minister's evidence before me that he would arrive at that same conclusion very quickly. It is therefore clear that even if I were to quash the decision of the Minister, another decision to the same effect would be made very quickly.
41 The third ground upon which it is said that I should exercise my discretion against the grant of relief concerns the position of the second respondent, Robe. Robe says, and I have found, that for at least a month it had no reason to doubt the validity of the consent granted by the Minister under s 18 of the Act. Robe acted in reliance upon the validity of that purported consent. If I were to quash the Minister's decision, it would be quashed with effect from 20 July 2009. That would mean that Robe would theoretically be liable to prosecution for any contravention of the Act which occurred after 20 July 2009. Robe submits, and I accept, that there would be a nice question about whether s 24 of the Criminal Code (WA) would provide Robe with a defence to any such prosecution. Robe says, and I accept, that being exposed to the prospect of such a prosecution with an uncertain defence would occasion hardship to it.
42 Returning then to the three factors that are said to go to discretion, the first factor is the proposition that I should conclude that the departure from the requirements of the Act was not material in the sense that it would have made no difference to the decision of the Minister. It would be a very rare circumstance in which a court would refuse relief merely on that basis alone. Legislative regimes are prescribed to be complied with and in this case the legislative regime requires the provision of advice to the Minister from a committee which contains a considerable body of expertise as a very important component of the process for the grant of consent for work that might otherwise involve a contravention of the Act. If the Minister did not, in fact, have that advice before him, it would be a very dangerous course for the court to express the view that the departure from that requirement was nevertheless not material. However, the significance or insignificance of the departure from the prescribed procedure is a factor that can be viewed in conjunction with other factors when assessing whether the discretion should be exercised in favour of the denial of relief.
43 I move then to the second factor relevant to discretion which concerns the futility of the grant of relief. As I have mentioned, the committee has completed its deliberations and made its decision. That decision of the committee is not challenged in these proceedings. The terms of it are now known and accepted and they have been communicated to the Minister who has expressed the view that if he had known of the committee's recommendations in those terms it would have made no difference to his decision. I have concluded, having heard the Minister's evidence today, that if I were to quash the Minister's decision on the basis that he had been misled as to the precise terms of the committee's recommendation, that would make no difference whatever to the substance of the decision that he would then make because the factors that motivated his decision would not be affected at all by my quashing his decision.
44 I have also concluded, as a matter of fact, that the Minister would not direct that the matter be further considered by the committee. The Minister's evidence on that subject was really concerned with the specification of general processes and procedures. From the point of view of the Minister, the committee's work has been done, its recommendation is known and that recommendation would make no difference to the substance of the Minister's decision. Given this, it seems to me that the grant of relief in these circumstances would be futile.
45 In Varney and Sasterawan, to which I have referred already, the courts drew a distinction between the circumstances in which it can confidently be predicted that the decision would be exactly the same even if it were quashed, and the circumstance in which there is some prospect that a different decision might be made. Those two cases stand for the proposition that proper exercise of the discretion on the part of the court is to not grant relief that would be entirely pointless. Quashing a decision which would be promptly made in exactly the same terms again meets that description.
46 I return then to the third ground upon which it is said that a discretion should be exercised to deny relief, namely, hardship to a third party. There are authorities that establish that prejudice to third parties can provide an appropriate basis for the discretionary denial of prerogative relief. Those cases include Re Smith and West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295; Gavranich v Shire of Wanneroo (Unreported, WASC, Library No 980473, 25 August 1998) and Savage v Tech Explorations Ltd (Unreported, WASC, Library No 7285, 16 September 1988). In the circumstances of this case, the hardship that would be suffered by Robe, in respect of the work that it carried out following the purported grant of the Minister's consent on 20 July 2009, if the Minister's decision is quashed provides an alternative basis for denying relief. It is, I think, clear that if I were to quash that decision because the requirements of the Act had not been adhered to, it would follow that the decision had always been invalid from 20 July 2009 onwards. That would mean that Robe would be denied the opportunity to rely upon the valid consent of the Minister as a defence to any prosecution for contravention of the Act in respect of work done after 20 July 2009.
47 The question of whether or not Robe would be able to rely upon the defence of honest and reasonable mistake of fact provided by s 24 of the Criminal Code is a complicated question and not one upon which I should express a concluded view. It is however sufficient for present purposes to conclude that the answer to that question is not so obvious as to deny acceptance of the proposition that the prospect of prosecution in respect of work done after 20 July 2009 exposes Robe to potential prejudice and hardship. As I have found, Robe had no way of knowing the matters that are said to have given rise to invalidity until some time well after it commenced work in late July. That provides another reason, in addition to the futility of relief, why the discretion should be exercised to refuse relief. Futility and hardship are the sorts of factors which could combine with a conclusion that the departure from the strict requirements of the Act was not of great significance, because the decision of the Minister would have been the same in any event, to add additional weight to the conclusion that the discretion to deny relief should be exercised.
48 For those various reasons it seems to me that all of these factors in combination, and some of them individually, compel the conclusion that I should refuse relief notwithstanding that the requirements of s 18 of the Act were not followed and notwithstanding the conclusion which would ordinarily follow from that to the effect that the Minister's decision was invalid. I discharge the order nisi for these reasons.
(1991) 5 WAR 295
(2000) 23 WAR 187
Order nisi discharged; declaratory relief refused.