Talbott v Minister for the Environment

Statutory scheme 7 The purposes of the Heritage Act are defined to be "the preservation and protection from injury or desecration of areas … that are of particular significance to Aboriginals in accordance with Aboriginal tradition": s 4. 8 Section 10, which empowers the Minister to make a declaration to preserve and protect significant Aboriginal areas, is relevantly in the following terms: 10 Other declarations in relation to areas (1) Where the Minister: (a) receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration; (b) is satisfied: (i) that the area is a significant Aboriginal area; and (ii) that it is under threat of injury or desecration; (c) has received a report under subsection (4) in relation to the area from a person nominated by him or her and has considered the report and any representations attached to the report; and (d) has considered such other matters as he or she thinks relevant; he or she may, by legislative instrument, make a declaration in relation to the area. … (3) Before a person submits a report to the Minister for the purposes of paragraph (1)(c), he or she shall: (a) publish, in the Gazette, and in a local newspaper, if any, circulating in any region concerned, a notice: (i) stating the purpose of the application made under subsection (1) and the matters required to be dealt with in the report; (ii) inviting interested persons to furnish representations in connection with the report by a specified date, being not less than 14 days after the date of publication of the notice in the Gazette; and (iii) specifying an address to which such representations may be furnished; and (b) give due consideration to any representations so furnished and, when submitting the report, attach them to the report. (4) For the purposes of paragraph (1)(c), a report in relation to an area shall deal with the following matters: (a) the particular significance of the area to Aboriginals; (b) the nature and extent of the threat of injury to, or desecration of, the area; (c) the extent of the area that should be protected; (d) the prohibitions and restrictions to be made with respect to the area; (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); (f) the duration of any declaration; (g) the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law; (h) such other matters (if any) as are prescribed. 9 The applicant also referred to s 28, which addresses compensation for acquisition of property.

Factual background 10 In an application dated 28 April 2015, the applicant claimed protection under the Heritage Act for sites of Aboriginal cultural significance (2015 application). In an application dated 21 December 2017 the applicant claimed protection under the Heritage Act for additional sites of Aboriginal cultural significance and provided more detail about the sites of Aboriginal significance listed in the 2015 application (2017 application). That 2017 application also consolidated all prior information provided in the 2015 application. The 2017 application sought protection and preservation from injury and desecration of 8 interconnected areas and 3 trees all of significance to the GTC. 11 On 17 August 2016, the then Minister appointed Ms Susan Phillips as the reporter with respect to the 2015 application under s 10(1)(c) of the Heritage Act. On 14 March 2017, Ms Phillips submitted her report. 12 On 12 February 2018, the then Minister appointed Ms Phillips as the reporter with respect to the 2017 application. On 7 October 2018, Ms Phillips submitted her report.

Minister's reasons 13 In relation to each application, the Minister gave detailed reasons, dated 26 June 2019 and 1 July 2019 respectively. 14 Given the confined nature of the ground of review it is unnecessary to recite the reasoning contained therein in any detail. 15 Suffice to say that in respect to each of the applications, the Minister was satisfied that: an application for the purposes of s 10(1)(a) of the Heritage Act had been received; the specified areas are significant Aboriginal areas for the purpose of s 10(1)(b)(i) of the Heritage Act; and there was a threat of injury or desecration to the specified areas due to the proposed Shenhua Mine, for the purposes of s 10(1)(b)(ii) of the Heritage Act. As was required under s 10(1)(c) of the Heritage Act, the Minister was provided with and considered the reports and the representations received in relation to them from Ms Phillips, the nominated reporter. The Minister also gave consideration to other matters she considered relevant as required by s 10(1)(d) of the Heritage Act. In that regard the Minister stated in each of the reasons, that "it was open [to her] to take into account a wide range of policy and public interest considerations, including social and economic considerations". The Minister also identified matters relevant "for the purposes of weighing the impacts of the project on Indigenous heritage against the social and economic benefits of the mine" (the language used in the first reasons). Although phrased slightly differently in the second reasons, the Minister engaged in the same process, with a weighing of competing matters against the impact of the Shenhua Mine on the applicants "as a result of the likely destruction of parts of their Indigenous cultural heritage". 16 The Minister declined to make a declaration pursuant to s 10 of the Heritage Act based on the reasons given, and "particularly" on the basis of the social and economic benefits of the mine. In respect to each application the Minister "considered that the expected social and economic benefits of the Shenhua Watermark Coal Mine to the local community outweighed the impacts of the mine on the Applicants as a result of the likely destruction of parts of their Indigenous cultural heritage".

Submission 17 The applicant contends that the perceived social and community benefits available to persons in the local community (that is persons in general, and other than the GTC or other Aboriginal groups) were not legally relevant matters for the Minister to consider under s 10(1)(d). 18 The limitation on s 10(1)(d) was said to be imposed by the constitutional source of power supporting the Heritage Act which limits its scope and informs the specific objects and purposes that the Heritage Act is constitutionally permitted to achieve. Relevantly in this case, s 51(xxvi), the race power, which allows laws to be made with respect to "the people of any race for whom it is deemed necessary to make special laws". It was submitted that in the making of such laws, the Parliament forms two relevant conclusions: first, as to a relevant "difference" between the general public and the people of an identified race that necessitates the making of a special law and, second, on the necessity and special character of that law. From that it was submitted that the constitutional validity of the law (and, the applicant submitted it follows, lawful construction of any laws made under the power) depend upon the administration of such an act involving a differential operation. On the applicant's submission, a law (or, any construction of such a law) that involves general operation is not supported by the race power citing Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 (Tasmanian Dams Case) and Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 (Kartinyeri) at [40] per Gaudron J. It was submitted therefore that it is constitutionally necessary for the Executive to construe such laws, and to act within the powers granted under such laws, by constant maintenance of the differential operation such laws must by necessity "possess". 19 The applicant's oral submission and written reply submission, focussed primarily on the nature of the source of power. The applicant identified two necessary steps in her argument: first, where the source of power in the Constitution is a purposive or limited power, that purpose or limitation constrains administrative action under that power and; second, the race power (like the defence power) is a purposive power or a power with a specific limit and consequently when a decision is made by the Minister pursuant to s 10, they must have regard to the purpose of the Heritage Act. To establish the latter step the applicant relied on aspects of the judgments of Gaudron J, Gummow and Hayne JJ, and Kirby J in Kartinyeri. As to the consequences of a purposive power on administrative action the applicant also relied, inter alia, on Stevens J in Murphyores Incorporated Pty Limited v Commonwealth [1976] HCA 20; (1976) 136 CLR 1 (Murphyores) at 11 and Dixon J in Marcus Clarke and Co Ltd v The Commonwealth [1952] HCA 50; (1952) 87 CLR 177 (Marcus Clarke) at 219. It was said to follow that the only matters that the Minister could take into account in s 10(1)(d) were those "conducive to the operation of the Heritage Act…and that necessitates an identification of a specific and differential operation". The applicant submitted that "the decision has to be conducive to the purpose of the underlying Act, here the [Heritage Act]". It was said that the relevant matters taken into account in s 10(1)(d) must be reasonably thought to be conducive "to the Parliament's desired end". By taking into account the social and economic benefits to the community, the Minister did not maintain the specific and differential approach required to maintain the Heritage Act as properly based in the race power. Therefore, the Minister took into account an irrelevant consideration giving rise to an error of law. The applicant submitted that by carrying out a balancing exercise, the Minister "denied the legislative judgment formed that the Heritage Act was necessary for people like the GTC and made for the special purpose of filling a gap in State laws regarding protection" (emphasis in the original). It was said that the language of the Minister's reasons suggest that the Minister looked for countervailing matters, rather than conducive matters. 20 The respondent submitted that the applicant's contention, properly understood, is that it is essential to imply into the Heritage Act a prohibition on the Minister taking into consideration the social and economic impacts of making a declaration under s 10, because without such a prohibition the Heritage Act would lose its character as a law within the scope of the race power. The respondent submitted that this novel argument is contrary to authority and settled principles of constitutional characterisation. While s 10 of the Heritage Act is a law with respect to Aboriginal people for whom the legislature has deemed it necessary to make a special law, it empowers the Minister to make a declaration to preserve or protect an area that is a significant and threatened "Aboriginal area", after receipt of an application made by or on behalf of an Aboriginal or a group of Aboriginals seeking such preservation or protection. That s 10 confers on the Minister a discretion that allows a broad range of relevant considerations to be taken into account, including the social and economic consequences of making the proposed declaration, does not make the law any less a special law with respect to Aboriginal people. There is no requirement arising from the race power that a law can only be a law supported by the race power if every criterion bearing upon the exercise of a discretionary power conferred by that law itself has a differential operation that is tied to racially specific criteria. The respondent submitted that the race power is not a purposive power, and that a proper reading of Kartinyeri supports that proposition. 21 The respondent further submitted that the scope of the Minister's discretion is governed by the proper construction of the Heritage Act, and the constitutionality of the Heritage Act depends upon its construction and characterisation. It was submitted that the applicant's approach subverts conventional principles of constitutional characterisation. The operation, scope and objects of the Heritage Act are to be understood by reference to conventional principles of statutory construction. Then the question is having regard to the conventional principles of constitutional characterisation, whether the law is one with respect to one of the subject matters with respect to which the Commonwealth Parliament may enact legislation. Applying those principles to the present case, and having regard to the rights, powers, liabilities and duties created by the Heritage Act and by s 10 in particular, the law is a valid law with respect to the race power. The respondent also relied on Murphyores in support of the proposition that the High Court had considered and unanimously rejected the proposition that any considerations bearing on the exercise of a discretion under a valid act, must also fall within the relevant head of constitutional power. The fact that a decision maker, as in the case of Murphyores, in deciding whether or not to impose a particular ban on exports, had regard to environmental considerations, does not "change the character of the law and make it any less a law with respect to trade and commerce". The respondent further submitted that the applicant's argument is undermined by her failure to distinguish the impugned considerations from the other matters which the Minister is required to consider in exercising the discretion to make a declaration, referring to s 10(1)(c) (representations from interested persons) and s 10(4)(e) (proprietary or pecuniary interests of third parties). 22 In respect to s 10(4)(e) the applicant submitted that it was necessary for the law to comply with s 51(xxxi) of the Constitution, being the power to make laws with respect to the acquisition of property on just terms which the Heritage Act does by: requiring the s 10 reporter to investigate the impacts of a declaration on the proprietary and pecuniary effects of persons other than the Aboriginal people for whom the law has been made: s 10(4)(e); and by ensuring compensation is paid for the diminishment of proprietary rights: s 28. The applicant submitted that s 28 requires the Minister to have regard to the possibility that compensation on just terms would be required. It was submitted that the pecuniary and proprietary interests referred to in s 10(4)(e) are confined to existing interests, in this case the Shenhua Mine, because it has been granted development consent which it was submitted gives rise to a valid proprietary interest in the land, in contrast to others who may only have a future potential pecuniary and proprietary interest (for example, businesses in the community). The applicant referred to Nelungaloo Pty Ltd v The Commonwealth [1947] HCA 58; (1947) 75 CLR 495, in particular the judgment of Starke J at 547, to support the submission that it is necessary for the Minister to have information on the proprietary and pecuniary effects of persons for that purpose, and that such information comes to the Minister in this case through the s 10 report (because of s 10(4)(e)). 23 The applicant replied only on the topic of the interpretation of Kartinyeri and the characterisation of the race power. It was submitted that the respondent incorrectly relied on Murphyores, as that case addresses the validity of a regulation in terms of s 51(i), a non-purposive source of power.

Consideration 24 Although on the applicant's submission the limitation contended for arises solely from the constitutional source of power, it is nonetheless first necessary to consider the Heritage Act. 25 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, with regard to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]; [35]-[39] per Gageler J (cited by BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45; (2019) 374 ALR 627 at [48]). 26 The features and operation of the Heritage Act have been the subject of judicial consideration. The Heritage Act 27 A number of observations may be made. 28 First, the power to make a declaration is conferred on the Minister personally, and is non-delegable: s 31(1). As is apparent from a consideration of s 10, the making of a declaration is discretionary. The Minister's decision has been described as a decision "of a political character": Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 (Tickner v Bropho) at 224 per French J. 29 Second, the power to make a declaration is enlivened only if the Minister has received an application by or on behalf of an Aboriginal or a group of Aboriginals and the Minister is satisfied that the area is a significant Aboriginal area and that it is under threat of injury or desecration: s 10(1)(a) and (b). An area is taken to be injured or desecrated if it is used or treated in a manner inconsistent with Aboriginal tradition or the use or significance of the area in accordance with Aboriginal tradition is adversely affected by reason of anything done in, on or near the area: s 3(2). 30 Third, the Minister must consider a report from a reporter appointed by the Minister: s 10(1)(c), before making a decision with the report addressing the matters specified in s 10(4). The reporter is required to publish a notice inviting interested persons to furnish representations in connection with the report, giving no less than a 14 day period for responses: s 10(3)(a). The Minister is required to consider any representations made by interested parties to the reporter: s 10(1)(c). 31 As to the significance of the representations and the role of the reporter in the scheme of the legislation, Kiefel J (as she then was) in Tickner v Chapman (1995) 57 FCR 451 (Tickner v Chapman) at 489 observed: [The] reporter gives public notice of that application by stating its purpose and informing the public of the matters which the report will deal with. The invitation for representations is obviously extended to those topics but the representations may range beyond them. Persons who may be "interested" and submit representations may include those affected by any proposed declaration whether in their property, financial or other interests, those having another interest in the land or waters, for instance another Aboriginal group, those who support the preservation of the area and the tradition or beliefs connected with it and those who contend otherwise or suggest that in any event the declaration should not be made. Both the reporter and the Minister consider those representations. The Minister also considers the report which will contain reference to what are thought to be relevant facts and information gleaned in the process, and the views of the reporter. The scheme is not one whereby the Minister gives effect to an application fulfilling specified criteria nor is it one where the discretion given is to be exercised without the opportunity for others to influence or persuade the Minister of their view. The intention of the Act is, as Black CJ said in Tickner v Bropho at 194: "that the Minister shall make an informed decision on all such questions, with input from interested persons." 32 Her Honour further observed at 490: There is no doubt that the purposes of preservation and protection of Aboriginal heritage are beneficial. It has been said that the Act is "clear in its purposes, broad in its application and powerful in the provision it makes for the achievement of its purposes": Black CJ in Tickner v Bropho at 190. But the purposes of the Act, pursuant to s 4, are not to apply restrictions and prohibitions upon request, nor is it intended that a declaration be made with respect to any area of some significance, but to those of "particular" significance. The question of its particular significance, amongst other matters which may influence the Minister, is to be addressed in the report and may be included in the representations received from the wider community. It was obviously considered by the legislature that information and views upon the need for protection on the one hand, and the effects it may have on the other, from a wider community perspective was necessary before the Minister made the final decision. 33 And further at 493: Both the reporter and the Minister are required by s 10 to consider the representations, although the reporter is required to give "due" consideration to them. The scheme of the Act is such that it is only after a consideration of both the report and the representations that the Minister may proceed to make a declaration. Matters contained in them may influence whether the Minister is satisfied as to the matters in s 10(1)(b) or whether they should be accepted by him as relevant matters when undertaking the balancing process of which Lockhart J spoke in Tickner v Bropho at 209. In either event, the consideration of the representations is expressed as a precondition to the making of any declaration: as Tickner v Bropho at 194, 209 makes clear. The importance of the decision not only to the Aboriginal applicants but to the public at large, the effect it has in relation to potential liability for breach of it and which it might have on third parties or public interests, is recognised in the requirement that the Minister, himself in this case, consider the representations. 34 The balancing process referred to in the above passage, as required by the Heritage Act, is between the considerations of the significance of the area to the Aboriginal people and the threat of injury or desecration of the area and any other matters which may be considered relevant: Tickner v Bropho at 209 per Lockhart J. 35 Black CJ in Tickner v Chapman also made observations about the role of the reporter, to a similar effect as those of Kiefel J, at 456: The legislative intention revealed by this scheme is that interested members of the public should have an effective opportunity to provide information and express opinion concerning the important issues involved in the consideration of an application under s 10(1). The intention is that the Minister should make an informed decision on all relevant questions, with input from interested persons: see Tickner v Bropho at 194. The Parliament no doubt intended that the "interested persons" would include those who might oppose the making of a declaration as well as those who might support it. 36 And see similar statements at 462 reiterating the conclusion recited above. 37 As s 10(4) makes clear, the report must address a number of matters including the effects that the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals to whom the area is significant: s 10(4)(e). That is because "the competing interests of Aboriginal applicants and of others whose proprietary or pecuniary interests are liable to be affected by the making of a declaration have to be determined": Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 19 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ. 38 The applicant's contention recited above at [22] that s 10(4)(e) is only directed to the Heritage Act complying with s 51(xxxi) of the Constitution and the need for the Minister to consider possible compensation under s 28 of the Heritage Act, cannot be accepted. The applicant's submission, at its highest, appeared to be that the Minister would know there was a constitutional constraint in respect to compensation if there is an acquisition of property and that, based on Nelungaloo, a failure to consider representations for that purpose could feed into a failure in relation to the acquisition of property, and this information is articulated through the s 10(4) report (and the Minister would know that was the purpose of it). 39 The applicant did not attempt to construe s 10(4)(e) having regard to its text, context and purpose, but rather sought to limit its meaning, it appears, in an attempt to reconcile its presence with her argument as to s 10(1)(d). There is no proper basis to do so. 40 The text of the Heritage Act does not confine s 10(4)(e) in the manner contended. Section 10(4)(e) is one sub-section in s 10(4) which is directed to the contents of a report to be prepared by a reporter which must be considered by the Minister when determining whether to make the declaration: s 10(1)(c). The subsection is directed to pecuniary, as well as proprietary interests, which are not relevant to s 28. The "proprietary or pecuniary interests" in s 10(4)(e) are not coincident with the notion of "property" with which s 51(xxxi) is concerned. Section 51(xxxi) is concerned with interests or benefits "accruing… [which are] proprietary in character": JT International SA v Commonwealth of Australia [2012] HCA 43; (2012) 250 CLR 1 (JT International SA) at [42]. The requirement in s 10(4)(e) to consider the "effect" on those interests is also distinct from the notion of "acquisition" of property under s 51(xxxi): see JT International SA. 41 Moreover, if s 10(4)(e) was intended to have such a limited relevance or purpose as contended for by the applicant, it would be expected that the legislation would have clearly said so. 42 The applicant's reliance on the observations of Starke J in Nelungaloo, does not advance her submission. Those observations do not support the submission as to the restrictive purpose and construction sought to be placed on s 10(4)(e), in the context of the Heritage Act. I note in that context, that it is plain from the Minister's reasons in respect to each decision in this case, under the sections which addressed the report and representations under s 10(1)(c), that the Minister did not refer to information obtained pursuant to s 10(4)(e) as being relevant to possible compensation in the manner contended by the applicant, yet no complaint is made by the applicant about that approach. Rather, consistent with the terms of the legislation, the information is considered in relation to the effect of making a declaration on the interests of other persons. 43 Fourth, in the above context, the terms of s 10(1)(d) are very broad; the Minister must consider before making the decision as to the declaration "such other matters as he or she thinks relevant". It has been accepted to date, that that subsection is capable of encompassing a wide range of matters. In Tickner v Bropho French J stated at 223: Factors relevant to the exercise of the discretion are not limited to those matters [in s 10(4)(a), (b), (e), (g)]. The Aboriginal and Torres Strait Islander Heritage Protection Act was enacted for the benefit of the whole community to preserve what remains of a beautiful and intricate culture and mythology. Its protection is a matter of public interest. There will, however, be occasions on which that objective will conflict with other public interests. The public interest in the provision of safe, convenient and economic utilities may in some cases only be advanced at the expense of areas of significance to Aboriginals. The question whether a declaration should be made which would adversely affect public or private interests is a matter within the discretion of the Minister who is required to evaluate the competing considerations and make a decision accordingly. It follows that the statutory purpose does not extend to unqualified protection for areas of significance to Aboriginals. 44 Fifth, the decision as to whether to make the declaration necessarily involves a balancing of competing factors as the Heritage Act gives a discretion not to make the declaration despite the fact the Minister is satisfied of the statutory precondition that the area is a significant Aboriginal area under threat of injury. It is inherent in the conferral of a discretion that countervailing considerations against the making of that declaration may be taken into account, for if it were otherwise there would be no purpose in conferring a discretion. 45 The applicant did not refer to or otherwise engage with either Tickner v Chapman or Tickner v Bropho. Yet each case directly addressed the working of the Heritage Act, its intention and purpose. The applicant's submission as to the purpose of the Heritage Act was based solely on aspects of the relevant Parliamentary Second Reading Speech: Hansard, House of Representatives, 9 May 1984, Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill (1984), absent a consideration of the text of its provisions. 46 Accepting that appropriate reference may be made to such extrinsic material "[t]he purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction": Lacey v Attorney-General for Queensland [2011] HCA 10; (2011) 242 CLR 573 at [44]. 47 The observations of the Heritage Act referred to in the passages from Tickner v Bropho and Tickner v Chapman recited above, accurately reflect the text of the Heritage Act, considered in its proper context, including the general purpose and policy of the provisions. 48 A consideration of the features and operation of the Heritage Act, exposes critical flaws in the applicant's submission. 49 The applicant's submission as to the constitutional limitation on s 10(1)(d) cannot be reconciled with other aspects of the operation and working of the section as described above. For example, the report and representations by interested persons which must be considered by the Minister may include countervailing considerations. That being so, the submission as to limitations said to be necessarily implied in s 10(1)(d) is inconsistent with the text of that provision, considered in its context. 50 The applicant does not suggest that s 10(4)(e), s 10(3) and s 10(1)(c) are invalid (or otherwise constrained) on the basis that evidence and submissions obtained and considered as a result of those subsections do not themselves satisfy the special and differential aspects of the race power as contended in relation to s 10(1)(d). 51 In that context, given the breadth of s 10(4)(e), the evidence and submissions in relation to at least some of the topics considered by the Minister under s 10(1)(d) as being relevant to the social and economic impacts on the community, are capable of being encompassed by that subsection. Further, topics relevant to the social and economic impacts on the community are also capable of being the subject of representations by interested persons under s 10(3), which the Minister is required to consider under s 10(1)(c). 52 Although the applicant accepted that the decision whether to grant the declaration is discretionary, and that the race power does not require the law be beneficial: Kartinyeri at [26]-[36] per Gaudron J; [87] per Gummow and Hayne JJ; Brennan CJ and McHugh J not deciding at [20]; Kirby J contra at [152], she did not explain what work the discretion and s 10(1)(d) had to do if her submission as to the limitations on s 10(1)(d) is correct. It is difficult to contemplate anything more conducive to making a declaration than satisfaction of the statutory precondition in s 10(1)(b), yet despite being satisfied of such a matter, the discretion exists not to make the declaration. It follows that the matters that could result in the decision not to make the declaration must necessarily be countervailing. 53 There is a disconnection between the applicant's submissions as to s 10(1)(d) and the plain text of s 10 considered in its context and given its purpose. 54 It will be recalled that the applicant's submission is premised on the proposition that "the decision has to be conducive to the purpose of the… [Heritage Act]" or that for a matter to be properly considered by the Minister under s 10(1)(d) it must be conducive to "the operation of the Heritage Act" or "to the Parliament's desired end". 55 As is plain from the operation of the Heritage Act, "Parliament's desired end", is not that a declaration is to be made at all costs, without a consideration of countervailing matters and interests, as the Minister is empowered with a discretion. As illustrated above, the reporter must address (and the Minister must consider) inter alia, the effects a declaration may have on the proprietary or pecuniary interests of persons other than the persons who made the application, and must consider the report and any representations attached thereto. 56 The applicant appears to submit that the Parliament's desired end is that it is necessary to make a special law, and therefore the Minister can only take into account matters which themselves satisfy the race power, for otherwise that end is not fulfilled. As explained below, it may be accepted that in enacting the law Parliament deemed it necessary to make a special law. In doing so, Parliament enacted the Heritage Act which empowered the Minister with a discretion as described above. Contrary to the applicant's contention, the Parliament's desired end is not that the Minister can only take into account matters which themselves satisfy the race power. 57 A consideration by the Minister of countervailing matters in the exercise of the discretion in s 10 does not, to use the applicant's language, "den[y] the legislative judgment formed that the Heritage Act was necessary for people like the GTC and made for the special purpose of filling a gap in State laws regarding protection" (emphasis in the original).

The race power 58 It is accepted that the race power is the constitutional source of power of the Heritage Act: Kartinyeri at [11] per Brennan CJ and McHugh J; [49] per Gaudron J; [84] per Gummow and Hayne JJ. 59 To be supported by the race power two requirements must be met: first, the law must be a law "with respect to…the people of any race", and second, the law must be a "special law". Section 51(xxvi) also requires that such a law must be "deemed necessary", which is a matter for the judgment of the Parliament: Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (Native Title Act Case) at 460 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; Kartinyeri at [39] per Gaudron J; [82] per Gummow and Hayne JJ. That Parliament has deemed it necessary to make a special law "may appear from the law itself": Koowarta v Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168 at 187 per Gibbs CJ. 60 Critical to the applicant's argument is the contention that the race power is a legislative power granted in purposive terms (like the defence power), and that proposition was said to find the support of a majority of the Court in Kartinyeri. From that, the constraint on executive and administrative action in the manner contended was said to flow. The respondent contended that conventional principles of constitutional characterisation apply which is whether the law is one with respect to one of the subject matters which the Commonwealth Parliament may enact legislation. That is determined by reference to the nature of the rights, duties, powers and privileges which the law changes, regulates or abolishes. The respondent submitted the need for it to be a special law does not alter that approach. 61 The nature of the purposive power was described in Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457 by Dixon J at 471, in addressing the defence power, in the following terms: …unlike most other powers conferred by s 51 of the Constitution, it involves the notion of purpose or object. In most of the paragraphs of s 51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a State), or by naming a recognized category of legislation (as taxation, bankruptcy). In such cases it is usual, when the validity of legislation is in question, to consider whether the legislation operates upon or affects the subject matter, or in the last case answers the description, and to disregard purpose or object. An example will be found in Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan. But "a law with respect to the defence of the Commonwealth" is an expression which seems rather to treat defence or war as the purpose to which the legislation must be addressed. This peculiarity in the power has caused no departure from the practice that excludes from investigation the actual extrinsic motives and intentions of legislative authorities. But, however it may be expressed, whether by the words - "scope", "object", "pith", "substance", "effect" or "operation", the connection of the regulation with defence can scarcely be other than purposive, if it is within the power. [citations omitted] 62 The applicant acknowledged that the characterisation of the race power as a purposive power was the only basis on which she submitted the limitation on s 10(1)(d) arose. I note that in reply, the applicant did submit that whether the race power is described as a purposive power or "as a subject matter power with a limitation, that limitation has a role to play", although on the applicant's submission that role must be the same as that contended for a purposive power. As the respondent correctly submitted, properly understood, the submission is that it is essential to imply into the Heritage Act a prohibition on the Minister to take into account considerations which themselves do not have the special and differential features required by the race power in making a declaration, as without that limitation the Heritage Act would lose the thread or connection with the race power. That submission cannot be accepted. 63 A proper reading of Kartinyeri reflects that it does not support the applicant's base proposition as to the nature of the race power. 64 Before addressing the passages of the judgments of Gaudron, Gummow and Hayne, and Kirby JJ in Kartinyeri, relied on by the applicant, it is appropriate to recall the issue before the Court in that case. 65 The Court was considering a question as to the validity of the Hindmarsh Island Bridge Act 1997 (Cth) (Bridge Act), which prevented making a declaration under s 10 of the Heritage Act in relation to the preservation or protection of an area or object from injury or destruction from the construction of the Hindmarsh Island bridge and associated works as defined in the Bridge Act. The Bridge Act restricted the operation of the Heritage Act. The Court concluded by majority that the Bridge Act was valid. 66 Brennan CJ and McHugh J concluded that, as the Bridge Act partially repealed the earlier Heritage Act the validity of which under the race power was not in issue, it followed that Parliament could subsequently restrict its application. Nonetheless, their Honours went on to consider the validity of the Bridge Act in its own right. Their Honours proceeded to do that on the basis that the race power is one with respect to the subject matter of s 51(xxvi). Brennan CJ and McHugh J stated at [7] (citations omitted): The operation and effect of a law define its constitutional character, as Kitto J explained in Fairfax v Federal Commissioner of Taxation: "Under [s 51] the question is always one of subject matter, to be determined by reference solely to the operation which the enactment has if it be valid, that is to say by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes; it is a question as to the true nature and character of the legislation: is it in its real substance a law upon, 'with respect to', one or more of the enumerated subjects, or is there no more in it in relation to any of those subjects than an inference so incidental as not in truth to affect its character?" (Emphasis added.) To ascertain the nature of the rights, duties, powers and privileges which an Act changes, regulates or abolishes, its application to the circumstances in which it operates must be examined. 67 So much is put beyond doubt in [11] and [12] where their Honours state (citations omitted): 11 ... Putting the question in another way, are the restrictions on the operation of Pt II of the Heritage Protection Act created by the Bridge Act so connected with the subject matter of power contained in s 51(xxvi) of the Constitution that the Bridge Act can properly be described as a law "with respect to ... the people of any race for whom it is deemed necessary to make special laws"? Whichever way the question be put, the answer is the same. 12. The legislative powers conferred on the Parliament by s 51 of the Constitution are plenary powers, that is to say, "subject to" any prohibition or limitation contained in the Constitution, the Parliament can "make laws with respect to" the several subject matters contained in s 51 in such terms, with such qualifications and with such limitations as it chooses. … 68 And see further at [18]. 69 Their Honours concluded that, in the circumstances of the case, it was unnecessary to examine the nature of the power to determine the validity of the Bridge Act: at [20]. 70 In respect to the judgment of Gummow and Hayne JJ the applicant relied in particular on [79]-[81]. Before considering those paragraphs it is appropriate to start with their context. Before considering the validity of the Bridge Act, Gummow and Hayne JJ restated three "basic propositions", the third of which at [58] (citations omitted) was: Thirdly, in determining the character of a law such as the Bridge Act, it is appropriate to take the steps indicated by Kitto J in Fairfax v Federal Commissioner of Taxation to identify the nature of the "rights, duties, powers and privileges" which the statute "changes, regulates or abolishes". In the present case, the Bridge Act changes, regulates or abolishes certain rights, duties, powers and privileges created by the Heritage Protection Act. 71 Gummow and Hayne JJ applying that approach conclude at [72] (citations omitted): The Bridge Act curtails the operation of another law of the Commonwealth, not the enjoyment of any substantive common law rights. It demonstrates the general proposition referred to earlier in these reasons that what the Parliament may enact it may repeal. First, the Bridge Act limits in a particular respect the declaration-making authority of the Minister under the Heritage Protection Act. Further, the Bridge Act removes any privilege conferred by the Heritage Protection Act upon Aboriginals or Aboriginal groups who applied or might apply seeking such declaration in respect of areas or objects in the Hindmarsh Island bridge area or the pit area, as defined in the Bridge Act. This is the character of the Bridge Act in the sense identified in Fairfax v Federal Commissioner of Taxation. 72 Those statements do not support the applicant's submission. 73 Turning then to [79]-[81]: 79. The plaintiffs further submitted that the word "special" gave to s 51(xxvi) a "fluctuating content" and a "purposive aspect" like the defence power. This meant that the permissible purpose of the Bridge Act must be one which did not "discriminate against" the Aboriginal race. The plaintiffs eschewed the suggestion that the benefits conferred by the Heritage Protection Act, once conferred upon them, were "constitutionalised" and insusceptible of any repeal. However, they contended that the Bridge Act inflicted upon the Ngarrindjeri people a discriminatory detriment by loss of the opportunity to obtain the declaration under s 10 of the Heritage Protection Act which was sought by the plaintiffs' application. The plaintiffs were supported by the Attorney-General for New South Wales. He submitted that the federal concurrent legislative power was limited such that the exclusion by the Bridge Act of some members of the Aboriginal race from the benefits of the earlier statute would be invalid unless there was "a rational and proportionate connection between that exclusion and [some] legitimate governmental purpose". 80. These submissions should be rejected. 81. It is true that "unlike the aliens power or the corporations power", s 51(xxvi) "is not expressed to be a power to make laws simply with respect to persons of a designated character". A law will only answer the constitutional description in s 51(xxvi) if it (i) is "deemed necessary" (ii) that "special laws" (iii) be made for "the people of any race". 74 The applicant relies on the opening submission referred to in [79] and the Court's observation in [81]. The applicant submitted, in effect, that the rejection of the submission in [80] is confined to the submission in the second half of [79], and that [81] is endorsing a purposive approach. 75 Neither of those submissions is correct. A proper reading of those passages in their context reflects that the submissions recited in [79] are rejected. Paragraph [81] is doing no more than recognising the differential aspects of the race power based on the language in s 51(xxvi) which then leads to a discussion in the following paragraphs of the concept of what it is to be "deemed necessary to make" and a "special law" in s 51(xxvi): Kartinyeri at [82]-[84]. 76 The judgment of Gummow and Hayne JJ does not support the applicant's contention. Rather, in [79] and [80] the proposition that the race power was purposive, like the defence power, was rejected. It follows that contrary to the applicant's submission, her argument does not have the support of a majority of the High Court in Kartinyeri. 77 Most reliance was placed by the applicant on comments in the judgment of Gaudron J at [40]-[41] and [43] (citations omitted): 40. Once it is accepted that the power conferred by s 51(xxvi) may only be exercised if there is some material upon which the Parliament might reasonably form a judgment that there is a difference necessitating some special legislative measure, two things follow. The first is that s 51(xxvi) does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races. A simple example will suffice. Rights deriving from citizenship inhere in the individual by reason of his or her membership of the Australian body politic and not by reason of any other consideration, including race. To put the matter in terms which reflect the jurisprudence that has developed with respect to anti-discrimination law, race is simply irrelevant to the existence or exercise of rights associated with citizenship. So, too, it is irrelevant to the question of continued membership of the Australian body politic. Consequently, s 51(xxvi) will not support a law depriving people of a particular racial group of their citizenship or their rights as citizens. And race is equally irrelevant to the enjoyment of those rights which are generally described as human rights and which are taken to inhere in each and every person by reason of his or her membership of the human race. 41. The second matter which flows from the requirement that there be some matter or circumstance upon which the Parliament might reasonably form the judgment that there is some difference pertaining to the people of a particular race which necessitates some special law is that the law must be reasonably capable of being viewed as appropriate and adapted to the difference asserted. A similar view was expressed by Deane and Toohey JJ in Leeth v The Commonwealth, it being said by their Honours that s 51(xxvi) authorises "discriminatory treatment of members of [a particular race] to the extent which is reasonably capable of being seen as appropriate and adapted to the circumstance of that membership". Although they did not explain why that was so, the requirement flows, in my view, from the need for there to be some material or circumstance from which it might reasonably be concluded by the Parliament that there is some difference necessitating a special law. Unless the law in question is reasonably capable of being viewed as appropriate and adapted to the difference which is claimed, it could not be concluded that the Parliament formed the view that there was such a difference. …. 43. Because the power conferred by s 51(xxvi) of the Constitution is premised on there being some matter or circumstance pertaining to the people of a particular race upon which the Parliament might reasonably conclude that there is a real and relevant difference necessitating the making of a special law, its scope necessarily varies according to circumstances as they exist from time to time. In this respect the power conferred by par (xxvi) is not unlike the power conferred by s 51(vi) to legislate with respect to defence. And as with the defence power, a law that is authorised by reference to circumstances existing at one time may lose its constitutional support if circumstances change. 78 In particular, emphasis was placed on the second sentence of [40] and the last of [41] and [43]. The last sentence in [41] was said to be akin to the language used when considering a purposive power. 79 As to [40], the respondent submitted that when read in context, the language Gaudron J uses of rights and obligations is consistent with the fundamental principle that to characterise a law for constitutional purposes, attention is directed to what the rights, powers, liabilities, obligations and privileges are that are created or conferred by the law. As to [41], the respondent submitted that when read in its proper context (which includes the discussion before and after the recited paragraphs) the language of "appropriate and adapted" used by her Honour was not expressed as being because the race power is a purposive power. Rather, it related to testing whether there is a rational basis for Parliament having deemed it necessary to make a special law. While it is unnecessary to decide the meaning of the phrase as the applicant's submission as to the character of the power as purposive does not enjoy the support of a majority of the Court, the respondent's interpretation does appear to be the sense in which the terminology of "appropriate and adapted" is used in that paragraph. Regardless, whatever was meant by that language, that test was not adopted by any other member of the Court. 80 The applicant also relied on Kirby J's judgment (in dissent) at [153]: No authority of this Court requires the rejection of the plaintiffs' submission about the meaning of par (xxvi). It is therefore necessary to start the elucidation of its requirements with the text, viewed in its context. First, the power is not simply to make laws with respect to "[t]he people of any race". In this regard par (xxvi) is to be contrasted with par (xix) which affords such a plenary power, relevantly, with respect to "aliens". In par (xxvi), words have been added which must have work to do. They are intended to send signals of meaning to the reader of the paragraph. The requirement that laws made under par (xxvi) by reference to race should be "deemed necessary" and should be "special" cannot be dismissed as mere surplusage. In a constitutional text noted for its brevity, the additional words must clearly have the purpose of putting a limitation on what would otherwise be an unbridled race power. 81 This paragraph does not advance the applicant's submission. 82 The applicant's submission as to the nature of the power does not enjoy the support of the majority in Kartinyeri. It follows that rather, properly read, at least a majority of the Court approached the issue of validity having regard to conventional principles of constitutional characterisation, by considering the relevant Act by reference to the nature of the rights, duties, powers and privileges which the enactment changes, regulates or abolishes. 83 That said, the applicant has not articulated the purpose of the race power. A law for the people of any race does not have the purposive connotations of the defence power. No doubt the source of power "is not expressed to be a power to make laws simply with respect to persons of a designated character": Native Title Act Case at 460; Kartinyeri at [81] per Gummow and Hayne JJ. But the limitation in the race power that it is "deemed necessary to make special laws" for "the people of any race" does not alter the character of the power: see Kartinyeri at [7], [18] per Brennan CJ and McHugh J; [58], [79]-[84] per Gummow and Hayne JJ. As noted above, whether the law is necessary is a matter for the judgment of the Parliament. 84 A law is one "with respect to" a head of power if there is a sufficient connection between the operation and effect of the law and the head of power. 85 In the context of the race power, this requires the law to have a "special" operation with respect to the people of a particular race. In Kartinyeri, at [83] Gummow and Hayne JJ said this requirement is to be tested by reference to the law's "differential operation upon the people of a particular race": Native Title Act Case at 460 - 461 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ citing Koowarta v Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168 at 186, 245, 261. "A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race": Native Title Case at 461 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. 86 The race power is a plenary power. Therefore, subject to any prohibition or limitation contained in the Constitution, the Parliament may make laws with respect to the subject matter of the power, in such terms, with such qualifications and with such limitations as it chooses: Kartinyeri at [12] per Brennan CJ and McHugh J, citing Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37 at 74. 87 In Spence v Queensland [2019] HCA 15; (2019) 367 ALR 587 Kiefel CJ, Bell, Gageler and Keane JJ said at [57], (citing Grain Pool of Western Australia v Commonwealth [2000] HCA 14; (2000) 202 CLR 479 at [16] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, quoted in New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 at [142] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ): …There is no need for the law to be shown to be connected with the subject matter of the power to the exclusion of some other subject matter that is outside Commonwealth legislative power, and "if a sufficient connection ... does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matters of legislative choice". 88 As illustrated above, having regard to the rights, powers, liabilities and duties created by the Heritage Act it is plain that s 10 is a law with respect to the race power. The power to make a declaration is only triggered if the Minister has received an application by or on behalf of an Aboriginal or group of Aboriginals and the Minister is satisfied that the area is a significant Aboriginal area and that it is under threat of injury or desecration. That latter concept is defined by reference to inconsistency with, or adverse effects upon, Aboriginal tradition. As noted above, the purposes of the Heritage Act are "the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition". 89 Where, as here, a law has been made by the Parliament in the proper exercise of the power conferred by s 51(xxvi), the scope of that law, as enacted, defines what the Minister can do under s 10. 90 In Murphyores the High Court rejected the argument that considerations bearing on the exercise of a discretion must also fall within the relevant head of constitutional power. The issue before the Court was the validity of a regulation made under the Customs Act 1901 (Cth), which prohibited the export of minerals without written approval by the Minister. More specifically whether the Minister in exercising the power to approve exports under that Act could have regard to considerations unrelated to trade (relevantly in that case, environmental considerations). The Court held that the regulation was supported by the trade and commerce power in s 51(i) of the Constitution and that it was not necessary in exercising a power conferred by legislation made under the trade and commerce power that the Minister should have regard only to considerations that were also themselves of a trading and commercial character. As Mason J at 19 concluded: The power to legislate with respect to trade and commerce with other countries, including as it does power to prohibit and regulate the exportation of goods from Australia, necessarily comprehends the power to select and identify the persons who engage in, and the goods which may become the subject of, that activity: see Huddart Parker Ltd. v. The Commonwealth [1931] HCA 1; (1931) 44 CLR 492; Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29. It is then for Parliament in its wisdom or for the person to whom Parliament delegates the power to decide who may export and what goods may be exported. The means and the criteria by which this choice is to be made are for Parliament to decide. There is nothing in the subject matter of the constitutional power which justifies the implication of any limitation on Parliament's power of selection. It does not follow, for example, that because the subject of the power is trade and commerce, selection of the exporter or of the goods to be exported must be made by reference to considerations of trading policy. It is enough that the law operates on the topic of trade and commerce with other countries. A law which absolutely or conditionally prohibits exportation of goods is a law that operates on that topic. It is not a law which ceases to deal with that topic because it confers a discretion, unlimited in scope, to permit exportation of particular goods. In this respect it differs from a law whose connexion with the subject matter of power is more remote, when the limits of a statutory discretion may become important in characterizing the law. See, e.g., the cases on the defence power dealing with the National Security (Economic Organization) Regulations (Shrimpton v. The Commonwealth [1945] HCA 4; (1945) 69 CLR 613; Dawson v. The Commonwealth [1946] HCA 41; (1946) 73 CLR 157). The point here is that by imposing a conditional prohibition on exportation, a prohibition which may be relaxed according to the exercise of a discretion, the law is dealing with exportation of goods, a matter at the heart of trade and commerce with other countries. It is not to the point that the selection may be made by reference to criteria having little or no apparent relevance to trade and commerce; it is enough that the law deals with the permitted topic and it does not cease to deal with that topic because factors extraneous to the topic may be taken into account in the relaxation of the prohibition imposed by the law. 91 There is no basis for that reasoning to not apply in this case. The Heritage Act is a law that operates in connection with the subject matter of s 51(xxvi). It does not cease to operate in connection with that subject matter because it confers a discretion as to whether or not to make the declaration in s 10, which may be exercised by reference to, inter alia, non-racial considerations such as the social and economic impacts on the community of the declaration. It does not cease to be a "special law"; it continues to have a differential operation because the purpose of the exercise of the discretion is to determine whether a legislative instrument should be made to confer protection on a significant Aboriginal area. 92 The applicant's submission, based on Marcus Clarke, that decisions made under such a special law, in this case s 10 of the Heritage Act, "must maintain the character of differential operation, because otherwise the decision won't be supported by…the Heritage Protection Act", cannot be accepted. As the respondent submitted, the critical flaw in the argument is that it is based on the proposition that if one of the considerations taken into account by the Minister in making the decision "does not itself have a uniquely Aboriginal characteristic or character…the relevant differential operation" is lost and the "thread with the races power". However, determining the character of the law, involves a consideration of the rights and obligations affected by the law which, in this case, relate to the creation of the declaration. 93 In that context, the applicant's submission also does not explain how a discretionary decision as to the making of a declaration under the Heritage Act which involves the consideration of countervailing matters (which may not themselves satisfy the special and differential aspect of the race power), alters the character of the Heritage Act as being a special law. 94 Moreover, as explained above, the applicant's submission, that the matters considered by the Minister must be conducive to Parliament's end, and therefore countervailing matters cannot be considered, is inconsistent with the Heritage Act, properly construed. 95 The applicant has not established that the social and economic impacts to the community are irrelevant considerations in the Minister's decisions to decline making a declaration under s 10. Conclusion 96 The applicant has failed to establish the ground of review. The application is dismissed with costs (limited to $1000). I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.