Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority

LEGISLATIVE/REGULATORY FRAMEWORK & APPLICABLE PRINCIPLES 21 This section outlines the legislative provisions upon which Mr Tipakalippa's claim for relief is founded before turning to the statutory and regulatory scheme for the acceptance of an environment plan proposing an offshore petroleum activity.

The ADJR Act, the Judiciary Act and the Relief Claimed 22 Mr Tipakalippa's application for judicial review is made pursuant to section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and sections 39B(1) & (1A) of the Judiciary Act 1903 (Cth). 23 Section 5(1) of the ADJR Act provides that a person who is "aggrieved by a decision" to which the ADJR Act applies may apply to this Court for an order of review in respect of a decision. The decisions to which the ADJR Act apply are defined under s 3 of the ADJR Act to mean: … a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition) … under an enactment... That the Decision is a decision to which the ADJR Act applies is not in contest. 24 The definition of a person "aggrieved by a decision" under the ADJR Act relevantly includes a person whose interests are adversely affected by the decision. Mr Tipakalippa's standing to bring this proceeding under the ADJR Act or under the Judiciary Act is not in contest. 25 The grounds upon which an aggrieved person may seek review of a decision are outlined in s 5 of the ADJR Act and relevantly include that: (i) procedures that were required by law to be observed in connection with the making of the decision were not observed (s 5(1)(b)); (ii) the person who purported to make the decision did not have jurisdiction to make the decision (s 5(1)(c)); (iii) the decision was not authorized by the enactment in pursuance of which it was purported to be made (s 5(1)(d)); (iv) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (s 5(1)(e)); and (v) the decision involved an error of law, whether or not the error appears on the record of the decision (s 5(1)(f)). 26 By his Amended Originating Application, Mr Tipakalippa seeks judicial review of NOPSEMA's decision under s 5(1)(c), (d) and (f) of the ADJR Act in relation to ground 1 and under s 5(1)(b) of the ADJR Act in relation to ground 2. Although Mr Tipakalippa in his written opening submissions and oral opening submissions also raised s 5(1)(e) of the ADJR Act in passing as a ground of review within ground 1, that went beyond his pleaded case but makes no material difference to it, and I have not regarded it as forming part of ground 1 to be decided in this case. 27 Section 39B of the Judiciary Act relevantly provides that the original jurisdiction of this Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth (s 39B(1)). The original jurisdiction of the Court also includes jurisdiction in any matter "arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter" (s 39B(1A)(c)). These provisions vest in the Court the entirety of the jurisdiction which s 75(v) of the Constitution vests in the High Court: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168. 28 By his Amended Originating Application, Mr Tipakalippa seeks the following orders: (i) A declaration that the Decision is invalid and [be] set aside, alternatively, an order pursuant to s 16(1)(a) of the ADJR Act, quashing or setting aside the Decision, or a part of the Decision, with effect from the date of the order or from such earlier or later date as the Court specifies. (ii) An order in the nature of prohibition and/or an injunction under s 39B of the Judiciary Act, alternatively, s 16(1)(d) of the ADJR Act, prohibiting or restraining NOPSEMA and Santos from doing any act or thing pursuant to the Decision, on a final basis, and on an interim, or interlocutory basis pending final judgment or orders following trial.

The Act and the Regulations 29 It is convenient to set out here the relevant statutory and regulatory scheme for the acceptance of an environment plan and the steps in the process of obtaining NOPSEMA's approval to undertake offshore "petroleum activities". The same scheme applies in relation to offshore "greenhouse gas activities". I will set out chronologically the provisions of relevance and to some extent emphasise those provisions of heightened significance to the contest between the parties as to the proper legal construction of the Regulations. 30 The object of the Act is to provide an effective regulatory framework for petroleum exploration and recovery and the injection and storage of greenhouse gas substances in offshore areas (s 3). The Regulations are made under the Act. 31 The object of the Regulations as specified by reg 3, is as follows: The object of these Regulations is to ensure that any petroleum activity or greenhouse gas activity carried out in an offshore area is: (a) carried out in a manner consistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act; and (b) carried out in a manner by which the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and (c) carried out in a manner by which the environmental impacts and risks of the activity will be of an acceptable level. 32 Section 3A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to which the object of the Regulations refers, identifies the following principles as "principles of ecologically sustainable development" (emphasis added): (a) decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations; (b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; (c) the principle of inter-generational equity - that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations; (d) the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making; (e) improved valuation, pricing and incentive mechanisms should be promoted. The term "environment" is defined in the EPBC Act (s 528) consistently with the definition of "environment" in the Regulations which is set out below at [35]. 33 Regulation 4 defines various terms used in the Regulations under the qualification that "unless the contrary intention appears" a defined term has its defined meaning. 34 Regulation 4 defines "activity" to mean "a petroleum activity or a greenhouse gas activity". "Petroleum activity" is defined to mean: operations or works in an offshore area undertaken for the purpose of: (a) exercising a right conferred on a petroleum titleholder under the Act by a petroleum title; or (b) discharging an obligation imposed on a petroleum titleholder by the Act or a legislative instrument under the Act. 35 The term "environment" is defined as (emphasis added): (a) ecosystems and their constituent parts, including people and communities; and (b) natural and physical resources; and (c) the qualities and characteristics of locations, places and areas; and (d) the heritage value of places; and includes (e) the social, economic and cultural features of the matters mentioned in paragraphs (a), (b), (c) and (d). 36 Regulation 4 also states that the term "relevant person" has the meaning given by reg 11A(1) which is extracted below at [47]. 37 Regulation 6(1) provides that it is an offence for a titleholder to undertake an activity if there is no environment plan in force for the activity. As mentioned above, this is an offence of strict liability (reg 6(1A)). Regulation 7(1)(a) provides that it is an offence for a titleholder to undertake an activity in a way that is contrary to the environment plan in force for the activity. This is also an offence of strict liability (reg 7(1A)). 38 Regulation 9(1) provides that, before commencing an activity, a titleholder must submit an environment plan for the activity to NOPSEMA. The environment plan must be in writing (reg 9(6)) and must "set out the full text of any response by a relevant person to consultation under reg 11A in the course of preparation of the plan" in the "sensitive information" part of the plan (reg 9(8)). 39 Regulation 9AA requires that within 5 business days of the submission of an environment plan to NOPSEMA, NOPSEMA must decide provisionally whether the plan includes material apparently addressing all of the contents of an environment plan required by the Regulations. Regulation 9AB provides that once NOPSEMA has made a provisional decision under reg 9AA, NOPSEMA must publish on its website as soon as practicable the environment plan as well as other specified details. Only if the environment plan in question is a "seismic or exploratory drilling environment plan" is NOPSEMA required to also publish an invitation for public comment on the plan in accordance with reg 11B. 40 Regulation 9AC provides that if NOPSEMA's provisional decision under reg 9AA is that the environment plan does not include material apparently addressing all of the requirements as to the contents of the environment plan specified by Div 2.3, NOPSEMA must give the titleholder a written notice identifying the provisions of Div 2.3 that appear not to be addressed by the plan and inviting the titleholder to modify the plan and resubmit it. 41 Regulation 9A also provides a power for NOPSEMA to request further information. By that regulation where an environment plan is submitted, NOPSEMA "may request the titleholder to provide further written information about any matter required by these Regulations to be included in an environment plan" (emphasis added). The request made must be in writing and set out each matter for which information is requested and specify a reasonable period within which the information is to be provided. A titleholder, in providing the information requested by NOPSEMA, must resubmit to NOPSEMA the environment plan with the new information incorporated. NOPSEMA is required to have regard to the information that was requested by it and provided by the titleholder in a resubmitted environment plan. 42 Regulation 10(1) deals with acceptance by NOPSEMA of an environment plan as follows (emphasis added): (1) Within 30 days after the day described in subregulation (1A) for an environment plan submitted by a titleholder: (a) if the Regulator is reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must accept the plan; or (b) if the Regulator is not reasonably satisfied that the environment plan meets the criteria set out in regulation 10A, the Regulator must give the titleholder notice in writing under subregulation (2); or (c) if the Regulator is unable to make a decision on the environment plan within the 30 day period, the Regulator must give the titleholder notice in writing and set out a proposed timetable for consideration of the plan. 43 What a notice of the kind referred to in reg 10(1)(b) must do is the subject of reg 10(2). A notice to a titleholder must state that NOPSEMA is not reasonably satisfied that the environment plan submitted meets the criteria set out in reg 10A and identify the criteria set out in that regulation about which NOPSEMA is not reasonably satisfied and set a date by which the titleholder may resubmit the plan. 44 Regulation 10(4) then provides that within 30 days after the modified plan has been submitted, if NOPSEMA is reasonably satisfied that the environment plan meets the criteria set out in reg 10A, NOPSEMA must accept the plan or, if NOPSEMA is still not reasonably satisfied that the plan meets the criteria in reg 10A, NOPSEMA must give the titleholder a further notice under reg 10(2), or refuse to accept the plan or, under reg 10(6) accept the plan in part for a particular stage of the activity and/or accept the plan subject to limitations or conditions applying to operations for the activity. Alternatively, under reg 10(4)(c) if NOPSEMA is unable to make a decision on the environment plan within the 30 day period, NOPSEMA must give the titleholder notice in writing and set out a proposed timetable for consideration of the plan. 45 The criteria for NOPSEMA's acceptance of an environment plan are set out in reg 10A (emphasis added): For regulation 10, the criteria for acceptance of an environment plan are that the plan: (a) is appropriate for the nature and scale of the activity; and (b) demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and (c) demonstrates that the environmental impacts and risks of the activity will be of an acceptable level; and (d) provides for appropriate environmental performance outcomes, environmental performance standards and measurement criteria; and (e) includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and (f) does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property within the meaning of the EPBC Act; and (g) demonstrates that: (i) the titleholder has carried out the consultations required by Division 2.2A; and (ii) the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and (h) complies with the Act and the regulations. 46 Regulation 11 relevantly provides that NOPSEMA must give the titleholder notice in writing of its decision to accept or refuse the environment plan, or to accept the environment plan in part for a particular stage of the activity, or subject to limitations and conditions. A notice of decision to refuse the environment plan, or to accept the environment plan in part for a particular stage of the activity, or subject to limitations and conditions (under reg 11(1)(b) or (c)) must set out "the terms of the decision and the reasons for it" (reg 11(2)(a)). The requirement for reasons does not appear to also apply to a notice given under reg 11(1)(a) of a decision to accept the environment plan. As soon as practicable after giving the notice of the decision to the titleholder, NOPSEMA must publish on its website a description of the decision and, if the decision was to accept the environment plan (in whole or in part), must also publish the environment plan with the sensitive information part removed. Furthermore, within 10 days of receiving NOPSEMA's notice that the environment plan has been accepted, the titleholder must submit a summary of the accepted plan to NOPSEMA for public disclosure. That summary must include material from the environment plan including the location of the activity and a description of "the receiving environment", the "details of environmental impacts and risks" as well as "details of consultation already undertaken, and plans for ongoing consultation". As soon as practicable after receiving a summary, NOPSEMA must publish it on its website. 47 Division 2.2A of the Regulations (to which reg 10A(g)(1) refers) contains only one regulation, being reg 11A. Regulation 11A(1) specifies each of the persons (relevant persons) with whom the titleholder must consult (emphasis added): (1) In the course of preparing an environment plan, or a revision of an environment plan, a titleholder must consult each of the following (a relevant person): (a) each Department or agency of the Commonwealth to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant; (b) each Department or agency of a State or the Northern Territory to which the activities to be carried out under the environment plan, or the revision of the environment plan, may be relevant; (c) the Department of the responsible State Minister, or the responsible Northern Territory Minister; (d) a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan; (e) any other person or organisation that the titleholder considers relevant. 48 Regulations 11A(2) to (4) specify how consultation is to occur (emphasis added): (2) For the purpose of the consultation, the titleholder must give each relevant person sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on the functions, interests or activities of the relevant person. (3) The titleholder must allow a relevant person a reasonable period for the consultation. (4) The titleholder must tell each relevant person the titleholder consults that: (a) the relevant person may request that particular information the relevant person provides in the consultation not be published; and (b) information subject to such a request is not to be published under this Part. 49 Division 2.3 then deals with the contents of an environment plan. Regulation 12 provides that an environment plan must include the matters set out in regs 13, 14, 15 and 16. Reg 13(1) and (2) provide that an environment plan must contain a "comprehensive description of the activity" as well as "describe the existing environment that may be affected by the activity…and include details of the particular relevant values and sensitivities (if any) of that environment". The Note appearing under reg 13(2) refers to the definition of "environment" in reg 4 and emphasises that the definition "includes its social, economic and cultural features". 50 Regulation 13(3) then provides: (3) Without limiting paragraph (2)(b), particular relevant values and sensitivities may include any of the following: (a) the world heritage values of a declared World Heritage property within the meaning of the EPBC Act; (b) the national heritage values of a National Heritage place within the meaning of that Act; (c) the ecological character of a declared Ramsar wetland within the meaning of that Act; (d) the presence of a listed threatened species or listed threatened ecological community within the meaning of that Act; (e) the presence of a listed migratory species within the meaning of that Act; (f) any values and sensitivities that exist in, or in relation to, part or all of: (i) a Commonwealth marine area within the meaning of that Act; or (ii) Commonwealth land within the meaning of that Act. 51 Regulation 13(5) provides that the environment plan must include "details of the environmental impacts and risks for the activity" and "an evaluation of all the impacts and risks, appropriate to the nature and scale of each impact or risk" as well as "details of the control measures that will be used to reduce the impacts and risks of the activity to as low as reasonably practicable and an acceptable level". To avoid doubt, reg 13(6) provides that the evaluation of all of the impacts and risks, required by reg 13(5)(b) "must evaluate all the environmental impacts and risks arising directly or indirectly from…all operations of the activity". 52 Regulation 14 is concerned with an implementation strategy for the environment plan and requires that the plan must contain such a strategy. Under reg 14(9) the implementation strategy must provide for "appropriate consultation" with relevant authorities of the Commonwealth, a state or territory and "other relevant interested persons or organisations". 53 Lastly, reg 16(b) provides for "other information" the environment plan must contain, relevantly (emphasis added): The environment plan must contain the following: … (b) a report on all consultations under regulation 11A of any relevant person by the titleholder, that contains: (i) a summary of each response made by a relevant person; and (ii) an assessment of the merits of any objection or claim about the adverse impact of each activity to which the environment plan relates; and (iii) a statement of the titleholder's response, or proposed response, if any, to each objection or claim; and (iv) a copy of the full text of any response by a relevant person; …

The Key Events in the Assessment Process of the Drilling EP 54 Having set out the regulatory process, it is convenient to turn to an overview of the key events in the process of NOPSEMA's acceptance of the Drilling EP. The following events have been largely taken from the decision-maker's Statement of Reasons (Reasons) to which I shall shortly return. The decision-maker was a delegate of the CEO of NOPSEMA. For convenience I will, unless the context suggests otherwise, refer to the decision-maker as NOPSEMA or the delegate. 55 On 6 October 2021, Santos submitted the Drilling EP, being the first submitted version of that document which the material before the delegate referred to as "Revision 1" (Drilling EP (Revision 1)). 56 On 15 October 2021, the Drilling EP (Revision 1) was found to be complete for assessment in accordance with reg 9AA and was published by NOPSEMA on NOPSEMA's website in accordance with reg 9AB. 57 On 25 October 2021, NOPSEMA issued Santos with a letter advising of a change of the assessment timeframe under reg 10(1)(c), with the assessment date to be completed by 29 November 2021. 58 On 29 November 2021, NOPSEMA requested that Santos provide further written information under reg 9A. That correspondence, to which I will return, included amongst other matters a request for further information in relation to the consultation carried out by Santos. 59 In response to the request from NOPSEMA to provide further information, Santos resubmitted the environmental plan on 30 December 2021. This revised version was referred to as "Revision 2" and dated 24 December 2021. 60 On 24 January 2022, Santos was again requested to provide further written information by NOPSEMA under reg 9A. In response to that request, Santos resubmitted the Drilling EP on 14 February 2022 in a document referred to as "Revision 3" and dated 11 February 2022. It is that version of the Drilling EP which I have referred to as the Drilling EP. 61 After further assessment by the NOPSEMA assessment team, of which I will say more shortly, on 14 March 2022 the delegate accepted the assessment team's recommendation that the Drilling EP met all the acceptance criteria set out in reg 10A of the Regulations. Notice of that decision was provided in writing to Santos on 14 March 2022 in accordance with reg 11(1). 62 On 6 May 2022, NOPSEMA published the Reasons. 63 The Reasons, which I discuss further below, contain a conclusion at [53] thereof as follows (emphasis added): In accordance with regulation 10 and based on the available facts and evidence, NOPSEMA was reasonably satisfied that the [Drilling EP] met the following criteria set out in sub-regulation 10A of the [Regulations]: a. the [Drilling EP] is appropriate for the nature and scale of the activity; and b. the [Drilling EP] demonstrates that the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable; and c. the [Drilling EP] provides for appropriate [environmental performance outcomes], [environmental performance standards] and measurement criteria; and d. the [Drilling EP] includes an appropriate implementation strategy and monitoring, recording and reporting arrangements; and e. the [Drilling EP] does not involve the activity or part of the activity, other than arrangements for environmental monitoring or for responding to an emergency, being undertaken in any part of a declared World Heritage property within the meaning of the EPBC Act; and f. the [Drilling EP] demonstrates that: i. the titleholder has carried out the consultations required by Division 2.2A; and ii. the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate; and g. the [Drilling EP] complies with the Act and the regulations. 64 It is the emphasised finding made at para (f) of [53] of the Reasons that Mr Tipakalippa contends is infected with legal error. Before assessing the contentions made about the asserted error, it is convenient that I first outline the legal principles to be applied in that assessment.

Reasonable Satisfaction as a Jurisdictional Precondition - Applicable Principles 65 It is not in contest in relation to ground 1, that the jurisdictional precondition for the exercise of NOPSEMA's power to accept an environment plan is that NOPSEMA "is reasonably satisfied that the environment plan meets the criteria set out in reg 10A" (reg 10(1)(a)). If the requisite satisfaction is not lawfully formed the precondition for the exercise of power will not exist. As the Full Court (Allsop CJ, Besanko and O'Callaghan JJ) said in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 at [21]: In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; [1999] HCA 21 (Eshetu) at [131] and the cases cited at footnote 109. 66 The applicable principles for assessing whether a decision-maker had the state of satisfaction required by statute as a precondition of jurisdiction, are broadly encapsulated by the observation of Kiefel CJ, Gageler and Keane JJ in Hossain at [34] that the "[f]ormation of the [decision-maker's] state of satisfaction or of non-satisfaction is in each case conditioned by a requirement that the [decision-maker] … must proceed reasonably and on a correct understanding and application of the applicable law". For that proposition their Honours referred to a number of authorities including the survey of authorities provided by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, in which (at [133]) his Honour relied upon the following seminal observations of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 (at 430, 432): [W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. … It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. 67 Other forms of error beyond those mentioned by Latham CJ may also infect a state of satisfaction which is a jurisdictional prerequisite to the exercise of a power or discretion. Relevantly to the issues raised in this case, a failure to consider a matter that the statute required be considered may also undermine the lawfulness of the state of satisfaction required. So much is apparent from the observation made by the Full Court (Bromberg, Katzmann and O'Callaghan JJ) in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union and Another (2018) 262 FCR 527 at [109]: Where, as here, a statute vests a power in, or imposes a duty on, an administrative decision-maker to do something upon reaching a state of satisfaction and matters the statute requires the decision-maker to take into account are not considered, as a matter of law the requisite state of satisfaction is not reached and the Court may grant relief: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J); Buck v Bavone (1976) 135 CLR 110 at 118-119 (Gibbs J) (approved by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [54]. 68 The Full Court went on to observe at [118]: Alternatively, as the CFMEU submitted, the Commissioner's error might be regarded as an error of the kind referred to by the High Court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 at 120. In that case, where an order was made for prohibition under s 75(v) of the Constitution, the Court observed that the inadequacy of the material before the tribunal was not itself a ground for prohibition but "a circumstance which may support the inference" that the tribunal applied the wrong test, was not really satisfied of the requisite matters, or misconceived the purpose of the function committed to it. In circumstances such as these, the Court said, "it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact". 69 Of the many authorities to which reference may be made, I have found One Key and the authorities referred to in the passages just quoted, particularly helpful. The nature of the task required to form the requisite state of satisfaction in that case, an assessment as to whether a communication required to have been made was made is somewhat analogous to the task here required of NOPSEMA by the Regulations. In One Key, a jurisdictional precondition for the approval by the Fair Work Commission of an enterprise agreement made under the Fair Work Act 2009 (Cth) was the Fair Work Commission's satisfaction that, in making the agreement with its employees, the employer had taken all reasonable steps to ensure that the terms of the agreement and the effect of those terms had been explained to the relevant employees. 70 Whilst it is not necessary to set out a comprehensive taxonomy of the kinds of errors which may invalidate a state of satisfaction as a jurisdictional precondition, it needs to be observed that legal unreasonableness is an applicable form of error. As the learned authors state in Aronson M, Groves M, Weeks G, Judicial review of administrative action and government liability (7th ed, Thomson Reuters (Professional) Australia Limited, 2022) at [6.30] p 275, so much was made implicit in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 but explicit in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (at [6]-[9] Kiefel CJ; [55] Gageler J and [81]-[83] Nettle and Gordon JJ). 71 The availability of legal unreasonableness as a ground is also recognised by the Full Court in Djokovic (see at [29]-[35]) and by Murphy and O'Bryan JJ, with whom Snaden J relevantly agreed, in BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532 at [28]-[30] (Murphy and O'Bryan JJ) and at [63] (Snaden J). 72 Whether the legal standard imposed by the requirement that the decision-maker proceed reasonably is enhanced by the Regulations' requirement that NOPSEMA be "reasonably satisfied", was the subject of some contest between the parties. That debate occurred in the context of the observation made by Gageler J in SZVFW at [53] to the effect that the governing law may supply its own standard of reasonableness and the example there given of a higher standard supplied by a law which provides that a power may only be exercised upon the repository of the power being satisfied that there are "reasonable grounds" for its exercise. 73 Santos, on two bases, sought to reject the proposition that some higher standard was here required by the limitation imposed on the exercise of NOPSEMA's power by the words "reasonably satisfied". First, Santos contended that the word "reasonably" adds nothing that would not be implied just as it is implicit in the conferral of a discretionary power that the power is to be exercised reasonably. Second, Santos sought to distinguish the observation made by Gageler J as an observation about a "reasonable grounds" requirement and not a "reasonably satisfied" requirement. 74 To my mind, in relation to the assessment task of the kind required of NOPSEMA (which I consider further below) the words "reasonably satisfied" are directed at the standard of satisfaction that NOPSEMA must apply in making the assessment required of it. By parity of reasoning with what Gray and Lee JJ observed in Goldie v Commonwealth (2002) 117 FCR 566 at [5]-[6] about the phrase "reasonably suspects", where it is that "reasonably satisfied" lies on the spectrum between certainty and irrationality is to be construed contextually by reference to the circumstances of the case including the scheme which has imposed that standard. It would not be correct to presume, as the debate before me seemed to do, that legal unreasonableness has some fixed standard. Legal unreasonableness is fact dependent and, by reference to the statutory task required of a decision-maker may be applied more stringently in some cases than in others: see SZVFW at [84] (Nettle and Gordon JJ). The point is that a requirement of "reasonable satisfaction" and the requirement that a decision-maker proceed reasonably are not unrelated. The first feeds into the second and the standard of reasonableness required will be set by their combination and governed by the requirements or objectives of the scheme in question. 75 The nature of the task required of a decision-maker in reaching a state of satisfaction will also have a bearing upon whether the decision-maker proceeded reasonably. It will be more difficult to establish unreasonableness where the state of satisfaction is to be reached by a task which requires significant subjectivity such as in relation to "a matter of opinion or policy or taste": Buck v Bavone (1976) 135 CLR 110 at 118-119 (Gibbs J). 76 Two further observations need to be made here in relation to the appropriate approach to be taken on the judicial review of the lawfulness of a state of satisfaction. First, as a matter of proof, the burden falls on Mr Tipakalippa to show why the state of satisfaction in fact formed by NOPSEMA was not a lawful state of "reasonable satisfaction": see Ellis v Central Land Council (2019) 267 FCR 339 at [121] (Barker, Griffiths, White JJ). 77 Second, in an assessment of whether a decision was beyond power because it was legally unreasonable "[w]here reasons are provided they will be a focal point for that assessment": SZVFW at [84] (Nettle and Gordon JJ). I see no reason why the same approach is not apposite in a case involving the judicial review of the lawfulness of a state of satisfaction. I made an observation to that effect in Australian Workers' Union v Registered Organisations Commissioner (No 9) [2019] FCA 1671; 168 ALD 11 at [94], and at [95] I there referred to a passage in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) at [47] which has been cited by many authorities (see for example, Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [35] (Griffiths J with whom Gleeson J agreed) and at [91]-[97] (Colvin J)) including some involving the judicial review of the lawfulness of a state of satisfaction (see for example, BPV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 157 (Nicholas J)). The Court in Singh at [47] observed that: where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. 78 By analogy, where there are reasons which provide an understanding as to how and why a state of satisfaction was reached, a supervising court should look to those reasons to understand why the power was exercised as it was. It is the reasoning actually utilised by the decision-maker as the basis for the satisfaction reached, that ordinarily must supply the lawfulness of that satisfaction because it is the satisfaction of the decision-maker upon which Parliament has preconditioned the exercise of the power.

The Relevant Regulatory Tasks 79 It is necessary to properly appreciate what NOPSEMA was required to do in order to lawfully form the satisfaction which preconditions its power of acceptance. The regulatory task required by NOPSEMA is obviously to be assessed by reference to the Regulations. 80 The requisite satisfaction is stated in reg 10(1)(a), NOPSEMA must be "reasonably satisfied that the environment plan meets the criteria set out in regulation 10A". That overall satisfaction entails the need for NOPSEMA to be reasonably satisfied in relation to each criterion set out in reg 10A including, relevantly, at reg 10A(g) which requires that the environment plan "demonstrat[e] that … the titleholder has carried out the consultations required by Division 2.2A". For relevant purposes, that in turn and by reference to reg 11A (being the only provision in Div 2.2A), entails the need for NOPSEMA to be reasonably satisfied that the environment plan demonstrates that in the course of preparing the environment plan the titleholder consulted each "relevant person" falling within the descriptions in paras (a)-(e) of reg 11A(1) in the manner required by reg 11A(2)-(4). 81 The requirement that the titleholder "must consult with each" relevant person is a requirement to consult with each and every relevant person. The text of reg 11A, including the multiple references made to "each relevant person" make that requirement clear. No party contended to the contrary. All the parties contended that reg 11A requires each and every relevant person to be consulted. 82 Given that the obligation imposed by reg 11A is that every relevant person must be consulted, NOPSEMA's regulatory task includes an assessment of whether the environment plan "demonstrates" that every relevant person was consulted. That issue must be considered by NOPSEMA in order for NOPSEMA to be reasonably satisfied that the environment plan demonstrates that the consultations required to be carried out by reg 11A have been carried out. It follows that that consideration is not only a relevant consideration but is a consideration that the Regulations require NOPSEMA to take into account: One Key at [109]. Or in other words, that is a task or inquiry which the Regulations require NOPSEMA to engage in and perform. I will label that inquiry the "universe of relevant persons inquiry" and will return to deal with how it was performed in relation to the Drilling EP, because central to each aspect of ground 1 of Mr Tipakalippa's application is that NOPSEMA erroneously performed that task resulting in its non-performance at law, thus depriving NOPSEMA's state of satisfaction of its legal validity. 83 Next, because reg 11A(2)-(4) deals with the manner in which consultation must occur or what must be done in the consultation, NOPSEMA is tasked with assessing whether the environment plan demonstrates that consultations have occurred in the manner required. For the same reasons as earlier expressed, that is also a consideration that the Regulations require NOPSEMA to take into account. 84 It is necessary to observe that each of those considerations or tasks essentially involves a factual assessment as to what the environment plan demonstrates by reference to facts asserted in the environment plan in relation to which questions of law, as to the proper construction of the Regulations, may be raised. Although the assessment will lead to a state of satisfaction or what may be described as an opinion being formed, the assessment task itself does not involve subjective content like the formation of an opinion, consideration of policy or a value-laden evaluation. 85 It is also necessary to observe that in performing each of the consultation criteria tasks which I have described, NOPSEMA may (without apparent restriction) request further information of the titleholder pursuant to reg 9A. Opportunities are also effectively provided to titleholders to provide further information about a criteria of which NOPSEMA is not reasonably satisfied by the provisions of reg 10. In each case, where further information is provided, the environment plan must be revised and resubmitted so as to maintain the nature of the assessment exercise as an exercise based upon whether the environment plan meets the requisite criteria. 86 Lastly, I need to make some observations about the extent to which the consultation requirements imposed by the Regulations are of importance to the fulfilment of its objectives. I do so in part to provide a general context for all of the issues I need to address, but in particular because an understanding of the extent of the importance of the consultation tasks I have identified may assist to inform the consideration of whether NOPSEMA proceeded reasonably as well as, relatedly, to inform the standard of satisfaction which the scheme intends by the requirement of "reasonable satisfaction". 87 That "each" relevant person must be consulted in an informed manner, of itself speaks to the importance of consultation in the scheme for the acceptance of an environment plan. There are other indicators of the important function which consultation seems to be intended to have. The importance of consultation is to be understood in light of the objects of the Regulations which relevantly seek to ensure that any petroleum activity is carried out in a manner which reduces to as low as reasonably practicable and to an acceptable level, the environmental impacts and risks of the activity the subject of an environment plan (reg 3). That objective is pursued in the context of the "environment" relevantly including "the social, economic and cultural features" of "people and communities" (reg 4). 88 It can hardly be doubted that it was considered that people who may be affected by the petroleum activity are well placed to assist in informing an assessment process with the objective of minimising harm to them and their social, economic and cultural interests and activities. This is especially so in the context of an assessment process which largely depends upon information provided by the proponent of the activity, which is not adversarial and where there is no contradictor. The consultation required by the scheme is seemingly important for two further reasons. First, because it will inform the proponent of measures that the proponent may take to mitigate the adverse environmental effects that the petroleum activity may otherwise cause. Second, because it will better inform NOPSEMA in its assessment process of the potential adverse impacts of the proposed activity, the persons who may be affected by those adverse impacts and the measures that are available to mitigate them. So much seems apparent from the criteria in reg 10A(g)(ii) which requires NOPSEMA's satisfaction that the environment plan demonstrates that "the measures (if any) that the titleholder has adopted, or proposes to adopt, because of the consultations are appropriate". This is also apparent from the requirement made by reg 16 that the environment plan contain a report on "all consultations under regulation 11A of any relevant person" including "a copy of the full text of any response by a relevant person". 89 It is also worth noting that the Regulations were amended in 2019 by the Offshore Petroleum and Greenhouse Gas Storage (Environment) Amendment (Consultation and Transparency) Regulations 2019 (Cth) (Amendment Regulations). There were several amendments within the Amendment Regulations including the introduction of the concept of "sensitive information", the requirement for the publication of submitted environment plans under reg 9AB, and the requirement in Division 2.2B for public consultation with respect to seismic and exploratory drilling environment plans. Relevantly to the above analysis, the Explanatory Statement for the Amendment Regulations explicitly supports the first reason above at [88] as it emphasises the importance of the titleholder being able to take into account comments from relevant persons "during the development of the [environment] plan" (see page 12 of the Explanatory Statement). The heading for Div 2.2A was accordingly changed from "Division 2.2A - Consultation" to "Division 2.2A - Consultation in preparing an environment plan" (emphasis added).

Overview of the Drilling EP 90 The content of the Drilling EP is of critical significance to all of the issues I need to determine. Where I need to address specific content I will do so when dealing with the particular issue to which that content is relevant. To put the specific content in its proper context the following is provided by way of background. 91 The Drilling EP is a large document of some 354 pages in the main document and 590 pages including its appendices A to G. The document is divided into nine chapters covering several topics each of which purports to address various criteria set out within the Regulations. 92 Chapter 1 is headed "Introduction". This chapter provides a summary of the Drilling EP, an overview of the Activity describing at a general level the works Santos proposes to undertake under the Drilling EP, an explanation of the purpose of the Drilling EP and details of the titleholder. 93 Chapter 2 is headed "Activity description". This chapter contains an overview and description of the Activity referring to reg 13(1). It describes the equipment to be used for conducting the Activity and the well construction design and method including detailed descriptions of the various materials to be used and managed during well construction and completions. The activities included in the Drilling EP are described in section 2.1. This section also discusses emergency response and well suspension procedures. 94 Chapter 3 is headed "Description of the environment". This chapter provides a description of the "existing environment that may be affected", a requirement under reg 13(2). This is referred to in the Drilling EP as the "EMBA". This chapter explains that "stochastic hydrocarbon dispersion and fate modelling" was undertaken to identify "the worst-case spill scenario for the operational area", section 3.1.1 states that this was undertaken "to inform [the creation of] the EMBA". The Drilling EP contains several figures depicting the EMBA in relation to various risk and impact analysis. Figure 3-1 shown below depicts the EMBA which is defined using a blue line with various marine regions and bioregions noted. Section 3.1.1 states that the "EMBA boundary was identified using low exposure values which are not considered to be representative of a biological impact, but they are adequate for identifying the full range of environmental receptors that might be contacted by surface and/or subsurface hydrocarbons…and a visible sheen". 95 Chapter 4 is headed "Stakeholder consultation". The issues I need to resolve are principally concerned with the information in this chapter which will be discussed in further detail shortly. For now, it is worth noting that this chapter purports to provide a description of the process used by Santos to identify relevant persons and the consultation of those identified as relevant persons (under reg 11A(1)(a) to (e)) who are also referred to in the Drilling EP as "stakeholders". It also contains an assessment of stakeholder objections and claims, by reference to reg 16(b). 96 Chapter 5 is headed "Impact and risk assessment methodology". This chapter discusses the environmental and risk assessment process undertaken to assess planned and unplanned events that will or may occur during the Activity. The methodology describes planned activities as "impacts" and unplanned events as "risks" to be assessed. The methodology seeks to address the requirements of reg 13(5) and (6) dealing with the evaluation of the environmental impacts and risks for the Activity and which also requires details of the control measures that will be used to reduce the impacts and risks of the Activity to as low as reasonably practicable and at an acceptable level. 97 Chapter 6 is headed "Planned activities risk and impact assessment". This chapter details the actual assessment undertaken by Santos of the impacts discussed in the methodology set out in chapter 5 and describes the results of the impact assessment. The chapter further seeks to address the matters in reg 13(5) and (6) discussed above, and reg 13(7) which, in broad terms, stipulates that an environment plan must set "environmental performance standards" for the control measures used to reduce the impacts and risks of an activity and set out "environmental performance outcomes" against which the performance of the titleholder in protecting the environment is to be measured. It details that Santos held activity-specific environmental assessment workshops in June 2021 (discussed in chapter 5) which identified eight causes of environmental impact associated with the planned activities to be undertaken in the Operational Area, being: (i) noise emissions, (ii) light emissions, (iii) atmospheric emissions, (iv) seabed and benthic habitat disturbance, (v) interaction with other marine users, (vi) operational discharges, (vii) drilling and completions discharges, and (viii) contingency spill response operations. 98 Chapter 7 is headed "Unplanned events risk and impact assessment". This chapter details the assessment undertaken by Santos of the risks discussed in the methodology set out in Chapter 5 and describes the results of the risk assessment. The chapter seeks to address the matters in reg 13(5), (6) and (7). Santos' activity-specific environmental assessment workshops identified seven environmental risks associated with unplanned events which could occur as a result of the Activity. These are: (i) release of solid objects, (ii) introduction of invasive marine species, (iii) marine fauna interaction, (iv) non-hydrocarbon and chemicals release (surface) liquids, (v) hydrocarbon spill - condensate, (vi) hydrocarbon spill - marine diesel and (vii) minor hydrocarbon release (surface and subsea). This chapter also features maps and analysis depicting and discussing the environment that may be affected by the risks identified and the range of consequences that could occur, for example, from hydrocarbon spill events. At section 7.5 the chapter discusses potential sources of unplanned release of hydrocarbons which include "loss of well control" and "vessel collision" resulting in a spill of hydrocarbons into the sea. At section 7.5.1.1, the Drilling EP notes that in the worst case, a subsea loss of well control event could result in a release of "Barossa condensate [identified as a hydrocarbon at section 7.5.3.1] over 90 days". The Drilling EP notes at section 7.5.4 that to inform the environmental assessment, exposure values that "may be representative of biological impact have also been identified". These are referred to as "moderate exposure values" (defined by the MEVA in purple) and "high exposure values" (defined by the HEVA in aqua) and are shown in Figure 7-5 reproduced below. 99 Chapter 8 is headed "Implementation strategy". This chapter discusses the implementation strategy developed by Santos for the Activity, including a description of Santos' "management system" which is described as a "a framework of policies, standards, processes, procedures, tools and control measures" to ensure, the environmental impacts and risks of the Activity continue to be identified and reduced to a level that is as low as reasonably practicable. The implementation strategy is described by reference to the requirements for an implementation strategy under reg 14. This chapter outlines the leadership, accountability and responsibility for the implementation, management and review of the Drilling EP. It also discusses workforce training and competency, emergency preparedness and response, incident reporting, investigation and follow-up, reporting notifications, document management protocols and audit and inspections procedures. 100 Chapter 9 contains references to the sources cited within the Drilling EP. 101 Appendices A to G are referred to within the main Drilling EP document and deal with the following matters: (a) Appendix A - Santos' Environment, Health and Safety Policy (b) Appendix B - Legislative Requirements Relevant to the Activity (c) Appendix C - Barossa Development Values and Sensitivities of the Marine and Coastal Environment (d) Appendix D - EPBC Act Protected Matters Searches (e) Appendix E - Stakeholder Consultation Records (f) Appendix F - Santos' Environment Consequences Descriptors (g) Appendix G - Spill Modelling Results Summary (Maximum Values Across All Seasons and Water Depths) 102 As earlier mentioned, the subject of chapter 4 is consultation. Some parts thereof need to be closely considered and are considered by reference to the issues I need to address at [141]-[172]. However, in order to put the specific content in relation to consultation in context, it is helpful to refer mainly by way of background to the other content of chapter 4. Chapter 4 states that the "[s]takeholder consultation on petroleum activities within the Barossa permit area and surrounds has been ongoing since 2004". The chapter provides a summary of the consultations with those persons Santos identified as "relevant persons" for the purpose of preparing the Drilling EP and purports to outline the process of "stakeholder identification" and the assessment of objections and claims received from relevant persons. A summary of the engagement with relevant persons is provided at section 4.1 and relevantly includes the following text (emphasis in original): Consultation on the Barossa Development Drilling and Completions EP (this EP) was undertaken in 2019, but the EP was not submitted to NOPSEMA at this time. Due to the time that had elapsed since the previous consultation, Santos elected to consult again before submission of the EP. In May 2021, relevant persons (Table 4-1) were informed of activities covered in this EP via several consultation channels, including: • meetings in May and June 2021 • distribution of the Barossa Development Drilling and Completions Stakeholder Consultation Package in June 2021 (Appendix E). • distribution of the Barossa Development Drilling and Completions Additional Information for Commercial Fishers Package in June 2021 (Appendix E). Santos has considered all relevant persons' responses and assessed the merits of all objections and claims about the potential impacts and risks of the proposed activities. The process adopted to assess these objections and claims is outlined in Section 4.3. A summary of Santos' response statements to the objections and claims is provided in Table 4-2. Santos considers that consultation with relevant persons has been adequate to inform the development of this EP. Notwithstanding this, Santos recognises the importance of ongoing consultation and notification. 103 Section 4.2 is later extensively considered at [141]-[157]. Section 4.2 (including Table 4-1) is set out as Annexure 1 to these reasons. 104 Section 4.3 describes how relevant persons were contacted, relevantly stating: Relevant persons were contacted by phone or email before or when the Stakeholder consultation packages were provided to increase activity awareness and encourage two-way communication. Other users of the marine environment, principally the commercial fishing sector, were provided personal emails with information tailored to their functions, interests and activities. The consultation package provided to relevant persons contained details such as an activity summary, location map, coordinates, water depth, distance to key regional features, exclusion zone details and estimated timing and duration. The consultation package also outlined relevant potential risks and impacts together with a summary of selected management control measures. All relevant persons were encouraged to provide feedback on the proposed activity. Commercial fishers were provided additional information specific to the fishery within which they operate. Individual fishing licence holders, as identified through sourced data and in consultation with fisheries organisations, were provided the Stakeholder consultation package and Additional information for commercial fishers package by email or post. Stakeholders were afforded four weeks to review consultation packs and provide feedback or indicate their intention to provide feedback or seek further information, although Santos accepted and responded to stakeholder feedback throughout the EP preparation period covering a further eight weeks. 105 I will later address one of the responses made by Santos to the claims made by Mr Tipakalippa that the Drilling EP demonstrates that any consultation that may have been required with the traditional owners of the Tiwi Islands was done through consultation of the Tiwi Land Council (TLC). For that discussion and Mr Tipakalippa's response, that if the TLC was consulted it was not consulted in the informed manner required by reg 11A(2), it is necessary to see the information provided to the TLC by Santos. Annexure 2 to these reasons contains a copy of a "stakeholder consultation package" provided to the TLC and to all persons Santos identified as relevant persons. That material, which is included in Appendix E of the Drilling EP, comprised the "Q2 2021 Barossa Quarterly Update" and a pro forma email distributed on 11 June 2021. In addition to the material in Annexure 2, commercial fishers were provided with "additional information specific to the fishery within which they operate" which was identified through "sourced data" and in consultation with commercial fishers' organisations. That additional information provided detailed information about the impact of the Activity on various fisheries within or adjacent to the EMBA. 106 At section 4.4 and within Table 4-2 Santos provided its summary of its assessment of "all comments received from relevant persons" and noted the processes adopted to address objections and claims from relevant persons. 107 At the conclusion of chapter 4, the Drilling EP describes future intended consultation on the Activity.

The process for acceptance of the Drilling EP 108 The Reasons explain (at [18]) that the Drilling EP was assessed by staff of NOPSEMA who formed an "assessment team". The assessment team comprised "a decision-maker" (it is not clear whether that is an intended reference to the delegate ), a "lead assessor" and "environment technical specialists" with expert knowledge in environmental and marine science relevant to offshore oil and gas activities and their associated impacts and risks. The Reasons go on to state: The assessment included a general assessment of the whole EP and detailed topic assessments of the EP content, as follows: a. Matters protected under Part 3 of the EPBC Act. b. Consultation with a focus on adequacy of consultation with relevant persons. c. Unplanned emissions and discharge scope with a focus on the adequacy of arrangements and capability for timely and effective source control response to a low [sic] of well control event. 109 At [19] of the Reasons, the delegate stated that the decision-maker "accepted the assessment team's recommendations that the [Drilling EP] submission meets all the acceptance criteria set out in regulation 10A of the [Regulations]". The delegate further stated that in deciding to accept "the [Drilling EP] for the activity, I have considered the findings and agree with the conclusions made by the assessment team in relation to the general assessment and each topic assessment". 110 Mr Cameron Charles Grebe, who is the Head of the Division for Environment, Renewables and Decommissioning at NOPSEMA and gave evidence on its behalf, deposed that the delegate was a delegate of the Chief Executive Officer of NOPSEMA. Mr Grebe himself had some oversight over the assessment process as part of his role by which he has overall responsibility for NOPSEMA's regulation of environmental management across offshore activities in Commonwealth waters. He deposed that NOPSEMA uses a database known as the "Regulatory Management System" (RMS) for recording information about its assessment of each environment plan. For each assessment process a file is created in that database, with standard fields that are populated in the course of the assessment, including a record of assessment findings of the assessment team which, according to Mr Grebe, is an iterative record that includes findings and observations made from time to time over the assessment process. He further deposed that the bundle of documents titled 'Bundle of material before the decision-maker filed pursuant to orders made on 17 June 2022' and produced by NOPSEMA in the proceeding contain a document entitled "Assessment Findings" (Assessment Findings document). That document was produced by extracting the assessment team's findings from the relevant database and then setting those out in a table format. Mr Grebe deposed that because of the iterative nature of the relevant field in the RMS database, the Assessment Findings document includes entries from members of the assessment team over the course of the assessment, at various points in time, including before and after the provision of further information by Santos. 111 Over some fifty-four paragraphs, the Reasons explain the assessment process for the Drilling EP and set out the findings (generally made at a high level) by reference to the criteria in the Regulations. The "key materials" considered in making the decision are listed at [20] and include various "NOPSEMA [e]nvironment plan assessment policies guidelines and guidance". Of these and of relevance to a matter I need to consider is a document entitled "NOPSEMA Environment plan content requirements guidance note" (Content Requirement Guidance Note). 112 It is not necessary to refer to the Reasons in respect of each of the criteria assessed. For the issues I need to address, it is sufficient to refer to aspects of the Reasons dealing with reg 13 which requires an environment plan to, inter alia, describe the environment that may be affected including the particular "values and sensitivities" of that environment and the "details of the environmental impacts and risks for the activity". It is also necessary to refer to the way the Reasons deal with the consultation criteria. 113 At [26] of the Reasons and addressing the Drilling EP's description of the environment, the Reasons state that NOPSEMA found that "a thorough description of the physical and biological environment and details of relevant values and sensitivities that may be affected" by the Activity had been provided. The Reasons also note that the description of the environment included the Operational Area as well as an extended area titled "Environment that may be affected (EMBA)". NOPSEMA also state that the EMBA "has been conservatively defined based on stochastic modelling for an unmitigated worst case oil pollution incident to low exposure values consistent with the matters set out in NOPSEMA Bulletin - Oil spill modelling". 114 The values and sensitivities within the Operational Area were identified including the presence of listed threatened species. The values and sensitivities within the EMBA that it was said "may be affected" were also said to have been identified and described in the Drilling EP. The Reasons describe those as follows (emphasis added): i. Australian Marine Parks including the Oceanic Shoals Marine Park, Arafura Marine Park, Ashmore Reef Marine Park, Cartier Island Marine Park. ii. Key ecological features (KEFs) including the Ancient coastline at 125 m depth contour, Ashmore Reef and Cartier Island and surrounding Commonwealth Waters, Continental slope demersal fish communities, Carbonate bank and terrace system of the Sahul Shelf, Seringapatam Reef and Commonwealth waters in the Scott Reef Complex, Carbonate bank and terrace system of the Van Diemen Rise, Pinnacles of the Bonaparte Basin, Shelf break and slope of the Arafura Shelf, Tributary canyons of the Arafura Depression. iii. Biologically important areas (BIAs) for EPBC Act-listed species including habitat critical to the survival of four EPBC Act-listed marine turtles (Green, Hawksbill, Flatback, Olive Ridley). iv. Commonwealth and state/territory managed fisheries, including those identified in the OA and the North-West Slope Trawl Fishery, Coastal Line Fishery, Demersal Fishery, Mackerel Managed Fishery, Northern Demersal Scalefish Fishery. v. Social, economic and cultural features of the environment have been identified and described, relating to aquaculture, traditional Indonesian fishing and Australian recreational fishing, cultural heritage, shipwrecks, tourism, shipping, telecommunication cables, petroleum industry, and defence activities. vi. Presence of listed threatened species, listed threated ecological communities, and listed migratory species has been identified and described including 98 threatened species and 58 listed migratory species as being potentially present in the EMBA. It will be noted that there is no express mention of Indigenous peoples' interests or activities. However, as I will detail shortly at [119], the reference to "cultural heritage" in sub-para (v) is an intended reference to the interests and activities of "Indigenous people" or "traditional owners". 115 At [36] of the Reasons it was stated that in order to accept the environment plan, NOPSEMA must be reasonably satisfied that the criteria in reg 10A are met. The Reasons state that NOPSEMA is reasonably satisfied that the Drilling EP is "appropriate to the nature and scale of the activity" including because: b. The description of the environment is thorough, appropriately considers relevant values and sensitivities (including matters protected under Part 3 of the EPBC Act) and is consistent with the EP content requirements of regulation 13(2) and 13(3). The description of the environment extends to areas that may be affected by potential emergency conditions in the event of an oil pollution incident and is conservatively defined through stochastic modelling of worst-case spill scenarios consistent with NOPSEMA expectations. … d. Relevant person consultation has been incorporated, meeting the EP content requirements in regulation 16(b), and the requirements of regulation 11A which are further addressed below under regulation 10A(g). Responses made by relevant persons are adequately summarised and a reasonable statement of response has been provided, including provision of additional information, clarification of the petroleum activity scope, and confirmation or incorporation of relevant environmental management into the EP. … 116 It is convenient then to set out so much of the section in the Reasons dealing specifically with the consultation criteria including its heading which is of relevance to the issues I need to determine: The EP demonstrates that the titleholder has carried out the consultations required by Division 2.2A, and the measures (if any) that are adopted because of [sic] the consultations are appropriate: regulation 10A(g) 45. NOPSEMA is reasonably satisfied that the [Drilling EP] demonstrates that the titleholder has carried out the consultations required by Division 2.2A and the measures adopted because of the consultations are appropriate because: a. Consultation has taken place with relevant persons as required by regulation 11A. i. Relevant persons were identified and consulted during the course of preparing the plan as required by regulation 11A and set out at Table 4-1 of the [Drilling EP]. The [Drilling EP] includes a method for identification of, and consultation with, relevant persons that is consistent with the definition of relevant person provided by regulation 11A and provides for consideration of correspondence received from organisations or individuals requesting to be consulted as a relevant person (see section 4.2 of the [Drilling EP]). Relevant persons identified included, but was [sic] not limited to: A. Government agencies and departments, such as Australian Maritime Safety Authority, Department of Agriculture, Water and the Environment, Director of National Parks; B. Industry bodies, such as Commonwealth Fisheries Association, Northern Territory Seafood Council; C. Commercial fisheries, such as Northern Prawn Fishery, Austral Fisheries; and D. Community based representative bodies such as the Tiwi Land Council, the Northern Land Council, the Environment Centre Northern Territory and the Australian Marine Sciences Association. ii. The titleholder has provided relevant persons with sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on their functions, interests or activities. Activity specific information was initially provided to relevant persons in the form of the Barossa Development Drilling and Completion Stakeholder Consultation package. The consultation package included an activity summary, location map, coordinates, water depth, distance to key regional features, exclusion zone details and estimated timing and duration. It also outlined relevant impacts and risks together with a summary of selected management control measures and encouraged feedback on the proposed activity. Commercial fishers were provided additional supplementary information specific to the fishery within which they operate. The consultation package provided sufficient information to allow relevant persons to determine if their functions, interests or activities will be affected by the activity, or alternatively to identify that they required further information to make this determination. The titleholder responded to requests made by relevant persons, either through provision of additional information in relation to impacts and risks of the activity, including excerpts of the draft EP while in development, and advice that the EP was publicly available following submission to NOPSEMA, or by clarifying the scope of the activity and where impacts and risks related to the broader project but were not impacts of the activity to which this EP relates. Noting some areas of concern related to the broader project and subsequent phases of development, the titleholder has committed to providing further information with respect to future activities of the project during the consultation processes for relevant EPs for those activities (Section 4 of the [Drilling EP]). 117 The Reasons end with a section headed "Conclusion", which summarises the findings that NOPSEMA was reasonably satisfied that the Drilling EP met each of the criteria set out in reg 10A. Paragraph [53] of that section is set out above at [63]. 118 As the recommendations and findings in the Assessment Findings document were accepted or adopted by the delegate they should be regarded as revealing both the reasoning process and, in so far as they are consistent with the Reasons, the reasoning of the delegate. A number of those findings are relevant to the issues I need to determine. 119 It is apparent from the Assessment Findings document that when the Reasons referred to "cultural heritage" (see 114 above) they had in mind the interests or activities of "Indigenous people" or "traditional owners" which are terms used in the Drilling EP to refer to Aboriginal and Torres Strait Islander peoples. The Assessment Findings contain the following statement by reference to the Drilling EP (emphasis added): Socio economic values are generally adequately described and includes [sic] identification of state and [C]ommonwealth fisheries (see s3.2.5 - summarised on Table 3-9), traditional [I]ndonesian and recreational fishing, oil and gas, defence, shipping, tourism. In terms of cultural heritage, the submission identifies that Sea country is valued for Indigenous cultural identity and Indigenous people have been sustainably using and managing their sea country, including that within the Arafura Marine Park, for tens of thousands of years. Despite limited information and uncertainty, areas have been assumed to be of significance for Traditional Owners. Use of marine resources are, however, reasonably concluded as being generally restricted to coastal waters (p67). The North West Cable System is approx 227km from operational area. 120 The Assessment Findings document includes findings some of which are obviously directed to the Drilling EP (Revision 1) and other findings and observations directed to the final version of the Drilling EP which was accepted. The following findings and observations are of relevance to the matters I need to address and relevantly deal with the consultation criteria in relation to the Drilling EP (Revision 1). They are here grouped and set out in full for completeness. The findings of primary significance are later set out again and discussed: (i) Requirement: Regulation 11A requires that, in the course of preparing an environment plan a titleholder must consult with relevant persons. NOPSEMA's expectation is that the EP must contain a report on all consultations between the titleholder and a relevant person and that report must include the specific requirements set out in subregulation 16(b). The EP must demonstrate that the titleholder has carried out consultation with relevant persons in the course of preparing the EP. The titleholder must provide a reasonable basis for determining who they consider to be 'relevant persons' and name them in the EP (Core concept - EP content requirements Guidance note) [id:https://www.nopsema.gov.au/sites/default/files/documents/2021-03/A339814.pdf] Issue: The EP does not reflect the term relevant person within the EP to provide certainty that regulatory requirements have been met. The submission does not describe a reasonable basis for determining who has been considered to be 'relevant persons' or identified 'relevant persons'. Request: Please amend the submission to provide clarity on the identification of relevant persons. Further, please address the matters raised in letter item xxx regarding consultation. Conclusion: insufficient information (Findings A) Consultation Section 4 Stakeholder consultation - Details relevant regulatory requirements Section 4.1 provides a consultation history and a summary of consultation and specifically details consultation activities undertaken for the purposes of complying with relevant Regulations. The EP states that relevant stakeholders and other interested parties (Table 4- 1) were informed of activities covered in this EP via several consultation channels, including: 1. meetings in May and June 2021 2. distribution of the Barossa Development Drilling and Completions Stakeholder Consultation Package in June 2021 (Appendix E). 3. distribution of the Barossa Development Drilling and Completions Additional Information for Commercial Fishers Package in June 2021 (Appendix E). Regulation 11A(1) - Relevant person ISSUE - the EP doesn't adequately identify who Santos consider relevant persons as defined by the regulation. The EP refers to persons consulted as "relevant stakeholders" or "interested parties". The EP specifically does not use term Relevant persons. As such it is unclear who Santos have classified as being a relevant persons as defined by the [Regulations] (person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan) Section 4.2 details process for identifying "relevant stakeholders" and "interested parties" (relevant persons). The EP states Santos began the stakeholder identification process for this EP with a review of its stakeholder database, including stakeholders consulted for other recent activities in the area. The list of stakeholders was then reviewed and refined based on the defined operational area (refer to Section 2) and the relevance of the stakeholder according to Regulation 11A of the [Regulations], and NOPSEMA Bulletin #2 Clarifying Statutory Requirements and Good Practice Consultation (November 2019). ISSUE - The process for identifying relevant persons for the purpose of consultation does not appear to comply with the requirements of the [Regulations]. Specifically, the process references NOPSEMA Bulletin #2 Clarifying Statutory Requirements and Good Practice Consultation (November 2019) that has been withdrawn and potentially appears to limit relevant persons to only those persons that are directly connected to the operational area. Further while the EP refers to Regulation 11A the EP does not identify the functions interest or activities of the relevant persons. Table 4-1 lists the Stakeholders/Interested Parties that have been consulted in the preparation of the EP and the reason for engagement. The list appears to include relevant State and [C]ommonwealth government agencies / dept, relevant industry bodies, commercial fisheries and "community-based stakeholders". Regulation 11A(2) and 11A(3) - Sufficient information and time ISSUE - While the information contained in the initial "standard" Stakeholder consultation packages provided to relevant persons is generally consistent with the information contained in the EP there are inconsistencies. The consultation information states that the activity consists of 6 wells not 8 as detailed in the EP. Further the consultation pack identifies that the 6 wells will take approx. 18 months to complete. Based on the estimated 90 days to drill each well the activity would take closer to 24 months to complete 8 wells. Otherwise the type of information and level of detail originally provided is consistent with initial consultation material commonly provided to relevant persons for the purposes of 11A, noting that the original information did not provide predicted oil spill volumes / oil spill modeming outputs or estimated greenhouse gas emissions. Commercial fishers were also provided additional information specific to the fishery within which they operate. … Regulation 11A(4) Cover letter sent to conveys [sic] the information required by 11(4)(a) to each relevant person. No one identified that they did not wish to have information published. (Findings B) 121 The following findings and observations dealing with consultation address the Drilling EP as accepted: An issue was raised in relation to consultation: Issue: Relevant persons not defined or listed (letter item 5) Response: Relevant person terminology has now been included, with relevant persons listed. For further assessment see technical consultation topic (Findings C) Consultation - Reg 16(b), Reg 11A Noting the matters raised in the technical assessment for consultation (and how these have been addressed), it can be concluded that the EP has demonstrated the consultation process has been followed and the measures adopted because of the consultations are appropriate because: • The EP demonstrates that effective consultation has taken place, with accurate information provided to stakeholders. Relevant persons have been appropriately identified in accordance with Reg11A, with Table 4.1 providing a description of how stakeholders are considered 'relevant persons' for the proposed activity. Their functions, interests and activities are defined in s4.2. • Information gathered through consultation is included in the EP • Objections and claims have been resolved as far as reasonably practicable - with Table 4.2 summarising feedback and response. • The report on consultation (s4 of the EP) is in line with the content requirements - it includes the consultation process undertaken, how the TH has identified relevant persons, the name of the relevant person consulted, a brief description of their functions, interests and activities, the dates the consultation occurred, the method of consultation, a summary of each response made by a relevant person received during the preparation of the EP and an assessment of the merits of each specific objection or claim with a response or proposed response. (Findings D) Regulation 11A(1) - Relevant person EP has been amended and clearly identifies who Santos consider [to be] relevant persons as defined by the regulation (See Table 4-1). The table has also been amended to provide justification for why they are considered relevant as defined by the [Regulations]. The list of relevant persons and justification appears reasonable. All of the "stakeholders" identified have been classified as a relevant person. Section 4.2 details the stakeholder identification process. While the EP still states that the list was refined based on [the] operational area the EP also states that the relevance of the stakeholder according to Regulation 11A of the [Regulations] was also considered during the identification process. The relevant persons consulted appears reasonable and consistent with previous EPs. Justification for classifying "stakeholders" as relevant persons has been provided and appears reasonable and reference to superseded guidance has been removed. Conclusion - Relevant persons have been adequately identified and classified as relevant persons. … Sufficient Information The type of information and level of detail originally provided to relevant persons via fact sheet is consistent with initial consultation material commonly provided to relevant persons for the purposes of 11A, noting that the original information did not provide predicted oil spill volumes / oil spill modeming outputs or estimated greenhouse gas emissions. Commercial fishers were also provided additional information specific to the fishery within which they operate. … Conclusion Regulation 11A(1) - Relevant persons have been adequately identified and classified as relevant persons. Regulation 11A(2) and 11A(3) - Sufficient information and time - Based on the consultation record it appears that relevant persons have been given sufficient time and information. … (Findings E) 122 I earlier identified that the Content Requirements Guidance Note was referred to in the Reasons as one of the "key materials" that had been considered. That Note was in evidence and some observations about it are relevant. The Note states that it interprets the environment plan content requirements that need to be met and demonstrated under the Regulations. It contains a section (3.11) entitled "consultation report - relevant persons". In that section and under a sub-heading "Core concepts" the Note states that titleholders must provide relevant persons with sufficient information to allow the relevant person to make an informed assessment of the possible consequences of the activity on their functions, interests or activities. A subsection follows the "Core concepts" and is headed "Considerations" (3.11.3). The following observations, amongst others, are there made (emphasis added): • The concept of a 'relevant person' is described in the Environment Regulations (subregulation 11A(1)). In accordance [sic], the titleholder must provide a reasonable basis for determining who they consider to be 'relevant persons' and name them in the EP. The nature and scale of the activity will influence the number and range of stakeholders that may need to be consulted as 'relevant persons.' • The information provided to relevant persons is to be sufficient to allow that person to make an informed assessment of the possible consequences of the activity on their functions, interests or activities. This requires the titleholder to consider the reasons that the person may be affected and ensure the information provided to them is meaningful and relevant in that context. 123 On 29 November 2021, and in furtherance of the observations contained in Findings A and Findings B (amongst other things) NOPSEMA wrote to Santos requesting further information in accordance with reg 9A(1) of the Regulations (Request for Information). A number of requests were made in an attachment which set out the reason for the request and the further information required. Relevantly, and in relation to consultation, the attachment set out the following (emphasis added): Consultation with relevant authorities, persons and organisations Requirement: In the course of preparing an environment plan a titleholder must consult with relevant persons, and meet the requirements of Regulation 11A. The EP must contain a report on all consultations between the titleholder and a relevant person and that report must include the specific requirements set out in sub regulation 16(b). NOPSEMA expects the titleholder to provide a reasonable basis for determining who they consider to be 'relevant persons' and name them in the EP. Issue 1: The EP doesn't clearly identify relevant persons in accordance with Regulation 11A. The EP introduces the terms "relevant stakeholder" and "interested party" to describe persons that have been consulted during the preparation of the EP and it is unclear who are considered by the titleholder to be relevant persons for the purposes of 11A. Request 1: Please confirm whether Santos considers the persons identified in the EP as "relevant stakeholders" and "interested parties" to be "relevant persons" for purposes of regulation 11A(1)(d) or (e). Issue 2: The process for identifying "relevant stakeholders" and "interested parties" in the EP is unclear, as it: • Appears to limit consultation to only those persons that are directly connected to the operational area. • Does not demonstrate that relevant persons have been determined based on their functions, activities and interests. While table 4-1 details the reason for engagement, it does not always clearly identify the relevant person's functions, interest and activities. For example, community-based stakeholders. Request 2: Please explain the process undertaken to identify and consult with 'relevant persons' in accordance with the requirements of regulation 11A. In doing so please ensure that the EP provides a reasonable basis for determining who is considered to be a relevant person, including an adequate consideration of the persons functions, interests and activities. 124 In response to the Request for Information, Santos revised and resubmitted the Drilling EP as "Revision 2". Revision 2 was not in evidence. NOPSEMA's failure to produce it as a document before the decision-maker was not explained. However, I have proceeded on the uncontested basis that the changes made to Revision 1 of the Drilling EP by reason of the request for further information found their way into Revision 3, which is the Drilling EP in the form in which NOPSEMA accepted it. The changes or additional information about consultation provided in response to NOPSEMA's request are set out in an agreed table prepared by the parties which is attached to these reasons as Annexure 3.

CONSIDERATION - GROUND ONE 125 Having set out those of NOPSEMA's tasks relevant to the consultation criteria together with NOPSEMA's reasoning in respect thereof, I now turn to consider the arguments raised. 126 Ground 1 broadly asserted that NOPSEMA did not have jurisdiction to make the Decision because NOPSEMA could not have been reasonably satisfied that the Drilling EP demonstrated that the consultations required by Div 2.2A of the Regulations were carried out. As will become apparent, the substantial allegation here made is that NOPSEMA failed to carry out what I have earlier described as the universe of relevant persons inquiry (see at [82]). That allegation ultimately fell to be considered in two parts. The first concerned Santos' general methodology (or lack thereof) for identifying each person who had to be consulted (the methodological flaw). The second concerned whether a failure to consider material in the Drilling EP dealing with sea country and the interests and activities of traditional owners was demonstrative of a flawed inquiry (the failure to consider flaw).

The Methodological Flaw 127 The basis upon which ground 1 was initially pressed is later discussed. It is convenient to deal first with a basis which developed in the course of the trial and was taken up in questioning by the Court (initially with counsel for Mr Tipakalippa and then with counsel for Santos). That basis raised whether, on the material before it, NOPSEMA could have been reasonably satisfied that the Drilling EP demonstrated that the methodological exercise of identifying each and every relevant person conducted by Santos had been correctly undertaken in accordance with the requirements of the consultation criteria under the Regulations. 128 That basis for challenging the decision was then expressly taken up by Mr Tipakalippa (without objection) in his closing reply submissions. Referring to the holding in One Key that the content of the explanation that an employer had to give employees on the making of an enterprise agreement was a relevant consideration to which the Fair Work Commission was bound to have had regard, Mr Tipakalippa contended that, similarly, in the present case the delegate had to understand the basis by which Santos characterised someone as a relevant person in order to reach the requisite state of satisfaction that the Drilling EP demonstrated that Santos had carried out the necessary consultations. If there was insufficient information provided by the Drilling EP as to the method by which relevant persons were identified, the delegate could not know whether all relevant persons had been consulted and therefore reach the required state of satisfaction. 129 In response, Santos contended that the Drilling EP did describe the process utilised by Santos for identifying relevant persons. It contended that the methodology utilised by Santos to identify what I have earlier called the universe of relevant persons, is described in section 4.2 of the Drilling EP which was said to be a description of the process by which relevant persons were captured. Santos contended that although relevant, the demonstration in the environment plan of a methodology or a basis for identifying whether a person was or was not a relevant person ought not be regarded as some kind of "free-standing test" or a matter integral to reaching a decision as to whether the environment plan demonstrated the requisite consultations had been carried out or be regarded as some "independent legal prerequisite". 130 Santos, however, accepted that NOPSEMA would need to be satisfied that a process of identification of relevant persons had been utilised and that relevant persons has been identified and consulted. Further, it accepted that any such process had to be consistent with the Regulations. It ultimately contended that a reading of section 4.2 of the Drilling EP when read in context with the content of Table 4-1 of the Drilling EP (said to be the product of the process laid out in section 4.2) would enable a conclusion that the process for identifying who were the relevant persons was a process consistent with the Regulations. 131 Santos also relied upon the Reasons, submitting that they record that NOPSEMA was in fact satisfied that the Drilling EP demonstrates that the requisite consultations had been carried out, including, amongst other reasons, because it "includes a method for identification of…relevant persons": Reasons at [45]. 132 In dealing with the competing contentions of the parties on this issue I need only be concerned with the satisfaction of NOPSEMA that, in accordance with reg 11A(1), the Drilling EP demonstrated that each person that should have been identified as a relevant person was so identified. The reasoning employed by NOPSEMA for that inquiry (which I have called the universe of relevant persons inquiry) is discernible from the findings recorded in the Reasons and the findings "considered and accepted" by the delegate and recorded in the Assessment Findings document. 133 It seems clear beyond doubt that NOPSEMA reasoned that the Drilling EP demonstrated that each person who is a relevant person was correctly identified by Santos and classified as such in accordance with the requirements of reg 11A(1). So much is apparent from the findings made at Findings D and Findings E of the Assessment Findings document respectively that "[r]elevant persons have been appropriately identified in accordance with Reg 11A" and "[r]elevant persons have been adequately identified and classified as relevant persons". NOPSEMA 's acceptance of those findings is reflected at [45] of the Reasons which relevantly state that "[r]elevant persons were identified…during the course of preparing the [Drilling EP] as required by reg 11A and set out at Table 4-1 of the [Drilling EP]". The means by which that was demonstrated is then stated: The [Drilling EP] includes a method for identification of, and consultation with, relevant persons that is consistent with the definition of relevant person provided by reg 11A… 134 It is convenient to return to some further observations about reg 11A(1). 135 Whether each relevant person has been identified by an environment plan is an important consideration. A relevant person is a person who "must" be consulted by the titleholder (reg 11A(1)). If not identified as such, the person will ordinarily not be recognised by the titleholder as a person who must be consulted and will not be consulted. The identification exercise is therefore foundational to carrying out the obligation to consult. 136 A relevant person may fall within any of the different descriptions given by paras (a)-(e) of reg 11A(1). Determining who falls within the description in paras (a), (b), (c) and (e) is a relevantly straightforward exercise. I make that observation but need not be detained by that. It is not germane to this case. The description of a relevant person given by para (d) is germane. A relevant person is there described as "a person or organisation whose functions, interests or activities may be affected by the activities to be carried out under the environment plan, or the revision of the environment plan". All persons falling within that description must be identified because to comply with reg 11A(1) the titleholder must consult each of those persons. 137 The description of a relevant person given by reg 11A(1)(d) can raise substantial complexity in the exercise of identifying each and every person falling within that description. Complexity arises for several reasons, including because a broad judgment is called for by the phrase "may be affected". There is also potential for complexity because the number of persons falling within the description may be very large and in numerous categories. There is complexity because the words "functions, interests or activities" must be construed consistently with their intended meaning. Further, there is complexity because the nature and extent of any potential effect of a petroleum activity upon the "functions, interests or activities" of particular persons or the categories of particular persons may be difficult to assess. However, in practical terms and recognising that although consultation must take place in the course of a titleholder preparing an environment plan, those difficulties will largely have to be addressed for reasons other than the requisite consultation process, because other essential aspects of an environment plan which the titleholder is required to prepare include identifying the nature and scale of each impact and risk of the activity the subject of the plan (reg 13(5)(b)), describing the physical environment that may be affected by that activity and the values and sensitivities in that environment which may be affected (reg 13(2))). 138 For the exercise of identifying the universe of relevant persons falling within the description in reg 11A(1)(d), the titleholder will have to be faithful to that description. The titleholder will need to properly understand its proposed activity and at least broadly understand the extent of the physical environment that may be affected, the values and sensitivities in that physical environment and thus the functions, interests or activities of each person or each category of persons that may intersect with that physical environment. 139 The exercise of identifying the universe of relevant persons within the description in reg 11A(1)(d) is capable of being described person by person, category by category, or alternatively, by the titleholder describing the methodology utilised in terms which, as stated above, demonstrate an understanding of the considerations that have to be and which were taken into account in order for the exercise to be faithfully consistent with the description of relevant person in reg 11A(1)(d) (a methodological demonstration). A critical aspect of such a demonstration would be the identification of the totality of the sensitivities and values considered relevant and how each was evaluated to discover their possible intersection with the functions, interests and activities of particular people or organisations. 140 If that were done in an environment plan, NOPSEMA could then properly arrive at the foundational conclusion for the remainder of its tasks in relation to the consultation criteria, that the environment plan demonstrates that the universe of relevant persons was identified by the titleholder consistently with the description of a relevant person provided by reg 11A(1). 141 Moving from the general to the particular, I will commence with an assessment of the content of section 4.2 of the Drilling EP which is the section Santos contended demonstrated that the universe of relevant persons had been correctly identified. I note that the relevant parts of chapter 4 of the Drilling EP here referred to are extracted in Annexure 1 to these reasons. Section 4.2 is headed "Stakeholder Identification". It includes three paragraphs of text followed by Table 4-1. 142 Those three paragraphs state: Santos understands retaining a broad licence to operate depends on the development and maintenance of positive and constructive relationships with a comprehensive group of stakeholders in the community, government, non-government, other business sectors and other users of the marine environment. Fostering effective consultation between Santos and stakeholders is an important part of this process. Santos began the process of identifying relevant persons for this EP with a review of its stakeholder database, including relevant persons consulted for other recent activities in the area. This list was then reviewed and refined based on the defined operational area (refer to Section 2) and the relevance of the stakeholder according to Regulation 11A of the [Regulations]. More specifically, relevant persons for this EP were identified through: • review of legislation applicable to petroleum and marine activities • identification of marine user groups (e.g., commercial fisheries, other oil and gas producers, merchant shipping, etc.) • a request for the most recent commercial fishing data and other relevant information available via the Department of Industry, Tourism and Trade in the Northern Territory (DITT-NT), the Australian Fisheries Management Authority (AFMA) and the Northern Prawn Fishing Industry Pty Ltd (NPFI) • updated fishing licence holder contact details, from these identified fisheries, as provided by DITTNT and AFMA • discussions with identified relevant persons • records from previous consultation • active participation in industry bodies and collaborations • review of correspondence received from relevant persons or organisations requesting to be consulted as relevant persons. 143 The first paragraph is introductory and is directed to demonstrating that Santos understands the importance of consultation. The second paragraph purports to be directed to describing the "process of identifying relevant persons for [the Drilling EP]". That is also the subject of the third paragraph which commences "[m]ore specifically, relevant persons for this EP were identified through". 144 However, those paragraphs do not demonstrate that the process of identifying relevant persons was carried out in accordance with reg 11A(1) in a manner faithful to the descriptions of relevant persons there contained. This is because the information there provided is not capable of demonstrating the matters which a methodological demonstration of the kind earlier mentioned would need to show as the basis for the identification of the universe of relevant persons. That is so, principally because the totality of the values and sensitivities considered by Santos to have been relevant are not given and the means by which each was assessed for the presence of relevant persons is not provided. 145 Rather than demonstrating that relevant persons were identified through a methodological approach of that kind, the text shows that a different, or at least an incomplete approach was taken. The process explained in section 4.2 does little more than identify the data or other sources of information that Santos looked into. Other than the references to "marine user" or "users" and the references to "fishing" or "fishing license holder" there is nothing said about the values and sensitivities considered and in particular the totality of the values and sensitivities Santos considered were relevant and which were assessed in order to identify persons meeting the description in reg 11A(1)(d). Nor is the extent of the environment in which such values and sensitivities were identified and considered given. 146 There is not even an assertion made that all relevant persons were identified in accordance with reg 11A(1). Even if there had been, the "recital of a conclusion on the very question [NOPSEMA] was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the [regulatory] test": One Key at [112]. 147 The assessment is not much assisted by the content of Table 4-1 at least for the purpose of demonstrating the requisite exercise called for by reg 11A(1)(d). Table 4-1 is headed "Drilling activity relevant persons". It has three columns. The first is headed "Stakeholder" which I take to be an intended reference to "relevant person". The second column is headed "Relevant to activity" and the third column is headed "Reason for engagement". 148 Table 4-1 is confined to dealing with those persons who are listed as relevant persons. In the second column it identifies the paragraph of reg 11A(1) and thus the description that Santos considered the person listed satisfied in order to fall within the meaning of relevant person. In the third column an explanation is given (although not necessarily a sufficient explanation) of why each person listed as a relevant person was so considered by Santos. 149 I accept that the table does assist the requisite demonstration somewhat, but really only in relation to those parts of the demonstration concerned with showing whether or not relevant persons falling within the descriptions in paras (a), (b), (c) and (e) of reg 11A(1) were correctly identified by Santos. 150 As to the universe of relevant persons meeting the description in reg 11A(1)(d), Table 4-1 is not much more informative than the text which precedes it because it is not directed to the entirety of that universe of persons but only to those persons which Santos considered fell within it. The information there contained about the eligibility criteria applied to the particular person listed is not sufficient to reveal the criteria applied to persons not listed. It is not possible to know whether every value and sensitivity that should have been identified and assessed for the presence of relevant persons was either identified or properly assessed including the extent of the environment in which the values and sensitivities were identified. 151 Whether read alone or when read in conjunction with the text which proceeds it, Table 4-1 cannot therefore demonstrate that the requisite exercise was performed by Santos by reference to, and only by reference to, the criteria required by reg 11A(1)(d). There was therefore an absence of information necessary to demonstrate that each person within the universe of persons who met the description in para (d) was identified as a relevant person in the Drilling EP. 152 I do not seek to suggest that some relevant and permissible inferences (permissible by reference to the requisite standard of satisfaction being that NOPSEMA had to be "reasonably satisfied") cannot be drawn from either the text or the table in section 4.2. However, the problem is that the available permissible inferences would not reveal the entire picture that needs to be seen in order for NOPSEMA to be able to be perform the universe of relevant persons inquiry. 153 To give one example, what was the extent of the physical environment assessed by Santos for values and sensitivities that may give rise to the existence of relevant persons? Did the environment considered extend to sea country to which the Drilling EP refers, and if so, to which sea country (noting, as is later identified, that the Drilling EP refers to sea country proximate to the Northern Territory (NT) and also Western Australia)? It may be inferred from the contents of section 4.2, that in the performance of its identification exercise related to reg 11A(1)(d), the physical environment and a person's possible association with it was a criterion utilised by Santos. However, in Table 4-1 that environment is variously identified. Often the environment is described as "the operational area" (see eg, entry for the Australian Fisheries Management Authority), on two occasions "the region" (see entries for NT Port Marine and Australian Bay Seafoods), or the "NT" (see entry for Northern Territory Guide and Fishing Industry Association) or "Darwin Harbour" (see entry for Darwin Port). That dispels an inference that a uniform criterion was used such as the EMBA and leaves the extent of the environment that was assessed for values and sensitivities as unknowable. 154 To take another example, whilst it may be inferred that "users of the marine environment" were broadly identified as possibly being relevant persons for the purposes of reg 11A(1)(d), what kind of such users were actually assessed by Santos? Was the assessment confined to commercial users? Did it extend to recreational users or traditional users such as Aboriginal and Torres Strait islanders involved in traditional hunting and gathering activities? Was it confined to Australian users? Were for instance, Indonesian fishing activities (such as those referred to in the Drilling EP) considered? 155 For the reasons stated earlier, NOPSEMA was bound to perform the universe of relevant persons inquiry and by reason of the analysis just made, I am of the view that there was insufficient information provided by the Drilling EP to have enabled NOPSEMA to perform that task. 156 To apply the reasoning and borrow the language of One Key at [113], "the [information necessary to demonstrate that each person within the universe of persons who met the description in reg 11A(1)(d) was identified as a relevant person in the Drilling EP was] a relevant consideration to which [NOPSEMA] was bound to have regard. The absence of that information meant that [NOPSEMA] was not in a position to form the requisite state of satisfaction. Put differently, without knowing [that information] it was not open to [NOPSEMA] to be satisfied [that the Drilling EP met the criteria set out in reg 10A]". 157 It follows from those conclusions that NOPSEMA did not have the requisite state of satisfaction that it was required to have. The necessary precondition to the exercise of its power of acceptance of the Drilling EP did not exist so that the acceptance it gave was not lawfully given. 158 My conclusion that NOPSEMA reached its state of satisfaction in the absence of the information necessary for it to lawfully have arrived at the state of satisfaction required by the Regulations is a conclusion made on the information contained in the Drilling EP. It is not essential but interesting to observe that the insufficiency of that information was at an early stage recognised by the assessment team and sought to be addressed, but that NOPSEMA proceeded to its state of satisfaction despite the continued absence of the necessary information. 159 Like the Drilling EP, section 4.2 of Drilling EP (Revision 1) is headed "Stakeholder Identification". It includes three paragraphs of text and Table 4-1. That material was the subject of critical observations made by the assessment team (or at least a member of the assessment team) as is apparent from Findings A and Findings B (see [120] above). Relevantly, those findings identified two issues of concern: (i) that the environment plan did not provide "a reasonable basis for determining who [Santos] considered to be relevant persons". A concern expressed by reference to the Content Requirement Guidance Note described at [120] above (see Findings A); and (ii) the environment plan refers to persons consulted as "relevant stakeholders" or "interested parties" not as "relevant persons" making it "unclear who Santos have classified as being a relevant persons [sic] as defined by the [Regulations] (person or organisation whose functions, interests or activities may be affected by the activities to be carried under the environment plan)" (see Findings B). 160 Those observations then became the subject of the Request for Information the relevant contents of which are set out at [123] above but for convenience the request which appears to have been made in furtherance of observation (i) above is again set out here: Request 2: Please explain the process undertaken to identify and consult with 'relevant persons' in accordance with the requirements of regulation 11A. In doing so please ensure that the EP provides a reasonable basis for determining who is considered to be a relevant person, including an adequate consideration of the persons functions, interests and activities. 161 That observation made at (i) above and Request 2 appear to be directed at how the universe of relevant persons was identified by Santos. I say that including because the observation references the Content Requirement Guidance Note and the terminology adopted seems to have been taken from section 3.11.3 of that document dealing with consultation which stated this: The concept of a 'relevant person' is described in the Environment Regulations (subregulation 11A(1)). In accordance [with that regulation], the titleholder must provide a reasonable basis for determining who they consider to be 'relevant persons' and name them in the EP. The nature and scale of the activity will influence the number and range of stakeholders that may need to be consulted as 'relevant persons.' 162 That observation and the Request for Information made in furtherance of it were well made because, for essentially the same reasons I have given in relation to section 4.2 of the Drilling EP but to a greater extent, the terms of section 4.2 of the Drilling EP (Revision 1) did not provide the information necessary to demonstrate that the exercise Santos was required to perform to identify the universe of relevant persons conformed with the requirement made by reg 11A. 163 As earlier detailed at [124] above, by reason of the Request for Information, the Drilling EP (Revision 1) was revised, those revisions found their way into Revision 3 and the revisions made have been identified in an agreed document contained in Annexure 3 to these reasons. 164 What is apparent from that annexure is that in section 4.2 (as well as 4.1 and 4.3), where the Drilling EP had previously referred to "relevant stakeholder" or "interested parties" or like expressions, the revisions made mainly (but not entirely) replaced those expressions with "relevant persons". In large part this changed nomenclature can be seen to have been responsive to Request 1 of NOPSEMA's Request for Information which is set out at [123] above but for convenience is also set out below: Request 1: Please confirm whether Santos considers the persons identified in the EP as "relevant stakeholders" and "interested parties" to be "relevant persons" for purposes of regulation 11A(1)(d) or (e). 165 The second category of revision relates to the removal of the reference included in Drilling EP (Revision 1) at the end of the second paragraph of section 4.2 to "NOPSEMA Bulletin #2 Clarifying Statutory Requirements and Good Practice Consultation" (November 2019). That matter was the subject of Findings B and by reference to the observation there made, the revision can be seen to be responsive to the first bullet point under "Issue 2" in the extract from the Request for Information. 166 The remainder of the revisions made were directed to Table 4-1 in two respects. First, an additional column was included headed "Relevant to activity". Next to each of the relevant persons listed in Table 4-1, that column stated the paragraph in reg 11A(1) under which the relevant person was considered to be a relevant person. Second, additional descriptors were added to the "reason for engagement" column in relation to some of the relevant persons listed. Those revisions are also to be seen as responsive to Request 1. 167 The information provided by Santos did not satisfy Request 2. So much can be discerned from the agreed document in Annexure 3 to these reasons and the analysis I have already made in relation to section 4.2 of the Drilling EP. 168 Despite that, the findings made by the assessment team after the further information was provided by Santos do not recognise that Request 2 was not satisfied. 169 The relevant findings are collected at [121] above and are Findings C, D and E. Other than for one finding, the findings there contained, which include all of the findings in the Assessment Findings document of relevance to this issue, seem to be directed to the question of whether the Drilling EP demonstrates that those persons listed as relevant persons were properly identified. The following finding in Findings E (which, unlike the other findings except Findings B, was made directly under a consideration of reg 11A(1)), includes a consideration of "the stakeholder identification process" and whether the list of persons identified as relevant persons was "reasonable". It seems therefore appropriate to address the wider question about the nature of the identification process including in relation to persons not listed. That finding is reproduced at [121] but for convenience is also partially set out again below: Regulation 11A(1) - Relevant person EP has been amended and clearly identifies who Santos consider [to be] relevant persons as defined by the regulation (See Table 4-1). The table has also been amended to provide justification for why they are considered relevant as defined by the [Regulations]. The list of relevant persons and justification appears reasonable. All of the "stakeholders" identified have been classified as a relevant person. Section 4.2 details the stakeholder identification process. While the EP still states that the list was refined based on operational area the EP also states that the relevance of the stakeholder according to Regulation 11A of the [Regulations] was also considered during the identification process. The relevant persons consulted appears reasonable and consistent with previous EPs. Justification for classifying "stakeholders" as relevant persons has been provided and appears reasonable and reference to superseded guidance has been removed. Conclusion - Relevant persons have been adequately identified and classified as relevant persons. 170 The first paragraph of that extract seems to be dealing with the narrower issue relevant to Request 1 as does the last sentence of the second paragraph. However, the second paragraph appears otherwise to be addressing the broader identification process that Santos had to demonstrate had been performed in accordance with reg 11A(1). The basis for the apparent satisfaction that "[r]elevant persons have been adequately identified" is informative. There are two findings made. First, that "the [Drilling EP] also states that the relevance of the stakeholder according to Regulation 11A…was also considered during the identification process". Second, that the "relevant persons consulted appears reasonable and consistent with previous EPs". 171 Putting the subject of the first finding at its highest, that finding can constitute no more than a finding that it was Santos' view that relevant persons were identified in accordance with reg 11A. That self-serving recital of a conclusion cannot provide a sufficient basis for the requisite satisfaction for the reasons given in One Key at [112]. The second finding is curious and also unhelpful given the process required by the Regulations. It seems to rely upon matters not demonstrated by the Drilling EP but by "previous EPs" without any consideration of whether the previous EPs did demonstrate that which has to be demonstrated by the Drilling EP. 172 The basis for that relevant and critical finding (a finding "considered and accepted" by the delegate) demonstrates three things. First, it was not made on information that of itself was capable of demonstrating that Santos had in accordance with reg 11A(1)(d) identified each relevant person. Second, it was not based on information of the kind that had to be included in the Drilling EP in order to demonstrate a process of identification of relevant persons which was compliant with para (d). Third, it shows that the task that NOPSEMA was bound to perform, which the terms of the Drilling EP show could not have been performed, was in fact not performed.

The Failure to Consider Flaw 173 It is not strictly necessary for me to address the basis for ground 1 as initially put by Mr Tipakalippa. However, in case I am wrong on that aspect of ground 1 just determined, I will return to Mr Tipakalippa's initial basis for ground 1. The initial basis overlaps with the basis just determined but has a narrower target because it only seeks to establish error in relation to specific persons not listed in the Drilling EP as relevant persons. The categorisation of those specific persons shifted from, initially, the Munupi clan to, later, the traditional owners of the Tiwi Islands. As the evidence relied upon for this basis was directed generally to all of the traditional owners of the Tiwi Islands rather than just those in the Munupi clan, the latter category became the specific persons in relation to which the contention was put. In any event, whether the argument is put in relation to the narrower or broader grouping is of no significance. 174 It may fairly be said that Mr Tipakalippa's case shifted in many other respects as well. Not inappropriately, the designation 'a moving feast' comes to mind. 175 The proceeding was commenced on an originating application and a supporting affidavit but was not, otherwise conducted on formal pleadings. Concise Statements were exchanged followed by opening written submissions and then closing written submissions filed and exchanged to accompany closing oral submissions. 176 It is perhaps also necessary to acknowledge, in briefly discussing the shifting nature of Mr Tipakalippa's case, that describing legal error and in particular jurisdictional error by reference to some rigid taxonomy of error is not always free of difficulty for many reasons including because there will often be several ways of describing the error. There is, as Aronson et al state, a live debate as to whether a flaw in a decision-maker's lawful satisfaction where that satisfaction is a prerequisite to the exercise of statutory power, also referred to as a "subjective jurisdictional fact", should be labelled a jurisdictional error at all: see Aronson et al (2022) at [5.500] pp 259-260. 177 In large part, the approach initially taken by Mr Tipakalippa to his case was to refer to the error of NOPSEMA under the broad banner of a "lack of reasonable satisfaction" rather than by reference to identifiable categories of jurisdictional error. That is, it was contended that NOPSEMA "could not have been reasonably satisfied that the Drilling EP demonstrated that the consultation required by Division 2.2A of the [Regulations] was carried out". However, the case was broadly recognisable, as put initially, as largely akin to a legal unreasonableness claim based upon the central assertion that NOPSEMA could not have been reasonably satisfied that the Drilling EP demonstrated that consultation of Mr Tipakalippa and other traditional owners of the Tiwi Islands had been carried out by Santos. 178 In Mr Tipakalippa's opening written submission he summarised his case as follows: In this proceeding, the Applicant claims that he, and the Munupi clan, are Tiwi people whose functions, interests or activities may be affected by the activities that are the subject of the Drilling EP, that Santos did not consult with him or other members of the Munupi clan in the course of preparing the Drilling EP, and that the Drilling EP does not demonstrate that any such consultation was carried out. As a result of that failure, the Applicant claims that: a. NOPSEMA could not have been reasonably satisfied that the consultations with members of the Munupi clan required by the Regulations in relation to the Drilling EP were undertaken by Santos; and/or b. the consultations required by the Regulations had not been undertaken by Santos. On either ground, the Applicant claims that NOPSEMA's decision is invalid and should be set aside. He also seeks that NOPSEMA and Santos be prohibited or restrained for [sic] doing any act or thing pursuant to the Drilling EP. 179 The totality of the material that Mr Tipakalippa sought to rely upon for that case raised an unusual approach to the evidence on a judicial review proceeding. I will say more as to why the unusual approach taken to the evidence that should be considered on such an application was misconceived, but for the moment it is necessary to understand that ground 1 was initially a case run by reference to not only the material before the delegate but extensive additional evidence said to be relevant to both that ground and also to ground 2. 180 For the purposes of that case made under ground 1 as initially pursued, Mr Tipakalippa sought by way of evidence not before the delegate (additional evidence) to establish as a fact that: (i) he and the other persons in the Munupi clan had particular "functions, interests or activities" and that they were each a "relevant person" within the description in reg 11A(1)(d); (ii) that those persons were not directly consulted by Santos in relation to the Drilling EP; and (iii) that those persons were not indirectly consulted by Santos by reason of Santos having contacted the TLC, including because the TLC was not their representative in relation to their sea country functions, interests or activities and that, furthermore, Santos knew that the TLC was not actually performing a representative role in relation to those functions, interests or activities because of what Santos had been told in respect of another related environment plan that was being pursued at the time. 181 The third category of evidence just referred to was, as I understand it, sought to be relied upon responsively to the anticipated contention of Santos that consultation with the traditional owners of the Tiwi Islands had been carried out by Santos through contact made with the TLC, a contention in relation to which Santos also sought to establish by evidence the objective fact that such consultation had occurred with the TLC in its capacity as a representative of the traditional owners of the Tiwi Islands. 182 Insofar as any substantiation was sought to be given as to why Mr Tipakalippa sought to establish the above facts by evidence additional to the material before the delegate, Mr Tipakalippa asserted by his opening written submissions that the finding by NOPSEMA that the consultation required by the Regulations had occurred was a material mistake of fact constituting an actual or constructive failure to exercise jurisdiction and an improper exercise of the power to accept the Drilling EP. That suggested that the characterisation of this ground in terms of legal unreasonableness alone may have been insufficient. 183 Having said all that, it remains necessary to appreciate that (without really identifying why) by his written opening submissions Mr Tipakalippa also contended that his case succeeded on the material in the Drilling EP alone. In that respect, he contended that the Drilling EP itself, despite identifying that the EMBA includes significant sea country for traditional owners does not identify traditional owners as relevant persons with whom consultation was undertaken and does not say that consultation was undertaken with Mr Tipakalippa or the Munupi clan. It was contended that there was therefore no evidence or material in the Drilling EP before NOPSEMA that those persons were consulted, despite traditional owners being identified as persons who had an interest in the EMBA and NOPSEMA being on notice that their interests were affected. That was supplemented with the submission that the information in the Drilling EP was sufficient to negative any claim that there was a proper basis for a finding that NOPSEMA was "reasonably satisfied" that the required consultation had occurred because the Drilling EP, on its face, identified that the EMBA includes significant sea country for traditional owners but the Drilling EP did not demonstrate that they were consulted. 184 Mr Tipakalippa's intended reliance upon the additional evidence was the subject of an objection from Santos first made in its opening written submissions. Santos there suggested that the evidence be only received on a provisional basis subject to its objection. Santos recognised that much of the evidence that it sought to rely on would also fall away if its objection was upheld. At the Court's initiative, a case management hearing was convened on 18 August 2022 to canvass whether a more appropriate means for dealing with the evidentiary objections was available. Ultimately and with the benefit of hindsight perhaps unwisely, the need for an expedited hearing mandated that the approach suggested by Santos to dealing with the evidentiary objections was the most convenient approach. 185 Nevertheless, it seems that the debate about the admissibility of the additional evidence which included my own expressions about the doubt I harboured as to its relevance, at the least, caused Mr Tipakalippa to refocus his case under ground 1 which was then characterised in closing submissions as falling into two parts. Firstly, "the narrow case" and secondly, "the broader case". 186 By the time of his closing submission, with some minor exceptions to which I will come, it was only in respect of the broader case that Mr Tipakalippa sought to rely upon the additional evidence in respect of ground 1. At that point, the relevance of that evidence to ground 1 was not pressed on the basis of a contention that there had been a mistake of fact but instead, Mr Tipakalippa sought to rely on a new ground of review based on a contention that NOPSEMA "failed to make an obvious inquiry of Santos about a fact critical in the assessment of the Drilling EP, the failure of which was easily ascertained, being whether the traditional owners of the Tiwi Islands were relevant persons within the meaning of reg 11A(1)(d)". Mr Tipakalippa sought leave to amend his Amended Originating Application to include that contention as a new ground with the intention, as his closing written submissions reveal, of relying upon it under both grounds 1 and 2 of his application. Leave was opposed by Santos on the basis that it would suffer prejudice. The application for leave was refused for reasons I later give at [277] to [280]. 187 The refusal of leave effectively disposed of the broader case under ground 1. Although there were three parts to the broader case and the leave sought was only required in relation to the first part, the second and third parts are replicated in what Mr Tipakalippa characterised as his narrow case. 188 There are three parts to the narrow case. The second and third parts were put in the alternative to the first. They were expressed in Mr Tipakalippa's closing submission as: NOPSEMA could not have been reasonably satisfied that relevant persons were consulted, because the Drilling EP did not demonstrate that consultation with either the TLC or the NLC constituted [consultation] with affected Traditional Owners of the Tiwi Islands (the TLC/NLC Representative basis); NOPSEMA could not have been reasonably satisfied that relevant persons were consulted, because the…Drilling EP did not demonstrate that the consultation with the TLC satisfied the requirements of the Regulations (the Inadequate Consultation basis). 189 The first part of the narrow case was labelled by Mr Tipakalippa's closing written submissions as "the relevant person basis" expressed as follows: NOPSEMA could not have been reasonably satisfied on the material before the decision maker that relevant persons were consulted, because it was on notice that Traditional Owners of the Tiwi Islands may be relevant persons, and the Drilling EP did not demonstrate that they were consulted. 190 In support of this contention, Mr Tipakalippa pointed to a wide range of what I will call "sea country material" contained in the Drilling EP (which I will shortly set out) that he contended showed that the functions, interests or activities of the traditional owners of the Tiwi Islands may be affected by the Activity. He then essentially contended that NOPSEMA failed to properly consider the sea country material in determining whether the Drilling EP demonstrated that each relevant person had been identified and consulted. In particular, Mr Tipakalippa contended that NOPSEMA should have, but had not, engaged with the critical task of comparing the list of relevant persons in the Drilling EP against other information in the Drilling EP about relevant persons, by which he obviously meant the references made to the traditional owners of the Tiwi Islands in the sea country material. 191 This was the first time that, by reference to the material in the Drilling EP alone, Mr Tipakalippa's submissions explained a basis for a finding of error. Read in context, the error was characterised as giving rise to something that a reasonable decision-maker should have done but was not done by NOPSEMA. There are two further failures to engage with particular information identified in the closing submissions under the heading "The Relevant Persons basis", neither of which are necessary to here consider, before the rest of the submission turns to Mr Tipakalippa's responsive or alternative case. 192 What it appears to me was here raised in terms of Mr Tipakalippa's positive case, was an assertion of error recognisable in the taxonomy of jurisdictional error as a 'failure to consider' error. Read fairly and in context, the content of the paragraph which raised it does not assert that the existence of the sea country material in the Drilling EP was not appreciated at all by NOPSEMA but that on what I have called the universe of relevant persons inquiry, NOPSEMA failed to properly engage with that material as it was bound to do. Thus, what was raised for the first time is a failure to consider error, put as a basis for Mr Tipakalippa's case that NOPSEMA could not have been reasonably satisfied that the Drilling EP demonstrated that the consultation required by the Regulations had been undertaken by Santos. 193 That kind of error was not particularised in the Amended Originating Application. Without necessarily seeking to suggest that leave was required, it was pursued by Mr Tipakalippa without any application for leave to amend the Amended Originating Application but without objection from Santos. Santos had an opportunity to respond to that argument by its written and oral closing submissions. 194 I am of the view that I should deal with and determine the asserted 'failure to consider' error, despite harbouring some reservations. I am concerned that, despite raising no objection, Santos may have been unfairly taken by surprise by reason of the lateness and manner in which the argument was both raised and pursued. My concern is confirmed by my view that, by its closing submissions, Santos does not appear to have directly responded to the argument. That may have been because of a strategic choice made by Santos or it may have been because of the limited time available for the Court to receive closing submissions, a fact that may also explain the failure by Mr Tipakalippa's counsel to further develop the argument in closing oral submissions. 195 Being primarily concerned that I have not, in the end, been as assisted by the submissions of the parties as I might have been, I have considered whether I should reconvene the hearing in order to rectify that problem. I have determined not to do that. In so doing I have been influenced by the fact that there is great urgency in the delivery of my judgment, that to reconvene may substantially delay the delivery of that judgment and furthermore that the determination of this basis for ground 1 is not strictly necessary to be done in order for the Court to grant the relief which I have determined to grant. It seems then that, if the determination of this argument will make a difference, it will only do so on an appeal and where the basis upon which I have already determined that Mr Tipakalippa should obtain relief is shown to be wrong. 196 In that context, if I have erred in determining this argument including because my approach denies a party a proper opportunity to be heard or simply because of the lack of assistance provided to me by the parties, that can be rectified on appeal and done so with the benefit of my reasons. 197 I will turn to deal with the 'failure to consider' error first. Before further detailing that case it is convenient that I set out, in summary, the three contentions made by Santos. 198 Santos relied upon three distinct contentions, the third in the alternative to the second. I note here that the second contention was not raised in the Concise Statement in Response of Santos, was only raised in passing in the opening written submissions of Santos and was then developed in closing submissions. That all occurred without objection. I consider that it was a contention in play and that I should deal with it. 199 Turning to the first contention, by its written closing submissions Santos contended that there was nothing in the material upon which Mr Tipakalippa relied that would have led NOPSEMA to draw the conclusion that all Munupi (or the traditional owners of the Tiwi Islands) were relevant persons. However, by its oral closing submissions, I did not understand Santos to be entirely denying that there was material before the decision-maker which alluded to the traditional owners of the Tiwi Islands being traditional owners of sea country within the EMBA. Santos sought, however, to emphasise two matters in order to say that the reliance placed by Mr Tipakalippa on that material was overstated. First, that some of the sea country material relied upon by Mr Tipakalippa emanates from Appendix C of the Drilling EP which, as stated in its introduction, is dealing with the environment that may be affected by various petroleum activities associated with the Barossa Project and not just the activities the subject of the Drilling EP. Appendix C is based on an EMBA more extensive than the EMBA for the Drilling EP extending to the northern coastline of the Tiwi Islands. Second, the references to sea country made by the material were said to be clearly not confined to sea country that could have been regarded as connected to the traditional owners of the Tiwi Islands. 200 In the end, this response was directed to show that the sea country material relied upon by Mr Tipakalippa was insufficient to have induced in NOPSEMA's mind the idea that the traditional owners of the Tiwi Islands should have been identified by the Drilling EP as relevant persons. 201 The second contention provided by Santos took a different approach to the way the material could have been construed by NOPSEMA. It was a contention which, at least initially, was directed at Mr Tipakalippa's broad case understood by Santos to be trying to establish that the traditional owners of the Tiwi Islands were relevant persons as a matter of objective fact. However, Santos contended that the interests of traditional owners in the sea country within the EMBA to which the Drilling EP referred would have been understood by NOPSEMA as having been treated by the Drilling EP as "communal interests" and not the individual interest of any particular traditional owner. On that basis, it was contended that the Drilling EP would have demonstrated to NOPSEMA that the non-identification of traditional owners of the Tiwi Islands as relevant persons was justified because they individually held no interest that may be affected and that any consultation that may have been required with traditional owners who shared communal interests was effectively done at the right level through a body like the TLC "as a community group which corresponds to the community of interest". Santos contended that the delegate was not required to have expressed findings or to explain the understanding held. 202 Santos accepted that the above reasoning is not articulated in the Drilling EP as a reason for why consultation was not carried out with individual traditional owners. Nevertheless, it contended that this was an important step in the reasoning and was discernible from the Drilling EP and that it was open for NOPSEMA to have so concluded including because traditional owners are not treated by the Drilling EP as "relevant persons individually" for the purposes of consultation. 203 Santos' third contention was put in the alternative to what it characterised as its primary answer being the first contention stated above at [199]. The third contention was essentially that the Drilling EP demonstrated that, to the extent that the traditional owners of the Tiwi Islands were relevant persons, they were consulted because the TLC was consulted as the body with the function of representing the traditional owners of the Tiwi Islands. On this contention, Santos argued that the consultation with the TLC would have been "understood" by NOPSEMA to have constituted consultation in respect of the individual interest of the traditional owners. 204 My consideration of the competing contentions commences with a description of the material in the Drilling EP that Mr Tipakalippa contends was not considered or properly engaged with by NOPSEMA. The description is largely taken from the extracts from the Drilling EP set out in Mr Tipakalippa's written submissions but to some extent those extracts have been enlarged or combined in order to put the extracts in their proper context. 205 The material was collected under two categories, the first category being material which directly refers to traditional owners or their traditional activities or culture and suggests that they may have a "function, interest or activity" which may be affected by the Activity: (i) Section 3.2.1 of the Drilling EP describing the "[p]hysical environment" says the following: "The key physical characteristics of the [North Marine Region] and [North-west Marine Region] relevant to the EMBA" include "significant sea country for Traditional Owners" (at page 34). (ii) Within Table 3-10 headed "Socio-economic-related activities that occur or may occur in the operational area and/or environment that may be affected", the entry for "cultural heritage" notes "[u]se of marine resources by Aboriginal and Torres Strait Islander peoples is generally restricted to coastal waters and therefore not expected within the offshore deeper waters of the operational area" (at page 71). (iii) References are also made to impacts and risks for "traditional" fishers within Table 4-2 which provides the "Relevant person consultation summary" (at page 97, 103 and 109). (iv) In the summary of the issues raised by the "Environment Centre - NT" (ECNT), Table 4-2 notes that the ECNT raised concerns over "potential environmental impacts and risks of the activities" on "Tiwi Islands Sea Country" and "other areas of marine or terrestrial Aboriginal Cultural significance and/or heritage" (at page 112). (v) "Vessels may also need to enter marine parks and other areas utilised for tourism, commercial and recreational fishing, and traditional purposes" (at page 220). (vi) In Table 7-15 titled "Physical and chemical pathways for hydrocarbon exposure and potential impacts to receptors" the entry for the socio-economic receptor "[c]ommercial, recreational and traditional fisheries" says: "[h]ydrocarbons in the water column can have toxic effects on fish…potentially reducing catch rates and rendering fish unsafe for human consumption. Impacts on spawning fish can also result in impacts to commercial fisheries" (at page 276). (vii) Later within the same part of Table 7-15 the following is noted: "The same negative impacts could also occur to important traditional Indonesian and recreational fish target species (particularly around the banks and shoals of the region, and Ashmore Reef)" (at page 277). (viii) In Table 7-15 for the receptor of "Indigenous users" the following is noted: "[m]arine resource use by Indigenous people is generally restricted to coastal waters. Fishing, hunting and the maintenance of maritime cultures and heritage through ritual, stories and traditional knowledge continue as important uses of the nearshore region and adjacent areas. While the MEVA [moderate exposure value area discussed in chapter 7, see eg Figure 7-5] is largely offshore, the potential visible presence of surface oil within the EMBA would be of concern to Indigenous people" (at page 278). (ix) Table 7-15 notes that the consequences of an oil spill for "indigenous users" would be "similar to the [impacts] discussed" in relation to fish (at pages 267 to 271). (x) In Table 7-20 titled "Impact, likelihoods and consequence ranking - loss of well control" the entry for "socio-economic receptors" says: "[t]here is potential for temporary disrupt [sic] to fishing activities (traditional, recreational and commercial) due to surface, dissolved or entrained oil. Although only expected in the medium term, the consequence is considered to be Moderate (III) due to the potential significant loss of value to local fishing industries" (at page 294). (xi) In a section of Appendix C to the Drilling EP discussing Australian Marine parks and specifically the Arafura Marine Park, the following is said: "The sea country of the [Arafura] marine park is part of the responsibility of the Yuwurrumu members of the Mandilarri-Ilduji, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans. Sea country is valued for Indigenous cultural identity and Indigenous people have been sustainably using and managing their sea country, including that within the Arafura Marine Park, for tens of thousands of years" (on page 111). (xii) In Appendix C when discussing tourism in the context of the social, economic and cultural features of the environment that may be affected by the Barossa Project the following is said: "Tourism on the mainland of the Tiwi Islands is focussed on fishing, local arts and crafts, and Indigenous cultural tours" (at Appendix C to the Drilling EP on page 119). (xiii) Appendix C also addresses "Indigenous heritage" in the context of the social, economic and cultural features of the environment that may be affected by the Barossa Project at section 14.5.1 and states (emphasis added): Aboriginal and Torres Strait Islander peoples have a strong ongoing association with the area that extends from the beginning of human settlement in Australia some 50,000 years ago. The close, long-standing relationship between Aboriginal and Torres Strait Islander peoples and the coastal and marine environments of the area is evident in indigenous culture today. The Aboriginal and Torres Strait Islander peoples of the northwest continue to rely on coastal and marine environments and resources for their cultural identity, health and wellbeing, as well as their domestic and commercial economies (DEWHA, 2008a). Within the EMBA, the Tiwi Islands have a long history of occupancy by Aboriginal and Torres Strait Islander peoples and the marine areas, particularly the Arafura Marine Park, are significant sea country for Aboriginal and Torres Strait Islander peoples. Marine resource use by Aboriginal and Torres Strait Islander peoples is generally restricted to coastal waters. Fishing, hunting and the maintenance of maritime cultures and heritage through ritual, stories and traditional knowledge continue as important uses of the nearshore region and adjacent areas. However, while direct use by Aboriginal and Torres Strait Islander peoples [of] deeper offshore waters is limited, many groups continue to have a direct cultural interest in decisions affecting the management of these waters. The cultural connections Aboriginal and Torres Strait Islander peoples maintain with the sea may be affected, for example, by offshore fisheries and industries. In addition, some Indigenous people are involved in commercial activities such as fishing and marine tourism, so have an interest in how these industries are managed in offshore waters with respect to their cultural heritage and commercial interests (DEWHA, 2008a). A mapping exercise has been undertaken with the Tiwi Island Land Council to identify environmental and socioeconomic values along the Tiwi Islands coastline (ConocoPhillips, 2019). The mapping exercise focused on the northern, western and southern coastlines of the Tiwi Islands (within the EMBA). It included an initial desktop exercise to identify publicly available environmental, social, cultural and economic datasets. Preliminary maps were developed based on these datasets, and these maps were used during stakeholder engagement workshops held with Tiwi Islanders. Two workshops were held, the objectives of which were to verify the preliminary maps and to gain a more thorough understanding of the environmental, social, cultural and economic sensitivities of the coastlines. Final maps were then developed and presented to the Tiwi Island Land Council. The sensitivity mapping identified Aboriginal heritage sites along the northern, western and southern coastlines of the Tiwi Islands, including areas used for food collection, sacred sites, camping sites and a dreaming site. These coastlines are within the EMBA but outside the permit area. A search of registered Indigenous heritage sites did not identify any specific sites within the Western Australian portion of the EMBA. However, in the Northern Territory portion of the EMBA there are a number of sacred and significant sites located on the Tiwi Islands. There are currently four registered sacred sites on the Tiwi Islands (Aboriginal Areas Protection Authority, 2016). Another 56 sites of significance to Tiwi Islanders have been recorded, including two sites on the NT mainland (Tiwi Land Council, 2003). The Tiwi Islands sites hold importance as they have high spiritual and cultural history value (Tiwi Land Council, 2003). 206 The second category of material was said by Mr Tipakalippa to be material that showed that the Tiwi Islands may be affected by the Activity and from which it could be inferred that the functions, interests and activities of the traditional owners of the Tiwi Islands may be affected: (i) The distance of the Operational Area from the Tiwi Islands (see eg page 34). (ii) The TLC being listed as a relevant person in Table 4-1 with the explanation that "[t]heir function is to represent indigenous residents of the Tiwi Islands. They are the nearest Australian mainland island to the operational area" (at page 94). (iii) The following statements at Appendix C to the Drilling EP on pages 36 and 37: Tiwi Islands are Aboriginal freehold land owned by the Tiwi Aboriginal Land Trust...The Tiwi Islands, and the small islands nearby, support important nesting sites for marine turtles, internationally significant seabird rookeries, and some major aggregations of migratory shorebirds (DLRM, 2009). The sandy beaches on the Tiwi Islands, specifically the west coast of Bathurst Island and the north coast of Melville Island, are particularly important for marine turtle nesting. Nesting is dominated by flatback and olive ridley turtles (Chatto & Baker, 2008). However, green and hawksbill turtles also nest on the Tiwi Islands. Significant numbers of olive ridley turtles are known to nest on the beaches of Seagull Island and the north-west coast of Melville Island… Five seabird breeding colonies have been reported on small offshore islands surrounding Melville and Bathurst islands (Chatto, 2001) that range in size from two to more than 30,000 birds (Chatto 2001). The colony on Seagull Island, off the north-west tip of Melville Island, supports a breeding BIA of about 60,000 crested terns (Woinarski et al., 2003)… The north coast of the Tiwi Islands is recognised as a key site for the conservation of dugongs (PWSNT, 2003). (iv) Section 6.2.4 of the Drilling EP the "Environmental impact assessment" notes: "The closest land from which seabirds may fledge is around 138 km (Tiwi Islands), which do not support breeding colonies of wedge-tailed shearwaters, the species most vulnerable to impacts to artificial light" (at page 165). (v) Figure 3-11 indicating that flatback turtles travel between the Tiwi Islands and the EMBA, reproduced below: 207 Some of the sea country material in the Drilling EP upon which Mr Tipakalippa relied is referred to in chapter 3 and is directed to satisfying the requirement in reg 13(2) and (3) that the Drilling EP include details of relevant values and sensitivities of the environment that may be affected by the Activity and also some from chapter 7 directed at evaluating the impacts and risks appropriate to the nature and scale of each impact and risk arising from the Activity under reg 13(5) and (6). The values and sensitivities with which the material deals are those of or associated with what may broadly be categorised as the sea country of people who are variously referred as "Indigenous" people, "Aboriginal and Torres Strait Islander peoples", "Traditional Owners", "Tiwi Islanders", the "Yuwurrumu members of the Mandilarri-Ilduji, Mangalara, Murran, Gadura-Minaga and Ngaynjaharr clans" (in relation to the Arafura Marine Park). 208 Although it was not characterised as a 'failure to consider' error and essentially dealt with by Mr Tipakalippa' submissions as a basis for a legal unreasonableness error, the essential principle Mr Tipakalippa relies upon is expressed at [109] of One Key and extracted at [67] above, that where a statute vests a power in an administrative decision-maker to do something upon reaching a state of satisfaction and matters the statute requires the decision-maker to take into account are not considered, as a matter of law the requisite state of satisfaction is not reached. Other relevant principles which assist in determining whether or not a matter has been properly considered are sufficiently collected in the observations made in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ) and a consideration of those observations in KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [45]-[54] (Bromberg, Jackson and Feutrill JJ). I need not set out in full the passages in question, I will, however, refer to those authorities and their summation of the principles as the need arises. 209 My consideration of whether NOPSEMA failed to consider the sea country material is made on the basis that such a conclusion "will not lightly be made", the onus lies on Mr Tipakalippa to establish on the balance of probabilities that the material was not considered: KXXH at [47]. 210 The first step in the analysis is whether NOPSEMA was required or bound to consider or engage with the sea country material. The answer to that turns on whether the Regulations so require. As was stated in Plaintiff M1/2021 at [25] "what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content" of the material in question, the "requisite level of engagement - the degree of effort needed by the decision-maker - will vary, amongst other things, according to the length, clarity and degree of relevance of [the material]." 211 There can be little doubt that in relation to a regulatory requirement that NOPSEMA consider whether it is "reasonably satisfied" that an environment plan meets the criteria specified by the Regulations, including relevantly whether the plan "demonstrates" that particular conduct has been carried out, that NOPSEMA is bound to consider the content of the environment plan. Regulation 9A(4) emphasises that requirement by expressly providing that NOPSEMA "must have regard to" information that it has requested from a titleholder and which must be included in a resubmitted plan. However, that does not necessarily entail a requirement that the totality of the material in the environment plan must be considered and engaged with when NOPSEMA assesses the environment plan against each and every particular criteria. The relevant question here is whether NOPSEMA was bound to consider the sea country material in carrying out the universe of relevant persons inquiry. 212 In performing that task, NOPSEMA obviously need not have considered each and every piece of information in the Drilling EP. However, in considering whether the Drilling EP demonstrated that each and every relevant person had been consulted, NOPSEMA was bound to consider material in the Drilling EP which was probative of that consideration. The "requisite level of engagement" with that probative material would then, as was said in Plaintiff M1/2021 at [25] depend, amongst other things, on the "length, clarity and degree of relevance" of the material. 213 The next question is whether the sea country material was probative material on the issue of whether or not the Drilling EP demonstrated that each and every relevant person was consulted. The more probative that it was, the more relevant it was and thus the higher the "requisite level of engagement" would be (Plaintiff M1/2021 at [25]). To my mind the sea country material was probative and relevant for the following reasons. 214 First, by way of a general observation it seems to me that material which is required to be included in an environment plan addressing the values and sensitivities of the environment that may be affected by the activity to be conducted under the plan, is likely to be probative of whether all persons who fall within the description in reg 11A(1)(d) have been properly recognised by the environment plan as relevant persons. That is because material of that kind will likely be revealing of the "functions, interests or activities" of those persons that may be affected by the activity under the environment plan and thus identify those persons as relevant persons. 215 From that observation it may be said that the information required to be provided in an environment plan in order that all values and sensitivities be identified, not only may facilitate but may well have been intended to facilitate NOPSEMA's capacity to properly carry out the universe of relevant persons inquiry. 216 Second, and moving from the general to the particular, the sea country material is probative of whether the Drilling EP demonstrated that each and every relevant person was consulted. For that material to be sufficiently probative does not require that it be sufficient to establish that traditional owners (or some of them) were relevant persons. The sea country material is sufficiently probative because it is of relevance to a fact in issue in the universe of relevant persons inquiry. The material sufficiently suggests the existence of values or sensitivities which may be "functions, interests or activities" of traditional owners that may be affected by the Activity, including the "functions, interests or activities" of the traditional owners of the Tiwi Islands. 217 Its relevance to the universe of relevant persons inquiry goes to the first necessary aspect of that task, which is a consideration of whether the Drilling EP demonstrates that each relevant person who must be consulted was identified or captured by the identification process conducted by Santos. In the context of the list of relevant persons provided by the Drilling EP not including any traditional owners as relevant persons, the sea country material supports the suggestion that the identification process utilised by Santos was inadequate. In particular, because it may have failed to capture traditional owners in respect of their sea country "functions, interests or activities" which may be affected by the Activity, which the sea country material suggests exist. 218 That is the probative nature of the sea country material and it was relevant to the universe of relevant persons inquiry that NOPSEMA was bound to make, at the least to that extent. It follows that NOPSEMA was bound to consider the sea country material at least to the extent of having evaluated and understood the material sufficiently to appreciate its relevance to the inquiry NOPSEMA was bound to undertake. The assessment of the sea country material in terms of what it showed as to whether the Drilling EP demonstrated that each relevant person had been identified and consulted was a matter for NOPSEMA. It is of course possible that NOPSEMA, having appreciated the relevance of the sea country material, came to the view that despite that material, what the Drilling EP had to demonstrate was demonstrated. That assessment was for NOPSEMA to make. The point here is that it had to appreciate the relevance of the sea country material. 219 At this point it is necessary to turn to explain my consideration of the submissions made by Santos. I will commence with the first contention of Santos about the sea country material. As earlier stated I am not sure that the contentions made were properly directed to the 'failure to consider' error. However, I have proceeded on the basis that they are and where necessary, adjusted their focus so as to best capture the response that can be made by Santos to whether the sea country material was actually considered by NOPSEMA on the universe of relevant persons inquiry. 220 I do not consider, as stated above, that Santos ultimately contended that the sea country material had to be capable of leading NOPSEMA to conclude that the traditional owners were relevant persons. If that contention was pressed, it would be wrong for the reasons just stated. The sea country material had to be probative. It did not need to be conclusive to warrant consideration of it by NOPSEMA. I accept the contention of Santos that not all of the sea country material could be construed as relating to the traditional owners of the Tiwi Islands. However, I consider that the material is open to be construed and may fairly be construed as relating to traditional owners including those of the Tiwi Islands, given the express and inferential references made to the Tiwi Islands or their people. Notably, and in relation to the probative nature of the sea country material, Santos itself submitted that: The Drilling EP therefore both acknowledged and assumed that there was sea country in the EMBA. It acknowledged that indigenous cultural heritage values in sea country could be affected by unplanned activities, being a hydrocarbon release resulting from loss of well control or a marine diesel oil spill from a vessel collision. 221 The second contention made by Santos is also relevant, at least in part. That contention is capable of being understood as saying that, the sea country material would have been understood by NOPSEMA, as only identifying communal and not individual interests of traditional owners in sea country and thus did not sufficiently suggest the existence of a "function, interest or activity" to have made the material probative on the universe of relevant persons inquiry. 222 That contention relies upon a meaning of "function, interest or activity" which is decidedly unattractive. If it had been necessary for me to have rejected it I would have, including because I can see no basis for imposing a limitation on the plain meaning of those words because, something which is a function, interest or activity (within the ordinary meaning of those words), is shared with others, or done collectively, or held in common. Is an interest in land not an "interest" because it is held in common or as a joint tenant? Would an activity (even if "activity" only means a "petroleum activity" or a "greenhouse gas activity" as defined by reg 4 and as Santos contended) not be an "activity" because it was being conducted as a joint venture? Nor was there anything suggested by Santos, peculiar to the sea country functions, interests or activities of Aboriginal or Torres Strait Islander peoples that would suggest some basis for any such limitation. 223 In any event, the question here is not whether the sea country material proved the existence of "functions, interests or activities" within the proper meaning of those terms, but whether the material was probative of a fact relevant to demonstrating that such a "function, interest or activity" existed. The sea country material met that requirement. 224 Given my satisfaction that in conducting the universe of relevant persons inquiry NOPSEMA was bound to consider the sea country material, the next issue is whether it was considered at all and to the extent NOPSEMA was bound to consider it as set out above. In that respect, it is necessary to say something more about what is required to consider material to which a decision-maker is bound to have regard. In Plaintiff M1/2021 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ) said: Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. 225 As earlier stated, their Honours went on to say that the level of such engagement or the degree of effort required of the decision-maker will vary including by reference to the extent of the relevance of the material to the issue that the decision-maker is to bound to consider. 226 Mr Tipakalippa's contention was premised on NOPSEMA being "on notice" of the sea country material. It is not clear what was meant by that and whether that entails any concession as to the extent to which NOPSEMA had regard to the sea country material in the universe of relevant persons inquiry. If it does, read in context, what is clearly not conceded is that NOPSEMA had an appreciation of the relevance of the sea country material to the inquiry in which it had to be considered. The material to which I will refer, is open to be understood as demonstrating that the delegate had no regard at all to the sea country material in addressing the universe of relevant persons inquiry. However, I have proceeded on the basis that Mr Tipakalippa should fail on this ground unless, at the least, he satisfies me that, in conducting the universe of relevant persons inquiry, NOPSEMA failed to engage with the sea country material sufficiently to have appreciated its relevance to that inquiry. 227 So far as the Reasons, the findings in the Assessment Findings document and the Request for Information outlined above at [123] are addressing that inquiry, they only do so by reference to the content of section 4 of the Drilling EP, if not entirely, then mainly by reference to section 4.2 of the Drilling EP. As the earlier discussion of that material shows (see [127]-[172] above) the question in the universe of relevant persons inquiry, as to whether the Drilling EP demonstrated that each person that should have been identified as a person with whom Santos must consult, was not there considered or answered by looking at circumstances which may be relevant to any particular person or category of persons. NOPSEMA considered and answered that question globally by reference to an acceptance by it that the process or method adopted by Santos to identify relevant persons was "reasonable" or appropriate. Thus, the substantiation in the Reasons at [45] for the finding that relevant persons were identified in the Drilling EP was given on the basis that the Drilling EP "includes a method for identification…consistent with the definition of relevant persons provided by regulation 11A". A conclusion which, given the context, was likely based or substantially based upon the finding discussed at [121] above that: Section 4.2 details the stakeholder identification process. While the EP still states that the list was refined based on [the] operational area the EP also states that the relevance of the stakeholder according to Regulation 11A of the [Regulations] was also considered during the identification process. The relevant persons consulted appears reasonable and consistent with previous EPs. 228 All of the concerns relevant to that identification process expressed by the assessment team in the findings made by them (which must be taken to have been known to the delegate) are based on global considerations going to the identification process, rather than particular circumstances dealing with particular persons or categories of persons which the Drilling EP may suggest warrant a closer assessment as to whether the process utilised by Santos successfully captured each relevant person. 229 There are two matters then that support the conclusion that, in conducting the universe of relevant persons inquiry, the sea country material was not sufficiently understood and evaluated by NOPSEMA. First, the global and process-focused manner in which the inquiry was conducted suggests that the only information relevantly evaluated was the information in chapter 4 of the Drilling EP and not any information beyond that chapter dealing with circumstances particular or peculiar to a person or category of persons such as that addressed in the sea country material. Second, no reference is made in either the Reasons or the material from which the reasoning process of the delegate may be discerned, that sea country material was evaluated, or considered at all, for the universe of relevant persons inquiry. 230 I accept, as Santos submitted that NOPSEMA was not required to have expressed its findings or to explain the understanding it had about every aspect of its task. It is plainly not necessary for a decision-maker to refer to every piece of evidence and every contention made in its written reasons: KXXH at [52]. Nor does the fact that the decision-maker has not mentioned particular information necessarily mean that it was not considered because the fact that it is not mentioned may simply suggest that the decision-maker considered the information not to be material: KXXH at [54]. However, an inference of that kind need not be made because of the manner in which the statement of reasons is drawn and its surrounding context, for example, because the material is so obviously relevant that it is unthinkable that the decision-maker would not have referred to it if it had actually been considered: KXXH at [54]. Whether the decision-maker has given active consideration to a matter will frequently be a matter of impression reached in the light of all the circumstances of the case: KXXH at [48]. 231 The second contention of Santos about NOPSEMA's asserted understanding as to the communal and not individual interests of traditional owners raised by the sea country material and its third contention, put in the alternative, of NOPSEMA's understanding that if any consultation with the traditional owners of the Tiwi Islands was required it was carried out through the email contact with the TLC were, I think, primarily relied upon as understandings that were open for NOPSEMA to have formed on the material before it. However, as a response to a failure to consider error, it is the understanding that it may be inferred NOPSEMA actually held, rather than those it could have held, which matter. Put another way, the lawfulness of NOPSEMA's state of satisfaction must be found in what NOPSEMA, did not that which it could have but did not do. 232 Accordingly, the second and third contentions made by Santos should be relevantly understood as seeking to demonstrate that the absence of any reference to the sea country material in the Reasons and/or the reasoning process of NOPSEMA does not show a failure to evaluate or engage with that material, but is explained by an inference that should be drawn that the sea country material was not regarded by NOPSEMA as of sufficient significance to the universe of relevant persons inquiry. Either because: (i) the sea country material did not demonstrate the existence of anything that constituted a "function, interest or activity" of any person not included in the Drilling EP as a relevant person because the only suggestion made by the information is of communally held interests and not individual interests; or alternatively (ii) if the sea country material did allude to a "function, interest or activity" of a traditional owner or owners of the Tiwi Islands it was of no moment because it would not suggest that the Drilling EP did not demonstrate that all relevant persons were not consulted, because the Drilling EP demonstrated that through the contact Santos made with the TLC, the traditional owners of the Tiwi Islands were consulted. 233 To address the second scenario above which refers to the TLC, it is necessary to recall that Table 4-1 in section 4.2 of the Drilling EP identified the TLC as a relevant person, stating that Santos had considered the TLC to be a relevant person under reg 11A(1)(d) and then, in the third column headed "Reason for engagement", stating: Their function is to represent indigenous residents of the Tiwi Islands. They are the nearest Australian mainland island to the operational area. 234 Additionally, in Table 4-2 headed "Relevant persons consultation summary" the following extract from that table sets out the information provided in relation to the TLC: Santos contacted TLC via email on 11 June 2021 to offer a briefing on the Barossa Project, including Barossa Development Drilling and Completions EP. TLC was provided the Barossa Development Drilling and Completions Stakeholder Consultation package via email on 11 June 2021 inviting comment. TLC was provided a follow-up email on 2 July 2021 inviting comment. Further contact attempts were made via phone. No response raising issues or concerns has been received to date. TLC receives the Barossa Development Quarterly Consultation Update. The Q2 2021 Update was distributed on 11 June 2021. Santos considers the level of consultation to be adequate and will address any comments from this stakeholder should they arise in the future. 235 I am not persuaded that I should infer that NOPSEMA proceeded on either of the alternative scenarios described above at [232]. Both scenarios call for speculation rather than the drawing of an available inference. 236 The first scenario is based on NOPSEMA having not just read the sea country material but that NOPSEMA considered it and the issues there raised by it thoroughly and at a relatively high level of sophistication. It is unlikely, in my view, that if NOPSEMA had read the sea country material it would have dismissed the relevance of it and regarded it as of insufficient significance because it only suggested the existence of communal and not individual interests. I am of this view for several reasons. First, the construction of reg 11A(1)(d) upon which this contention relies is novel. It strikes me as more likely based on the ingenuity of counsel in this case than that of NOPSEMA. If it were a construction applied by the delegate, that would likely have only occurred because NOPSEMA had developed a policy and probably done so by reference to legal advice. If there was such a policy it would have, like the evidence shows other constructional approaches to reg 11A(1)(d) adopted by NOPSEMA (see Findings B and the observations made about "NOPSEMA Bulletin #2 Clarifying Statutory Requirement and Good Practice Consultation"), found its way into one of the 13 "Environment plan assessment policies, guidelines and guidance" documents prepared by NOPSEMA and provided to assist the delegate. I do not think it likely that the delegate was aware of the construction in question let alone that the delegate applied it. Second, even if the ingenuity originated with the delegate or the assessment team, it is unlikely that it would have been pursued without comment in the Assessment Findings document; without NOPSEMA having considered information about the nature in which Aboriginal and Torres Strait Islander rights and interests in sea country are held such as might be obtained from an anthropologist (noting that such information is not identified in the section of the Reasons which sets out the key materials considered in making the decision and are not produced as part of the material before the delegate); without a call for further information from Santos; and/or without NOPSEMA seeking legal advice. Third, the approach involves a high level of attention being given to an issue on the consultation criteria not apparent in relation to other issues on the subject of that criteria. Fourth and for the reasons already stated, this approach is inconsistent with the global process-focused approach that the Reasons and the reasoning process shows was taken by NOPSEMA in its performance of the universe of relevant persons inquiry. 237 The second scenario is also premised upon NOPSEMA having appreciated the relevance of the sea country material to the universe of relevant persons inquiry but that NOPSEMA resolved any concern raised by concluding that the Drilling EP demonstrated that the traditional owners of the Tiwi Islands had been consulted. That assumes a significant level of attention having been given to the issue. That assumption is also inconsistent with the global purpose-focussed approach taken by NOPSEMA and inconsistent with what tends to be suggested by the content of the Assessment Findings document which suggests that where concerns were identified they were recorded. 238 Further, the second scenario and the third contention made by Santos to which it relates, fails to notice that if the sea country material had raised with NOPSEMA a concern as to whether the traditional owners of the Tiwi Islands had been consulted, it would likewise have raised a concern about other traditional owners which the material also suggested may not have been consulted. 239 As Santos sought to emphasise for other purposes, the sea country material is not confined in its application to sea country likely to be associated with the traditional owners of the Tiwi Islands. For example, it makes reference to the sea country in the Arafura Marine Park as being part of the responsibility of the Yuwurrumu members of the Mandilarri-Ilduji, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (see 205 above). 240 There are other references in the Drilling EP beyond those relied upon by Mr Tipakalippa, to sea country of cultural significance to traditional owners being located in the Ashmore Reef Marine Park, Cartier Island Marine Park and Oceanic Shoals. In relation to that, the Drilling EP states that "it is assumed waters of these parks contain significant sea country for Traditional Owners". Maps and other material in the Drilling EP identify that the Arafura Marine Park is to the north of the NT and that each of Ashmore Reef, Cartier Island and Oceanic Shoals are to the north of the Western Australian coast. 241 On the premise upon which this scenario is based, it is likely that NOPSEMA would have had a far wider concern extending not only to traditional owners in the NT but also into Western Australia. Yet that concern was not recorded, no further information was sought by NOPSEMA in relation to it and Santos does not say how it is that the wider concern was able to be resolved in the mind of NOPSEMA on the information contained in the Drilling EP. I appreciate that Santos might say that the references to the Northern Land Council (NLC) in Tables 4-1 and 4-2 (which are relevantly the same as those set out above at [233] and [234] in relation to the TLC, save that the NLC is described as having the function of representing "indigenous people in the Northern Territory") would have been regarded by NOPSEMA as a representative of traditional owners of the NT and that NOPSEMA would likely have regarded the NLC's inclusion as a relevant person as demonstrating that the traditional owners in the NT were consulted. However, the acceptance of that proposition has at least the same difficulties as those confronted by the same argument made in relation to the TLC which I address below. Tellingly, however, it can say nothing about how the issue raised by the sea country material about traditional owners in Western Australia was resolved by NOPSEMA. There is nothing in the material before me which suggests a basis for postulating how NOPSEMA resolved the position of traditional owners outside of the NT. 242 Even if I were to put that problem to one side, the difficulties that remain for the drawing of the inference which Santos asks me to draw are substantial. Beyond those mentioned already there are other reasons why it is unlikely that, in the context of conflicting indications in the Drilling EP and without seeking further information on the issue, NOPSEMA would have resolved the issue raised by the sea country material in relation to the traditional owners of the Tiwi Islands in favour of the conclusion that the Drilling EP demonstrated that those persons were consulted. 243 Before setting out the indications which tend against NOPSEMA having arrived at that conclusion, I should set out the indicator which supports that possibility. I accept that the words in the "Reason for engagement" column in Table 4-1 that say of the TLC that "[t]heir function is to represent indigenous residents of the Tiwi Islands", suggests that the TLC represents traditional owners of the Tiwi Islands in respect of the kind of functions, interests or activities dealt with by reg 11A(1)(d). 244 A large amount of evidence, not before the delegate, was put before me about the functions and activities of the TLC by both Mr Tipakalippa and Santos. Most of that evidence is inadmissible for the reasons I later give. I have presumed without deciding, again for the reasons I later give, that some of that evidence, being environment plans held by NOPSEMA which are closely related to the Drilling EP (related EPs), is admissible. I have not had to determine the admissibility of that material because, in any event, I have not found it to be sufficiently probative of whether or not NOPSEMA came to the conclusion that the traditional owners of the Tiwi Islands were consulted through the contact made by Santos with the TLC. The material would have been probative if I were satisfied that it was likely known and its relevance appreciated by the delegate in respect of this issue. It is again important to appreciate that I am here involved in trying to discern what the delegate actually did not what the delegate should have done. 245 I have also taken into account statutory material relied upon by Mr Tipakalippa which I did not understand to be the subject of any objection, but again, I have not found that material to be particularly helpful. 246 To exemplify my approach, Mr Tipakalippa relied on a Commonwealth Government Gazette dated 4 August 1978 which he asserted made it clear that the statutory remit of the TLC is limited to the boundary within the distance of 5.56 km of the mean low water line of Melville Island and therefore does not intersect with the EMBA or extend to the significant sea country for the traditional owners of the Tiwi Islands. By reference to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and in particular s 23(1)(a) and (c), Mr Tipakalippa contended that the TLC's statutory role is not to act as an agent for the traditional owners of the Tiwi Islands or to make decisions on their behalf. 247 Accepting, without deciding, that those assertions about the law are correct, I am simply not satisfied that they were likely to have been sufficiently known and appreciated by the delegate. I do not consider that, in this context, constructive rather than actual knowledge will suffice. 248 The related EPs contain some information as to whether, as a matter of fact rather than statutory remit, the TLC has provided assistance to the traditional owners of the Tiwi Islands in relation to those of their interests that may be affected by the activities of Santos in the Timor Sea. Those indications tend to go both ways, but ultimately I am not satisfied that they were likely to be sufficiently known and relevantly appreciated by the delegate on this issue, if the delegate did in fact ever address this issue. 249 I consider therefore that, whether or not I can be satisfied that the suggestion raised by the reference to the function of the TLC in the Drilling EP led NOPSEMA to the conclusion propounded by the second scenario, should be determined by the indications provided by the Drilling EP itself. I have done that taking into account but not giving much significance to the fact that there is some material in Appendix C of the Drilling EP which indicates the involvement of the TLC and traditional owners in a mapping exercise conducted for an earlier but related environment plan. The lack of much significance given is again based upon my view that the material was not likely to have been relevantly appreciated by the delegate in conducting the exercise which is here being presumed. 250 The indications to the contrary in the Drilling EP are numerous. 251 First, NOPSEMA is likely, at least prima facie, to have construed the Drilling EP as only intending to say that a person was consulted where the person was named as a relevant person in the Drilling EP. After all, the list in Table 4-1 would likely have been recognised as having the function of expressly listing those persons who were consulted and, by omission, indicating those persons that Santos did not consult. 252 Second, it is also likely that NOPSEMA would have regarded the express identification of a person as a relevant person was done in Table 4-1 because Santos considered that person had to be consulted by reference to that person's own "function, interest or activity" rather than someone else's. In relation to the listing of the TLC in Table 4-1, the word "function" may have been seen as confirmatory of the TLC having been consulted in its own right and by virtue of the function it was seen to have which may be affected by the Activity. So much may have been confirmed by the fact that there are other organisations listed as relevant persons (one of many examples being the Commonwealth Fisheries Association) who may also be presumed to represent others such as their members, but where those members were separately and individually named as relevant persons. 253 Third, there is nothing in the consultation summary in Table 4-2 dealing with the TLC that mentions the traditional owners of the Tiwi Islands, including any contact made by the TLC of anyone else at all in relation to the emails received from Santos. Fourth, the reference made to Santos' satisfaction that the consultation was adequate is naturally to be read as referring to consultation with the TLC and not with others. Fifth, the information there contained to the effect that the TLC was entirely unresponsive despite being contacted on at least three occasions, may also have raised a doubt or concern as to whether the invitation to engage in consultation had actually reached a person who was likely to have regarded the invitation as of relevance to any representative or other function that that person may have. 254 Sixth, the absence of an express representation in the Drilling EP that the traditional owners of the Tiwi Islands were consulted, in the context of NOPSEMA's other recorded concerns in the Assessment Findings document about Table 4-1 of the Drilling EP (Revision 1) not properly identifying relevant persons, is likely in my view to have raised an equivalent concern for NOPSEMA. However, no such concern is recorded. Such a concern would, in my view, have likely been enlarged or confirmed by the other contra-indicators mentioned above. 255 Seventh, I think it unlikely that in the face of that ambiguity, NOPSEMA would not have at the least made a simple inquiry of Santos asking whether the reference made to the TLC in the Drilling EP intended to suggest or demonstrate that Santos had consulted with the traditional owners of the Tiwi Islands. 256 I am not satisfied that, in the absence of such an inquiry of Santos, NOPSEMA would have been satisfied that it had sufficient information to conclude that the Drilling EP demonstrated that the traditional owners of the Tiwi Islands had been consulted by reason of the consultation asserted to have taken place with the TLC. The extensive power NOPSEMA has to seek further information (reg 9A) as well as its capacity to not accept but not reject an environment plan pending the receipt of information necessary to form the satisfaction that the Regulations require (reg 10(4)), as well as NOPSEMA's preparedness to use that power where in relation to the Drilling EP it came to a view that the information provided was insufficient, strongly support that view. 257 In conclusion, neither of the two scenarios just considered assist to explain away the absence of any record which either demonstrates or even suggests that the relevance of the sea country material was appreciated by NOPSEMA on the universe of relevant persons inquiry it was bound to conduct. The absence of any such record, together with the evidence of the global, process-focussed approach taken to that inquiry, sufficiently satisfies me that the sea country material that NOPSEMA was bound to consider was not considered. That conclusion has not been lightly made. To some extent, it is based on impression but fundamentally, the conclusion is based on an orthodox analysis as to what the correct inference to be drawn is regarding what NOPSEMA did or failed to do. 258 As was stated by a majority of the High Court in Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) a misconception as to what the exercise of statutory power entails is a jurisdictional error (see further One Key at [110]). Here, NOPSEMA's statutory task was to conduct the universe of relevant persons inquiry by reference to all the material in the Drilling EP which was probative to that inquiry. The above analysis does not merely demonstrate that NOPSEMA missed a piece or two of probative information in circumstances where NOPSEMA well understood that in the performance of that task it was required to consider information of that kind. It tends to demonstrate a misconception by NOPSEMA of what that task required. Accordingly, if it had been necessary to decide this aspect of ground 1, I would have decided it in Mr Tipakalippa's favour. 259 I should add two things. First, insofar as Santos contended that because the Drilling EP demonstrated that the TLC was consulted, the delegate must be taken to have been satisfied that the Drilling EP demonstrated that the traditional owners of the Tiwi Islands were consulted, that contention must also be based upon NOPSEMA having concluded that the TLC was an appropriate person to consult with in order to consult with the traditional owners of the TLC. I reject that proposition for the same reasons I have just rejected the basis for it. 260 Second, it has not been necessary for me to decide the "TCL/NLC representative basis" nor the "inadequate consultation basis" of Mr Tipakalippa's narrow case. Each was only pressed in the alternative to that part of the narrow case on which Mr Tipakalippa succeeds. 261 I should say very briefly in relation to the "inadequate consultation basis" that the manner in which Mr Tipakalippa put his case on that issue, precluded a proper consideration of it. The genesis of Mr Tipakalippa's complaint was that NOPSEMA could not have been reasonably satisfied that the information in standard form in the "consultation package" provided to the TLC (see Annexure 2 to these reasons) could constitute consultation with the TLC and the traditional owners of the Tiwi Islands. That was said to be so because there was not sufficient information there provided to enable the TLC to make an informed assessment of the possible consequences of the Activity on the functions, interests or activities of the Tiwi people. 262 That complaint was based on the information not including a map of the EMBA. It was further said that the information did not include any reference to the fact that the drilling activities were to be undertaken in "significant sea country" for traditional owners and Aboriginal and Torres Strait Islander peoples, nor that it provided any information about the nature of what sea-bed drilling involves, the impact of that drilling on sea country, the impact on sea country of a potential spill, or the potential effect on the traditional owners of the Tiwi Islands. 263 However, in order to make an assessment of whether NOPSEMA could not have been reasonably satisfied that the information was sufficiently informative in accordance with reg 11A(2), it would be necessary to know on this alternative case, specifically what it is that I should presume as to what NOPSEMA knew of the nature and extent of the functions, interests or activities of the traditional owners of the Tiwi Islands and how those interests may be affected. If, for instance, NOPSEMA should be presumed to know that the drilling activities "were to be undertaken in significant sea country" of the traditional owners of the Tiwi Islands, as Mr Tipakalippa's submissions seems to suggest, NOPSEMA may have reasonably concluded that it was sufficient for the information to have identified the area of the sea in which the drilling was to take place, making the inclusion of a map of the EMBA unnecessary for the purpose of informing those traditional owners that their interests or activities may be affected.

CONSIDERATION - GROUND TWO 264 By ground 2, Mr Tipakalippa contended that the scheme of the Regulations manifests an intention that if the titleholder does not comply with the consultation requirement in reg 11A, a decision to accept the environment plan which is affected by that non-compliance is invalid. The reasons given as to why the scheme manifests such an intention were, broadly, that: (i) the requirement in reg 10A, that NOPSEMA be reasonably satisfied that the environment plan meets the criterion of demonstrating that the consultations required were carried out, is distinct from the requirement in reg 11A itself; and (ii) the importance which the scheme attaches to compliance with the consultation requirements, as demonstrated by various of its features such as what was said to be the "mandatory nature" and "rule like quality" of the obligations in reg 11A(1) as exemplified by the extensive use of the word "must". 265 The argument is unpersuasive. It ignores a fundamental feature of the scheme that cannot be ignored. 266 For the reasons that follow, I do not accept that the requirement in reg 11A is relevantly distinct from the state of satisfaction that NOPSEMA is required to have under regs 10 and 10A. The requirement under reg 11A has a close nexus with reg 10A and is not independent of it. It may be accepted that the scheme regards compliance with the requisite criteria (not only that specified in reg 11A but all of the criteria set out in in reg 10A) as important. However, the extent of importance which the scheme attaches to compliance is reflected, as it must be, in how the scheme deals with non-compliance and its consequence. 267 The scheme could have provided in reg 10 that where the titleholder complies with the criteria in reg 10A, NOPSEMA must accept the environment plan. If that had been done, compliance with the criteria would have been a jurisdictional fact and the non-satisfaction of a court of the existence of that fact would invalidate NOPSEMA's decision to accept the environment plan. If that had been done non-compliance, as an objective fact, would result in invalidity of NOPSEMA's decision to accept. 268 However, that is not what the scheme intends or has provided for. The jurisdictional fact required by reg 10(1) is not that there has been compliance with the criteria in reg 10A to the satisfaction of a court but that there has been compliance to the reasonable satisfaction of NOPSEMA (ie compliance as a subjective fact). That there has been non-compliance to the satisfaction of a court or in other words, that there have been objective non-compliance, does not have the consequence of invalidating the decision made by NOPSEMA to accept the environment plan. 269 The problem with Mr Tipakalippa's construction is that it is based upon the scheme intending to provide that a court's non-satisfaction that the criteria in reg 10A has been met (or non-compliance as an objective fact), will have the consequence of invalidating any acceptance of the environment plan given by NOPSEMA. Whereas, the only intended consequence of non-compliance is non-satisfaction by NOPSEMA. To treat the objective fact of non-compliance with reg 11A as a basis to invalidate NOPSEMA's decision is to subvert the scheme. In particular, the choice made that only compliance as a subjective fact, rather than as an objective fact, is necessary to sustain the validity of NOPSEMA's decision. Non-satisfaction by a court, or non-compliance as an objective fact, is irrelevant to the scheme. The only role a court may have on judicial review is in assessing the lawfulness of NOPSEMA's satisfaction, being the subjective jurisdictional fact here considered under ground 1 of Mr Tipakalippa's application. The applicable principles have been canvassed already. 270 On the basis of this submission, Mr Tipakalippa contended that the ground in s 5(1)(b) of the ADJR Act was enlivened. Having rejected the submission and thus the basis for the asserted engagement of s 5(1)(b), I reject the proposition that s 5(1)(b) has been engaged. 271 There was some contest between the parties as to whether, within the meaning of s 5(1)(b) of the ADJR Act, a procedure required to be carried out by someone other than the decision-maker could be a procedure of the kind contemplated by that provision. I need not enter that debate. It suffices to say that because his construction of what the Regulations intend or provide for is misconceived, Mr Tipakalippa cannot point to any procedure that was here required by law to be observed by NOPSEMA that was not observed in connection with the making of its decision. For the reasons stated, compliance or non-compliance with the criteria in reg 11A to the satisfaction of a court as an objective fact, or, in the words of Mr Tipakalippa's submission, "factual non-compliance", has no connection whatsoever to the making by NOPSEMA of the decision to accept an environment plan made under reg 10(1). 272 Mr Tipakalippa also contended that "factual non-compliance" led to invalidity under the principle in Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365 at 371, 373 (Duggan's Case), asserting that factual non-compliance may itself constitute a mistake of fact "so fundamental as to vitiate" NOPSEMA's reasonable satisfaction such that NOPSEMA's decision to accept will have been based upon the existence of a fact that did not "exist at all". 273 That contention is also tainted with several misconceptions. Key among them, is that it seems to be responsive to a case not made. Mr Tipakalippa submits by reference to NOPSEMA's Concise Statement in response in this proceeding that NOPSEMA suggested a case that it did not. Mr Tipakalippa seems here to be boxing at shadows. 274 In any event, as "factual non-compliance" has no relevant connection with NOPSEMA's reasonable satisfaction for the reasons already stated, it is difficult to understand how factual non-compliance "can be so fundamental as to vitiate" that satisfaction. On the facts, the principle in Duggan's Case can have no application. Furthermore, there is a question raised by Santos (which I need not determine) as whether the principle in Duggan's case has any application at all in a judicial review proceeding: see Holmes v Deputy Commissioner of Taxation (NSW) (No 2) (1988) 16 ALD 51 at 55 (Davies J). 275 Ground 2 of Mr Tipakalippa's application must therefore be rejected.

REMAINING ISSUES 276 For completeness, a number of subsidiary issues need to be mentioned.

Refusal of Leave to Amend 277 At [186] I have referred to my refusal to grant Mr Tipakalippa leave to raise a new ground of review. That new ground is based on the principle in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 (Wilcox J), that legal unreasonableness or a constructive failure to exercise jurisdiction may be established by evidence showing that a decision-maker failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained. The basis for that refusal may be shortly stated. 278 The new ground is a species of legal unreasonableness. However, although Mr Tipakalippa's existing grounds may also be understood as raising legal unreasonableness, the new ground sought to raise legal unreasonableness by reference to specific facts directed to the question - what information would have been yielded if NOPSEMA had at the relevant time asked Santos whether the traditional owners of the Tiwi Islanders were themselves "relevant persons"? 279 The leave was sought after the close of evidence in circumstances where Santos had no notice that Mr Tipakalippa would seek to rely upon the specific facts relevant to the specific question outlined above, in order to establish that the new ground was made out. Therefore, Santos had no opportunity to adduce relevant evidence or contest any evidence adduced by Mr Tipakalippa relevant to the facts he would seek to rely upon in relation to the new ground. In those circumstances and without the case being reopened, the grant of leave may have been prejudicial to Santos. That prejudice was not to be ameliorated by the reopening of the case because that of itself would have likely been prejudicial to Santos in the circumstances. Furthermore, no acceptable explanation for the lateness of the application for leave to amend was provided by Mr Tipakalippa. 280 In the circumstances the interests of justice dictated that the application for leave to amend should be refused.

Admissibility of Evidence 281 At [180]-[185] I have broadly, but not comprehensively, identified what I have called the "additional evidence", being the evidence adduced by the parties additional to the material that was before the delegate for the purpose of the delegate making the Decision. I have also there stated that the additional evidence was received provisionally and subject to an objection as to its admissibility made by Santos. I have left it to here to explain how I have treated the additional evidence because it is convenient to provide that explanation now that of all of the legal issues raised for determination have been detailed above. 282 I should say at the outset, so that there is no misunderstanding, that there was nothing particularly wrong with the substance of the additional evidence. In fact much of it was given by impressive witnesses including Mr Tipakalippa, Mr Pirrawayingi Puruntatameri, Ms Paulina Jedda Puruntatameri, Ms Carol Maria Puruntatameri, Ms Connie Puruntatameri, Mr James De Santis and Mr Michael Anthony Marren. Their evidence was not relevantly challenged. The only real problem with the additional evidence is that it is not relevant to any legal issue which I have to determine in this proceeding. Overwhelmingly, the additional evidence was only relevant to the issue of whether, as an objective fact, Santos had failed to comply with its obligation under reg 11A(1) to consult each relevant person. For the reasons already given, whether as an objective fact (ie a fact that this Court rather than NOPSEMA has to be satisfied of), Santos failed to consult in accordance with reg 11A(1) is not a matter that arises for determination by this Court by reference to any issue which I have had to determine, including because some issues to which the evidence could have been relevant are unnecessary to determine because the ground in which the issues arise has been dismissed at the threshold. 283 It is useful to note briefly some of the rules of evidence and the applicable principles. 284 Section 55 of the Evidence Act 1995 (Cth) provides that "the evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". Section 56 provides that, "[e]xcept as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding" (subject to other rules which might exclude this evidence on another basis), and "evidence that is not relevant in the proceeding is not admissible". 285 I sought to explain the principles applicable to the admissibility of evidence on an application for judicial review in Chandra v Webber (2010) 187 FCR 31 at [40] in a passage that was recently cited with approval by the Victorian Court of Appeal (Tate, Kyrou and Kennedy JJA) in Mackenzie v Head, Transport for Victoria and Minister for Planning [2021] VSCA 100 (emphasis added): The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: McCormack v The Commissioner of Taxation (2001) 114 FCR 574 at [38]-[40] per Sackville J. The touchstone for the determination of admissibility will usually be relevance. That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon? Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [442] per Weinberg J. However, the admissibility of evidence not before the decision maker depends upon the grounds of review on which the application relies: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540 per Lockhart J; Australian Retailers at [455]; Attorney-General (NT) v Hand (1988) 16 ALD 318 at 319-320 per Wilcox J; and Saint v Holmes (2008) 170 FCR 262 at [54] per Siopis J. 286 Some examples of the classes of evidence that are admissible is given in Mackenzie at [153]. None of those classes are here applicable. 287 I only need to mention two further matters in relation to the evidence. First, I have at [244] presumed, without deciding, that the information in the related EPs is admissible. Ultimately, I found that evidence to be of no assistance. I consider that the evidence may be relevant on the issue there addressed because, given the apparent relationship between that material and the Drilling EP, it was arguable that the related EPs should have been regarded as material before the delegate. That matter should have but was not sufficiently the subject of any evidence. In the circumstances, including because in the end the evidence is of no assistance, I considered it best to proceed on the presumption I have made. 288 Second, Mr Tipakalippa also raised objections to evidence but the evidence in relation to which those objections were raised has not been admitted.

The Meaning of "interests or activities" in reg 11A(1)(d) 289 The meaning of the terms "interests" and "activities" as they appear in the phrase "functions, interests or activities" in reg 11A(1)(d) was the subject of a contest between the parties which took up much effort but the debate has been of little or no assistance. The proper construction of those terms has not been necessary for me to determine in addressing the issues that I needed to. The position may well have been different if it had been the case that it was necessary for me to determine whether there was, as an objective fact, non-compliance with the consultation obligation upon Santos to consult each "relevant person".

CONCLUSION 290 Mr Tipakalippa has failed on ground 2 but has succeeded on ground 1. I have determined that NOPSEMA was not lawfully satisfied that the Drilling EP meets the criteria set out in reg 10A of the Regulations. As NOPSEMA's lawful satisfaction was a necessary precondition of its power to accept the Drilling EP, the Decision to accept the Drilling EP was not legally valid and must be set aside. Pursuant to s 16(1)(a) of the ADJR Act and relying upon each of the grounds in s 5(1)(c), (d), and (f) of that Act, I will make an order setting aside the Decision. 291 Santos has requested that before that order takes effect, it be given a two week opportunity to facilitate the orderly safe shutting down of drilling operations and the removal of the rig. I accept that the order I make should take effect in two weeks' time but on the basis that the undertaking given by Santos and referred to at [19] and [20] above is extended to cover the two week period in question. 292 My preliminary view is that the declaration sought by Mr Tipakalippa is unnecessary, but I will hear the parties as to that and also on the question of costs unless those matters are agreed. If agreed, the parties should inform the Court accordingly. If not agreed, Mr Tipakalippa should file and serve a short submission on or before 27 September 2022 and responding submissions should be filed and served on or before 30 September 2022. I certify that the preceding two hundred and ninety-two (292) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.

Annexure 1 - IDENTIFICATION OF RELEVANT PERSONS The following material has been extracted from chapter 4 of the Drilling EP and Appendix E to the Drilling EP. 4.2 Stakeholder identification Santos understands retaining a broad licence to operate depends on the development and maintenance of positive and constructive relationships with a comprehensive group of stakeholders in the community, government, non-government, other business sectors and other users of the marine environment. Fostering effective consultation between Santos and stakeholders is an important part of this process. Santos began the process of identifying relevant persons for this EP with a review of its stakeholder database, including relevant persons consulted for other recent activities in the area. This list was then reviewed and refined based on the defined operational area (refer to Section 2) and the relevance of the stakeholder according to Regulation 11A of the [Regulations]. More specifically, relevant persons for this EP were identified through: • review of legislation applicable to petroleum and marine activities • identification of marine user groups (e.g., commercial fisheries, other oil and gas producers, merchant shipping, etc.) • a request for the most recent commercial fishing data and other relevant information available via the Department of Industry, Tourism and Trade in the Northern Territory (DITT-NT), the Australian Fisheries Management Authority (AFMA) and the Northern Prawn Fishing Industry Pty Ltd (NPFI) • updated fishing licence holder contact details, from these identified fisheries, as provided by DITTNT and AFMA • discussions with identified relevant persons • records from previous consultation • active participation in industry bodies and collaborations • review of correspondence received from relevant persons or organisations requesting to be consulted as relevant persons. Currently identified relevant persons are listed in Table 4-1. (Table 4-1 commences on next page).

Annexure 2 - CONSULTATION MATERIAL Appendix E - Stakeholder Consultation Records Consultation Correspondence (split across two pages) Consultation Material (see on next page)

Annexure 3 - COMPARISON TABLE The following table is comparison table agreed between the parties and provided to the Court following the hearing. It sets out relevant contents of parts of chapter 4 of the Drilling EP (Revision 1) as submitted to NOPSEMA on 6 October 2021 and the equivalent parts of the Drilling EP as accepted by NOPSEMA on 14 March 2022.