FEDERAL COURT OF AUSTRALIA
Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Subject to these orders, the whole of the declaration made by the Hon Minister Keith Pitt MP on 26 November 2021 under s 14(2) of the National Radioactive Waste Management Act 2012 (Cth) is set aside.
2. On or before 25 July 2023, the respondents are to file and serve written submissions and any affidavit material on the question of whether the relief in paragraph 1 should specify that the declaration be set aside as and from 26 November 2021 (the temporal question) and in relation to any other ancillary orders.
3. On or before 1 August 2023, the applicants are to file and serve written submission and any affidavit material on the temporal question and any other ancillary orders.
4. The temporal question and any other ancillary issues (including as to costs) are set down for argument at not before 4.00pm (ACST) on 7 August 2023, such hearing to be conducted by way of web conference.
5. Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an application for judicial review of a decision made on 26 November 2021 under s 14(2) of the National Radioactive Waste Management Act 2012 (Cth) (NRWM Act) concerning a portion of a parcel of land situated on the Eyre Peninsula in South Australia known as “Napandee” (Decision). The then Minister for Resources and Water declared that a portion of Napandee was selected as the site for the establishment of a radioactive waste management facility. The Minister also specified interests in the land which, by force of s 19(1) of the NRWM Act, were acquired by the Commonwealth or extinguished.
2 The applicants commenced two applications for judicial review seeking (among other things) orders that the Decision be set aside: the first on 20 December 2022 (SAD224/2021) and the second on 18 May 2022 (SAD80/2022). A concurrent hearing of the two applications took place over five days in March 2023.
3 By an administrative order made on 8 May 2023, the two applications were consolidated into this proceeding. The Court made ancillary orders relating to the identity of the parties and the receipt of evidence in the consolidated action. In accordance with the ancillary orders, the applicants filed a Further Amended and Consolidated Originating Application for Judicial Review on 22 May 2023 (Consolidated OA). The Consolidated OA contains those grounds originally advanced in this proceeding and in SAD80/2022, omitting grounds that are no longer pressed.
4 The grounds in the Consolidated OA are numbered in a way that reflects the procedural origins of the two actions. By [1] to [19] (set out on pages 2 to 6), the applicants invoke the Court’s jurisdiction to review the Decision under s 39B(1A)(b) of the Judiciary Act 1903 (Cth) on grounds I will refer to as the Constitution Grounds. By [1] to [11] (set out on pages 6 to 17), the applicants invoke the Court’s jurisdiction to review the Decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) on grounds I will refer to as the ADJR Act Grounds. The ADJR Act Grounds include an allegation that the Decision was affected by apprehended bias.
5 Substantive relief is sought in the following terms:
1. A declaration that paragraph/s (a) and/or (b) of section 4A(3) of the National Radioactive Waste Management Act 2012 (Cth) as inserted by Item 4 of Schedule 3 of the National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Act 2021 (Cth) (No 59 of 2021) are ultra vires the legislative power of the Commonwealth under the Constitution.
2. A declaration that the decision, alternatively decisions, of the First Respondent made on 26 November 2021, to select land described in Attachment A to the document ‘STATEMENT OF REASONS’ and ‘To declare that the land in Attachment A is selected as the site for the National Radioactive Waste Management Facility’ was/were made in excess of jurisdiction, in that the Minister misapprehended the nature of, and rationale for, the ‘facility’ by taking into account a scope of the definition of ‘controlled material’ that was ultra vires.
3. Quash or set aside the Site Selection Decision identified in paragraph (1) under the heading ‘ADJR Grounds’.
4. Quash or set aside the Interests Specification Decision identified in paragraph (2) under the heading ‘ADJR Grounds’.
6 In the above paragraphs I have referred to there being a Decision in the singular. There is some disagreement as to whether the declaration made on 26 November 2021 involved the making of one decision or two. The respondents correctly described that as an arid dispute. The Decision under review is that described in the first paragraph of these reasons.
7 For the reasons that follow, the allegation of apprehended bias is established and the Consolidated OA will be allowed on that basis. All remaining grounds of review are rejected.
8 The first applicant is the Barngarla Determination Aboriginal Corporation RNTBC (BDAC). It is the agent of the holders of native title in land and waters determined by this Court in native title determinations made under the Native Title Act 1993 (Cth) (NT Act), namely: Croft on behalf of the Barngarla Native Title Claim Group v South Australia (No 2) [2016] FCA 724 (Croft 1) as amended in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 3) [2018] FCA 552, and Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) (No 5) [2021] FCA 1132 (together, the Croft Determinations). BDAC does not hold the native title on trust for the native title holders. However, it is responsible for performing functions under s 57 of the NT Act in relation to native title rights and interests of the Barngarla people. BDAC is also named as the second applicant, apparently in a representative capacity “on behalf of the common law holders of native title”. The holders of native title determined to exist in the Croft Determinations include the third applicant, Mr Jason Bilney, and the fourth applicant, Ms Dawn Taylor.
9 The parties’ submissions at times referred to the applicants as the Barngarla people and I may do the same throughout these reasons.
10 Following amendments, the named respondents are the Minister for Resources and The Commonwealth.
11 At the time of the Decision, the Minister responsible for the administration of the NRWM Act was the Hon Keith Pitt MP. He is the relevant decision-maker. In due course it will be necessary to refer to other members of Parliament occupying the office of Minister from time to time. I will refer to the decision-maker as Minister Pitt and the other persons in a similar fashion by their surnames. It is otherwise convenient to refer to the respondents in the plural, notwithstanding that the Commonwealth did not make submissions on the ADJR Act Grounds.
The applicants’ standing
12 In the Croft Determinations this Court recognised that native title exists in large parts of an area of land and waters totalling about 44,500 square kilometres in and around the Eyre Peninsula. Native title was found not to exist within other parts of the land and waters subject to the Croft Determinations.
13 Napandee is a 210.3 hectare parcel of land located roughly west of the town of Kimba. It falls within the external boundaries of the area subject to the Croft Determinations. The effect of the Croft Determinations is that the ancestors of the Barngarla people held native title in the land comprising Napandee at sovereignty. However, that native title was extinguished by the grant of a freehold interest in the land. As a consequence, the native title determined to exist in the Croft Determinations did not include any native title in respect of Napandee.
14 It is common ground that but for that extinguishment the determination in Croft 1 would have included Napandee in the land and waters over which the Barngarla people hold native title rights and interests. The Barngarla people may, in that sense, be referred to as the traditional owners of the land. That is reflected in a statement of agreed facts prepared for the purposes of the Constitution Grounds, which includes the following:
6. Under the traditional laws and customs of the Barngarla People (being the people described in the determinations referred to in paragraph 4), the whole of the land covered by the said determinations was the country of the Barngarla People and, but for extinguishment, would have been subject to native title rights.
7. According to the traditional laws and customs of the Barngarla People, the Barngarla People are the traditional owners of the whole of the area covered by the said determinations.
8. According to the traditional laws and customs of the Barngarla People, the Barngarla People are the traditional owners of Napandee, and of all Aboriginal objects and sites within or partly within Napandee.
15 In Croft 1 the Barngarla people were recognised as the holders of native title in the Pinkawillinie Conservation Park, less than one kilometre south-west of Napandee. That is the most proximate land to Napandee in which the applicants hold native title.
16 As discussed below, the Barngarla people assert that they possess statutory rights relating to Napandee in accordance with State heritage laws, specifically the Aboriginal Heritage Act 1988 (SA) (SA Heritage Act). In light of those interests, the respondents acknowledge that one or more of the named applicants has standing to seek relief in respect of the Decision under the Judiciary Act, the ADJR Act or both. I would add that the act that extinguished native title in the subject land (the grant of freehold title) did not alter the traditional laws and customs of the Barngarla people. The spiritual connection asserted by the Barngarla people under their traditional laws and customs is sufficient to justify their standing to claim relief, in addition to their status as native title holders in nearby Pinkawillinie Conservation Park and their asserted rights under the SA Heritage Act.
17 There remains some dispute as to whether the interests asserted by the applicants amount to a “right or interest in the land” for the purposes of certain provisions of the NRWM Act. In light of what follows I have considered it unnecessary to resolve that dispute. Whether the applicants have a “right or interest in the land” in a proprietary sense is not determinative of the question of their standing.
18 The NRWM Act came into force on 4 April 2012. It was later amended by the National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Act 2021 (Cth) (Amending Act), commencing on 30 June 2021.
19 The object of the NRWM Act (as amended by the Amending Act) is expressed in s 3 as follows:
(1) The object of this Act is to ensure that controlled material is safely and securely managed by providing for:
(a) the selection of a site for a radioactive waste management facility on land in Australia; and
(b) the establishment and operation of such a facility on the selected site.
(2) By ensuring that controlled material is safely and securely managed, this Act, among other things, gives effect to certain obligations that Australia has as a party to the Joint Convention, in particular, Australia’s obligations under Chapters 3 and 4 of the Joint Convention.
20 The Joint Convention referred to in s 3(2) is defined in s 4 to mean the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management done at Vienna on 5 September 1997, as amended and in force in Australia from time to time.
21 The are other relevant definitions in s 4 as follows:
facility means a facility for the management of controlled material.
…
selected site means the site, or the specified part of a site, in relation to which a declaration by the Minister under subsection 14(2) is in effect.
site means a site approved by the Minister under section 9.
22 The phrase “controlled material” is defined in s 4A and will be considered at length later in these reasons.
23 The NRWM Act establishes a framework for a staged decision making process defined by its various Parts and Divisions.
24 Part 2 of the NRWM Act is titled “Nomination of sites”. Relevantly, the Minister may declare in writing under s 6 that nominations of potential sites may be made under s 7. A person or persons may then nominate land as a potential site under s 7, subject to conditions contained in that section and s 8.
25 The power under s 6 is subject to Land Councils (as defined in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)) first having an opportunity to nominate a site: NRWM Act, s 5(1).
26 Section 9(1) of the NRWM Act provides:
Subject to subsection 10(6), the Minister may, in his or her absolute discretion, approve in writing land, or a specified part of land, nominated as a site under section 5 or 7.
27 Division 4 of Pt 2 contains s 10. It specifies the procedural fairness requirements conditioning the powers conferred on the Minister under s 6 and s 9, and is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to those decision making powers: s 10(7). The exhaustive statement in connection with the power in s 6 is as follows:
Declaration under section 6
(1) Before the Minister decides to make a declaration under section 6, the Minister must:
(a) give a notice in writing to each Land Council; and
(b) publish a notice:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, the Australian Capital Territory and the Northern Territory.
(2) A notice under paragraph (1)(a) or (b) must:
(a) state that the Minister proposes to make a declaration under section 6; and
(b) invite comments on the proposed declaration; and
(c) specify the address to which comments may be sent; and
(d) specify the date by which comments must be received, which must be at least 60 days after the notice is given or published.
(3) In deciding whether to make a declaration under section 6, the Minister must take into account any relevant comments in response to an invitation referred to in paragraph (2)(b).
28 The requirements in connection with an approval decision under s 9 are prescribed in s 10(4) to s 10(6), namely:
Approval under section 9
(4) Before the Minister decides to approve land, or a specified part of land, under section 9, the Minister must:
(a) give a notice in writing to each nominator of the land; and
(b) publish a notice:
(i) in the Gazette; and
(ii) in a daily newspaper that circulates generally in each State, the Australian Capital Territory and the Northern Territory; and
(iii) in a local newspaper (if any) circulating in the area in which the land is situated.
(5) A notice under paragraph (4)(a) or (b) must:
(a) state that the Minister proposes to approve land, or a specified part of land, under section 9; and
(b) if the notice is given under paragraph (4)(a)—invite each nominator of the land to comment on the proposed approval; and
(c) if the notice is published under paragraph (4)(b)—invite persons with a right or interest in the land to comment on the proposed approval; and
(d) specify the address to which comments may be sent; and
(e) specify the date by which comments must be received, which must be at least 60 days after the notice is given or published.
(6) In deciding whether to approve land, or a specified part of land, under section 9, the Minister must take into account any relevant comments given to the Minister, by a nominator of the land, or a person with a right or interest in the land, in response to an invitation referred to in paragraph (5)(b) or (c).
29 As can be seen, the obligations conditioning the power under s 9 are narrower than those conditioning the power under s 6. In respect of a decision under s 9, it is only the nominator(s) of the land and those persons with a “right or interest in the land” who must be invited to comment. The phrase “right or interest in the land” is not defined.
30 Part 3 of the NRWM Act is titled “Selecting the site for a facility”. It contains s 11 which authorises the Commonwealth, its entities, employees and agents to “do anything necessary for or incidental to the purpose of selecting a site on which to construct and operate a facility”. Subject to conditions in s 11(4), that authorisation includes (but is not limited to) activities specified in s 11(3), namely accessing the land, constructing bores, collecting samples of flora and fauna, conducting geological and seismic investigations, clearing of vegetation and conducting archaeological and heritage investigations. Section 12 and s 13 provide that certain laws have no effect to the extent that they would otherwise regulate, hinder or prevent the doing of a thing authorised by s 11. They include laws of a State or Territory relating to specified subject matter (s 12(1)) as well as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act): NRWM Act, s 13(1).
Site selection declaration stage
31 The Decision on review was made in the exercise of a power conferred by s 14 of the NRWM Act. It applies if land has been nominated as a site under (relevantly) s 7 and the Minister has approved the nominated land (or a specified part of it) under s 9. Section 14 relevantly provides:
(2) Subject to section 18, the Minister may, in his or her absolute discretion, declare in writing that the site approved by the Minister, or a specified part of the site, is selected as the site for a facility. The declaration may specify all or some of the rights or interests in the selected site.
…
(5) To avoid doubt, rights and interests specified in a declaration under subsection (2) or (4) may include the following:
(a) rights to minerals (if any);
(b) native title rights and interests (if any);
(c) an interest in the land, being an interest that did not previously exist;
(d) an easement in gross (if any).
32 Only one declaration under s 14(2) may be in effect at a particular time: s 16.
33 The Minister may, in his or her absolute discretion, revoke in writing a declaration made under s 14(2): s 17(1). A subsequent declaration is taken to revoke an earlier declaration: s 16(3).
34 Section 18 of the NRWM Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision as to whether to make a declaration under s 14: s 18(5). Like s 10(4), the hearing rule is limited to an invitation to comment extended only to each nominator of the land, and persons with a “right or interest in the land”.
35 Section 19(1) provides:
At the time a declaration under subsection 14(2) takes effect, any rights or interests in the selected site that are specified in the declaration are, by force of this section:
(a) acquired by the Commonwealth or extinguished; and
(b) freed and discharged from all other rights and interests and from all trusts, restrictions, dedications, reservations, obligations, mortgages, encumbrances, contracts, licences, charges and rates.
36 Section 19 has effect despite any other law of the Commonwealth, a State or a Territory, including the Lands Acquisition Act 1989 (Cth) and the NT Act: s 20. Part 7 contains provisions for the payment of compensation in respect of rights or interests acquired, extinguished or otherwise affected.
37 Part 5 of the NRWM Act authorises the conduct of activities on and in relation to the site selected under s 14(2). It applies to the Commonwealth, its entities, contractors, employees and agents. Section 23(2) provides:
A person to whom this section applies may, in relation to the selected site, do anything necessary for or incidental to any or all of the following:
(a) gathering or preparing information for a Commonwealth regulatory scheme that relates to:
(i) the construction or operation of a facility; or
(ii) anything done in preparation for the construction or operation of a facility;
(b) conducting activities that relate to gathering or preparing information for such a regulatory scheme;
(c) preparing the selected site for a facility;
(d) preparing to construct and operate a facility;
(e) constructing a facility;
(f) constructing roads on, or grading, land in a State or Territory;
(g) erecting fences and other access controls on land specified in the declaration under subsection 14(4);
(h) operating a facility;
(i) maintaining a facility;
(j) keeping a facility safe;
(k) decommissioning a facility.
38 In addition, the named persons may do any of the things mentioned in s 11(3): s 23(3).
39 Subsection 24(1) displaces certain State and Territory laws to the extent that they would regulate, hinder or prevent the doing of a thing authorised by s 23. The displaced laws include those relating to:
(a) the use or proposed use of land or premises; or
(b) the environmental consequences of the use of land or premises; or
(c) the archaeological or heritage values of land, premises or objects (including the significance of land, premises or objects in the traditions of Indigenous people); or
(d) controlled material, radioactive material or dangerous goods; or
(e) licensing (however described) in relation to:
(i) employment; or
(ii) carrying on a particular kind of business or undertaking; or
(iii) conducting a particular kind of operation or activity;
40 Section 25 is titled “Application of Commonwealth laws”. It provides:
(1) The regulations may prescribe a law, or a provision of a law, of the Commonwealth for the purposes of this subsection. The prescribed law or provision has no effect to the extent that it would, apart from this subsection, regulate, hinder or prevent the doing of a thing authorised by section 23.
(2) The regulations must not prescribe any of the following laws, or any provision of the following laws:
(a) the Australian Radiation Protection and Nuclear Safety Act 1998;
(b) the Environment Protection and Biodiversity Conservation Act 1999;
(c) the Nuclear Non-Proliferation (Safeguards) Act 1987.
Deemed nominations and approvals
41 Section 3 of the Amending Act provides that legislation specified in a Schedule to that Act was amended or repealed as set out in the applicable items in the Schedule concerned and that “any other item in a Schedule to this Act has effect according to its terms”.
42 Schedule 1 is headed “Site selection”. It does not, in terms, make any amendment to any prior enactment and it is not otherwise contained in the most recent consolidated compilation of the NRWM Act. Item 1 in Sch 1 is titled “Certain land taken to have been nominated and approved”. It then provides that:
For the purposes of the National Radioactive Waste Management Act 2012 (the Act), the following table has effect:
…
43 There then appears a table and further provisions which together specify that certain land is taken to have been nominated as a site under s 7 of the NRWM Act by specified persons, and taken to have been approved by the Minister as a site under s 9. Dates are specified for each event that is “taken” to have occurred. The land specified in the table included Napandee, Wallerberdina and Lyndhurst (the latter two of which are discussed below).
44 The parties did not make submissions about the deeming effect of Sch 1 to the Amending Act. Its apparent purpose is to exclude any challenge by way of judicial review to decisions previously made under or purportedly under s 7 or s 9 of the NRWM Act in respect of the land to which it applies. These proceedings do not involve a challenge to those earlier steps in the statutory process with respect to Napandee and the submissions of both parties otherwise proceeded from the premise that they had been validly undertaken. The factual events leading to the passage of the Amending Act are nonetheless relevant in determining at least one of the grounds of judicial review.
EVIDENCE
45 My rulings as to the use of evidence included a ruling (by consent) that evidence adduced in SAD80/2022 (relating to the Constitution Grounds) before its consolidation into this action not be read in SAD224/2021 (relating to the ADJR Act Grounds), and vice versa. Some evidence in chief was adduced by affidavit, although none of the deponents was required to be cross-examined.
46 In the course of the hearing, I ruled inadmissible a significant quantity of evidentiary material on the basis that it was subject to parliamentary privilege. The parties written submissions and the court book were later redacted so as to ensure that they contained no reference to the excluded material. The parties requested that my oral reasons for that ruling be reduced to writing. Those reasons now appear at [206] to [221] below.
47 Broadly summarised, the ADJR Act Grounds (as amended) allege that the Decision:
(1) was affected by apprehended bias “arising from apparent pre-judgment” by reason of communications involving Minister Pitt prior to the exercise of the power (see [144] to [205] below);
(2) was affected by legal unreasonableness by reason of the Minister having regard to a report that was adverse to the applicants’ interests without first providing them with an opportunity to comment upon it (see [222] to [249] below);
(3) involved an error of law because the Minister proceeded on the erroneous assumption that following the selection and declaration of Napandee as the site for a low level radioactive waste facility, the NRWM Act would permit a further declaration to be made under s 14(2) selecting a facility for the permanent storage or disposal of intermediate radioactive waste (see [251] to [259] below); and
(4) involved a further error of law because the Minister proceeded on the wrong basis that the EPBC Act would mandate the protection of Aboriginal heritage on or under Napandee or the establishment of a management plan for that heritage as part of the establishment of the facility (see [260] to [291] below).
FACTS
Radioactivity and radioactive waste
48 Argument on the ADJR Act Grounds sensibly proceeded from a common factual assumption that, if not carefully managed, radioactive waste may be hazardous to human health and the environment. So much is apparent from the objects of the NRWM Act and the Joint Convention.
49 It is also common ground that the operation of a facility would involve the transport of radioactive waste from other places, and so may affect surrounding land.
The Minister and the Department
50 Minister Pitt became the Minister responsible for the administration of the NRWM Act on 6 February 2020. Prior to that time the responsible Minster was the Hon Matthew Canavan MP (2017 – 2020), before that the Hon Josh Frydenberg MP (2015 – 2016), and before that the Hon Ian MacFarlane MP (2012 – 2014).
51 Over the same period, the name of the government department under the relevant Minister’s supervision also changed. In these reasons it will be referred to simply as the “Department”. From a point in the narrative, the Department also included a division known as the “National Radioactive Waste Management Taskforce”. I will simply refer to it as the “Taskforce”.
Events preceding Minister Pitt’s appointment
52 The factual matters relied upon in support of this ground are expressed in particulars contained in the Consolidated OA, supplemented by a lengthy chronology of events in written closing submissions.
53 For the most part, the objective events are not disputed and are mostly evidenced from the content of documents. The narrative contained in this section of my reasons should be understood as a record of my findings based on the documentary and affidavit material (read subject to my earlier rulings). It includes some additional uncontroversial background to enable the key events to be understood in their broader context.
Nomination and “shortlisting” of Wallerberdina site
54 On 8 September 2014, Minister MacFarlane gave notice that he proposed to make a declaration under s 6 of the NRWM Act to open up a nationwide voluntary process for the nomination of land for the establishment of a facility. He stated in the notice that the Australian Government was “committed to ensuring Australia has an appropriate facility for the management of radioactive waste created within Australia”.
55 On 12 December 2014, Minister MacFarlane made a declaration pursuant to s 6 of the NRWM Act allowing nominations to be made under s 7 from March 2015. By 28 November 2015, 28 nominations had been received. They included a station located in Barndioota (known as Wallerberdina), situated near the South Australian town of Hawker. At that time the nominations did not include Napandee.
56 On 13 November 2015, Minister Frydenberg announced that six of the then nominated sites were to be shortlisted and subject to a 120 day community consultation process. Minister Frydenberg stated that “[t]he outcomes and feedback of the consultation process will help inform the Government’s consideration of the next phase of detailed assessment, which will involve a further shortlist of two to three sites with an expectation of a final site being identified before the end of next year”.
57 As part of that process, on 17 February 2016, Commonwealth officials visited the town of Kimba to hold discussions with the community about the process for selecting a facility. A representative of the Department is reported as saying that nothing would be built without broad community support.
58 On 29 April 2016 Minister Frydenberg announced that he had shortlisted Wallerberdina for the selection of a site for the facility, but he remained open to considering new site nominations.
Nomination of Napandee and Lyndhurst
59 On 2 February 2017, Minister Canavan announced that two further nominations had been received: Napandee and a site that will be referred to as “Lyndhurst”, also located near Kimba. He announced that both would be “subject to a comprehensive analysis”.
Community consultation and assessment
60 On 20 March 2017, Minister Canavan announced that there would be a 90 day community consultation process in relation to both Napandee and Lyndhurst, which would involve a community vote administered by the District Council of Kimba and the Australian Electoral Commission (AEC). He described that as an “early step in a process to determine if either of the newly-volunteered sites should be considered”. He said that “[i]f broad community support is demonstrated for either or both sites, the Australian Government may move to a second detailed technical and community assessment”.
61 By June 2017, Minister Canavan had moved to a further assessment of both the Napandee and Lyndhurst sites, including technical assessments. Minister Canavan stated that progression to that next phase did not constitute a final decision, “rather, we now know that across the community there is broad support for continuing this conversation, and that is what we will do”.
62 An office of the Department was established in Kimba and a committee named the Kimba Consultative Committee (KCC) was also established.
63 In August 2017, the Department wrote to the applicants’ legal representatives welcoming the “opportunity to discuss the heritage aspects of the sites that have been nominated near Kimba with the Barngarla People”. The Commonwealth committed funding for three Barngarla representatives to participate in a Barngarla Heritage Working Group.
64 In February 2018, BDAC’s legal representatives wrote to the Taskforce to advise that it had engaged Dr Dee Gorring to complete a cultural survey of the Kimba area, and requesting access to Napandee and Lyndhurst for that purpose. The Department responded that it did not have the power to facilitate access, and that any assessment by Dr Gorring would be premature.
65 In later correspondence, BDAC expressed concerns about the conduct of a community ballot and a reluctance to provide the report prepared by Dr Gorring (Gorring Report) to the Department. By letter dated 19 July 2018, the Department stated that if a site in Kimba was selected by the Minister, the government would meet with the board of BDAC to negotiate an agreement about how the facility could proceed in a manner that respected and mitigated impacts of the cultural heritage of the Barngarla people, and that “this may include a cultural heritage management plan”.
66 Also in July 2018, the Department received cultural reports in relation to Wallerberdina, Lyndhurst and Napandee. They included a report authored by RPS Australia East Pty Ltd titled “Kimba National Radioactive Waste Management Facility – Aboriginal Heritage Desktop Assessment Report” (RPS Report). It identified the risk that the facility and associated infrastructure would cause harm to tangible and intangible cultural heritage. The RPS Report contains a statement that its preparation did not involve consultation with traditional owners and that it was understood that the Department would consult with the traditional owners “for the purposes of the Aboriginal Cultural Heritage Assessment”. The RPS Report went on to recommend that before a decision is made to select Napandee or Lyndhurst that (as summarised in the applicants’ written submissions):
43.1 consultation with Traditional Owners commence as soon as practicable. Aboriginal people are the primary determinants of their cultural heritage and should be given the opportunity to play an active role in shaping the management of that heritage; and
43.2 a cultural heritage site visit with representatives and knowledge holders from the Traditional Owner community should be conduct [sic] in order to:
43.2.1 Ground-truth the findings of desktop research;
43.2.2 Identify significant unrecorded archaeological sites; and
43.2.3 Identify unrecorded cultural heritage sites and discuss the cultural heritage values of the Study Area(s).
67 On 12 August 2018, the Department gave a presentation to BDAC’s board during which it was said that the facility would permanently dispose of low level radioactive waste and temporarily store intermediate level waste.
68 It is at this point in the chronology that there appears evidence of proposals to amend the NRWM Act, privately raised by the Department with Minister Canavan. The discussion of those proposals ran parallel with the community consultation processes then underway in connection with the selection of a site under the NRWM Act in its then current form.
69 Minister Canavan received a memorandum from the Department dated 31 July 2019 titled “APPROVAL TO PURSUE AMENDMENTS TO THE NATIONAL RADIOACTIVE WASTE MANAGEMENT ACT 2012”. The redacted version in evidence referred to the Minister’s power to declare in writing that a site is selected for a facility. It stated that three sites nominated and approved under the NRWM Act remained “under active consideration for selection as a site to host the facility”. The memorandum continued:
24. Once the amendments are finalised and agreed by you, you will be required to seek the Prime Minister’s agreement.
25. In the event that the amendments were not passed, you may still revoke nominations and undertake a new nomination process (as per Option 2 in Attachment C).
Sensitivities:
26. Introducing amendments is subject to Parliamentary priority and there is a risk that legislative amendments may not pass, or may not pass in timeframes that align with your site selection decision. This may increase the level of public criticism depending on timing.
(emphasis in original)
70 Attached was a draft proposed letter to the Prime Minister seeking “policy approval for a package of amendments”. It contains the following:
I seek your immediate consideration of this legislative amendment package. The timing acknowledges that it is my intent to make a Ministerial declaration of a site to locate the [facility] in late 2019 or early 2020 and that this declaration is likely to attract legal challenges.
71 On 4 September 2019, a representative of the Taskforce wrote to a director of BDAC referring to the connection of the Barngarla people to the area and acknowledging their “cultural heritage knowledge”.
72 The AEC conducted a postal ballot on behalf of the District Council of Kimba between 3 October 2019 and 7 November 2019.
73 Whilst the ballot was underway, Minister Canavan received a further memorandum from the Department dated 17 October 2019 titled “UPDATE ON LEGISLATIVE AMENDMENTS TO THE NATIONAL RADIOACTIVE WASTE MANAGEMENT ACT 2012”. The memo was marked urgent so as to enable “supplementary drafting instructions to be provided to the Office of Parliamentary Counsel to progress the National Radioactive Waste Management Amendment (Community Fund and Other Measures) Bill”. The memorandum notes that on 19 August 2019, Minister Canavan had agreed to proposing legislative amendments to the NRWM Act, the full scope of which cannot be directly ascertained from the redacted copy of the memorandum. The unredacted content refers principally to policy considerations and proposed amendments affecting the National Repository Capital Contribution Fund.
74 The memorandum contained the following statements:
5. This schedule will enable you to make a site selection declaration and acquire property by mid-2020 (pending resolution of current litigation), to enable the [facility] program of work to progress.
…
12. The proposed NRWM legislation package may be referred to a Senate committee for inquiry. If the Bill is referred it may unnecessarily delay the passage of the legislation, and delay the site declaration process. OPC have indicated that it may be advantageous for you to consider referral of the Bill to manage expectations regarding timeframes.
75 A document titled “Site specification decision and Bill consultation timeline” states (and I find) that on 31 October 2019, Minister Canavan “requested a brief that progresses the site specific legislation process”. Neither the request nor the response to it are in evidence. The “site specific legislation” is not detailed in the document, but the meaning of that phrase can be readily inferred from events and statements that follow. Broadly, the proposed amendments were intended to achieve the repeal of s 14 of the NRWM Act (so as to avoid the Minister making a reviewable administrative decision) and the introduction of provisions for the direct identification and acquisition of Napandee as the site for the facility, by force of the statute itself.
76 The same document stated that on 8 November 2019, Minister Canavan wrote to the Prime Minister “to develop legislative amendments”. It is reasonable to infer (and I find) that the amendments there referred to are those recommended in a memorandum from the Department to the Minister dated 4 November 2019 titled “ACTION – SITE SPECIFIC LEGISLATION RELATING TO THE NATIONAL RADIOACTIVE WASTE MANAGEMENT FACILITY”. The memorandum was marked “URGENT – to allow the development of legislative amendments for introduction in the Autumn 2020 sittings”. The memorandum commenced with “Key Points”, including a reference to litigation in this Court by which BDAC had challenged decisions relating to the community ballot, including an appeal to the Full Court which at the time of the memorandum was yet to be heard: see Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092 and Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba (No 2) (2020) 275 FCR 669. Under the heading “Timing considerations” there appeared the following:
11. A category-T (critical) legislation bid is being pursued as a contingency in the event the currently proposed NRWM Act legislative amendment package is not introduced in the current sittings. If status is granted this could be used to introduce and pass the proposed site specific legislative amendments in the Autumn 2020 parliamentary sittings. Your decision on a site for inclusion in the legislative amendments will be required by mid-January 2020 to enable introduction of the Bill before 13 February, or it will automatically revert to a category-A Bill, which would not pass until the Winter 2020 sitting period.
77 The memorandum went on to state that subject to the passage of the amendments “it could be possible to acquire a site via site specific legislative amendments by July 2020” and that the legislation could include amendments relating to a “Community Fund” which were “well progressed”.
78 On 7 November 2019, Minister Canavan announced the results of the AEC ballot in a media release expressed as follows:
The ballot … took place over a five-week period from Thursday 3 October to Thursday 7 November, with the question posed to members of the community being as follows:
‘Do you support the proposed National Radioactive Waste Management Facility being located at one of the nominated sites in the community of Kimba?’
A total 745 ballot papers were returned for scrutiny from the District Council of Kimba, 734 of which were formal votes. Of those:
• 452 (61.58%) voted Yes.
• 282 (38.42%) voted No.
Minister for Resources and Northern Australia, Senator the Hon Matt Canavan, acknowledged the significant level of community support indicated in the ballot result, and thanked those who took part.
‘This ballot result shows a clear level of support for the proposal amongst eligible participants,’ Minister Canavan said.
‘I will consider these results alongside other indicators of community support and technical information about the site, once the Flinders Ranges Council ballot is complete later this year.
…
A decision on whether the facility will proceed in Kimba will not be made until the conclusion in December of the consultation process and ballot for communities near Wallerberdina Station.
79 Four days later, Minister Canavan participated in a radio interview on ABC Eyre Peninsula and West Coast concerning the selection of a site in the Kimba region, in which he mentioned the prospect of legislative amendments:
[PRESENTER]: The supporters of this facility in Kimba were out at the pub celebrating this result; 61 per cent. Is it a done deal?
[MINISTER CANAVAN]: No. It’s not a done deal at this stage. I’ve always said that the community ballot is an extremely important, of course, consideration for the Government but it is just one of the pieces of consultation we’re doing. I do welcome the significant support this result clearly shows and I thank all the members of the community for being involved in this process, 90 per cent participation as well. I thank them very much for that.
I do recognise there is a variety of different views; there always have. There’s never going to be a community that will support this a hundred per cent; I can completely understand those that maybe opposed to it and will respect those views. We are doing other consultations both in Kimba with neighbouring landowners and businesses and the broader Indigenous community in the region. So all of those factors need to come back before any decision is made and you’re probably aware-your listeners might be aware that there’ll be another ballot occurring before Christmas in the Hawker region, Hawker-Quorn and Flinders Ranges region looking at an alternative site there. So once all that information is in by the end of the year, I hope to early next year, look at that in detail and hopefully, make decisions very soon after that.
…
[PRESENTER]: Who has the final say?
[MINISTER CANAVAN]: Well ultimately it'll be the Parliament of Australia. I mean I will at some point, keeping in mind, if we meet all these hurdles, we’ll make a decision one way or another, but in a hypothetical situation, a decision [indistinct] made to proceed with one of the three sites currently under consideration, we have to go back to the Parliament to change the Act and that means we need the support of both the House of Representatives and the Senate. I’d imagine there may be a Senate Inquiry, there often is with legislation of this nature. So there’ll be the normal processes of the Parliament to look at that. Obviously I’ve been talking to the Labor Party, the Greens and Centre Alliance in South Australia as well, keeping them informed about the process and their views will be considered through that as well.
[PRESENTER]: You won’t go to that stage until a site is chosen?
[MINISTER CANAVAN]: Oh yes, that’s right. We may have some draft legislation out at some point before a decision is made, but there won’t be the laws passed until we’ve made those decisions.
80 The results of a community ballot undertaken in relation to Wallerberdina was announced by Minister Canavan in December 2019, together with a statement to the effect that the ballot did not demonstrate sufficient community support and that he no longer considered it an option for the facility.
81 On 3 December 2019, proposed amendments to the NRWM Act were described in a brief to Minister Canavan in relation to an upcoming meeting with the Shadow Minister, the Hon Brendan O’Connor MP. That document also highlighted that the amendments were necessary, at least in part, to respond to the potential legal challenges and their associated delays if the existing framework of requiring a s 14 declaration to be made were to remain. The brief included “talking points” expressed in the first person as follows:
Talking Points
Legislative amendments and site selection decision
• After more than three years of technical studies and community engagement my decision on a site for the Facility is imminent.
• I plan to consider all of the technical and community sentiment information available to me and make an ‘intention to declare’ the site early next year.
• A natural justice period then occurs, of around three months, before I can make my final declaration.
• There remains a risk that my decision may be further delayed by additional legal challenges.
• For example, there is a risk that the Barngarla Determination Aboriginal Corporation (BDAC) may seek an injunction on my decision until their appeal in the Federal Court is heard.
• There is also a risk that if the Federal Court dismissing BDAC’s appeal that they will then apply to the High Court for appeal, further delaying the process.
• These delays negatively impact the social cohesion of the regional communities who have engaged in good faith. There are also cost implications associated with the legal representations, investigating alternative interim waste storage solutions for waste producers and $9.76 million committed in community funding to manage the protracted site selection process.
• To provide greater certainty to the impacted communities and to give parliament a say in this important decision for nationally significant infrastructure, I propose to introduce amendments to the National Radioactive Waste Management Act 2012 that will prescribe a specific site for which the facility will be located.
82 BDAC wrote to Minster Canavan on 12 December 2019 making submissions with respect to both Napandee and Lyndhurst and enclosing a copy of the Gorring Report. By letter dated 22 December 2019 addressed to BDAC’s lawyers, a representative of the Taskforce stated:
4 I have written to BDAC today … inviting them to meet with the department in early 2020. As stated in the letter, we are very keen to meet with BDAC to discuss BDAC’s submission and how we can work together moving forward.
5 Notwithstanding the formal submission process has now formally closed, if BDAC would like to supplement its submission or provide any final comments that it considers the Minister should be aware of in relation to a site selection decision then please provide these … by 5pm on Wednesday 15 January 2020.
83 A draft Communications and Engagement Plan dated 8 January 2020 relating to the site specific legislation, stated that:
After significant technical assessments and community discussions we have selected X near Kimba in South Australia.
84 A document titled “Record of Minister’s assessment of preferred site (as of 21 January 2020)” was completed. Under the heading there appeared this statement:
This document sets out the factors considered in making an assessment of the preferred site for a facility for the safe and secure management of radioactive waste, in line with the objective of the National Radioactive Waste Management Act 2012.
85 The document then set out a “Determination” that “Radioactive waste can be safely and securely managed by the establishment and operation of the facility at Napandee”. The purpose of making the “determination” was not stated on the face of the document. The document did not purport to record a decision having been made under s 14(2) of the NRWM Act (as opposed to a decision made in line with the statute’s objectives).
86 The document contained a discussion of three sites (Wallerberdina, Lyndhurst and Napandee) against four criteria, then concluded with this statement:
Summary of assessment of preferred site
A facility at Napandee will safely and securely manage radioactive waste, and within Kimba, there is broad community support for the project and the economic benefits it will bring. For these reasons Napandee has been identified as the preferred site for the facility.
87 In his affidavit affirmed on 27 October 2022, Mr Jason Bilney deposed (at [77]) that:
In early 2020, Minister Canavan called me directly and advised me that he was going to declare Napandee the site. He said, he was giving me a courtesy call before he announced it. I remember he publicly announced it either later that day or the next day.
88 That evidence was unchallenged and I accept it.
89 On 1 February 2020, Minister Canavan made an announcement by media release. Key passages are extracted here:
After a consultation and technical assessment process spanning more than four years, Napandee in Kimba, South Australia has been identified to host Australia’s National Radioactive Waste Management Facility.
Minister for Resources and Northern Australia Matt Canavan announced the decision today.
‘I am satisfied a facility at Napandee will safely and securely manage radioactive waste and that the local community has shown broad community support for the project and economic benefits it will bring,’ Minister Canavan said.
…
Three volunteered sites in South Australia have been assessed in this detailed phase of the process: Wallerberdina Station, near Hawker, and two sites near Kimba, Napandee and Lyndhurst.
Technical studies … concluded that all sites could safely and securely store radioactive waste with appropriate mitigations.
It was found the complexity and costs associated with the mitigations would be greater at Wallerberdina than at the two Kimba sites, and of those, greater at Lyndhurst than Napandee.
A community ballot undertaken in December 2019 indicated that the majority of the community near Wallerberdina Station did not support the facility (47.33 per cent in favour).
In contrast, 61.6 per cent of voters in Kimba support the proposal. …
‘Based on these technical assessments and community sentiment indicators, I have identified 160 hectares at Napandee to host the facility,’ Minister Canavan said.
‘Napandee was volunteered by the landowner, is suitable from a technical perspective, and has broad community support from those who live and work nearby.
‘Compared to the other site in Kimba (Lyndhurst) establishing the facility at Napandee would be less technically complex, and has stronger support from direct neighbours.’
Minister Canavan said today's announcement concluded a significant step in a consultation and technical assessment process that would continue for years as the facility was designed and delivered.
‘This will include further site-specific technical and regulatory approvals, and close work with Aboriginal communities to identify and protect any heritage’ he said.
‘The facility has broad community support in Kimba but acknowledge there remains opposition, particularly amongst the Barngarla People and their representative group.
‘We will work with Traditional Owners to protect culture and heritage, and to maximise economic opportunities and outcomes for local Aboriginal communities near the future facility.
‘We’ll also work with the Barngarla People on an Aboriginal Cultural Heritage Management Plan to manage heritage values around the site, as well as an Aboriginal Economic and Heritage Participation Plan.
…
‘I will proceed with the project in a way that recognises and respects views of those who oppose the facility, including the Barngarla People and those with agricultural interests,’ he said.
‘I will ensure there is ongoing support for the community and that future planning and development for the facility proceeds in a respectful way.
‘In coming weeks, I will introduce legislation that declares Napandee to be the site of the facility, and establishes a community fund to support Kimba in hosting the facility.
‘Further information supporting my assessment, including submissions, will be publicly released along with the legislation, after privacy and commercial matters have been reviewed.
90 On the same day, the Member for Grey (the Federal electorate in which Napandee is situated), Mr Rowan Ramsey MP, issued a media release welcoming “the announcement” that Kimba had been selected to host the facility and stating that Napandee had been selected from three sites under consideration.
91 By email of the same date, BDAC sought reasons for the decision Minster Canavan had announced that day.
92 In an article published by The Advertiser on 2 February 2020, Minister Canavan was quoted as saying:
Federal Resources Minister Matt Canavan defended the process to choose the site, saying it had been done in a ‘thorough, diligent and inclusive way’.
‘It is in that same spirit that the Government will work through the legislative process,’ he said.
‘I understand some people will be disappointed in my decision but the site has been chosen on the basis of it having broad community support after much consultation and clear indicators of support.’
Events following Minister Pitt’s appointment
93 Minister Pitt succeeded Minister Canavan on 6 February 2020. A week following his appointment, Minister Pitt issued a media release titled “Radioactive Waste Management Facility a step closer to delivery”. It heralded the introduction of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020. It stated:
Radioactive Waste Management Facility a step closer to delivery
The Australian Government today introduced legislative amendments to support the delivery of a National Radioactive Waste Management Facility at Napandee, near Kimba in South Australia.
The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 will give the Parliament a say on this vital national infrastructure, and deliver on commitments to the community of Kimba, which broadly supports the facility.
Minister for Resources, Water and Northern Australia Keith Pitt said that the legislation would provide certainty, particularly to the nuclear medicine industry.
‘More than 80 per cent of Australia’s radioactive waste stream is associated with the production of nuclear medicine which, on average, one in two Australians will need during their lifetime,’ Minister Pitt said.
‘If we want the benefits of nuclear applications, which are used in the diagnosis of heart and lung conditions and the treatment of specific cancers, we have to deal responsibly with the waste produced and that is exactly what the Government is doing.
‘For more than 40 years, Australian Governments have sought a site for a facility to store Australia’s radioactive waste, which is spread over more than 100 locations like hospitals, universities and science facilities.
‘Under this Government, decisive action has been taken to finally provide a facility where we can consolidate existing and future radioactive waste stream.
‘The Bill delivers on the Government’s commitment to site the National Radioactive Waste Management Facility at Napandee, near Kimba and enables the establishment of a $20 million Community Fund.
‘This $20 million fund will support long-term infrastructure and development priorities for Kimba, delivering on our funding commitments to the Kimba community.
‘This Bill also provides certainty to all the communities who have engaged in constructive consultations for over four years.
‘I thank the people of Kimba, Hawker, Quorn and surrounds, Traditional Owner groups, the Kimba District and Flinders Ranges councils and the Outback Communities Authority for their participation in this process.
‘In particular I thank the Kimba community for their considered and constructive approach, and look forward to working with all community members to deliver this facility.’
Today’s announcement comes after Napandee was identified as the site for the facility on 1 February this year after a four-year technical and community assessment process.
The Bill will be referred to committee, which will give the Parliament and other interested stakeholders further opportunity to engage in the legislative process.
94 A document titled “SUMMARY NOTE FOR NEW MINISTER” contained “KEY MESAGES” relating to the Bill. It included the following under the heading “Background”:
• Successive governments have been searching for a site for a National Radioactive Waste Management Facility for over 40 years.
• The purpose of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (the Bill) is to amend the National Radioactive Waste Management Act 2012 (the Act) to give effect to the Government’s commitment to establish a single, purpose built National Radioactive Waste Management Facility (the Facility).
• These amendments give certainty and clarity to communities involved in this effort, to allow them to resume their regular activities and look to new opportunities for the future.
• The Bill revises the approach to acquiring the site for the Facility from a ministerial declaration to acquiring the site through legislation. The site identified for the facility was considered from the sites that were nominated under the current legislative process.
• Legislation is required to progress the acquisition of the site and provide the Parliament with a say in the location of this national-interest infrastructure.
…
95 The summary also gave an overview of the Bill which, I find, reflected the effect of the proposed amendments:
OVERVIEW OF THE BILL
The Bill amends the National Radioactive Waste Management Act 2012 (the Act) to:
• repeal the existing site nomination and selection framework under the Act and insert provisions which specify the site on which the Facility will be located;
• enable additional land to be acquired for the purposes of expanding the specified site for the Facility and for all-weather road access to the Facility (if required);
• enable the establishment of a Community Fund to replace the National Repository Capital Contribution Fund in the Act; and
• make clear and objective links between the operation of the Act and the relevant constitutional heads of power.
(emphasis in original)
96 The summary also contained information concerning the impact on native title and “Aboriginal Consultation” which broadly reflected representations previously made by BDAC to Minister Canavan.
97 Minister Pitt was provided with a document titled “Draft Q&A – Site Specific Legislation” dated 11 February 2020. Its purpose appears to have been to suggest responses he may give to questions that may be asked of him in relation to the Bill. In response to a hypothesised question asking whether he would still “go ahead with Napandee” if the legislation did not pass, the proposed answer was:
Yes. I note that the existing legislation passed with bipartisan support in 2012.
That said, should the new legislation not pass for any reason, we would seek to deliver this facility and meet our commitments to the community, within the framework of the existing legislation, while also factoring in views expressed during the forthcoming Parliamentary process.
98 The Department also prepared a draft document titled “Site Specific Legislation – Talking Points”. It included this:
Site decision
• On 1 February, after a consultation and technical assessment process covering more than four years, the Government announced Napandee, in Kimba South Australia, as the site to host Australia’s National Radioactive Waste Management Facility.
• A facility at Napandee will safely and securely manage radioactive waste and the local community broadly supports the project and economic benefits it will bring.
• Economic benefits such as: the construction project that will be worth hundreds of millions of dollars, the 45 permanent jobs when completed, and the $31 million support package delivered alongside it.
• 61.6 per cent of voters in Kimba support the facility, 59.3 per cent of local businesses support it, 59.8 per cent of submissions from locals support it. Importantly, 100 per cent of direct neighbours that share a boundary with the site at Napandee support the facility.
• Based on a series of detailed technical assessments and a wide range community sentiment indicators, the 160 hectare site at Napandee has been identified as the preferred site to host the facility.
• The facility will bring together radioactive waste accumulated over about 60 years, which is currently spread across more than 100 storage facilities across Australia including science facilities, universities and hospital basements.
• I do acknowledge that there remains some opposition and division within the Kimba community, including from the Barngarla people and those with agricultural interests.
• I am confident that we can manage these concerns and I am committed that project [sic] should only proceed in a way that recognises and respects the views of those who oppose the facility.
• Support will continue to be provided to help provide a level of closure for the communities, and ensure that future planning and development for the facility proceeds in a respectful way
Why are we introducing legislation?
• I am introducing necessary amendments to the National Radioactive Waste Management Act 2012 (the Act) to achieve the following:
• repeal the existing site nomination and selection framework under the Act and insert provisions which specify the site on which the facility will be located
• enable additional land to be acquired for the purposes of expanding the specified site for the facility, and for all-weather road access to the facility, if required, and
• establish a $20 million Community Fund to replace the National Repository Capital Contribution Fund in the Act.
• The Bill also makes clear and objective links between the operation of the Act and the relevant constitutional heads of power.
Specifying the site
• The amendments provide certainty to the Australian public and impacted communities about the site and Community Fund; and provides the Australian Parliament with a say in this nationally significant piece of infrastructure.
• The Bill revises the approach to acquiring the site for the facility from a ministerial declaration to acquiring the site through legislation.
• The three shortlisted sites under consideration were voluntarily nominated by their owners. I now propose to seek the Parliament’s agreement to the preferred site for the facility.
• This will give Parliament a say in this historical decision and allow those who have an interest in the project another opportunity to make their views known.
• We expect that both the Greens and Centre Alliance will oppose these important amendments.
• I propose that this Bill is referred to the Senate Economic Legislative Committee for inquiry, ahead of introduction into the Senate.
• I have spoken to my Opposition counterpart, Brendan O’Connor who has indicated that the Labor party won’t hinder the introduction of the Bill.
• I propose to introduce the Bill this week.
99 On 26 February 2020, Minister Pitt wrote to BDAC stating a commitment to work with it “towards mutually beneficial outcomes” including the provision of information, the identification and management of Aboriginal cultural heritage that may exist, and “access to funding and other opportunities to support Barngarla economic development and aspirations”.
100 By letter dated 5 March 2020, BDAC received a response to the request it had made on 1 February 2020 for a statement of written reasons for the decision of Minister Canavan. The response stated:
… the [Minister Canavan] announced on 1 February that the facility would be established at land on ‘Napandee’, near Kimba in South Australia. … The [Minister Canavan] also announced that he would introduce legislation to declare Napandee as the site for the facility. The acquisition of land, and other matters relevant to the establishment of the facility will be effected by the passage of this legislation.
…
As a result neither [Minister Canavan] nor [Minister Pitt] have exercised the power under section 14 of the National Radioactive Waste Management Act 2012 to declare that the land at Napandee has been selected as the site for the facility. It follows that … there is no basis to provide a statement of reasons …
101 On 6 March 2020, Ms Sam Chard from the Taskforce met with the local Mayor of the Kimba Council and the owner of Napandee to brief them on the Bill. Ms Chard said words to the effect that parliamentary scrutiny would replace the mechanism for legal challenge under the NRWM Act.
102 A representative of the Taskforce wrote to BDAC on 12 March 2020, referring to Minister Pitt’s earlier letter and asserting an eagerness to meet with BDAC “to provide opportunities for input into the NRWM facility processes”.
103 A month later, it was recorded in the National Radioactive Waste Management Facility Newsletter for the Wallerberdina region that $2 million had been allocated to the communities around Wallerberdina “as part of the site selection process”.
104 On 9 May 2020 Minister Pitt received a brief to sign an attached letter to BDAC’s solicitor stating under the heading “Key Points”:
Passage of the Bill will replace the administrative site selection and acquisition processes in the Act, and insert amendments that would acquire land and establish Napandee (near Kimba in South Australia) to be the site for the National Radioactive Waste Management Facility once those amendments take effect.
105 On 13 May 2020, a draft document produced by the Department after the announcement of Napandee as the preferred site highlighted the grants that had been made under the NRWM Act from 2017 – 2019. The draft document stated that in 2017, Wallerberdina had received $2 million in grants and in both 2018 and 2019, the sites in Kimba and Wallerberdina had shared in $8 million in grants under the “Community Benefit Program”.
106 In evidence is a document titled “Draft Ministerial Opinion Piece A landmark for Kimba and the two in three Australians who need nuclear medicine”. Its provenance is not clear on its face, nor is its author identified. Counsel for the applicants could not explain its provenance, but submitted that the Court should infer that it was drafted by the Department and to infer that it fairly reflected the views of Minister Pitt. I accept that submission. The draft opinion stated:
If you’ve ever had a scan for a heart, lung, muscular or skeletal condition, or treatment for certain cancers, then chances are you have benefited from nuclear medicine.
Some two in three Australians will need nuclear medicine at one point in our lifetimes, and along with the benefits comes a need to manage its by-product: radioactive waste.
For more than 60 years, stores of Australia’s radioactive waste have built up in more than 100 locations around the country including hospital basements, science facilities and universities.
It is international best practice to consolidate this waste in a purpose-built facility. It is also common sense. That’s why governments of all colours have been pursuing the objective for 40 years.
I am the Minister on the end of a very long line of Ministers who have been involved with this process, and it’s far time we got on with it.
We have the right site, in the right community where there’s support. Now a Bill is before the Parliament to support delivery of this national piece of infrastructure.
Yesterday, Parliament delivered an important milestone, and helped secure the economic future of Kimba - a regional community in South Australia.
The passage of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill in the House of Representatives will support a waste facility being delivered near that town.
Let me very clear, Kimba was not just picked out of a hat.
The identification of Kimba was made after the local communities around a number of volunteered sites engaged in a very honest and open conversation with the government about hosting the facility, and it became clear that this community both broadly supported it and increasingly so.
They had good reason to.
Kimba, like many regional communities impacted by drought, has experienced population decline and economic challenges. Since 2006, its population has fallen by six per cent and the population of the district has fallen by five per cent. This stands in contrast with the state population growth in South Australia of 13 per cent over the same period.
The overall size of the workforce within Kimba has reduced by 30 people during the past five years – which does not sound significant until you compare that to the entire working age population of 243.
And according to a University of Queensland study, many Kimba families choose to send their children to boarding schools during high school years, and many of these kids don’t return to Kimba for employment after their education or training is complete.
Local people need an economic reason to stay in Kimba – the town they love – and the community decided to stand together, take control of their destiny and give them one.
107 Minister Pitt issued a joint media release (with Mr Ramsay MP) on 11 June 2020 confirming that the Bill had passed through the House of Representatives, describing the passage as “an important milestone for the establishment of the facility”:
Minister for Resources, Water and Northern Australia Keith Pitt said it’s an important milestone for the establishment of the facility.
‘Governments have been attempting to find a solution to this issue for decades and today our Government has taken a significant step in bringing the process to a conclusion,’ Minister Pitt said.
‘The legislation will confirm the site near Kimba in South Australia as the home for the facility that will allow the continued growth of nuclear medicine in Australia.
‘The site was one of 28 across the country that was voluntarily nominated, followed by extensive engagement and consultation with the surrounding community that has shown broad support for the project,’ Minister Pitt said.
…
108 On 19 June 2020, Ms Chard of the Taskforce emailed BDAC inviting discussions about “opportunities to provide benefit to Barngarla throughout the life of the facility”, “engagement to deliver a funded cultural heritage assessment and management program” and the delivery of a cultural awareness training program throughout the “site assessment and construction phases of the facility”.
109 In a joint media release published on 21 July 2020, Minister Pitt, Mr Ramsey MP and the South Australian Minister for Energy and Mining, the Hon Dan van Holst Pellekaan MP, announced the establishment of the Australian Radioactive Waste Agency (ARWA) as “another step in establishing the [facility] at the Napandee site at Kimba”.
110 On 30 July 2020, the newly established ARWA sent a letter to BDAC inviting them to engage in discussions. The correspondence was expressed in a way that presupposed that the facility would be constructed at Napandee and focussed on the development of the “Project” in a way that “avoids, minimises and mitigates” its impact on heritage and cultural values.
111 The Commonwealth Government yearly budget published on 6 October 2020 included funding allocation of $37.3 million to establish the ARWA as well as an allocation of $66.3 million to “undertake the technical, design, regulatory and governance works required to site the [facility], as well as secure the facility”.
112 On 27 October 2020, Minister Pitt issued a joint media release with Mr Ramsay MP prior to a visit to Kimba scheduled for the following week. It stated the proposed facility had “broad, but not, unanimous community support” and that he would be “talking to people both for and against” it. On the same day, Minister Pitt received a brief in relation to another proposed site for the location of the facility, near Leonora in Western Australia, recommending that the engagement with the proponents of that site be limited to stating the government’s intention to only consider the proposal “once the existing site selection process is complete”.
113 On 30 October 2020, Minister Pitt was provided with a “talking points” document for the purposes of his trip to Kimba, which included:
Background
…
Legislation before the Parliament – The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 will confirm the project can proceed at Napandee.
…
If asked what if the legislation doesn’t pass?
• This would be a profound disappointment - after a 40-year search to find a site for this facility and after 62 percent of the local Kimba community voted in support to host this facility, and the new industry it would bring to their town.
• However, this does not mean that the National Radioactive Waste Management Facility will not go ahead. Rather, it means that the Government will need to consider its options and decide on the next step to delivering this important national facility.
• We remain committed to the delivery of this facility, one that will support the continued supply of nuclear medicine and research in Australia.
• The establishment of the facility has been a position with bi-partisan support.
• The opposition stated to the media that Labor supported both the establishment of a national radioactive waste management facility and the establishment of the community fund for Kimba.
• The Government always said that the basis for bringing this legislation to Parliament was to give all elected representatives the chance to have their say.
• If it does not pass next week we will factor in views expressed in the debate, and the recent Senate Inquiry, as we consider the way of delivering Australia's National Radioactive Waste Management Facility
• We will continue to work closely with the Kimba community Traditional Owners and my Parliamentary colleagues to progress this vital project.
114 On 1 November 2020, Minister Pitt participated in a radio interview on Radio 5CC’s program Good Morning EP. He said that the facility was a “national piece of infrastructure” that “Our country needs this to move forward” and that “We want to ensure we’re in a position in coming years that we don’t run out of storage space”.
115 Minister Pitt’s trip to Kimba took place between 2 and 5 November 2020. Included with his itinerary was a brief containing the talking points (extracted at [113] above). During the visit, Minister Pitt posted this on his Facebook page:
Today I visited the site of the proposed national radioactive waste facility in Napandee with the Member for Grey Rowan Ramsey. I also met with members from the local community and I want to thank them for their time today. This national facility will support the continued supply of nuclear medicine and research in Australia, that two in three of us on average will need at some point in our lives. I’m so pleased I was finally able to meet the local Kimba community today and I thank you again for your support for this critical national infrastructure.
116 Through the Department Minister Pitt made a further announcement to the effect that he valued the opportunity to speak to members of the community about “progress to establish the facility”, that it was important to speak to people both for and against it and that while some people were concerned, most had a strong desire for the project to be delivered.
117 In his affidavit of 27 October 2022 Mr Bilney deposed to a conversation he had with Minister Pitt in Canberra in the week following the Kimba visit. His unchallenged evidence (which I accept) is that:
87. Between 9 – 12 of November 2020, I travelled to Canberra for the Parliamentary sitting week with Auntie Dawn Taylor and some of our legal representatives to hold meetings with persons from all sides of politics.
88. I met with:
(a) John Wilson MP,
(b) Senator Pratt,
(c) Senator McAllister,
(d) the Shadow Minister Brendan O’Connor MP,
(e) Zali Stegall MP,
(f) Jennifer Game who is the leader of One Nation in South Australia,
(g) Senator Hanson-Young,
(h) staff for Senator Griff, and
(i) Minister Pitt and representatives of the Department.
89. At a meeting with Minister Pitt, the Minister asked Barngarla to stop opposing the Bill, because the Government had determined that the waste dump would be at Napandee, and they needed to get on with it and provide certainty to the community.
118 It may be inferred from some documents that follow that by late 2020, the passage of the Bill was in jeopardy because of a lack of support from (at least) the cross-bench.
119 On 12 November 2020 Minister Pitt was quoted in The Advertiser Online:
Mr Pitt said Australia urgently needed a site to store radioactive waste ‘so we can continue providing 12,000 doses of life-saving nuclear medical treatment to Australians every week’.
The Advertiser reported the One Nation leader would not back legislation to build the facility at Napandee farm near Kimba, meaning the Federal Government doesn’t have the numbers for it to pass parliament.
But Mr Pitt said the government would forge ahead to try to get the Bill through the Senate to ‘give the people of Kimba the certainty they deserve’.
120 An undated (and unsigned) letter to members of the public provided to Minister Pitt on 13 November 2021, stated the Bill was introduced to “deliver on commitments to the community of Kimba by specifying the site at Napandee … as the site for [the Facility]”.
121 On 13 November 2020, Minister Pitt participated in an interview on Radio 5AA’s Ray Hadley Morning Show. This extract commences with a reference to an apparent lack of support for the Bill from Senator Pauline Hanson:
[PRESENTER]: Because she’s basically said, look, my two votes, no go. Where do you go to from here? Okay, you’re disappointed with Labor, and they’ve got their issues – and we’ll talk about that with one of our analysts later on today. But where does that leave you?
[MINISTER PITT]: Well, we’ll continue to move forward in terms of the legislation. It’s my intention to put the bill into the Senate in the next sitting weeks. Now, obviously we don’t control the Senate, they control their own agenda, but that’s the intention.
[PRESENTER]: Alright. So, you’ll put it in the Senate. And if Pauline keeps to her word, it’ll fail. Then what?
[MINISTER PITT]: Well, it will depend on what happens. I mean, I’m sure there’ll be groups looking to make amendments and all the normal processes that happen in the Senate, and then we’ll work our way through it from there. But the reality is that this facility is absolutely necessary; it is a national piece of infrastructure that will last for more than a century. After four decades of trying to secure a site, we have an area which has been [indistinct] in, an area where we have broad community support, where it’s technically feasible. And the people of Kimba – and I was there just last week – just want a decision; they want to get on with it; and, they want some certainty.
122 Three days later Minister Pitt posted this on his Facebook page:
The National Radioactive Waste Management Facility is a vital piece of national infrastructure, which will support the ongoing development of our nuclear medicine and research industries. This facility is absolutely necessary.
After four decades of trying to secure a site, we have an area identified at Napandee, an area where we have broad community support, and where it’s technically feasible. The people of Kimba want to get on with it, have certainty, and a new industry that will bring jobs and new opportunities.
… The president of the South Australian AMA said very clearly ... that we are out of time and we need to get on with building a facility.
123 On 18 November 2020, Minister Pitt made another Facebook post, stating that he remained “committed to fulfilling the expectation of the people of Kimba” and that the Parliament needed to now “deliver on its promises to the Kimba community” and that he would “do everything I can to see that it does”. In due course it will be necessary to consider those passages in the context of whole of the post. It reads:
On my recent trip to Kimba I met with community members about the progress to establish the National Radioactive Waste Management Facility in Napandee.
This project will consolidate our radioactive waste accumulated over about 70 years, currently spread across more than 100 locations across Australia, into one, safe, and purpose-built facility.
While it is nationally significant, it will also provide local benefits, including 45 full-time jobs and a new alternative industry to agriculture, which will be particularly welcomed during times of drought.
It was important to speak with people both for and against the facility, and my experience reflects what has been demonstrated in local surveys over the years. That is, while some people are concerned, most have a strong desire for this project to be delivered.
I’ll continue to support the Kimba community and I remain committed to fulfilling the expectation of the people of Kimba.
The Parliament now needs to deliver on its promises to the Kimba community and I will do everything I can to see that it does.
124 Minister Pitt was again provided with talking points on 27 November 2020. There are two versions of them in evidence, one an apparent amendment of the other. As amended, they state:
• It will be disappointing if the majority of non-government senators decline to pass legislation that is designed to support the establishment of Australia’s National Radioactive Waste Management Facility this week.
• This comes after a 40-year search to find a site for this facility and after 62 percent of the local Kimba community voted in support to host this facility, and the new industry it would bring to their town.
• If the legislation does not pass everyone in Kimba should be assured that we remain committed to the delivery of this facility, one that will support the continued supply of nuclear medicine and research in Australia.. We will seek to bring this Bill back before Parliament in the new year.
125 On that day, Minister Pitt participated in an interview on Radio National’s Breakfast program hosted by Ms Fran Kelly. In the interview, he was asked why he was pursuing the Bill when it was open for him to declare the site pursuant to s 14 of the NRWM Act:
[PRESENTER]: … this week, your bill to establish a nuclear waste facility near Kimba in South Australia is introduced into the Senate. Why is specific legislation designating the site necessary, given you have the power as the Minister to name a location? …
[MINISTER PITT]: … We need to deal with the waste, and quite frankly, you know, it took 7 or 8 years for Adani to put a mine together. Can you imagine how long it might take for this to be finished if we don't do it this way? …
[PRESENTER]: But you could name the location. Why aren’t you, as the Minister, using that power?
[MINISTER PITT]: Well, because quite simply, we want to ensure that we can get this done as quickly as possible without going through endless rounds of court proceedings. Now, we have a community which is …
[PRESENTER]: So you think it would be open to challenge, is the point?
[MINISTER PITT]: Well, of course. … we have a community which has a majority support, we have a willing seller, we have a location which meets the technical requirements, and they just want to get on with it. I mean, I was in Kimba a few weeks ago; they really just want certainty. That’s what we’re trying to deliver for them. It’s been 5 years; I think they've had enough of consultation. … I think we should respect their decision and what they want to do.
126 Minister Pitt then issued another joint statement with Mr Ramsey MP titled “KIMBA REPRESENTATIVES SHOW SUPPORT FOR NATIONAL RADIOACTIVE WASTE MANAGEMENT FACILITY” dated 30 November 2020. After reference to the jobs and economic benefits, he stated that consecutive governments had been searching for 40 years for the right site for a purpose-built facility and that “now one town has confidently put up its hand”. He said “We need to support this town. We need to pass the legislation which would see the facility delivered near this town, along with all the economics benefits”. On the next day he posted to Facebook, urging the opposition and crossbench to support the legislation, stating that it was vital to the Kimba community. He issued a further joint media release with Mr Ramsey MP to the same effect as the statements he had made in the prior week.
127 On 18 December 2020, the Department put out to tender the engineering work for a schematic design for the facility. In a media release about the tender, it described the works as involving the progression from the current generic concept design to a “site-specific schematic for the facility in Napandee”.
128 In response to an email concerning the Bill, Minister Pitt sent a letter to a member of the public on 31 January 2021 stating that it “was introduced to deliver on commitments to the community of Kimba by specifying the site at Napandee, near Kimba in South Australia, as the site for the National Radioactive Waste Management Facility (the Facility)”.
129 In a letter dated 23 February 2021 addressed to the Shadow Minister for Resources, the Hon Madeleine King MP, Minister Pitt outlined proposed amendments to the Bill. I infer from that letter that the Bill providing for the direct legislative selection of Napandee was abandoned because there was insufficient support for its passage. A revised Bill was prepared, the content of which is first described in the evidence in the letter to Ms King as follows:
Why are the three shortlisted sites deemed in the amendments?
The amendments reinstate the Ministerial site declaration process in the current Act, as proposed by the Opposition, ensuring the Minister’s decision and declaration is subject to judicial review.
This will allow the Barngarla Determination Aboriginal Corporation the opportunity to seek a judicial review of the site selection decision.
For many years, Lyndhurst, Napandee and Wallerberdina have been widely accepted as the sites shortlisted for a radioactive waste management facility.
In recognition of this, the three sites are also now specified as ‘shortlisted sites’ via the deeming provisions in the amendments.
Deeming the three shortlisted sites means that judicial review can scrutinise the assessment of all three shortlisted sites, in addition to the Ministerial declaration.
- The site selection activities are comprehensive and include multi-year community consultation, and extensive technical and sentiment assessments.
By deeming the three shortlisted sites in legislation, ‘certain land to have been nominated and approved’, judicial review would not extend to the administrative activities which took place before the sites were shortlisted, and which were undertaken in good faith many years ago.
- These activities included:
• calling for nominations,
• receiving voluntary nominations for over 28 sites,
• shortlisting nominations, including multi-criterion technical assessment of sites, and community assessments.
These preliminary activities are immaterial to the declaration decision and including them will unnecessarily extend the judicial review process.
In summary, the amendments:
- reinstate the site declaration process in the current Act, ensuring the Minister’s decision is subject to judicial review; and
- ensure scrutiny at judicial review extends to all of the activities and assessments carried out for each of the three shortlisted sites, from the time they were shortlisted.
130 On 4 March 2021, the Department met with the KCC and the “Kimba Economic Working Group”. At that meeting departmental officers made statements promoting the site-specific Bill (notwithstanding that the Bill had by then been revised) but said that it remained open to the Minister to make a declaration under the NRWM Act. They said that “site-specific concept design for the facility at Kimba is due to be finalised in April 2021”.
131 The Department prepared further talking points on 10 March 2021, including expressions of frustration about delays, and stating that the purpose of the Bill was to provide certainty to the Kimba community that the facility would be sited there. The talking points also included:
• Frankly it’s a no-brainer, we need this critical national infrastructure, and we’ve been kicking this problem down the road for the last 40 years and we need to get on with it.
• One in two Australians rely on the lifesaving nuclear medicine that is produced at ANSTO; and with other legacy waste that has been accumulating over the last 70 years or so we need to settle the solution for a site which we have right now.
132 A signed consultancy agreement between the Department and AECOM Australia Pty Ltd came into effect on 1 June 2021. The report produced under that agreement will be discussed later in these reasons.
133 The Bill in its revised form was passed on 22 June 2021. The Amending Act that then came into force contained the provisions discussed earlier in these reasons, including provisions in Sch 1 deeming nominations and approvals to have been made under s 7 and s 9 of the NRWM Act in respect of Napandee, Lyndhurst and Wallerberdina.
The making of the decision under review
134 On 23 June 2021, the Department issued a media release stating that Minister Pitt “may now issue an ‘intention to declare’ a preferred site for the facility”, which would then commence the process outlined in the legislation for the acquisition of the site.
135 More talking points for the Minister were prepared. They included:
What stage is the NRWMF process at currently?
On Tuesday 22 June 2021, the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 has been passed by the Parliament of Australia.
After the Bill receives Royal Assent, the Minister will review all of the information relevant to the 3 shortlisted sites: Wallerberdina, Lyndhurst and Napandee.
As part of the Minister’s review, he would consider all previous feedback received through community consultation processes, including the level of community support that each site received.
The community that lives and works in the vicinity of the Wallerberdina Station has made it clear that it does not broadly support the facility being located there, and the Government has not changed its position—it will not impose a facility on an unwilling local community.
Once he has completed his review of the sites, the Minister may issue an ‘intention to declare’ a preferred site for the facility. A period of no less than sixty days would follow during which comments could be submitted.
After this period, the Minister could declare a site and acquisition of a site by the Australian Government for the purpose of hosting the National Radioactive Waste Management Facility would occur shortly thereafter.
136 In July 2021, ARWA completed a report titled Napandee Site Assessment Report (NSAR), containing an assessment of the land against similar criteria to those previously used by Minister Canavan in his assessment of 21 January 2020. It concluded that Napandee represented a satisfactory location for siting the facility.
137 On 10 August 2021 a brief was prepared for Minister Pitt concerning the giving of notices under s 18 of the NRWM Act. That brief included:
Declaration process
2. Section 14(2) of the Act provides that, subject to taking into account any relevant comments given in response to the s 18 notices, you as the responsible Minister may in your absolute discretion, declare in writing that a site approved by the Minister, or a specified part of that site, is selected as the site for NRWMF. Absolute discretion in this context means you have a very broad discretion to decide whether to select a site (or not), but that this is limited by the object and context of the Act.
…
Recommended site
5. Based on rigorous evidence-based site assessment process, the department has assessed Napandee as a suitable site to host the NRWMF, and recommends that you issue notices starting that you propose to declare that Napandee is selected as the site for a NRWMF.
6. To support your decision, the department has reviewed information regarding the suitability of Napandee as a site for a NRWMF based on four site suitability criteria (SSC). The department’s assessment against these criteria is set out in the Napandee Site Assessment Report (NSAR) at Attachment E.
…
8. Under the Act, you have absolute discretion to declare Napandee as the site selected for the NRWMF. Should you decide not to select Napandee (as described at Attachment A) as the site to declare as selected for the NRWMF, it is open to you to consider the selection of other nominated and approved sites, or not select a site, or reopen the nominations process, or take no action. If you wish to consider an option other than the recommendation put forward by the department in this brief, a subsequent brief will be prepared to inform you further on the options available.
…
26. On that basis, the department has only continued further assessment of the Napandee site to inform its analysis of site suitability.
138 On the following day, Minister Pitt gave notice that he intended to make a s 14(2) declaration in respect of Napandee. A press release stated:
In coming to this decision, Minister Pitt considered relevant material to inform a formal declaration.
‘This is the next step in progressing this nationally significant infrastructure project, which successive governments have been working on for more than 40 years,’ the Minister said.
‘I have reviewed the relevant information, which has informed my decision to proceed in accordance with the Act. As such, I am issuing a notice to declare Napandee, and will seek the views of those with rights or interest in the site.
‘The Australian Government has followed a rigorous process over six years, working with local communities and carrying out technical studies.
‘Upon reviewing all the information, it is clear that radioactive waste can be safely and securely stored at Napandee.
‘In Kimba, there is broad community support for the project and the benefits it will bring.’
This broad community support has been demonstrated through a range of indicators …
…
A period of further consultation will now occur, with the Minister considering relevant comments ahead of deciding whether to proceed with declaring the Napandee site.
139 On 21 October 2021, a draft cultural heritage report produced by AECOM (Draft AECOM Report) was received by the Department.
140 Minister Pitt received briefs on 29 October 2021, 9 November 2021, 25 November 2021 and 26 November 2021 relating to the exercise of the power conferred under s 14(2) of the NRWM Act. In the earlier briefs it was recommended that he “not make a final decision to make a declaration to select the proposed site” until he had received subsequent briefs. The various briefs had annexed to them all of the submissions that had been made throughout the earlier consultation processes, including BDAC’s submission, the NSAR, the RPS Report and the Draft AECOM Report. The latter briefs put forward the Department’s recommendation that Minister Pitt select Napandee as the site for the facility.
141 The Department prepared draft written reasons for Minister Pitt’s consideration and adoption. Under the heading “next steps” the latest of the briefs stated:
16. Should you decide not to declare that the site is selected as the site for a facility, it is open to you to:
a. consider the selection of other nominated and approved sites (which in order to be progressed would require you to be briefed about the suitability of those sites, and also require notification of the site under section 18(1) and (2));
b. not select a site;
c. reopen the nominations process; or
d. take no action.
142 By a media release dated 17 November 2021 and titled “New round of community grants for the Kimba community” Minister Pitt announced that another $2 million in grants would be available to support infrastructure projects and new services to drive economic and social benefits for Kimba and the surrounding region.
143 As mentioned earlier in these reasons, the declaration under s 14(2) of the NRWM Act selecting Napandee as the site for the facility was made on 26 November 2021. The written reasons for the declaration are in the same form as those proposed by the Department and will be considered to the extent necessary to dispose of the grounds of review.
APPREHENDED BIAS
144 The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the issues to be decided: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ (at [6]); Isbester v Knox City Council (2015) 255 CLR 135, Kiefel, Bell, Keane and Nettle JJ (at [12]). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, Allsop CJ, Kenny and Griffiths JJ (at [35] — [36]).
145 In Burgess v Minister for Immigration and Border Protection (2018) 259 FCR 197, I said this about the two “mights” in that test:
35 The first ‘might’ concerns the likelihood (to be assessed by the Court) of the lay observer forming the reasonable apprehension. The second ‘might’ concerns the content of the apprehension itself. It concerns the assessment (notionally made by the lay observer) of the likelihood of the decision-maker having a foreclosed mind (as opposed to having a predisposed opinion) and so deviating from the course of deciding a case on its merits.
36 Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each ‘might’ in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have ‘a vague sense of unease or disquiet’ on the question: Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (Jones) at [100] (Weinberg J).
146 It is of course for the applicants to firmly establish their grounds of judicial review in a proceeding where the civil standard of proof applies. The respondents submitted that the above statement in Burgess was wrong and should not be followed to the extent that it denied that the applicants bore that onus. The statement does not deny the onus. It is concerned with the low thresholds of likelihood embodied in the legal test for apprehended bias, each likelihood expressed as a “might”, not as a “would”. The test is a legal standard to be applied to the facts. Whilst the facts must be established to the civil standard of proof, the test to be applied to those facts is one that evaluates possibilities, not a probabilities: Ebner (at [7]).
147 The claimed apprehended bias in Ebner involved an allegation that the exercise of judicial power at a trial had been affected by jurisdictional error because of a financial interest the judge was said to have had in the outcome. Gleeson CJ, McHugh, Gummow and Hayne JJ said that the test for apprehended bias in such a case involved a two-step analysis (at [8]):
… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
148 The rule against apprehended bias applies to administrative decision making just as it does to judicial processes. However, as McHugh J explained in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (at [70]), in the practical application of the test, the role of the decision-maker will assume significance:
While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision. One difference arises when the decision-maker is a Minister who is accountable to the Parliament and the electorate. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Gleeson CJ and Gummow J, Hayne J agreeing, said that ‘[t]here are … consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister. Their Honours noted that, subject to any contrary indication in the legislative grant of power, a Minister would be entitled to act in accordance with governmental policy when making a decision. Thus, it will ordinarily be very difficult to impute bias or the reasonable apprehension of bias to the decision of a Minister who has considered all applications on their merits but made it clear that preference would be given to applicants who complied with government policy.
149 Here, the decision-maker was a member of the Executive arm of government, being the Minister responsible for the administration of the statute conferring the power to decide. The identity of the decision-maker as a Minister will be significant in the practical application of the double might test, both in identifying the knowledge to be attributed to the hypothetical lay observer and in determining what that observer might reasonably apprehend.
150 The point is best illustrated by the plurality judgments in Minister for Immigration and Multicultural Affairs v Jia Legeng (2000) 205 CLR 507.
151 A delegate of the Minister for Immigration and Multicultural Affairs refused to grant Mr Jia a visa under s 501(1) of the Migration Act 1958 (Cth) on the basis that he was “not of good character” within the meaning of the provision. The Administrative Appeals Tribunal set the delegate’s decision aside. That decision was set aside on appeal. On remittal, the Tribunal again set the delegate’s decision aside. In each case the Tribunal formed a conclusion that Mr Jia was a person of good character, notwithstanding his prior criminal offending.
152 Mr Jia was subsequently granted a visa. He was, at the same time, informed that the Minister was giving consideration to the cancellation of the visa in the personal exercise of the power conferred by s 501(1) of the Migration Act. The Minister subsequently cancelled the visa in the personal exercise of that power.
153 On an application for judicial review in this Court Mr Jia alleged that comments made by the Minister in the course of a radio interview and in correspondence to the Tribunal prior to his decision demonstrated actual bias. A migration decision could not be challenged in this Court on the grounds of apprehended bias at that time.
154 In his correspondence to the President of the Tribunal, the Minister:
(1) expressed concern about recent decisions made by the Tribunal allowing convicted offenders to remain in Australia;
(2) described the cases as sensitive and significant in that they undermined confidence of the community and were “against the Government’s requirements for which I am responsible for and accountable to Parliament” and “raise the question of what arrangements need to be considered by me so that I can intervene where the Government’s requirements are undermined”;
(3) referred specifically to Mr Jia’s case;
(4) stated that the Tribunal had incorrectly exercised the discretion under s 501 of the Migration Act, including by erring in its characterisation of Mr Jia as a person of good character;
(5) expressed concern that Mr Jia’s case may set a precedent for future Tribunal decisions; and
(6) asserted that the Tribunal had misconstrued the tests involved in character decisions.
155 In the course of the radio interview the Minister:
(1) responded to questions specifically related to Mr Jia’s case;
(2) said that he was “very unhappy” about the way in which the Tribunal had dealt with a number of matters;
(3) said “if people come here and they are not citizens of Australia and they commit serious criminal offences, we don’t regard them as being the sorts of people that we wanted to get through our Migration Program. We try to exclude criminals from coming in the door and we do have criminal deportation in relation to those that have come here”;
(4) said “I don’t believe you are of good character if you’ve committed significant criminal offences involving penal servitude”; and
(5) when asked what powers he had to overturn the Tribunal’s decision, said “I’m considering what steps I can take and there are some avenues. One of the suggestions that’s been made is that I could in fact grant the visa and then cancel it on character grounds”.
156 The ground of actual bias was rejected at first instance. Mr Jia’s appeal to the Full Court was allowed. On the Minister’s appeal to the High Court, Mr Jia invoked that Court’s original jurisdiction under s 75(v) of the Constitution to review the decision on apprehended bias grounds, should the Minister’s appeal succeed.
157 All members of the High Court rejected the allegation of actual bias and allowed the Minister’s appeal. Gleeson CJ, Gummow, Hayne and Callinan JJ then rejected the allegation of apprehended bias and dismissed Mr Jia’s application for judicial review.
158 Writing together, Gleeson CJ and Gummow J set out the background to the relevant Minister’s decision and the statutory framework. Their Honours observed that the powers conferred on the Minister formed part of the statutory scheme involving a complex pattern of administrative and judicial power, and different forms of accountability (at [61]). Their Honours continued:
… The Minister is a Member of Parliament, with political accountability to the electorate, and a member of the Executive Government, with responsibility to Parliament. As French J recognised in his decision at first instance in the case of Mr Jia, the Minister functions in the arena of public debate, political controversy, and democratic accountability. At the same time, the Minister’s exercise of statutory powers is subject to the rule of law, and the form of accountability which that entails. In relation to an applicant for, or holder of, a visa the Minister, either personally or through a delegate, may be an initial decision-maker, a party to proceedings for administrative or judicial review, and the holder of a power of cancellation and exclusion under ss 501 and 502.
159 Their Honours observed (at [63]) that in the case of a statutory power reposed in a Minister, the statute (in the absence of an indication to the contrary) may be taken to contemplate that the Minister would ordinarily be entitled to act in accordance with governmental policy. They went on to say that in cases where a power is vested in a Minister, the Minister’s conduct may need to be evaluated “in the light of his or her political role, responsibility and accountability” (at [63]).
160 Of the Minister’s statutory task under s 501(2), Hayne J said:
188 … The subject about which the Minister was required to be satisfied was a subject which required the formation of a value judgment. It required the development of a view about what kinds of conduct are, or may be, inconsistent with being of good character. It obviously permitted the formation of a view that, in the absence of some countervailing consideration, certain kinds of past criminal conduct would sufficiently demonstrate that a person was not of good character. If the Minister formed such a view, and announced that this was the view that had been formed and would be applied in the administration of the Act, there could be no suggestion that the Minister had thereby prejudged any application which was to be made. The most that could be said is that the Minister had stated an understanding of what was meant by the statutory expression ‘is not of good character’ and had indicated how the Act would be administered. So long as the meaning adopted revealed no error of law (which it would if the meaning assigned lay outside the permissible range of circumstances that could be embraced by the expression) there could be no challenge to what was done. Given that the decision-maker is the Minister, the expression can be seen to embrace a wide range of permissible views.
189 Moreover, the Act, by authorising the Minister to reach the relevant value judgment by having regard to ‘the person's past criminal conduct’, as opposed to ‘the person's general conduct’, permitted the Minister to form the view that certain kinds of past criminal conduct necessarily and inevitably demonstrated that a person was not of good character. Again, so long as the meaning which was thus assigned to the expression ‘is not of good character’ revealed no error of law, the fact that the Minister announced that he or she proposed to administer the Act according to that understanding could not be said to constitute the prejudgment of any particular case that may later arise.
(original emphasis)
161 His Honour went on to say (at [191]) that all that the Minister had done, in the circumstances posited, was to announce the particular construction that the imprecise statutory wording would be given in a certain kind of case. There were, his Honour said, elements of the decision making process about which the decision-maker may legitimately form and hold views before coming to consider the exercise of the power in a particular case and that the area for apprehended bias to arise was reduced accordingly (at [192]).
162 To similar effect, Callinan J said that the Minister in Mr Jia’s case was obliged to wear two hats, one as a member of the Executive and the other as the person on whom the relevant power is conferred. In passages relating to the allegation of actual bias (later employed to reject the claim of apprehended bias) Callinan J said, of those dual roles:
244 … The performance of his duties of office when he is wearing one of them, however, should not be too readily taken to be an indication of the way in which he thinks about, or will discharge his duty when he is wearing the other of them.
245 Other observations may be made about the Minister’s dual roles. As a Minister of State he will have a role and involvement in the formulation and implementation of government policy. That policy may be to seek to change existing laws, because, in his or the government’s opinion, those laws do not reflect government policy or they are not readily capable of application, or because they are being misapplied. One important and conventional means of effecting such a change is to draw public attention to the current operation of the existing laws. This is a legitimate public function of an elected member of the Executive. That he may have another role requiring him faithfully to give effect to the existing laws should not, and in my opinion, does not disable him from expressing dissatisfaction with, and advocating change to them. To say so much is merely to point to the difference between a Minister and a judge, and indeed, a Tribunal or member. The role of none of these is identical with the roles of the others. And different considerations requiring the application of different rules in relation to each of them are involved in a judgment whether one of them is affected by disqualifying bias. …
(footnotes omitted)
163 Common to all of the judgments is a focus on the nature and limits of the power in question. That focus is critical because the test for apprehended bias is concerned with a feared departure from (and only from) the proper course of decision making. In Jia the statutory regime did not require the Minister to have no previously formed view about how the statute should be construed and how it should be exercised in relation to cases falling within a particular class, provided that the views accorded with the law. The judgments also make plain that the fair-minded observer must be taken to be cognisant both of the dual roles reposed in a Minister and of the issues to be decided by the Minister in the exercise of the power in question.
164 The applicants submitted (correctly) that the fair-minded observer may be attributed with knowledge of the relevant legal framework, the nature of the decision and issues to be decided, and the objective facts and circumstances leading up to it. In this case, that knowledge includes an awareness of primary facts and circumstances, including things said by Minister Pitt and of the factual and legal context in which his statements were made. The surrounding context includes acts and statements made by other Ministers prior to Minister Pitt’s appointment, statements of the Department and the failed attempt to pass legislation that would have directly provided for the selection of Napandee as the site for the facility.
165 The applicants otherwise invited the Court to find that the “knowledge” of the fair-minded observer was that stated at [149] of their written submissions. There are 19 assertions in that paragraph. They are not limited to primary facts said to be known by the fair-minded observer, but are intermingled with inferences and conclusions that they say the observer would or might draw from the objective facts on the applicants’ case:
149.1 From 29 April 2016 until the date of Decision, the Government of which each of the successive Ministers were part had a consistent and consistently-applied policy that a site would not be selected unless it had ‘broad community support’.
149.2 In November 2019, the Minister’s department supported a scheme in which Parliament would directly legislate the site. Minister Canavan supported that approach.
149.3 On, or shortly before, 1 January 2020 Minister Canavan told Mr Ramsey MP that he (the Minister) had decided to select Napandee, and this was the truth. Minister Canavan had selected Napandee.
149.4 Minister Canavan made that decision without undertaking the procedural fairness obligations of s 18.
149.5 Minister Canavan made that decision contrary to his Department’s representation that BDAC could supplement its submissions because his mind was foreclosed to anything which the Barngarla People might have said.
149.6 Minister Canavan proposed and intended to give effect to his decision by introducing direct selection legislation.
149.7 Minister Pitt within a week of assuming the office of Minister, determined or decided that Napandee was the site for the facility.
149.8 Minister Pitt [redacted] promoted the Bill to give effect to his decision.
149.9 [redacted] promoting the Bill was a highly unusual – possibly unprecedented – step because the Minister already had the power to declare the site under s 14 of the NRWM Act or to acquire it by exercise of powers under the Land Acquisition Act 1989 (Cth).
149.10 The taking of such an unusual and politically fraught step demonstrated the Minister’s commitment to his predetermined view that Napandee would be the site for the Facility.
149.11 The motivating purpose for pursuing the Bill in preference to a s 14 declaration was to avoid legal challenges to the decision to select Napandee. One of those legal challenges was that the Minister had already determined to select Napandee.
149.12 Another purpose of the Bill was to end any further consultation because the Minister had decided and committed to establish the Facility at Napandee.
149.13 If the Bill did not pass, the Minister was committed to declaring Napandee as the site under s 14, and would do so.
149.14 The Government also committed itself to Minister Pitt’s decision by supporting the Bill and, later, making or continuing a budget allocation of over $66 million.
149.15 Minister Pitt continued to enter into commitments on the basis that Napandee had been selected as the site, including: (i) establishing ARWA and increasing its staffing over time; and (ii) tendering for engineering for site-specific facility design.
149.16 The Minister at all times since 13 February 2020 (or any later date prior to the Decision) held the view that further consultation was pointless.
149.17 The Minister at all times since 13 February 2020 (or any later date prior to the Decision) held the view that nothing the Barngarla People could say would change his predetermined view to select Napandee.
149.18 The Minister was faced with a choice where, on the basis of his prior public statements, [he] simply could not countenance declining to select Napandee no matter what was said to him.
149.19 The Minister was so committed to his determination to select Napandee that in making his s 14(2) decision, he avoided making a finding as to ‘broad community support’ in order to attempt to insulate his decision from challenge. This demonstrated an extraordinary level of commitment because it meant departing from consistently-applied Government policy which had been in place since April 2016 (more than 5 years), where such departure was without warning or evident justification.
166 It was submitted that in those circumstances “or even just some of them” the Court should find that the fair-minded observer might reasonably apprehend that Minister Pitt might have had a closed mind at the time that the Decision was made.
167 Counsel for the respondents submitted that it was necessary to employ the two-step analysis explained in Ebner, extracted at [147] of these reasons. It will be recalled that that analysis was undertaken in a case asserting that the decision-maker (there a judge) had a financial interest in the outcome of litigation in which the judge was required to act impartially in adjudicating a dispute in an adversarial context.
168 Adapted to the present legal context, the analysis in Ebner requires the Court to first identify what is said by the applicants that might lead Minister Pitt to decide the question of whether Napandee should be the subject of a declaration under s 14(2) other than on its merits (the assessment of merits here involving a broad discretion and highly evaluative task). Second, it is necessary to articulate a logical connection between that matter and the feared departure from the proper course of decision making. In the present case, there is no allegation that the Minister had a personal interest in the outcome of the decision, as was the case in Ebner. Rather, the applicants’ case is that the Minister made public statements that they allege might indicate that he might already have made up his mind. On the applicants’ case, the logical connection between the asserted facts and the asserted fear is inherent in the statements themselves. As such, the two-step analysis in Ebner does little to assist in the practical application of the double might test. However, it does serve to emphasise the importance of attributing to the fair-minded observer a correct understanding of the nature and scope of the power in each case and a proper appreciation of the decision-maker’s role.
169 The respondents’ submissions otherwise focussed upon what the true course of decision making required and, more importantly, what it did not require. I have accepted the respondents’ submissions on that topic and they will be reflected in the reasoning that follows.
170 The respondents also submitted that the fair-minded observer must be taken to understand that Minister Pitt had dual roles of the kind discussed in Jia, and that statements he made in support of the passage of the Bill in its original site selecting form must be understood to have been made in that context. That general proposition may also be accepted. However, as discussed below, the existence of dual roles is not determinative of whether an apprehension of bias arises. Rather, it is an important contextual matter that affects the interpretation of the objective words and conduct and the apprehensions that might reasonably arise from them.
Consideration
Matters known by the fair-minded observer
171 The knowledge of the fair-minded observer must be taken to include to the following features of the NRWM Act:
(1) It is not mandatory to consider the exercise of the power conferred by s 14(2) of the NRWM Act with respect to any nominated and approved site.
(2) It is a condition precedent to the exercise of the power in s 14(2) that a nomination is made under either s 5 or s 7 and approved by the Minister under s 9.
(3) Once consideration is given to its exercise, the question to be decided is binary in nature: should the proposed declaration be made or not?
(4) Subject to compliance with s 18, s 14(2) does not require the Minister to first be satisfied of the existence of any objective fact or circumstance, nor does it expressly mandate matters the Minister must take into account in the sense discussed by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
(5) Before making a declaration under s 14(2) in relation to a site, the Minister must give notice under s 18 stating the declaration is proposed.
(6) Prior to the time at which notices are issued under s 18, the NRWM Act contemplates that the Minister may receive and consider information about the subject site, including information resulting from investigations authorised by s 11 of the NRWM Act upon the approval of the nomination of the site under s 9.
(7) The power under s 14(2) does not require a selection to be made among competing alternatives. A decision to identify the proposed site as a preferred site among a number of nominated alternatives may lawfully precede the exercise of the power.
(8) The subject matter of the NRWM Act is the acquisition of land for the storage and management of a dangerous substance potentially over many lifetimes. Accordingly, by the time that notices are issued under s 18 proposing that there be a declaration under s 14(2), the Minister may have permissibly formed views, even strong views, to the effect that a declaration should be made. He is not required to approach the task as if his mind were a blank slate. The very act of issuing notices under s 18 indicates that the Minister may have formed a strong disposition to the outcome.
(9) The proposal to which s 18 of the NRWM Act refers is nonetheless one that is subject to the Minister’s obligation under s 18(3) to take into account relevant comments given to him by a nominator of the land, or a person with a right or interest in the land, in response to an invitation referred to in s 18(2). The Minister must have regard to “relevant” submissions, which may encompass all subject matter that is relevant having regard to the objects of the NRWM Act.
(10) Accordingly, whilst the Minister may be permitted to hold and express views (even very strong views) that a declaration under s 14(2) should be made in respect of the subject land, the proper course of decision making requires that the Minister not have a mind closed to possibility of not making a declaration as proposed.
(11) The NRWM Act contains additional provisions that have continued operation after the power in s 14(2) is exercised, including provisions relating to the design and construction of the facility and surrounding infrastructure.
(12) Once made, a declaration under s 14(2) may be revoked.
172 In accordance with Jia, the fair-minded lay observer must also be attributed with an appreciation that Minister Pitt had the dual roles of statutory decision-maker and as a Minister of State. In the second capacity he had a role in the formation and implementation of government policy. As discussed below, the policy in this case included a policy for the change of existing laws including because (at least) they did not reflect government policy. Minister Pitt’s role as a Minister of State legitimately extended to drawing the public’s attention to the current operation of existing laws that were perceived to be undesirable and in need of amendment. The fair-minded observer must be taken to correctly understand the context in which those statements were made. Accordingly, the observer would not too readily interpret statements made by Minister Pitt plainly in his capacity as a Minister of State advocating for amendment to the NRWM Act as indicating how he might exercise the power conferred upon him by s 14(2) in the event that it were not repealed. Much depends, however, on the content of the statements in issue, the degree to which the capacity in which the words were said is (or is not) clear, and the extent to which the statements (expressly or by necessarily implication) postulate or assume an outcome of the exercise of the statutory power.
173 The parties’ submissions proceeded on the basis that the fair-minded observer would have knowledge of all of the public statements and private communications referred to in the evidence, much of which is encapsulated in the narrative set out above. The narrative is not a complete statement of the evidence, but what has been omitted adds little to the analysis now to be undertaken. Most of the materials relied upon by both parties have been included in the narrative so that the communications can be considered in their proper context. Where I have concluded that a statement bears a particular meaning, the conclusion should be understood to have been made in the context of the evidence as a whole. There is otherwise no dispute as to the authenticity of the records and I am satisfied that the factual events described above are proven to the requisite standard.
174 A significant portion of the evidentiary material came into existence before Minister Pitt’s appointment, including the announcement Minister Canavan made on 1 February 2020 that Napandee had been selected as the site for the facility and the development of the proposal for site specific legislation. Minister Pitt did nothing to distance himself from Minister Canavan’s announcement. His subsequent statements make it plain that he fully embraced them, and he continued with the process of attempted legislative reform that had already commenced at the time of his appointment.
175 I am satisfied that the fair-minded observer would fairly attribute to Minister Pitt firm personal beliefs that were in alignment with the announcement of Minister Canavan and statements made by Departmental officials, notwithstanding that he was not the author of them. However, there are some exceptions. For example, I consider that internal communications to Minister Pitt scripting what he should say ought to be afforded less weight than evidence of what Minister Pitt did in fact say, and would be approached in the same way by the fair-minded observer. In addition, statements made by Minister Pitt disclosing a state of mind on a topic ought to be given more weight than statements made by the Department on the same topic.
176 It may also be observed that the statements made during the political process of advocating for the passage of the Bill included the expression of strongly held views about matters specific to Napandee. The fair-minded lay observer may reasonably assume Minister Pitt to have genuinely held the views that he expressed. In other words, the mere circumstance that views are expressed in a political context does not warrant them being put aside in the practical application of the apprehended bias test. Rather, what is required is a proper analysis as to why the expression of the views (viewed in their context) should warrant the conclusion sought by the applicants. The context makes it essential to identify precisely what Minister Pitt was expressing views about.
Approach to the evidence
177 Necessarily, the parties in their oral and written submissions took the Court to discrete aspects of the evidence, considered below. It is also necessary to consider the overall impression that might arise in the mind of the fair-minded observer having regard to all of the material in its proper context. My conclusion that there is an apprehension of bias arises by a process of examining discrete parts of the material, whilst remaining aware of the whole. In the result, I have rejected some parts of the applicants’ submissions about certain features of the evidence, but accepted others. The material relied upon by the respondents is not sufficient to dissuade me from the conclusion that the requisite apprehension of bias arises. However, I have accepted the respondents’ argument with respect to discrete aspects of the material that should not be interpreted in the way contended for by the applicants. I will deal first with that material.
Matters not giving rise to an apprehension of bias
178 Contrary to the applicants’ submissions, when read in its proper context the announcement of Minister Canavan of 1 February 2020 was not in fact, and did not purport to be, a decision made under s 14(2) of the NRWM Act. The fair-minded observer would appreciate that the statement was made by Minister Canavan not in his capacity as the person in whom the power under s 14(2) was then reposed, but as a Minister of State announcing a policy of the Australian Government. That policy was then unequivocally embraced and promoted by Minister Pitt.
179 It was not a policy of the kind considered in Jia relating to the construction and administration of the statutory provision conferring a power, but a policy for the repeal of provisions conferring a power and its replacement with provisions that provided a specific outcome by force of the statute itself.
180 On the evidence before me I consider that the fair-minded observer would understand the policy pursued by Minister Pitt to have at least the following features:
(1) it was desirable that the decision for the location of the site for the facility be made by way of a parliamentary process with bipartisan support rather than by way of an administrative decision of a single Minister under s 14(2) of the NRWM Act;
(2) the direct selection of the site by way of legislative amendment was desirable because it would avoid delay and uncertainty associated with judicial review proceedings;
(3) Napandee should be the site included in the Bill because it had been the subject of a long process of community engagement and consultation and because it enjoyed broad community support in the Kimba community; and
(4) the construction of the facility at Napandee would bring significant financial benefit to the community of Kimba including by way of jobs and grants.
181 Subject to what follows, Minister Pitt’s generalised statements broadly advocating for the legislative reform would be understood by the fair-minded observer to have been made by him in his capacity as a Minister of State and would not too readily be taken as an indication that he might not adhere to the proper course of decision making should the occasion to exercise the power under s 14(2) arise.
182 I am not satisfied that the fair-minded observer might form the requisite apprehension based on activities related to the ongoing design or feasibility activities relating directly to Napandee before the decision under s 14(2) was made, including the establishment and funding of the ARWA as well as the engagement of contractors to undertake preparatory investigations and design work. Those activities might equally be attributed to an expectation or hope that the Bill would pass. Moreover, given the nature of the power, it is neither unusual nor impermissible for the decision-maker to engage in activities related to the design of a facility at one place and not at alternate places, even before a declaration under s 14(2) of the NRWM Act is made. The engagement of consultants for that purpose (even at considerable expense) would not give rise to an apprehension that the Minister might not bring an open mind to bear on the question of whether a declaration should ultimately be made.
183 The same may be said of the provision of grant monies to the community of Kimba. The evidence shows that monies were paid not only to Kimba but to other communities whilst community engagement activities remained on foot.
184 Nor does it give rise to an apprehension of bias for Minister Pitt to continually state that the proposal for the construction of a facility at Napandee had broad community support whilst ultimately placing little or no emphasis on that support in the final decision. That aspect of the applicants’ written submissions (expressed at [149.11]) was akin to an allegation of actual bias and involved a degree of scepticism or cynicism that ought not to be attributed to the fair-minded observer. The same must be said of the submission that the very taking of “such an unusual and politically fraught step” as advocating for the site-specific Bill demonstrated a “commitment to his predetermined view that Napandee would be the site for the Facility”.
185 It takes the matter no further to describe the step of promoting the Bill as “a highly unusual – possibly unprecedented – step”. Characterising the conduct in that way does not assist in the application of the double might test or the two-step analysis in Ebner and would involve the Court overstepping its limited role in supervising the Decision for legality.
186 Finally, several of the public statements included statements that the Australian Government was committed to the establishment of a radioactive waste repository per se, and impressed the need for timeliness in achieving that object. Those more generalised statements do not give rise to a feared departure from the proper course of decision making. It was permissible for Minister Pitt in his capacity as decision-maker to have a mind closed to the question of whether there should be a radioactive waste facility at all, and to bring a sense of urgency to the project.
Matters giving rise to an apprehension of bias
187 In summary, the evidence discloses that in the course of making statements in his capacity as a Minister of State and Member of Parliament, Minister Pitt raised over and again the topic of the statutory power and the undesirable outcomes, specifically for the people of Kimba, should the Bill for the repeal of s 14 of the NRWM Act not pass. The site-specific Bill was promoted in a way that juxtaposed its benefits with the disadvantages of an administrative decision to declare Napandee as the site. The words and conduct (discussed below) could reasonably be understood by the fair-minded observer to mean that Minister Pitt had already made up his mind about the selection of Napandee as the site, and that his statements promoting the site-specific Bill were an expression of his view on the different question of how that decision should best be given legal force. His statements demonstrated unswerving dedication to achieving a factual outcome for the benefit of those persons in Kimba who favoured the facility being located at Napandee, whilst at the same time displaying a dismissive attitude to its key opponents, the Barngarla people. Thus, whilst Minister Pitt did not in terms state how the statutory power would be exercised, his words and conduct could fairly be interpreted by the fair-minded observer to indicate that he was fixed in his position as to the outcome. There are three features of the evidence that give rise to the requisite apprehension, whether considered alone or in combination with each other.
188 The first is the fact and content of statements to the effect that the Australian Government had made a commitment or promise to the people of Kimba that a radioactive waste facility would be situated at Napandee.
189 In his letters explaining the site-specific Bill to members of the public, Minister Pitt said that the Bill was introduced to “deliver on commitments to the community of Kimba by specifying the site at Napandee, near Kimba in South Australia, as the site for the [facility]”. The correspondence is consistent with Minister Pitt’s Facebook post of 18 November 2020, in which he stated that he remained committed to fulfilling the expectation of the people of Kimba, that the Parliament needed to “deliver on its promises to the Kimba community” and that he would do everything he could to see that it does.
190 Precisely how, when and by whom that commitment or promise was made was not stated by Minister Pitt. It is unnecessary for this Court to make any findings with respect to those objective details. Rather, it is necessary to ask how the fair-minded observer may reasonably interpret the statements in all of their generality. In my view, the observer may reasonably consider Minister Pitt to perceive himself bound to deliver on a promise that had already been made to the people of Kimba that a radioactive waste repository would be established near their town, namely at Napandee.
191 In making that finding, I have not overlooked that one of the other nominated sites, Lyndhurst, was also situated in the vicinity of Kimba. However, by the time of Minister Pitt’s statements referring to there being a promise or a commitment to the people of Kimba, the comments could reasonably be understood by the fair-minded observer to refer only to Napandee.
192 The pre-existing promise to establish a facility near Kimba was of course explained by Minister Pitt as a reason for advocating for the site-specific Bill and calling upon the opposition parties to support it, and so must be understood to have been made in a political context. To adopt the imagery of Callinan J in Jia, Minister Pitt would be fairly understood to be wearing his political “hat” when he made the statement that he would do everything he could to ensure that Parliament delivered on the “promise”. Significantly, however, the Bill was described as a way of delivering on the commitment or promise that the facility would be situated at Napandee in fact. The commitment or promise was not described by Minister Pitt merely as a promise to advocate for the Bill.
193 In the two-step analysis referred to in Ebner, the fair-minded lay observer would fairly understand the comments to refer to a promise Minister Pitt believed to exist in fact. That is not a circumstance that the fair-minded observer should be expected to ignore or to put down to political puffery. Minister Pitt’s belief in the prior commitment or promise and his determination to see that it was honoured is a matter that is said to give rise to the feared deviation from the proper course of decision making.
194 It is necessary to establish the connection between that matter and the feared deviation from the proper course of decision making. I accept the applicants’ submissions that Minister Pitt’s comments might give rise to an apprehension that Minister Pitt might exercise the power in a way that would make good on a commitment or promise he perceived to be owing to those members of the community of Kimba who wanted the facility to be built at Napandee, and to vindicate his statements to the effect that the promise or commitment must be made good. In the context of a power requiring relevant submissions made under s 18 of the NRWM Act to be taken to account, it would be a departure from the proper course of decision making for Minister Pitt to previously commit himself to a position that a facility must be established at Napandee or to exercise the power for a purpose of making good on an earlier promise or commitment (made other than in accordance with the NRWM Act) that that would occur. Unlike the facts in Jia, the public statements in this case were antithetical to the proper exercise of the power. The apprehension that arises is that Minister Pitt, having aligned himself with promises made by the government to achieve an outcome, might exercise the power in a way that vindicated his previously stated commitment to its achievement, in a context where the site-specific Bill was the preferred way but not the only way to achieve that end.
195 The second feature of the evidence is Minister Pitt’s statement to Mr Bilney in mid November 2020 that he should stop opposing the Bill because the government had determined that the facility would be at Napandee, that they needed to get on with it and provide certainty to the community. I deal separately with the remark concerning the need for certainty below. The effect of that statement was otherwise that Minister Pitt personally believed that there was nothing that could be said by or on behalf of the Barngarla people that would reverse a decision made by the government (of which he formed a vocal part) in respect of two things: Napandee would be the site for the facility, and the passage of the Bill was the means by which that outcome would be achieved.
196 The context of course is political: Minister Pitt was dismissive of the interests of the Barngarla people in the context of the implementation of a policy that did not concern the administration of the NRWM Act in its then current terms, but rather the amendment of the NRWM Act and the repeal of s 14. However, I consider that the fair-minded lay observer may reasonably form the view that Minister Pitt had such a dismissive attitude toward the interests of the Barngarla people that nothing that they could say would detract him from the government’s view (which he shared), not merely with respect to the desirability of the Bill, but with respect to the establishment of the facility at Napandee for which the proposed amendments provided. Given that the Bill and s 14 have the same subject matter (the selection of a specific site), I consider the context to be one in which the political and statutory roles of the Minister would not be compartmentalised by the fair-minded observer in the way contended for by the respondents. It is not the case that everything said in political discourse is irrelevant and must be ignored in determining whether an apprehension of bias affects the subsequent exercise of a statutory power. The judgments in Jia are not so absolute. Each case must be considered in its proper factual and legal context.
197 In the present case, Aboriginal heritage was a subject matter about which invitees may make submissions pursuant to s 18 of the NRWM Act. More specifically, Barngarla heritage concerns were a subject matter that could relevantly be the subject of submissions against a declaration being made with respect to Napandee. The Minister may of course have previously formed strong views with respect to that topic. However, he could not have a foreclosed mind as to whether such concerns might justify a decision not to exercise the power. The fair-minded lay observer should not be taken to ignore the unqualified dismissive statements made in the political context, given the absolute alignment of the factual subject matter in the present case and the extent to which they disclosed a highly dismissive attitude on Minister Pitt’s part towards the interests of the Barngarla people. The apprehension that might arise is that the same foreclosed mind so openly declared in the political process might infect that statutory decision making process with respect to the very same question.
198 The third feature of the evidence are those statements made by Minister Pitt which impliedly postulate what would occur if the Bill did not pass. There are multiple references to the people of Kimba seeking to enjoy the benefits of a facility constructed near their town. The statements convey an unequivocal belief on Minister Pitt’s part that those persons required the certainty that direct selection of Napandee by legislative reform would provide. Statements about the undesirability of uncertainty would reasonably be understood by the fair-minded lay observer to refer to uncertainty that would ensue in “endless rounds of court proceedings” that persons who opposed the selection of Napandee would bring. The fair-minded observer would reasonably apprehend that Minister Pitt promoted the Bill because that uncertainty presented an impediment to the construction of a facility at Napandee within his desired timeframes. It should be emphasised again that it is not for this Court to make any value judgment about the policy imperatives themselves. However, in the application of the legal test for apprehended bias, I am satisfied that the impression in the mind of the fair-minded observer is that Minister Pitt expected that if s 14 of the NRWM Act were not repealed, court proceedings would be brought by those who would be dissatisfied with his decision to declare Napandee as the site, thus depriving the people of Kimba who favoured that selection the certainty (and economic prosperity) he repeatedly said they deserved. In that sense, the comments about “certainty” were not purely made by Minister Pitt in his capacity as a Minister of State. Rather, they amounted to predictions about unfortunate events that he believed would follow should the Bill not pass and the statutory power be exercised. There is nothing in Minister Pitt’s statements to suggest that the persons who might commence the endless rounds of court proceedings might be those dissatisfied with a decision to select a site not being Napandee. Considered as a whole, the evidence discloses that Minister Pitt took sides in a divided community in a way that forcefully advocated for the people of Kimba who wanted the facility to be built at Napandee to receive what in his mind they rightly deserved.
199 Talking points prepared in February 2020 contained suggested responses to a postulated question of whether Minister Pitt would “still go ahead with Napandee” if the Bill did not pass. The first answer was “yes”. That response could only refer to the pursuit of the desired outcome (expressed in the political discourse) that Napandee be selected as the site. The relevant talking point (extracted at [97] of these reasons) refers to the delivery of the facility to “meet our commitments to the community” which (again read in context) may be understood as a reference to the Kimba community. However, the talking point also refers to that delivery happening “within the framework of the existing legislation, while also factoring in views expressed during the forthcoming Parliamentary process”. The applicants placed some store on the “yes” response. However, I am not satisfied that the February talking points may properly form the basis of a finding of apprehended bias in and of themselves, given the reference to the proper statutory process and subsequent information being considered. The same may be said of the talking points prepared in October and November 2020.
200 The talking points do not advance the applicant’s case, but nor are they fatal to it. I do not consider that the scripted passages about the application of the law can detract from the meaning of what Minister Pitt in fact said publicly and repeatedly, particularly about promises, commitments and the desire to avoid delay and uncertainty that a legal challenge to his own administrative decision would bring. As I have said, considering the statements as a whole, the fair-minded observer would infer that the administrative decision having all of the disadvantages raised by Minister Pitt was a decision to select Napandee as the site.
201 Minister Pitt’s statements in the radio interview with Ms Kelly emphasised again his desire for certainty. They could only be understood as referring to the need for certainty not in the outcome of his exercise of his absolute discretion, but in the outcome of court proceedings in which his decision to select Napandee may be reviewed. Fairly understood, Minister Pitt was not seeking to protect the community of Kimba from any uncertainty that might arise by reason of him being vested with an absolute discretion such that his decision might still go either way. The “uncertainty” he sought to protect “everyone in Kimba” from was the possibility that a decision to select Napandee under s 14 of the NRWM Act may not be implemented until “endless rounds of court proceedings” were over. The fair-minded observer may reasonably interpret Minister Pitt to be referring to proceedings brought by those who opposed the selection of Napandee under s 14. Accordingly, whilst Minister Pitt had dual roles, his statements in promoting the Bill incorporated statements about what would occur if the Bill did not pass and the occasion arose for him to exercise the statutory power.
202 His statements could only be interpreted as presupposing a decision he would make or had already made to select Napandee, and as raising a consequential concern to find the best means by which that decision could be given legal effect. The fair-minded lay observer might apprehend from the content of those statements that Minister Pitt might approach the exercise of the power with a foreclosed mind on the singular question to be decided under s 14, simply because his statements strongly conveyed the impression that his mind was made up.
203 I reject the respondents’ submission that a finding of apprehended bias would have the consequence that Ministers responsible for the administration of statutes could never participate in robust political discourse with respect to the subject matter of their statutory powers or with respect to the repeal or amendment of the law. The test for apprehended bias is to be applied in accordance with its terms having regard to the facts and circumstances of each case. The outcome in this case differs from that in Jia principally because of the different nature of the power and the content of the public statements under consideration. There is no general rule to the effect that the test for apprehended bias must yield in all cases to a higher principle relating to the dual role of Ministers as participants in the responsible government for which the Constitution provides, and the respondents did not agitate for one. If there is to be an exception in the articulation or application of the test to accommodate the unique aspects of the present case, it is for the respondents to clearly articulate what that exception should be and to found the exception in legal principle. In any event, the applicants acknowledged that an apprehension of bias could be avoided by a decision under s 14(2) of the NRWM Act being made by a different person occupying or acting in the office of the Minister responsible for its administration, and there was no express reliance on the doctrine of necessity in this case.
204 I have not overlooked the evidentiary material particularly coming into existence after the site-specific Bill was abandoned and revised. From that point, the tenor and content of the political discourse changed and the documents (such as briefs from the Department) evidence an orthodox process of decision making. However, the test for apprehended bias is not concerned with how a decision was in fact made. I do not consider the documents coming into existence after the Bill failed to pass to affect the interpretation of the materials to which I have referred or to otherwise warrant a conclusion that no apprehension of bias arose.
205 The ground alleging apprehended bias is upheld.
206 I now record my reasons for upholding the respondents’ objection to evidence on the basis that its receipt would infringe s 16(3) of the Parliamentary Privileges Act 1987 (Cth) (PP Act). Section 16 relevantly provides:
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
…
207 The respondents’ objection related to a significant number of documents evidencing things said in Parliament or other communications relating to the transaction of business in a House of Parliament or a parliamentary committee. After upholding the objection I directed the parties to provide redacted submissions and a redacted court book so as to remove from the Court file any document or reference to any document subject to the ruling. My reasons for upholding the allegation of apprehended bias are not based on any part of the excluded material.
208 The written reasons that follow are consistent in substance with those delivered orally, with some revisions to improve expression or to elaborate where appropriate.
209 The Court was taken to a number of authorities in which s 16(3) of the PP Act was discussed or applied in different factual and legal contexts: Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Australian Capital Territory v SMEC Australia Pty Ltd [2018] ACTSC 252; 337 FLR 290; Buchanan v Jennings [2005] 1 AC 115; Guy v Crown Melbourne Ltd (ACN 006 973 262) (No 2) [2018] FCA 36; 355 ALR 420; Laurance v Katter [2000] 1 Qd R 147; Leyonhjelm v Hanson-Young (2021) 282 FCR 341; McCloy v The Honourable Megan Latham [2015] NSWSC 1782; Prebble v Television New Zealand Ltd [1995] 1 AC 321; Rann v Olsen (2000) 76 SASR 450; 172 ALR 395; R v Theophanous [2003] VSCA 78; Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825; Town of Gawler v Minister for Urban Development and Planning [2011] SASC 26. With the exception of McCloy, none dealt with the question of whether the application of the test for apprehended bias to things said in Parliament (or relevant parliamentary communications) would involve the “drawing, or inviting the drawing of, inferences or conclusions” within the meaning of s 16(3)(c).
210 The test for apprehended bias is a legal standard to be applied to the facts as found. In the present case, there was no dispute that specified things were stated in Parliament or in any other communications to which s 16 applies. What was disputed was how the test for apprehended bias should apply to those uncontentious facts. In approaching that task, it is necessary to bear in mind that the fair-minded lay observer is a legal construct, a fictional person who stands as a proxy for the public. The test for apprehended bias fixes a legal consequence to facts without calling those facts into question in the ordinary sense. The fictional observer is not a person who in fact draws inferences and in fact draws conclusions.
211 In McCloy McDougall J of the Supreme Court of New South Wales upheld an objection to the tender of a report of a State parliamentary committee on the basis that its reception into evidence would infringe the privileges of the Parliament of the State.
212 The plaintiff in that case alleged that statements made by the defendant to the parliamentary committee gave rise to an apprehension of bias in the discharge of her statutory functions as the Independent Commissioner Against Corruption.
213 At [11] his Honour said that the debate before him proceeded by reference to s 16 of the PP Act before setting out the history of the provision as summarised by Beaumont J in Amann Aviation. McDougall J continued:
… Of course, that Act cannot apply of its own force. It deals with the privileges of the Parliament of the Commonwealth of Australia. However, [counsel for the plaintiff and the Attorney General], submitted that s 16 was declaratory of the position under the general law, and that represented the position as to privileges of the Parliament of this State.
214 His Honour identified (at [13]) that the question was whether the evidence was tendered merely to prove what the Commissioner said to the committee, and not for a purpose prohibited by subs (3). After referring again to the content of the general law, his Honour said (at [18]):
As I have said, the question is one as to the use to be made of the material if it is admitted into evidence. Beaumont J considered a very similar question in Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 23. His Honour set out s 16(3) of the Parliamentary Privileges Act at 228. He traced its legislative history at 228 – 230. At 230-231, his Honour dealt with the question before him, which as I have said is very similar to the one with which I am now concerned.
215 McDougall J reasoned to a conclusion that the test for apprehended bias was one that necessarily required inferences or conclusions to be drawn from the words that the Commissioner said to the parliamentary committee. That conclusion followed from the manner in which the plaintiff had pleaded the allegation of apprehended bias, expressed in terms of the reasonable inferences that a fair-minded lay observer might draw from the words.
216 Whilst the PP Act was not directly applicable, McDougall J did construe it and consider its application to a case, such as the present, involving an allegation of apprehended bias. His Honour proceeded on the basis that s 16 reflected the position under the general law as it applied in New South Wales.
217 It is implicit in the reasoning and outcome in McCloy that the phrase “drawing … conclusions, wholly or partly from anything forming part of those proceedings in Parliament” extends to conclusions in the nature of answers yielded by the application of that legal standard to the otherwise uncontroversial fact that words were said in Parliament.
218 As I have said, in the present case the fact that things were said and done in Parliament is not of itself contentious. The respondents submitted that those primary facts are not relevant to the resolution of the application for judicial review, unless the Court embarks on a process of reasoning involving conclusions of the kind prohibited by s 16(3). The respondents’ construction gives the word “conclusion” broad scope. Indeed, it is difficult to conceive of a reason why evidence of otherwise uncontroversial facts about what was said in Parliament might be adduced in evidence on an application such as the present (or for that matter in any other court proceeding) for any purpose other than inviting the Court to ultimately draw a conclusion of one sort or another by reference to it. Such a “conclusion” may be by way of a finding of fact or an ultimate conclusion based on the application of the law to it. Either way, there is a “conclusion” drawn “wholly or partly from anything forming part of those proceedings in Parliament”.
219 I do not agree with that part of the reasoning in McCloy which tends to attribute to the fair-minded lay observer the status of an actual rather than a fictional person. However, I do not consider that the construction of s 16(3)(c) of the PP Act preferred and applied by McDougall J to be plainly wrong. The judgment is considered dicta of a superior court concerning the construction of a Commonwealth statute. The principle of comity referred to by the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 is enlivened. I should apply the construction preferred by McDougall J unless I am satisfied that his Honour’s judgment is plainly wrong whether or not a different construction is open.
220 It follows that the respondents’ objection should be upheld.
221 I do not uphold the objection on the basis that the material is tendered for either one of the prohibited purposes prescribed in s 16(3) (a) or (b). The test for apprehended bias does not involve any course of reasoning that would engage those provisions. To the extent that the applicants’ submissions from time to time asserted that inferences might be drawn as to the actual state of mind of Minister Pitt by reference to the materials, those submissions are irrelevant to the matters that the Court is to decide in determining the ground review.
LEGAL UNREASONABLENESS
222 In his reasons for the Decision, Minister Pitt referred to a series of reports attached to his brief. They included the Gorring Report (submitted to him by BDAC), the RPS Report, the NSAR and the Draft AECOM Report (see respectively [65], [66], [136] and [139] above). None of the reports purported to include a comprehensive assessment of the cultural heritage values that may exist in and around Napandee. The authors of the RPS Report and the Draft AECOM Report had not undertaken any consultations with the Barngarla people for the purposes of the assessments contained in them. In addition, Dr Gorring had not been able to access Napandee for the purpose of preparing her report.
223 BDAC made comprehensive submissions to Minister Pitt relying in part on the Gorring Report and the RPS Report. Among other things, BDAC submitted that Minister Pitt should not make any declaration under s 14 of the NRWM Act with respect to Napandee until there had been a comprehensive assessment undertaken with respect to the cultural heritage values of the site.
224 Minister Pitt accepted BDAC’s submission that a comprehensive cultural assessment should be conducted “on the ground” at Napandee and in the surrounding areas. He said (at [67]) that BDAC’s submission in that respect was consistent with recommendations contained in reports before him, including the Gorring Report. The reasons state that careful consideration had been given to BDAC’s submission that a declaration selecting Napandee should be deferred until a comprehensive assessment had been completed. Minister Pitt’s conclusion as to cultural heritage was expressed as follows (at [69]):
In making a decision under s 14(2), I consider that I am able to take into account Aboriginal cultural heritage on the basis of the RPS Report, the AECOM Draft Report and the Gorring Report coupled with the Taylor Statutory Declaration. I also note that the area of the land intended to be acquired for the facility may provide flexibility to locate the facility on the Napandee Site in a manner that minimises impact on any identified cultural heritage. Having considered this material and the comments in the BDAC Submission 27, including the evidence in its attachments, I find that selection of the Napandee Site accommodates and respects Aboriginal cultural heritage values. I also find that arrangements for a complete cultural heritage assessment, with further opportunity for participation of traditional owners and evaluation in accordance with the requirements of the EPBC Act, provides an additional check and review in later stages of decision-making under the Act and other legislation. I am satisfied that as set out in the NSAR, arrangements are in place to enable, upon the selection of the Napandee Site, progression of planning for a cultural heritage assessment by independent consultants, who have already been engaged, and will continue to seek to work with BDAC and the Barngarla People in undertaking that assessment.
225 Earlier in his reasons Minister Pitt summarised the content of the various reports before him. He correctly described the relevant context and content of the Draft AECOM Report (at [65]) as follows:
The NSAR refers to the commissioning of a report to set the baselines for a complete cultural heritage assessment to be undertaken in the event that the Napandee Site is selected. Since the NSAR was completed, the AECOM Draft Report has been received. This updates the assessment in the RPS Report, but focusing only on the Napandee Site, together with an area of 35km radius surrounding the Napandee Site which is of interest and for investigation, including infrastructure linking the Napandee Site to Kimba and the Eyre Highway (Surrounding Area). The AECOM Draft Report finds that there is limited potential for unrecorded historical heritage places in the Napandee Site or the Surrounding Area, and limited potential for tangible cultural heritage values in the form of archaeological sites or deposits beneath the plough zone or in undisturbed areas of the Napandee Site. It finds that there are potential intangible cultural heritage values including sites and landforms connected to Dreaming stories and songlines, within the Napandee Site and the Surrounding Area. The intangible cultural heritage values are uncertain until they are properly identified, with the benefit of engagement with the Barngarla People.
(footnote omitted)
226 The Draft AECOM Report was not provided to BDAC prior to the Decision. BDAC was not aware of its existence, nor was BDAC or any other person representing the Barngarla people given an opportunity to comment on the opinions contained in it.
The ground of review
227 By [7A] of the Consolidated OA the applicants allege that the Decision is affected by legal unreasonableness because Minister Pitt had regard to the Draft AECOM Report without first bringing it to their attention and affording them (and specifically BDAC) an opportunity to comment on it. The applicants rely on:
(1) the unique status of the Barngarla people as traditional owners of the country;
(2) BDAC’s status as their prescribed body corporate under the NT Act;
(3) the SA Heritage Act that conferred upon them a statutory right to be consulted in relation to certain impacts on their cultural heritage;
(4) a declaration under s 14 of the NRWM Act would displace the SA Heritage Act and so remove their right to be consulted in relation to acts that would impact upon their cultural heritage; and
(5) the opinion of AECOM concerning the limited potential for certain tangible cultural heritage values to exist in and around Napandee, being an opinion adverse to their interests.
Principles
228 The absolute discretion conferred by s 14 of the NRWM Act is to be construed as subject to the implied condition that the power be exercised reasonably: Abebe v Commonwealth (1999) 197 CLR 510, Gaudron J (at [116]); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ (at [123]); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, French CJ (at [26] and [29]), Hayne, Kiefel and Bell JJ (at [63]), Gageler J (at [88]–[91]). In Li, Gageler J said that the obligation is not to be implied as a condition of validity if such an implication is inconsistent with the statutory text or with the nature or context of the statutory power or duty (at [92]). To that I would add that the statutory text and the nature and context of the statutory power must be considered when determining the practical content of the obligation in a given case.
229 The curtailing of procedural fairness obligations in s 18(5) of the NRWM Act did not, by implication or otherwise, preclude the responsible Minister from making a choice to afford persons whose interests (including non-proprietary interests) may be affected an opportunity to comment on material that may be relied upon in support of a declaration being made. It seems to me that when the applicants complain of “process unreasonableness” they are adverting to an unreasonable failure on the part of the Minister to make that procedural choice, or that the practical content of the requirement to act reasonably was such as to compel him to make the choice in their favour.
230 As I have said, the circumstance that procedural fairness obligations are limited does not of itself preclude the application of legal principles concerning legal unreasonableness to the exercise of the power. In such cases, it is said that adopting a procedural fairness analysis in resolving an allegation of legal unreasonableness is not the correct approach: Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 (at [99]), Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (at [67] and [86]).
231 In all cases, the existence of an obligation to act within the bounds of legal reasonableness requires an analysis as to where those boundaries lie. As Allsop CJ explained (at [83]) in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 the “content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review”. As his Honour said (at [7]):
… There is ‘an area of decisional freedom’ of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness. …
232 The Court will not lightly interfere with the exercise of a discretion, whether that be a discretionary power on a matter of practice or procedure, or a substantive decision-making power involving a highly evaluative task. Its limited function is to supervise the Decision for legality: Li (at [30], [66], [105]). The Court is not to apply its own view as to whether BDAC should have been given an opportunity to respond to adverse material in the Draft AECOM Report as though the Court were the decision-maker. The Court’s task is to discern, from the statute itself, whether the choice not to do so was within the area of decisional freedom conferred upon by the decision-maker by the Parliament. That is one of the reasons why the test for legal unreasonableness is described as “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Kiefel CJ (at [11]).
Consideration
233 In oral submissions, Counsel for the applicants acknowledged that s 18 of the NRWM Act contained a complete statement of the natural justice hearing rule conditioning the power to make a declaration under s 14. Counsel for the applicants submitted that the Barngarla people were persons who had an interest in the land within the meaning of s 18 and so were entitled to be invited to comment on a proposed declaration. Counsel acknowledged, however, that s 18 contained an exhaustive statement of the natural justice hearing rule and that there was no express obligation on the responsible Minister to provide even the limited class of invitees any of the material that might be relied upon in support of a proposed declaration, or to afford them an opportunity to comment upon it. Counsel acknowledged that the rules of procedural fairness conditioning the power in s 14 did not otherwise expressly confer upon the applicants a right to be informed of matters potentially adverse to their interests. Counsel emphasised that the ground of review did not directly invoke any right to procedural fairness. Rather, the applicants alleged “process unreasonableness”.
234 It was not argued that the substantive conclusion that a comprehensive cultural heritage assessment could and should follow the making of the declaration was one that was not reasonably open to Minister Pitt to make on the material before him. The conclusion about the timing of the assessment is consistent with the Gorring Report (submitted to Minister Pitt by BDAC) and the RPS Report, each of which contained a statement that an assessment should occur if Napandee were selected. It is also consistent with prior statements of the Department to the effect that a comprehensive assessment would be undertaken in the event that Napandee was selected as the site for the facility. The present ground of review is limited to BDAC being deprived of an opportunity to comment on the opinion that there was only limited potential for there to be tangible cultural heritage values situated there. That opinion, it was submitted, informed Minister Pitt’s conclusion about when the comprehensive assessment should occur.
235 The applicants submit (and I accept) that the existence of Indigenous cultural heritage values in and around Napandee is an issue that uniquely affects their interests as the traditional owners of the country in the sense described earlier in these reasons. Cultural heritage in the present context may include not only tangible values (such as artefacts, remains or other physical indications of the occupation and use of the land by the Barngarla people over many thousands of years) but also intangible values, such as their dreaming stories, inextricable as they are from the country and the spiritual connection of the Barngarla people to it.
236 I also accept that Minister Pitt had regard to the conclusions in the Draft AECOM Report when assessing Napandee against criteria he considered to be relevant. The first criterion involved an assessment of whether it is reasonably likely that radioactive waste can be safely and securely managed by the establishment and operation of a facility at the site that “meets the necessary regulatory or other approvals, licences and permits”, as to which Minister Pitt said (at [27]):
For the purposes of Criterion 1, the NSAR also assessed the likelihood of meeting the requirements of the EPBC Act and found there was a low or very low risk that there would be concerns about any particular site characteristic, technical factor or measurement. In this regard I also take into account the conclusions relating to heritage values reached in the Cultural Heritage Assessment – Napandee National Radioactive Waste Management Facility Aboriginal Heritage, 20 October 2021 which has been prepared in draft by AECOM (AECOM Draft Report). This is discussed further below.
237 I also accept the applicants’ submission that the Draft AECOM Report was taken into account by Minister Pitt in reaching his decision to reject BDAC’s submission that no declaration should be made until after a comprehensive cultural heritage assessment had been made. I include in that conclusion that part of the Draft AECOM Report referring to the low potential for there to be tangible cultural heritage values in, around or under Napandee.
238 Having said that, the Draft AECOM Report is not the only material that informed the conclusion that the comprehensive assessment could occur after the declaration was made. There was a plethora of material before Minister Pitt informing the question of whether the construction of a facility at Napandee may impact upon cultural heritage there, all of it consistently pointing to a conclusion that a comprehensive cultural heritage assessment was necessary. Minister Pitt accepted the need for such an assessment, but rejected BDAC’s submission as to its timing.
239 Minister Pitt noted (at [58]) that the Register of Aboriginal Sites and Objects kept under the SA Heritage Act had no record for any Aboriginal site within Napandee, and there was one record within a 20 kilometre radius of the site. Minister Pitt recognised that the Register did not preclude unregistered heritage interests being present at Napandee.
240 Having regard to all of that context I do not consider that the substantive decision to make the declaration (or any procedural decision antecedent to it) to be affected by legal unreasonableness in accordance with the principles summarised above, for three reasons.
241 First, BDAC made detailed submissions to Minister Pitt and provided its own expert report. There was nothing preventing BDAC from putting to the Minister its own assessment as to the likelihood of there being tangible cultural heritage values in, around or under the site. The likelihood of there being cultural heritage values in, around or under Napandee was a relevant topic which could fairly be anticipated by BDAC as one that may be considered in the exercise of the power. The Court is therefore concerned with a failure to draw to BDAC’s attention an opinion that another person had expressed on the same issue.
242 Second, whilst the analysis of legal unreasonableness is not to be approached through the lens of procedural fairness, it is not the case that express limitations on the rules of procedural fairness may be put to one side. The implication of the natural justice hearing rule arises from a common law rule of statutory construction. It embodies values inherent in the common law as to what fairness requires. Absent express indication to the contrary, it will be an implied condition on the exercise of a statutory power that a person whose interests are affected by the Decision be informed of the case against them and an opportunity to comment on adverse material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (at 590 – 592); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (at [32]). But those values do not find complete expression in the NRWM Act. By s 18(5), they are largely excluded and so cannot arise by implication. It follows that the decision-maker may make a legally valid decision in a manner that is procedurally unfair, not only in the ordinary sense but in the sense well recognised at common law.
243 Whilst it is true that the power in s 14 of the NRWM Act is conditioned by the requirement that it be exercised reasonably, it does not follow that the adoption of an unfair process equates to unreasonableness in the requisite sense. As the High Court said in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (at [18]) in relation to the regime in Pt 7AA of the Migration Act containing a limited and exhaustive statement of the natural justice hearing rule:
The Authority being able to exercise its powers to get and consider new information to bridge an informational gap in the review material by inviting a referred applicant to an interview in order to gauge and consider his or her demeanour for itself, the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course. Contrary to the urging of the appellant, answering that question is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7AA.
(footnote omitted)
244 Here, an obligation to disclose adverse information (even to persons having a proprietary interest in the land) forms no part of the statutory regime. The limited class of persons entitled to be heard under s 18 of the NRWM Act are entitled to be given nothing more than a copy of the Gazettal notice by which the declaration is proposed: NRWM Act, s 18(2).
245 I accept the general proposition that the same facts and circumstances may give rise both to a breach of the rules of procedural fairness (if they apply) and a breach of the obligation to act reasonably. However, the question of what is legally reasonable must be answered by reference to the statute itself. To establish legal unreasonableness in the present statutory context, it is necessary for the applicants to show something more than the circumstance that the decision was procedurally unfair. To construe the NRWM Act as compelling the decision-maker to afford BDAC an opportunity to comment on adverse material in the circumstances of the present case would, in my view, be inconsistent with Parliament’s intention that a valid decision may be made without that step being taken. It is true that the circumstances of the present case include the displacement of statutory rights under the SA Heritage Act with respect to cultural heritage concerns that are of a unique and special character. The harm that may be caused by the destruction of that cultural heritage hardly needs stating. It is a species of harm affecting not only the Barngarla people but the whole of the Australian community. However, Parliament must be taken to have had those circumstances in its contemplation when limiting the rules of procedural fairness conditioning the power in s 14(2) of the NRWM Act. Accordingly, I do not consider the implication of the requirement that the power be exercised reasonably (itself a rule of statutory construction) can warrant a conclusion that there existed an obligation having the same practical content as the excluded rules of procedural fairness.
246 Third, whilst I have accepted that the adverse opinions expressed in the Draft AECOM Report were taken into account, on a proper interpretation of his reasons, Minister Pitt fairly understood that they were not opinions based on a comprehensive analysis of the site. It was BDAC’s submission that that assessment should occur before any declaration was made. The Draft AECOM Report was one of a number of reports all suggesting that a comprehensive assessment should be undertaken if Napandee was selected.
247 Considering the reasons in their proper context, Minister Pitt did not close off on the enquiry as to whether there existed tangible cultural heritage values at Napandee and he did not dismiss that possibility on the basis of anything contained in the Draft AECOM Report. To the contrary, he emphasised that a comprehensive assessment was necessary in order for that question to be answered. His conclusion that the assessment could occur after the declaration involved the consideration and rejection of a submission that BDAC was given the opportunity to make. In my view, to the extent that there was a difference between the opinions contained in the various reports, considered in context, the difference is not significant, and bears on a factual topic that BDAC had an opportunity to address in any event. The reasons do not disclose that Minister Pitt based his decision as to the timing of the cultural heritage assessment on the “limited possibility” opinions in the Draft AECOM Report. Rather, in explaining his preferred timing, he referred to having carefully considered BDAC’s submission and to his satisfaction that the assessments would occur and were required by the EPBC Act in any event.
248 To the extent that it was argued in the context of this ground that Minister Pitt misunderstood the legal consequence of his decision and its effects on the rights of BDAC and the Barngarla people, that submission is rejected for the same reasons given in relation to the remaining grounds of review.
249 In the result, I consider it unnecessary to express a view as to whether BDAC or any traditional owner is a person who has an “interest in the land” within the meaning of that expression as it appears in the NRWM Act. Whether or not they meet that description, the decision is not affected by legal unreasonableness in the particular manner alleged.
ALLEGED ERRORS OF LAW
250 The grounds of review allege that Minister Pitt misunderstood or misconstrued the law in two respects: Consolidated OA, [10] and [11]. The allegation at Consolidated OA [10] arises from statements made by Minister Pitt about the temporary storage of intermediate level radioactive waste at the facility. The allegation at Consolidated OA [11] arises from statements made by Minister Pitt about the operation of the EPBC Act. Each ground is rejected for the reasons that follow.
Temporary storage of intermediate level radioactive waste
251 In his reasons, Minister Pitt stated (at [24]) that the facility at Napandee would provide for the “near surface disposal” of low level radioactive waste and the “above ground temporary storage” of intermediate level radioactive waste. Both categories of waste fall within the statutory description of “controlled material”.
252 The applicants contended that Minister Pitt proceeded on the assumption that a further declaration would and could be made under s 14(2) of the NRWM Act so as to select a site for another facility for the purpose of the permanent storage or disposal of intermediate level radioactive waste. They submitted that the Minister therefore acted on an incorrect understanding of the law, because the NRWM Act authorises only one declaration to be in force at any one time. The applicants submit that the Minister “misconstrued the objects, policy and purpose” of the NRWM Act in that he failed to recognise that it “sought a single Facility for the safe and secure management of controlled material including [intermediate level waste], and that declaring a site under s 14(2) at which [intermediate level waste] would not or could not be disposed was contrary to the Act”.
253 The applicants made no oral submissions in support of this ground. It can be shortly disposed of.
254 The applicants are correct in their submission that the NRWM Act allows only one declaration under s 14(2) to be legally operative at any one time. That is the effect of s 16(2). Any subsequent declaration is taken to revoke a prior declaration: s 16(3). Upon and from the revocation of a declaration, Pt 5 of the NRWM Act no longer applies to the land to which the prior declaration related: s 17(3)(b).
255 The applicants’ argument wrongly assumes that the objects of the Act contemplate that intermediate level waste must necessarily be “disposed of” at the facility. The objects of the NRWM Act refer to the establishment and operation of a facility for the safe and secure management of controlled waste. The objects of the NRWM Act in s 3(1) say nothing about “disposal”. In his reference to the disposal of low level radioactive waste Minister Pitt cannot fairly be understood to mean that low level waste would be disposed of in the sense that it would be destroyed or otherwise cease to exist. Rather, the Minister should be understood to have said that the low level waste would be permanently put underground, albeit near the surface of the earth.
256 The ground of review incorrectly asserts that the only means by which intermediate level waste could ever be “disposed of” (rather than temporarily stored) is by way of a second facility wrongly operating pursuant to a concurrent site selection declaration unlawfully made under s 14(2) of the NRWM Act, and that Minister Pitt had that unlawful state of affairs in his contemplation. That submission does not grapple with the provisions of the NRWM Act that make express provision for the revocation of a declaration, including by reason of another declaration being made with respect to another site. The objects stated in s 3(1) do not operate substantively so as to require that there be only one declaration made for all eternity. Such an interpretation would be contrary to the express provision made in s 16 and s 17 for a subsequent declaration affecting another site to be made.
257 By [10.5] of the Consolidated OA, the applicants appear to accept that a facility at Napandee could, in law, be decommissioned and replaced with a facility established at a site pursuant to a different declaration. However, they state:
10.5 Establishment of the Facility at a projected cost of more than $100 million with an anticipated lifespan of ‘200-300 years (low level waste), or even longer (intermediate level waste)’, together with the decommissioning costs which would arise if the Site Selection Decision was revoked after establishment of the Facility, means that there is no reasonable prospect that within a period which could, on any reasonable view, constitute a period of temporary storage of intermediate level radioactive waste:
(a) the Site Selection Decision would be revoked;
(b) any second or subsequent s 14(2) declaration would be made;
(c) any facility would be established for the disposal of intermediate level radioactive waste.
10.6 The Minister proceeded on the wrong basis that an additional facility would or could be established for the permanent storage of intermediate level waste after the Facility had been established.
258 The allegations in [10.5] and [10.6] include an invitation to the Court to embark on a factual and speculative enquiry about the likelihood that an administrative decision would be made in the future to decommission one facility and establish another. The legal assumption (correct in my view) is that a second facility could lawfully be established upon the decommissioning of a prior facility. But the factual allegation involves an impermissible enquiry in the context of a ground of review where an error of law is alleged. The opening words to the ground do not invite review on the basis of an error of fact. The applicants advanced no submissions to assist the Court to understand how such a factual conclusion could or should properly be drawn on the material before me in any event.
259 The error of law alleged at [10] of the Consolidated OA is not established.
The EPBC Act
260 In his reasons (at [64]) Minister Pitt said:
The NSAR proposes that in the event of a declaration selecting the Napandee Site, a cultural heritage assessment should be undertaken for the Napandee Site and affected areas outside it, such as those for road development, and that an Aboriginal cultural heritage management plan be developed. These steps would also be required in order to meet requirements of the EPBC Act. The NSAR recommends involvement of the Barngarla People in preparing the assessment and the plan, and that the government invites the Barngarla People to work with the Department to develop both.
261 He went on to say (at [68]):
Cultural heritage considerations will be taken into account as part of the EPBC Act process as the definition of “environment” is broad and relevantly includes the heritage value of a place, as well as social and cultural aspects.
262 I have earlier referred to other parts of the reasons in which Minister Pitt expressed the view that a comprehensive cultural heritage assessment should be undertaken “on the ground” at Napandee following the declaration, and his conclusion (at [69]) on that topic, extracted at [224] above.
263 The allegation at Consolidated OA [11] is that Minister Pitt proceeded on the wrong assumption that the EPBC Act “would require the protection of, Aboriginal heritage on or under Napandee, alternatively a management plan for that heritage, as part of the establishment of any Facility” because (as particularised at [11.1]):
The EPBC Act does not require protection of Aboriginal heritage on or under Napandee as part of any assessment necessary for approval under that Act for the Facility nor is the preparation of any management plan for that heritage a requirement of that Act or a precondition for any approval for the Facility under that Act.
264 As identified earlier in these reasons s 25(2)(b) of the NRWM Act preserves the operation of the EPBC Act after a declaration under s 14(2) has been made and expressly precludes the making of regulations displacing or modifying any of its terms.
265 Counsel for the respondents acknowledged (correctly) that the processes under the EPBC Act involve the exercise of discretionary powers and that there is no provision expressly mandating that an assessment of cultural heritage impacts (nor the preparation of a cultural heritage plan) be undertaken as a pre-condition for the grant of approval for a development of the kind proposed at Napandee. The respondents also acknowledged that the reasons for the Decision contain a statement that a cultural heritage assessment would in fact occur. Counsel submitted, however, that the Minister should fairly be understood as referring to a subjective understanding that such assessments would in the usual course be expected to occur in the exercise of the discretions contained in the EPBC Act. They submit that understanding was correct because Minister Pitt may permissibly proceed on an assumption, founded in his own experience, that the Minister responsible for the administration of the EPBC Act would act reasonably so as to require the steps to be taken. As to a Minister permissibly drawing upon his personal knowledge and experience, see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 (at [27] – [28]).
266 I do not accept that the reasons in this case should be interpreted in that way. The plain language is in terms of steps being “required in order to meet the requirements”. They mean what they say. In that respect, the reasons disclose a misunderstanding of the operation of the EPBC Act because they presume that certain steps relating to cultural heritage would be mandated by the EPBC Act whereas (as detailed below) their occurrence would depend on the exercise of discretions. I accept the applicants’ submissions to that extent.
267 However, I do not consider the misstatement of the operation of the EPBC Act to be an error of the kind that should justify an order under s 16 the ADJR Act setting the Decision aside. The grant of relief under s 16 is discretionary. In exercising the discretion, the Court may consider whether the identified error was material to the outcome: see for example Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2) [2020] FCA 1749, O’Bryan J (at [38]) and Li v Determining Authority [2022] FCA 1448, Raper J (at [142]). At common law, materiality arises as an essential requirement in order for an error to be properly characterised as jurisdictional. In the present context of the ADJR Act, a decision may be set aside whether or not an established ground involves jurisdictional error. Guidance as to whether to decline relief on the grounds of materiality may nonetheless be taken from judicial review cases in which the Court’s jurisdiction is that conferred under s 39B of the Judiciary Act, equivalent to that conferred on the High Court under s 75(v) of the Constitution. The test for materiality in that context is whether, absent the error, there was a realistic possibility that a different decision could have been made: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506.
268 Alternatively, it might be said that the grounds for judicial review in the ADJR Act themselves incorporate an essential element of materiality. Either way, the result is the same.
269 It is clear on the face of the reasons that Minister Pitt had concluded that a comprehensive cultural heritage assessment must take place and a cultural heritage plan made. Minister Pitt accepted BDAC’s submission on that topic without qualification, even though he took a different view as to the time when those steps should happen. His remark with respect to the EPBC Act is to be understood in that context. It is a remark to the effect that what Minister Pitt had determined should and would be done would in any event be required to be done under the EPBC Act. The word “also” at [64] of the reasons supports that interpretation.
270 As such, the reasons do not suggest that the cultural heritage assessment or the preparation of a cultural heritage management plan were steps that would be exclusively governed by the terms of the EPBC Act. The reasons must be interpreted in the context of the suite of express and ancillary powers reposed in Minister Pitt to require that a cultural heritage assessment be undertaken of his own volition. Such a requirement is supported in a practical sense by his power to revoke the declaration under s 17 of the NRWM Act, or to make a further declaration that would render the first declaration inoperative: s 16(3). The reasons, read as a whole, disclose that there would be a requirement imposed by Minister Pitt that the design and operation of the facility occur in a way that minimises the impact on cultural heritage values. The EPBC Act is one means by which that may be achieved but Minister Pitt did not refer to that enactment as the only legal framework in which it could or should be done. That is reinforced by his satisfaction (expressed at [69]) that “arrangements are in place to enable …. [the] progression of planning for a cultural heritage assessment”. Those arrangements are referred to in the NSAR to which Minister Pitt had regard. The NSAR described the arrangements in terms that do not depend on the exclusive application of the EPBC Act:
The department has engaged the services of an independent consultant (AECOM) to progress a cultural heritage assessment (CHA). The department has and will continue to offer invitations to BDAC to work together with the department to design and undertake a CHA and subsequently, a cultural heritage management plan. The department has also engaged a South Australian based heritage consultancy (Australian Heritage Services (AHS) to provide independent guidance, review and oversight of the assessment methodology and outcomes, and to provide cultural heritage expertise more broadly. [It] is anticipated that an Aboriginal cultural heritage assessment will form part of the environmental assessment process required under the EPBC Act. While criterion 1 considers Aboriginal cultural heritage in relation to the EPBC Act, there are other activities necessary to the establishment or operation of the facility, beyond gaining EPBC regulatory approval, where it is important to consider Aboriginal cultural heritage.
271 I therefore consider that any misstatement of the law concerning the “requirements” of the EPBC Act is of little significance and I would decline to grant relief on the basis of it. The misstatement of the law is immaterial because the conduct of a comprehensive cultural heritage assessment should fairly be understood to be one that would be mandated by Minister Pitt irrespective of the absence of express mandatory provisions in the EPBC Act itself. Accordingly, whether Minister Pitt was incorrect in assuming that the steps referred to would also be “required” by the EPBC Act is of no legal consequence and could not have materially affected the outcome in the requisite sense. To apply the common law test, there is no reasonable possibility that the outcome would have been different had the error not been made.
Alternative interpretation
272 I will now proceed on the assumption that I am wrong in rejecting the respondents’ preferred interpretation of the reasons for the Decision. Adopting that interpretation, it is necessary to evaluate whether Minister Pitt was correct in his understanding that decision-makers, acting reasonably in the exercise of powers under the EPBC Act, would in the ordinary course require that there be assessments of cultural heritage values undertaken as part of the development approval process and the preparation of a cultural heritage plan.
273 The respondents rely on five features of the EPBC Act to make good that submission.
274 First, the EPBC Act imposes an obligation on Commonwealth agencies that own or have control of a place that “has, or might have, one or more Commonwealth Heritage values” to take all reasonable steps to assist the Minister for the Environment (responsible for administering the EPBC Act) and the Australian Heritage Council to identify, assess and monitor the Commonwealth Heritage values of that place: EPBC Act, s 341Z. The word “place” is defined to include “a location, area or region or a number of locations, areas or regions”: EPBC Act, s 528. Napandee plainly meets that description. I reject the applicants’ contrary submission on that issue.
275 In its application to Napandee, the obligation in s 341Z of the EPBC Act falls upon the Minister for Resources, being a Commonwealth agency (as defined in s 528) having control (as defined in s 528) over the place by virtue of (at least) the rights arising under s 23 of the NRWM Act identified earlier in these reasons.
276 A place has a Commonwealth Heritage value if it meets one of the criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth): EPBC Act, s 341D(1). Regulation 10.03A prescribes the criteria for determining whether a place has Commonwealth Heritage values, including whether a place has “indigenous heritage value”, an expression defined in s 528 of the EPBC Act to mean the “heritage value of the place that is of significance to indigenous persons in accordance with their practices, observances, customs, traditions, beliefs or history”. The criteria include, amongst other things, whether “the place has significant heritage value because of the place’s importance in the course, or pattern, of Australia's natural or cultural history”: Regulations, reg 10.03A(2)(a). Regulation 10.03A(3) provides that “the cultural aspect of a criterion means the indigenous cultural aspect, the non-indigenous cultural aspect, or both”. In result, s 341Z of the EPBC Act imposes an obligation on the Minister for Resources to identify, assess and monitor the heritage values of a place which necessarily includes the cultural heritage of that place.
277 Second, s 341ZA of the EPBC Act imposes an obligation on Commonwealth agencies who own or control places to prepare a “written heritage strategy for managing the places to protect and conserve their Commonwealth Heritage values” as soon as practicable after the “time the agency first owns or controls a place”. A heritage strategy must comply with matters prescribed by the Regulations: EPBC Act, s 341ZA(3)(c). The Regulations define the matters for the purposes of s 341ZA(3)(c) (in reg 10.03E and Sch 7C) to include the following mandatory requirements:
A strategy must include general matters, including the following:
(a) a statement of the agency’s objective for management of its heritage places;
(b) a description of how the heritage strategy operates within the agency’s corporate planning framework;
(c) a list of key positions within the agency, the holders of which are responsible for heritage matters;
(d) an outline of a process for consultation and liaison with other government agencies on heritage matters;
(e) an outline of a process for consultation and liaison with the community on heritage matters, including, in particular, a process for consultation and liaison with indigenous stakeholders on indigenous heritage matters;
(f) an outline of a process for resolution of conflict arising from the assessment and management of Commonwealth Heritage values;
(g) an outline of processes for monitoring, reviewing and reporting on the implementation of an agency’s heritage strategy.
278 The respondents submitted (and I accept) that a heritage strategy promulgated pursuant to s 341ZA of the EPBC Act is akin to a cultural heritage management plan (if indigenous Commonwealth heritage values are found at that place), including because the Regulations require such a strategy to address how the heritage values are to be managed, reviewed and reported on.
279 In light of those provisions, the EPBC Act would require the Minister for Resources to promulgate a heritage strategy that would extend to managing indigenous heritage values at Napandee.
280 Third, the Minister for the Environment may, if satisfied that Napandee has Commonwealth Heritage values (relevantly involving indigenous cultural heritage), include Napandee on the Commonwealth Heritage List: EPBC Act, s 341C. In that event, s 341S of the EPBC Act would impose an obligation on the Minister to make a written plan to protect and manage those heritage values.
281 Fourth, it is common ground that the construction of a facility is a “nuclear action” as defined in s 22 of the EPBC Act. Section 21 of the EPBC Act prohibits the Commonwealth from undertaking “a nuclear action that has, will have or is likely to have a significant impact on the environment” unless it has approval under Pt 9 of the Act (specifically s 133) of the EPBC Act. That action (being the construction of the facility) is a “controlled action” for the purpose of s 67. If a person proposes to take an action which they think may be or is a “controlled action” they must refer the proposal to the Minister for the Environment to determine whether it meets that description: EPBC Act, s 68. The Minister for the Environment must then decide whether that action is in fact a “controlled action” and which provisions are controlling provisions: EPBC Act, s 75. There is no dispute that the construction of a facility at Napandee meets the description of a “controlled action”.
282 The Minister for the Environment must then decide which method of assessment in Pt 8 of the EPBC Act is the relevant method of assessing the impact of the facility on the environment: EPBC Act, s 87. The respondents argued (and it was not disputed) that it is likely that an environmental impact statement (EIS) approach under Pt 8, Div 6 of the EPBC Act would be undertaken, given the complexity of the project and the potential harm arising from its construction.
283 The respondents submitted (and I accept) that the EIS would involve an assessment of the cultural heritage of Napandee. That is because the “heritage value” of a place is included in the definition of the word “environment”: EPBC Act, s 528. Heritage value is itself defined as the place’s “natural and cultural environment having aesthetic, historic, scientific or social significance, or other significance, for current and future generations of Australians”: EPBC Act, s 528. In granting approval under s 133 of the EPBC Act, the Minister for the Environment must have regard to that EIS: EPBC Act, s 136(2)(a).
284 Fifth, the Minister for the Environment may attach any condition to the approval in s 133 if satisfied that the condition is necessary: EPBC Act, s 134(1). The Minister drew the Court’s attention to a policy of the Department of the Environment titled “Engage Early – Guidance for proponents on best practice Indigenous engagement for environmental assessment under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)”. It states that conditions for approval may include requirements to consult specific stakeholders on certain matters, such as consulting with traditional owners on the development or implementation of a heritage plan or offset.
285 In light of those provisions, the respondents submitted that Minister Pitt was correct in his understanding that if cultural heritage was identified at Napandee, the Minister for the Environment would in the ordinary course be expected to exercise the discretion so as to require a cultural heritage management plan as a condition attaching to the grant of any approval. The applicants have not shown that understanding to be wrong.
286 For the applicants it was submitted that the reasons for the Decision made no reference to Napandee being a Commonwealth place with potential heritage value. It is not clear why it should be necessary that the reasons descend into that degree of particularity. Minister Pitt’s statement to the effect that a cultural heritage assessment and cultural heritage management plan would be required in order to meet the requirements of the EPBC Act fairly encompasses all of the provisions upon which the respondents now rely.
287 The applicants then submitted that whether or not the Commonwealth heritage provisions would apply would depend on the exercise of value laden and discretionary powers of the Minister for the Environment. I have accepted that submission. However, it does not address the question of whether the Minister was correct in his understanding (interpreted in accordance with the respondents’ submission) as to how those discretions might reasonably be expected to be exercised.
288 The applicants further submitted that if the Commonwealth heritage provisions applied, they are irrelevant to the consideration of any approval for a “nuclear action”. That submission is correct in the sense that nothing in the EPBC Act mandates that the Minister for the Environment consider the heritage strategies and reports promulgated under those provisions when determining whether an approval should be granted under s 133. However, the Minister for the Environment, in assessing whether to grant approval for the facility, would be required to consider the EIS for the project which would, in the ordinary course, include impacts of the development upon the cultural heritage of the Napandee site: EPBC Act s 136(2)(ca). Both processes can reasonably be expected to result in a cultural heritage assessment taking place and the preparation of a cultural heritage management plan.
289 On the interpretation advanced by the respondents, the reasons do not disclose an erroneous construction of the EPBC Act on behalf of Minister Pitt.
290 On the further assumption that I am wrong in that conclusion, any error in understanding as to how discretions in the EPBC Act might reasonably be expected to be exercised does not materially affect the outcome in the requisite sense. That is because, as I have said, the reasons do not disclose that Minster Pitt considered the EPBC Act to be the only legal framework under which cultural heritage at Napandee could be identified, managed and protected.
291 It follows that this ground of review is not established on either interpretation of the reasons.
Constitution grounds
292 It is recalled that the power in s 14(2) of the NRWM Act authorises a declaration that a site or a specified part of a site is selected as the site for a “facility”. The word “facility” is exhaustively defined in s 4 to mean a facility for the management of “controlled material”. The Amending Act introduced s 4A. It exhaustively defines “controlled material” as follows:
4A Meaning of controlled material
(1) Controlled material means controlled material within the meaning of the Australian Radiation Protection and Nuclear Safety Act 1998 that is controlled material to which subsections (2) and (3) apply.
(2) This subsection applies to controlled material if:
(a) it has been used in Australia, generated by activities in Australia, or sent to Australia under contractual arrangements relating to the conditioning or reprocessing of ANSTO spent nuclear fuel (within the meaning of the Australian Nuclear Science and Technology Organisation Act 1987); and
(b) it is not high level radioactive material or spent nuclear fuel.
(3) This subsection applies to controlled material if it is one or more of the following:
(a) controlled material that is radioactive waste (within the meaning of the Joint Convention);
(b) controlled material that is generated as a result of activities that relate to the defence of Australia;
(c) controlled material that needs to be securely managed to prevent its use in the commission of a terrorist act (within the meaning of section 100.1 of the Criminal Code);
(d) controlled material that is generated, possessed or controlled by the Commonwealth or by a Commonwealth entity in the performance of its functions;
(e) controlled material that is generated by a State or an authority of a State;
(f) controlled material that is generated by a Territory or an authority of a Territory, or within a Territory.
293 Section 14(2) of the NRWM Act did not authorise the Minister to declare a site or a part of a site to be selected for anything other than a facility for the management of controlled material, so defined.
294 It is also to be recalled that the Amending Act amended the objects of the NRWM Act so as to state that its object was to give effect to certain obligations that Australia has under (relevantly) Ch 3 and Ch 4 of the Joint Convention.
295 The Constitution Grounds allege that “paragraph/s (a) and/or (b)” of s 4A(3) of the NRWM Act are ultra vires the legislative power of the Commonwealth. From there, the applicants allege that Minister Pitt wrongly assumed that s 4A(3)(a) and s 4A(3)(b) were valid, and so misunderstood the scope of the controlled material that could be stored in the facility and hence the nature of the facility itself. It is alleged that in making the Decision, Minister Pitt therefore asked himself the wrong question, relied upon irrelevant material and proceeded upon a mistaken conclusion, including by way of error of law.
296 Section 51 of the Constitution relevantly provides that the Commonwealth shall have the power to make laws for the peace, order and good governance of the Commonwealth with respect to:
(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
…
(xxix) external affairs;
297 Section 4A(3)(a) and (b) of the NRWM Act respectively engage, or purport to engage, the powers in s 51(vi) (defence power) and s 51(xxix) (external affairs power). The arguments as to their invalidity in large part turn on the terms of the Joint Convention. It is necessary to extract some of its terms.
The Joint Convention
298 The Joint Convention was ratified by Australia on 5 August 2003 and came into force on 3 November 2003. Its express objects (stated in art 1) relate to the achievement and maintenance of safety worldwide at all stages of the management of spent fuel and radioactive waste.
299 Article 3 identifies the factual subject matter to which the Joint Convention applies and does not apply, as follows:
ARTICLE 3. SCOPE OF APPLICATION
1. This Convention shall apply to the safety of spent fuel management when the spent fuel results from the operation of civilian nuclear reactors. Spent fuel held at reprocessing facilities as part of a reprocessing activity is not covered in the scope of this Convention unless the Contracting Party declares reprocessing to be part of spent fuel management.
2. This Convention shall also apply to the safety of radioactive waste management when the radioactive waste results from civilian applications. However, this Convention shall not apply to waste that contains only naturally occurring radioactive materials and that does not originate from the nuclear fuel cycle, unless it constitutes a disused sealed source or it is declared as radioactive waste for the purposes of this Convention by the Contracting Party.
3. This Convention shall not apply to the safety of management of spent fuel or radioactive waste within military or defence programmes, unless declared as spent fuel or radioactive waste for the purposes of this Convention by the Contracting Party. However, this Convention shall apply to the safety of management of spent fuel and radioactive waste from military or defence programmes if and when such materials are transferred permanently to and managed within exclusively civilian programmes.
…
300 With respect to the material referred to in art 3.3, para (viii) of the Preamble contains a recognition that spent fuel and radioactive waste that are excluded from its application because they are within military or defence programs “should be managed in accordance with the objectives stated in this Convention”.
301 Chapter 2 (containing arts 4 to 10) is headed “SAFETY OF SPENT FUEL MANAGEMENT”. It contains art 6 which obliges a contracting party to take appropriate steps to ensure that procedures are established and implemented for a “spent fuel management facility” to meet specified objectives. A “spent fuel management facility” is defined in art 2(p) to mean “any facility or installation the primary purpose of which is spent fuel management”. The expression “spent fuel” is defined in art 2(n) to mean “nuclear fuel that has been irradiated in and permanently removed from a reactor core”.
302 Chapter 3 (containing arts 11 to 17) is headed “SAFETY OF RADIOACTIVE WASTE MANAGEMENT”. It imposes obligations with respect to general safety requirements, existing facilities and past practices, siting of proposed facilities and their design and construction, the assessment of safety, the operation of facilities and measures to be taken after their closure.
303 Article 11 obliges contracting parties to take appropriate steps to ensure that at all stages of radioactive waste management individuals, society and the environment are adequately protected against radiological and other hazards and, in doing so, shall “take the appropriate steps” to:
(i) ensure that criticality and removal of residual heat generated during radioactive waste management are adequately addressed;
(ii) ensure that the generation of radioactive waste is kept to the minimum practicable;
(iii) take into account interdependencies among the different steps in radioactive waste management;
(iv) provide for effective protection of individuals, society and the environment, by applying at the national level suitable protective methods as approved by the regulatory body, in the framework of its national legislation which has due regard to internationally endorsed criteria and standards;
(v) take into account the biological, chemical and other hazards that may be associated with radioactive waste management;
(vi) strive to avoid actions that impose reasonably predictable impacts on future generations greater than those permitted for the current generation;
(vii) aim to avoid imposing undue burdens on future generations.
304 Article 13 is significant in the present case. It provides:
ARTICLE 13. SITING OF PROPOSED FACILITIES
1. Each Contracting Party shall take the appropriate steps to ensure that procedures are established and implemented for a proposed radioactive waste management facility:
(i) to evaluate all relevant site-related factors likely to affect the safety of such a facility during its operating lifetime as well as that of a disposal facility after closure;
(ii) to evaluate the likely safety impact of such a facility on individuals, society and the environment, taking into account possible evolution of the site conditions of disposal facilities after closure;
(iii) to make information on the safety of such a facility available to members of the public;
(iv) to consult Contracting Parties in the vicinity of such a facility, insofar as they are likely to be affected by that facility, and provide them, upon their request, with general data relating to the facility to enable them to evaluate the likely safety impact of the facility upon their territory.
2. In so doing, each Contracting Party shall take the appropriate steps to ensure that such facilities shall not have unacceptable effects on other Contracting Parties by being sited in accordance with the general safety requirements of Article 11.
305 Chapter 4 contains general provisions relating to safety. Article 18 requires a contracting party to take, “within the framework of its national law, the legislative, regulatory and administrative measures and other steps” necessary for implementing its obligations. Article 19 requires a contracting party to establish and maintain “a legislative and regulatory framework” to govern the safety of spent fuel and radioactive waste management. The framework must provide for (among other things) the establishment of applicable national safety requirements and regulations for “radiation safety”.
Issues
306 As expressed in the Consolidated OA (at [8]), the asserted basis for the invalidity of s 4A(3)(a) of the NRWM Act is that the external affairs power does not support a law that fails:
8.1. To prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory states (follow the treaty test);
8.2. Contains significant provisions which are inconsistent with the terms of the treaty (inconsistent with treaty test).
307 The Consolidated OA goes on (at [9]) to state why the so called “follow the treaty test” and the “inconsistent with treaty test” are not satisfied, namely:
a. Section 4A(3)(b), NRWM Act (concerning the defence power), is inconsistent with Art 3(3) of the Joint Convention, the latter of which expressly excludes ‘military or defence programmes’ from its scope in the present circumstances;
b. The purported unfettered discretions vested by sections 9 and 14, NRWM Act, are inconsistent with the Arts 6 and 13 of the Joint Convention, which prescribe matters to be taken into account, including the safety impact of a facility on ‘individuals, society and the environment’ whereby the site selection process is fettered by the regime established by the treaty, in a manner inconsistent with the unfettered discretions;
308 The particulars that follow commence with the proposition (uncontested in this case) that art 6 and art 13 of the Joint Convention must be construed in accordance with art 31.3(c) of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980): Consolidated OA, [9.2.1].
309 Article 31 of the Vienna Convention sets out general rules for the interpretation of international instruments. It provides:
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
310 It is alleged (at Consolidated OA [9.2.2] – [9.2.3]) that when construed in accordance with the Vienna Convention, the Joint Convention requires that “siting decisions” for a facility must accord with the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (ICERD) as well as customary international law “as evidenced by” the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) (UNDRIP). It is then alleged that s 9 and s 14 of the NRWM Act are inconsistent with and fail to follow the regime established by art 6 and art 13 of the Joint Convention which “prescribe matters that require discretions in site selection to be fettered”: Consolidated OA, [9.2.4].
311 The applicants’ written submissions concerning their preferred construction of art 13.1 of the Joint Convention proceed as follows:
(1) the use of the words or phrases “shall”, “appropriate steps”, “ensure” and “implemented” mandate that there be procedures that must be adhered to in order to make an evaluation of (among other things) the matters referred to in art 13.1(ii);
(2) the word “society” in art 13.1(ii) includes a society comprised of individuals;
(3) it is a necessary inference that the phrase “safety impact” extend beyond impact to the physical health of humans, flora and fauna by radiation leakage and the mental health impacts of a feared leakage;
(4) the phrase “safety impact” necessarily encompasses impacts in the nature of a “threat to the cultural integrity of society, and its constituent parts”;
(5) indigenous societies form a part of “society”;
(6) an issue arises as to what steps are “appropriate” when evaluating a decision for the siting of a facility;
(7) as the Joint Convention does not provide further definition of the phrase “appropriate steps”, the expression must be construed in accordance with the Vienna Convention;
(8) in accordance with art 31.3(c) of the Vienna Convention, customary international law affects the interpretation of a treaty and may lead to some modification in a treaty’s meaning over time as customary international law develops; and
(9) it follows that “appropriate steps” within the meaning of art 13 of the Joint Convention must be “steps in accordance with [customary international law], or, alternatively, in accordance with the ‘soft law’ norms adopted by the community of civilised nations”.
312 In advance of the hearing the respondents asked the applicants to give particulars of the asserted right, obligation or rule of customary international law relied upon and to articulate its content. The response was given in a document dated 29 August 2022 (Particulars). The asserted rights are set out at [2(a)] to [2(d)] and [5] of the Particulars, together with references to the sources that are said to give rise to or evidence them.
313 It is convenient to refer to them in categories as follows:
(1) Right Category 1 (said to derive from UNDRIP arts 3, 4, 5, 18, 23 and 46(1)) encompasses rights to self-determination, autonomy or self-government, with a corresponding obligation to “recognise, respect, protect, fulfil and promote the right of indigenous peoples to self-determination, conceived as the right to decide their political status and to determine what their future will be, in compliance with relevant rules of international law and the principles of equality and non-discrimination”.
(2) Right Category 2 (said to derive from UNDRIP arts 11, 12, 13, 15 and 34) encompasses rights to cultural heritage and identity, with a corresponding obligation to “recognise and promote the right of indigenous peoples to autonomy or self-government, which translates into a number of prerogatives necessary in order to secure the preservation and transmission to future generations of their cultural identity and distinctiveness”.
(3) Right Category 3 (said to derive from UNDRIP arts 10, 25, 26, 27, 29, 30 and 32) encompasses rights to territory and resources, with a corresponding obligation to “recognise, respect, safeguard, promote and fulfil the rights of indigenous peoples to their traditional lands, territories and resources, which include the right to restitution of the ancestral lands, territories and resources of which they have been deprived in the past”.
(4) Right Category 4 (said to derive from UNDRIP arts 8(2), 11(2), 20(2) and 29) encompasses rights to repatriation, redress and remedies, with a corresponding obligation to “recognise and fulfil the rights of indigenous peoples to reparation and redress for wrongs they have suffered, including rights relating to lands taken or damaged without their free, prior and informed consent”.
(5) Right Category 5 (said to derived from UNDRIP art 37) encompasses rights to respect for treaty commitments, with a corresponding obligation to “cooperate in good faith with indigenous peoples in order to give full recognition and execution to treaties and agreements concluded with indigenous peoples in a manner respecting the spirit and intent of the understanding of the indigenous negotiators as well as the living nature of the solemn undertakings made by all parties”.
314 The applicants were then asked to articulate what they say is the correct construction of art 13 of the Joint Convention in light of the asserted rights, obligations and rules of international law. Their response was:
When exercising the powers vested to conduct the evaluations identified in Art 13.1, paragraphs (i) and (ii), such powers are required to be exercised in a manner that does not infringe any of the obligations of customary international law as particularised in paragraphs 2a. – d. and 5 in response to request paragraph (a), and as so construed, Art 13 of the Joint Convention is inconsistent with the vesting of unfettered discretions in sections 9 and 14 of the NRWM Act.
315 The asserted basis for the invalidity of s 4A(3)(b) is that the defence power does not support a law which, during times of peace, provides for the establishment and maintenance of a facility that is used for non-military purposes in a manner that is not merely incidental to military purposes. It is alleged that s 4A(3)(b) of the NRWM Act fails to adhere to that principle “in that the siting, erection and use of a facility storing controlled material to give effect to obligations of Australia under the Joint Convention (see s 3(2) and s 4A(3)(a), NRWM Act), is not merely incidental to naval and military defence”.
316 The applicants contend that each of s 4A(3)(a) and s 4A(3)(b) “contradict” the other’s source of legislative power because:
(1) a facility to store controlled material specified by reference to the Joint Convention is outside the external affairs power if it also stores material for military and defence purposes; and
(2) a facility to store controlled material described by reference to defence purposes is outside the scope of the defence power if it also stores material, in a non-incidental manner, for the purposes of the Joint Convention.
317 The applicants submit that this Court cannot, in conformity with the limits of Commonwealth judicial power defined in Ch III of the Constitution, make what would amount to a “legislative choice” as to which of s 4A(3)(a) or s 4A(3)(b) should be severed, “whereof both are ultra vires and cannot be severed one from the other”: Consolidated OA, [13].
The respondents’ position
318 With respect to the external affairs power, the respondents put in issue most of the applicants’ case. They submit that the “tests” stated at [8] of the Consolidated OA are an incorrect statement of the law with respect to the scope of the external affairs power. They submit that the applicants’ case turns on an erroneous construction of the Joint Convention and Australia’s obligations under it. They dispute the existence of the rules of customary international law asserted in the Particulars. They submit that in any event the customary international law asserted by the applicants is not relevant to the proper construction of the Joint Convention.
319 With respect to the defence power, the respondents submit that the Joint Convention does not prohibit a state party from co-locating (within the one facility) material to which the Joint Convention applies and material to which it does not. Accordingly, they submit, s 4A is not ultra vires the external affairs power or the defence power, and no occasion for severance arises.
Agreed facts
320 The Court has before it a statement of agreed facts dated 23 November 2022 and a supplementary statement of agreed facts dated 3 February 2023. I have in large part found the agreed facts to be unnecessary. There are, for example, multiple facts that all seem to be intended to support a conclusion that radioactive material is hazardous to human health and to the environment, beginning at the level of the atom. The work of lawyers in preparing a lengthy statement of agreed facts might have been avoided by inviting the Court to proceed on the uncontroversial assumption that radioactive waste is hazardous. So much is plain from the objects of the NRWM Act and the Joint Convention in any event.
321 Other agreed facts concern the relative quantities of radioactive materials presently held in Australia that may be related to military and non-military activities. Those facts are irrelevant to the questions of law before the Court. The questions of law concern what forms of radioactive waste may be authorised to be stored in a facility established by the exercise of powers validly conferred under the NRWM Act. These are not factual problems.
Section 4A(3)(a) and the external affairs power
322 The parties’ submissions traced the previously unsettled law concerning the scope of the external affairs power. The now well established principles are those stated by Deane J in Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 and in the reasons of Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416.
323 The legislation must be “capable of being reasonably considered to be appropriate and adapted to achieving what is said to impress it with the character of a law with respect to external affairs”: Tasmanian Dam Case, Deane J (at 259).
324 The implementation of treaties falls within the external affairs power because it is a subject matter covered by the expression “external affairs”. As Dawson J said in Richardson v Forestry Commission (1988) 164 CLR 261 (at 326):
… the purpose of legislation which purports to implement a treaty is considered not to see whether it answers a requirement of purpose to be found in the head of power itself, but to see whether the legislation operates in fulfilment of the treaty and thus upon a subject which is an aspect of external affairs.
325 It is necessary that the international obligation created by the instrument and implemented by the law be stated with “sufficient specificity to direct the general course to be taken” by the contracting party to it: Industrial Relations Act Case (at 486). The Joint Convention fulfils that requirement.
326 The validity of a law enacted to implement international obligations otherwise does not require direct translation of international instruments into domestic law, nor will a law engaging the power be invalid merely because it represents only a partial implementation of the obligations of the contracting state. As Deane J said in the Tasmanian Dam Case (at 268):
It was submitted, by Tasmania, that the relevant provisions of the Act are not within s. 51(xxix) because, to the extent that they represent implementation of the Convention, that implementation is partial only. It should be apparent from what has been said that I do not accept the proposition that a law under s. 5l(xxix) for the carrying into effect of a treaty or for the discharge of treaty obligations must, as a condition of validity, carry into effect the whole treaty or completely discharge all the obligations. It is competent for the Parliament, in a law under s. 51(xxix), partly to carry a treaty into effect or partly to discharge treaty obligations leaving it to the States or to other Commonwealth legislative or executive action to carry into effect or discharge the outstanding provisions or obligations or leaving the outstanding provisions or obligations unimplemented or unperformed.
See also Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, McHugh J (at 75).
327 Deane J continued (at 268):
… On the other hand, if the relevant law ‘partially’ implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterized as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving effect to the treaty. That was the position in Burgess’ Case where, as Latham C.J. pointed out, some of the regulations were ‘in conflict with fundamental principles of the convention’. The relevant provisions of the Act and s. 69 of the National Parks Act do not fall within that category in that they do not conflict with the provisions of, or obligations assumed by Australia under, the Convention.
(footnote omitted)
328 To similar effect, the plurality in the Industrial Relations Case said (at 489):
Deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.
329 The phrase “capable of being reasonably considered to be appropriate and adapted” reflects the observation of Deane J that “the question of what is the appropriate method of achieving a desired result is a matter for the Parliament and not for the Court”: Tasmanian Dam Case (at 259). The principles are summarised by French CJ in Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 (at [57]), with particular emphasis on the appropriate role of the Court in their practical application:
In the Tasmanian Dam Case, Deane J adopted a high threshold proportionality test, similar to that stated by Dixon J, for a law purportedly made in the exercise of a purposive power under the Constitution. Such a law, he said, ‘must be capable of being reasonably considered to be appropriate and adapted to achieving’ its constitutional purpose. His Honour characterised the test as one of ‘reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it’. Applying the test so framed, the Court was not simply to substitute its view of what was appropriate and adapted to the objects of the law-making power for that of the legislative body. Similar formulations appeared in the judgments of Murphy and Brennan JJ. Although it is not clear from the text of Mason J’s judgment in that case, his Honour later regarded himself as having joined in that formulation. Deane J explained the significance of the high threshold test in Richardson v Forestry Commission. His Honour observed that it was not necessary for the Court to be persuaded that the particular provisions were in fact appropriate and adapted to the designated purpose or object. That was a matter for the Parliament. He said ‘it will, in my view, suffice if it appears to the Court that the relevant provisions are capable of being reasonably considered to be so appropriate and adapted’. Almost identical formulations were adopted by four other Justices.
(footnotes omitted)
330 The tests described in [8] of the Consolidated OA as the “follow the treaty test” and the “inconsistent with treaty test” will be understood as shorthand phrases for the two asserted reasons why s 4A(3)(a) of the NRWM Act does not fulfil the test for validity discussed above. They are not a complete or correct statement of that test.
331 It is convenient to dispose of the applicants’ arguments by reference to the Articles of the Joint Convention to which they relate.
Article 3.3
332 By virtue of s 4A(3)(b), the NRWM Act permits the establishment of a facility that may store “radioactive waste from military or defence programmes”.
333 Contrary to the applicants’ submission, the Joint Convention does not prohibit a contracting state from making such a law.
334 Properly understood, art 3.3 of the Joint Convention does nothing more than to define the scope of subject matter to which the obligations created by the Joint Convention shall extend. The statement that the Joint Convention shall not apply to certain material means nothing more than that.
335 Article 3 draws a distinction between material meeting the description “spent fuel or radioactive waste within military or defence programmes” and material that does not meet that description. It does not prohibit a state party from enacting a law providing for the management of the former, including by storage of the former within the same facility as the latter.
336 Paragraph (viii) of the Preamble makes it clear that a contracting state may (indeed should) store material to which the Joint Convention does not apply consistently with the objectives of the Joint Convention. It is not contrary to the objectives of the Joint Convention for a state to store material to which it does not apply in the same facility as material to which it does apply.
337 It is not correct to say that art 3.3 of the Joint Convention excludes its application to “spent fuel or radioactive waste within military or defence programmes” without qualification in any event. The applicants’ submissions placed much store on the opening words to art 3.3 with insufficient regard to the text coming after the word “unless”. The Joint Convention shall apply to spent fuel or radioactive waste within military defence programmes:
(1) if it is declared as spent fuel or radioactive waste for the purposes of the Joint Convention by the contracting party; and
(2) when such materials are transferred permanently to and managed within exclusively civilian programs.
338 Those words do not prohibit the colocation of such material within a facility for the storage of exclusively civilian waste. To the contrary, they plainly contemplate that colocation may occur. In the event that such material is transferred permanently to and managed within civilian programmes, then the contracting party will have obligations under the Joint Convention in respect of it.
339 The circumstance that the NRWM Act authorises the establishment of a facility for the storage of both defence and non defence related waste does not mean that it is not reasonably capable of being considered appropriate and adapted to implementing Australia’s obligations under the Joint Convention, properly construed. To the extent that the NRWM Act provides for the establishment of a facility for the storage of material to which the obligations under the Joint Convention do not apply, it is supported by other heads of power, including the defence power, as discussed later in these reasons.
340 The arguments based on art 3.3 must therefore be rejected.
Article 6
341 To the extent that the arguments relating to art 6 of the Joint Convention are the same as those relating to art 13, they are rejected for the same reasons given in the next section of these reasons.
342 I would add that art 6 is largely irrelevant except to the extent that it may aid in the interpretation of art 13.
343 The stated purpose of the NRWM Act does not include the object of implementing any obligations under Ch 2 of the Joint Convention, where art 6 resides.
344 The definition of “controlled material” in the NRWM Act expressly excludes “spent nuclear fuel” (s 4A(2)(b) an expression defined in s 4 of the NRWM Act to encompass the same material that would fall under the definition of “spent fuel” in the Joint Convention). A written submission to the effect that the definitions did not wholly capture the same material was not seriously pursued and I reject it. As such, the NRWM Act does not purport to authorise the establishment or operation of a spent fuel management facility of the kind referred to in art 6, nor the acquisition of land for any such purpose. The Decision under review does not purport to relate to any material of that kind.
Article 13
345 The essence of this aspect of the argument is that s 14 of the NRWM Act confers an absolute discretion and hence permits a declaration for the selection and acquisition of a site for a facility without doing something required to be done by contracting states under art 13.1 of the Joint Convention. The argument as to precisely what must be done was somewhat fluid. It was said that the evaluation of the likely safety impact on the cultural integrity of society (a concept encompassing certain rights of Indigenous peoples) must occur before a site for the establishment of a facility is chosen. However, the Particulars contain a more direct allegation that the power in s 14 must be exercised in a manner that does not infringe any of the obligations of customary international law. That argument suggests not only that the rights of Indigenous peoples must be considered in an evaluative process, but must not be infringed in substance.
346 The obligation (howsoever expressed) is said to arise by virtue of (at least) the expression “safety impact of such a facility on individuals, society and the environment” in art 13.1(ii) and otherwise art 13 construed as a whole.
347 In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, Brennan CJ said (at 231) that in “interpreting a treaty, it is erroneous to adopt a rigid priority in the application of interpretive rules”. His Honour continued:
The political processes by which a treaty is negotiated to a conclusion preclude such an approach. Rather, for the reasons given by McHugh J, it is necessary to adopt an holistic but ordered approach. The holistic approach to interpretation may require a consideration of both the text and the object and purpose of the treaty in order to ascertain its true meaning. Although the text of a treaty may itself reveal its object and purpose or at least assist in ascertaining its object and purpose, assistance may also be obtained from extrinsic sources. The form in which a treaty is drafted, the subject to which it relates, the mischief that it addresses, the history of its negotiation and comparison with earlier or amending instruments relating to the same subject may warrant consideration in arriving at the true interpretation of its text.
348 The Joint Convention is otherwise to be construed in accordance art 31 of the Vienna Convention extracted at [309] above. Article 31.3(c) directs attention to instruments or rules that confer or recognise rights or obligations under international law. It does so not for the purpose of directly importing those rules as free standing treaty obligations, but for the purpose of aiding the construction of the text of the treaty in question. It is but one interpretative rule among several, all directed to the proper interpretation of the chosen text.
Principles for determining customary international law
349 In Ure v Commonwealth (2016) 236 FCR 458 (at [29] – [35]) the Full Court discussed the requirements for establishing a rule of customary international law. The question arose because the appellant in that case had asserted property rights said to owe their existence to “international custom, as evidence of a general practice accepted as law” as one of the several sources of international law referred to in art 38.1(b) of the Statute of the International Court of Justice (ICJ Statute). The appellant failed to establish that there existed a rule of customary international law that claims arising before sovereignty can give rise to property rights which are required to be recognised by a nation state after sovereignty is claimed. The Full Court said that what art 38.1(b) of the ICJ Statute referred to as “international custom” was to be understood as evidence of a general practice which is accepted as law. That involved the “twin inquiries into the existence of a ‘general practice’ and whether the practice reflects obedience to a perceived rule of law”. The second of those requirements is known as opinio juris. The Full Court observed that the two requirements may interact with each other in complex ways (at [32]).
350 The two requirements were then explained by the Full Court by reference to what the International Court of Justice (ICJ) said in North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark) (Merits) [1969] ICJR 3. As to state practice, the ICJ said (at [74]) that the practice must be “extensive and virtually uniform”. As to opinio juris, the ICJ said (at [77]):
The essential point in this connection – and it seems necessary to stress it – is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; - for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.
351 The Full Court in Ure continued (at [32]):
… The requirement that the practice should be extensive and virtually uniform relates, of course, to acts which are opinio juris. But in a negative sense, a departure from a uniform practice may be generally treated as a breach of the rule and in such a case the disapproved departure tends to indicate the rule’s existence. So much was accepted by the ICJ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJR 14 at 98 [186] (Nicaragua v United States of America):
…The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.
352 The Full Court went on to say that the presence of a treaty rule will in some instances be evidence of the existence of customary international law but in other instances it will not, the enquiry being “very much specific to each treaty” (at [33]). Respective examples were found in the ICJ decisions in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 and North Sea Continental Shelf Cases. In the former case, art 2(4) of the Charter of the United Nations was found to reflect a rule of customary international law prohibiting the use of force to resolve an international dispute. In the latter, a method for determining boundaries on the continental shelf contained in art 6 of the Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964) (Geneva Convention) was found not to reflect a rule of customary international law as the number of ratifying states, whilst “respectable” was insufficient (putting aside non-ratifying landlocked states having no interest in where sea boundaries might lie).
Admissibility and use of expert evidence
353 The proper construction of a treaty is a pure question of law: Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) (2013) 212 FCR 406, Perram J (at, [31]-[32]; [47]-[48]). The parties agree that expert evidence is nonetheless admissible to establish the existence (or not) of state practice and opinio juris to assist the Court to identify whether there exists a rule of customary international law when applying art 31.3(c) of the Vienna Convention: PT Garuda Indonesia (at [254]).
354 The Court has before it two expert reports, one adduced by the applicants and the other by the respondents. The respondents originally objected to the tender of the applicants’ report but later said that its objections as to admissibility could be considered as matters going to weight. At the same time, the respondents submitted that the applicants’ experts could not give an admissible opinion on the question of whether the asserted rules of customary international law in fact exist, as that is a question to be determined by the Court. The respondents sought no ruling under s 136 of the Evidence Act 1995 (Cth) restricting the use of any particular part of the opinion evidence adduced by the applicants. The Court informed the respondents that if any restriction was sought as to the use of any part of the evidence, then they should provide a minute of a proposed ruling so as to assist the Court to identify with precision the material to which their complaint related. No minute was provided. The applicants otherwise submitted that any part of their expert report that was inadmissible could be read as a submission. I was not greatly assisted by the parties’ submissions about the permissible or appropriate use of the opinion evidence. The difficulty was compounded by the circumstance that none of the expert witnesses was required for cross-examination thus leaving the Court with competing opinions absent guidance as to whether the disputed issues properly fell within their areas of expertise or the appropriate scope of an opinion and if so, how disputed areas within their expertise should be resolved.
355 In the result, I have concluded that the applicants’ arguments relating to the validity of s 4A(3)(a) of the NRWM Act must be rejected irrespective of the content of customary international law in any event.
356 It is necessary to construe both art 31.3(c) of the Vienna Convention and art 13 of the Joint Convention, about which there is some considerable common ground.
357 The respondents accept that “any relevant rules of international law applicable in the relations between the parties” (referred to in art 31.3(c) of the Vienna Convention) may affect the meaning of a treaty in the sense that relevant rules “shall be taken into account” in the interpretive process. They also accept that art 31.3(c) may assist in resolving questions that a treaty does not resolve expressly by, for example, assisting in the interpretation of what the applicants coined “an unclear or open textured provision”.
358 The respondents further accept that art 31.3(c) may assist in the interpretation of a provision that has a recognised meaning in customary international law, to which the contracting parties may be taken to have intended to refer: see Amoco International Finance Corporation v Iran (Partial Award) (1987) 15 Iran-US CTR 189 (at [112]). There are no provisions of that kind in issue here.
359 Subject to what is said below, the respondents accept that the meaning of a treaty may evolve over time, however, whether the meaning of a treaty provision remains fixed at the time of entry or evolves over time must depend upon the nature of the provision being construed.
360 The approach taken by the ICJ as to whether the concept embodied in a treaty provision is a mobile one, is that stated in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 (at [53]):
… interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time.
361 To similar effect, the International Law Commission said in its report of the work of its 58th session (2006), General Assembly Official Records, Sixty-first session, Supplement No. 10 (A/61/10) (at 415, [22]):
A treaty may convey whether in applying article 31(3)(c) the interpreter should refer only to rules of international law in force at the time of the conclusion of the treaty or may also take into account subsequent changes in the law. Moreover, the meaning of a treaty provision may also be affected by subsequent developments, especially where there are subsequent developments in customary law and general principles of law.
362 The parties’ submissions proceeded from the general premise that the Court may enquire into customary international law coming into existence after the Joint Convention came into force.
363 As to the text of the Joint Convention, the respondents accept that the expression “safety impact … on individuals, society and the environment” (appearing in art 1(ii)) includes what the applicants described as “the impact of a threat to the cultural integrity of society, and its constituent parts”, those constituent parts including Indigenous peoples.
364 The respondents also accept that procedures envisaged by art 13.1(ii) of the Joint Convention would include the evaluation of the likely cultural heritage impact of a facility, if the likely safety impact on society included a risk of harm to the cultural heritage of society or a part of it.
365 I have understood these aspects of the respondents’ position to be based on an interpretation of the text of the Joint Convention in light of its objects and subject matter, being an interpretation that does not depend upon implications drawn from customary international law via art 31.3(c) of the Vienna Convention.
366 At the time of closing submissions, the respondents also accepted that Australia’s obligations under art 13 of the Joint Convention are engaged at the time that the power conferred under s 14 of the NRWM Act is exercised, being the time of the identification of a site for a proposed facility. I now turn to the dispute as to what those obligations entail.
367 The respondents contend that the expression “rules of international law” in art 31.3(c) of the Vienna Convention means rules that are legally binding under international law as between parties to a treaty, and does not refer to aspirational standards, political commitments, asserted moral obligations or (to adopt the applicants’ phrase) “‘soft law’ norms adopted by the community of civilised nations”.
368 They further submit that what must be taken into account are only those binding rules of international law that are “relevant” because they are capable of relating to the subject matter of the treaty provision, or because they are identified in the treaty itself as relevant.
369 I accept those submissions. The Joint Convention is to be interpreted as an agreement arrived at between the contracting parties in which the chosen text represents their compromise. As such, I do not consider that art 31 of the Vienna Convention is intended to operate in a way that alters the meaning of a contracting parties’ legally binding obligations by reference to non-binding norms or aspirations.
370 As to whether developing customary international law may lead to some modification in the meaning of a treaty over time, the respondents submit that art 31.3(c) does not allow a rule of customary international law to be applied in substitution of a treaty provision. Whilst I generally accept that submission, it does not provide a complete answer to a part of the applicants’ case. The applicants’ focus is on the proper construction of art 13 of the Joint Convention. They seek to deploy customary international law in the construction task, as permitted (indeed required) by art 31.3(c) of the Vienna Convention, specifically by giving concrete content to the phrase “appropriate steps”. Whilst their argument involves an assertion of rights, that assertion is but a step in an argument as to how the phrase “appropriate steps” and other expressions should be construed. The argument does not in terms seek to directly replace the obligations under art 13 of Joint Convention with rights or obligations arising under customary international law.
371 The respondents otherwise put forward three answers to the applicants’ arguments based on art 13:
(1) the NRWM Act is reasonably capable of being considered appropriate and adapted to implementing Australia’s obligations under the Joint Convention, even with the “absolute discretion” conferred by s 14;
(2) the applicants’ asserted rights and Australia’s asserted obligations are not rules of customary international law; and
(3) the asserted rights and corresponding obligations, even if customary international law, are not relevant to the proper interpretation of art 13 of the Joint Convention.
372 As explained below, each of the respondents’ arguments should be accepted, save for one issue that does not affect the outcome.
Appropriate and adapted, irrespective of the asserted rights
373 Article 13 of the Joint Convention obliges contracting parties to “take the appropriate steps to ensure that procedures are established and implemented for a proposed radioactive waste management facility” in respect of the four things mentioned in art 13.1(i) to art 13.1(iv). The applicants’ argument focuses upon the first two of them. Under those paragraphs the “appropriate steps” are steps for the establishment and implementation of procedures to evaluate “all relevant site-related factors likely to affect the safety of such a facility during its operating lifetime” and “the likely safety impact of such a facility on individuals, society and the environment”, including after its closure. The phrase “established and implemented” imports an obligation to take appropriate steps to not only ensure that the procedures are created, but appropriate steps to ensure that the procedures are implemented.
374 Unlike obligations imposed by (for example) art 11 (imposing general safety requirements) and art 14 (relating to the design and construction of facilities), art 13 imposes no obligation to ensure the safety of the facility per se. What is required are procedures for the evaluation of factors likely to affect its safety, and its likely safety impact, being procedures specific to the place at which the proposed facility is to be located. The evaluations themselves require a prospective appraisal of things that are likely to occur in the future and may of course encompass matters of the kind referred to in art 11. But an obligation to take steps to establish and implement procedures to “evaluate” the likely safety impact of an activity does not equate to an obligation to address or avoid the safety impact or to cease or avoid the activity altogether. What is required are procedures to ensure that something akin to a prospective risk assessment occurs with respect to a proposed facility in a way that is specific to the site where it is proposed to be located.
375 The power conferred by s 14 of the NRWM Act is not conditioned by any express or implied requirement that the responsible Minister personally undertake the evaluations referred to in art 13 before the declaration is made. However, art 13 imposes no obligation on a contracting state to complete the evaluations referred to, nor does it prescribe the person who must ultimately perform them. Rather, it imposes an obligation on the contracting state to take appropriate steps to ensure that procedures are established and implemented for the required evaluations of likely safety impact to occur. How they are to occur is left to the contracting state.
376 In accordance with the respondents’ concession on the temporal question, it is that step that must be taken by Australia as contracting state, at the time when the site for a proposed facility is identified. Given the respondents’ temporal concession, that time is the time when a declaration under s 14 of the NRWM Act is made. Importantly, however, there is no requirement that the procedures be established by a contracting state by means of a direct enactment of a domestic law, and certainly not within a singular enactment. In accordance with the principles stated in the Tasmania Dam Case and the Industrial Relations Case, the procedures referred to in art 13 of the Joint Convention may be procedures promulgated by Executive action or they may also be found in existing enactments which require and enable evaluations of the kind described in art 13 to be undertaken in relation to the facility before it is constructed. Accordingly, I do not accept the applicants’ argument that compliance with art 13 required that the particular power under s 14(2) be preconditioned with a requirement that the substantive evaluations in fact be undertaken by the Minister before a declaration selecting the site and providing for its acquisition could be made.
377 I am reinforced in that view by the word “proposed” in art 13. The obligations relate to evaluations that may well result in a decision not to locate a radioactive waste facility at a place at which it was originally proposed, including because the evaluations (undertaken in accordance with the procedures established) disclose that a facility cannot be designed and constructed in accordance with the obligations under (for example) art 11 and art 14. It seems to me that is one of the purposes of the prospective evaluations (based on likelihoods) with which art 13 is concerned.
378 At times, the applicants’ argument focused upon s 14 of the NRWM Act as if it were the only provision by which Australia sought to give effect to its obligations under art 13. Plainly it is not. Construed as a whole, I am satisfied that the NRWM Act is capable of being reasonably considered to be appropriate and adapted to the achievement of its purpose of implementing the Joint Convention, including by virtue of the following:
(1) authorisation of a nominated site under s 9 of the NRWM Act enables investigatory processes (expressly including technical investigations) to occur with respect to the approved site;
(2) the Minister is plainly authorised to have regard to all of the information gathered in that investigatory processes when determining whether notices are issued under s 18;
(3) before a declaration under s 14(2) is made, the Minster must have regard to representations made in response to notices issued under s 18;
(4) the NRWM Act expressly preserves the operation of other enactments containing detailed evaluative procedures and so contemplates that the design and construction of any facility at the site will be subject to the processes contained within them;
(5) a declaration under s 14(2) does not have the consequence that a facility must be constructed on the site subject to the declaration irrespective of its safety impacts; and
(6) a declaration under s 14(2) may be revoked.
379 It is not to the point that some of those procedures involve the exercise of discretions on the part of persons on whom certain statutory powers are conferred. Here, the legislature has not conditioned the power under s 14 with a requirement that the Minister personally take the appropriate steps to establish and implement the procedures in art 13, but it is apparent that the obligation is intended to be discharged by Australia as the contracting state in other ways.
380 Even if the powers and authorisations contained in the NRWM Act constitute only partial compliance with Australia’s obligations under the Joint Convention, I am not satisfied that that of itself would render the law unsupported by the external affairs power in accordance with the principles stated earlier. On that topic, I am not satisfied that the Joint Convention imposes a “specific regime” of the particular kind alleged by the applicants that must be imported as a precondition to the exercise of the power under which the Decision was made. The submissions on that topic overstated both the content of the obligations owed by Australia under art 13 and the manner in which the obligation must be fulfilled.
The asserted categories of rights are not customary international law
381 The applicants and respondents respectively rely on the report of Mr Timothy Otty KC and Ms Madelaine Clifford (Otty/Clifford Report) and the report of Professor Dapo Akande (Akande Report). Their expertise is not disputed and need not be set out here.
The Otty/Clifford Report
382 The authors of the Otty/Clifford Report set out the requirements for establishing a rule of customary international law by reference to what the Full Court said in Ure, which they correctly summarise as follows:
11.1 First, state practice must be ‘extensive and virtually uniform’: North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rrp 3, §74.
11.2 Secondly, state practice need not be ‘in absolutely rigorous conformity with the rule’; rather ‘instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule’: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, §186.
11.3 Thirdly, and relatedly, ‘If a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule’: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, §186.
..
383 The authors then briefly identify and group the five core rights of Indigenous persons referred to in the Particulars, before tracing what are said to be “key developments and interrelationships between asserted norms of customary international law”, focussing on:
(1) adoption of the International Labour Organisation, Convention (No. 169) concerning indigenous and tribal peoples in independent countries, opened for signature 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991) (ILO Convention No 169);
(2) the almost universal adoption of UNDRIP in 2007; and
(3) work undertaken by the International Law Association (ILA) between 2006 and 2020.
384 The authors then consider the state practice supporting each of the asserted rights. That part of the opinion is said to provide “non-exhaustive elements of relevant state practice” which they say should be read in light of their observation that the rights are of an “interrelated and mutually reinforcing nature”.
385 The history traced by the authors includes the following.
386 ILO Convention No 169 is ratified by 23 states, 15 of which are from Latin America. The authors state that it has been “decidedly less influential” than UNDRIP, but that it was a baseline normative consensus that drove discussion toward UNDRIP’s adoption.
387 UNDRIP is a non-binding declaration adopted by the United Nations (UN) General Assembly on 13 September 2007. It was passed by the UN General Assembly by a vote of 143 states in favour, 11 abstentions and four votes against, including Australia, Canada, New Zealand and the United States of America. Those four states have since reversed their position and expressed their support for UNDRIP.
388 The ILA undertook work on the rights of Indigenous peoples through two successive committees work from 2006 to 2020. The ILA Committee on the Rights of Indigenous Peoples (first ILA Committee) comprised more than 30 academic experts in the field of Indigenous peoples’ rights. It undertook work between 2006 and 2012 to define the existing international law standards on Indigenous peoples’ rights, following the adoption of UNDRIP and in subsequent state practice. The first ILA Committee produced two reports titled “The Hague Conference (2010)” (ILA interim report) and “Sofia Conference (2012)” (ILA final report), each of which is attached to the Otty/Clifford Report.
389 The ILA interim report contains a survey of state practice. The surveyed state practice includes conduct in connection with resolutions adopted by an international organisation or at an international conference, conduct in connection with treaties, legislative and administrative acts and decisions of national courts. The ILA’s survey has been described as “exhaustive” by the International Centre for Settlement of Investment Disputes Arbitral Tribunal: Grand River Enterprises Six Nations, Ltd v United States of America (Award) (ICSID Arbitral Tribunal, 12 January 2011) (at [210]).
390 The conclusion of the first ILA Committee (contained in the ILA interim report) was that customary international law recognised rights of Indigenous peoples to self-determination, autonomy or self-government, to the recognition and preservation of their cultural identity, to their traditional lands and natural resources, to repatriation and redress for wrongs suffered, and to an expectation that treaty commitments made with respect to them will be respected.
391 The ILA interim report states the conclusion that (at [12]):
… even though it cannot be maintained that UNDRIP as a whole can be considered as an expression of customary international law, some of its key provisions can reasonably be regarded as corresponding to established principles of general international law, therefore implying the existence of equivalent and parallel international obligations to which States are bound to comply with. In fact, the overwhelming voting majority with which the UNDRIP has been approved, the subsequent endorsement of the Declaration by most of the few governments that had voted against it, the unequivocal judicial and para-judicial practice of treaty bodies, as well as the pertinent state practice at both the domestic and international level, unequivocally show that a general opinio iuris as well as consuetudo exists within the international community according to which certain basic prerogatives that are essential in order to safeguard the identity and basic rights of indigenous peoples are today crystallized in the realm of customary international law.
(original emphasis, footnote omitted)
392 Those conclusions were summarised in ILA Resolution No 5/2012 and in the final report of the first ILA Committee.
393 The ILA final report stated (at [7]):
… As already seen in the Interim Report, the multiplication of international practice in the field shows the existence not only of the element of State practice, but also of a clear opinio juris, contextually satisfying both elements traditionally needed to prove the existence of a rule of customary international law. …
…
… the Committee reiterates its position on the rights of indigenous peoples under customary international law expressed in its Interim Report, which may be considered as further reinforced by the developments of international law on indigenous peoples occurred after the presentation of the said report at the ILA Hague Conference in August 2010.
(footnotes omitted)
394 The ILA Committee on the Implementation of the Rights of Indigenous Peoples (second ILA Committee) was similarly constituted. Between 2012 and 2020 it assessed the extent to which the standards identified by the first ILA Committee had been implemented in the territories in which Indigenous peoples live. It conducted 36 case studies concerning different groups of Indigenous peoples around the world and produced a draft report following the Kyoto Conference in 2020. The authors of the Otty/Clifford Report deal with the Final Draft Report in a single paragraph. They state that the case studies in the report provide “more recent examples of state practice” which support the existence of the rights they discuss. They do not refer to any particular case study to explain why that is so.
395 The authors’ opinions with respect to the “Right Categories” draws heavily from the above history.
396 The authors express the opinion that there is “sufficient state practice” to support the existence of each asserted right and an expression of agreement with the first ILA Committee: Otty/Clifford Report ([32], [38], [42], [47], [54]). In each case it is said that the right is given “expression and concrete content” or “principal expression” in specific provisions of UNDRIP: Otty/Clifford Report ([33], [39], [43], [50], [55]). In respect of Right Categories 1 to 4, it is then said that the rights are “also reflected in a significant range of other international and regional instruments” which are then listed at [35], [40], [44], [51]. It is said that the rights as recorded in those instruments have been “consistently litigated and their content further defined by international and regional human rights judicial and quasi-judicial bodies considering the rights of indigenous peoples”, of which some examples are given: Otty/Clifford Report ([36], [41], [45], [52]).
397 In respect of Right Categories 1 and 3, it is said that the subject rights have been “given effect to in certain domestic constitutional instruments” of some named nation states including, in respect of Right Category 1 at [37] (Mexico, Bolivia, Nicaragua, Ecuador and Ethiopia), and in respect of Right Category 3 at [46.6] (Paraguay, Colombia, Brazil, Bolivia, Venezuela, Chile, Nicaragua and Mexico).
398 Further in respect of Right Category 3, there is said to be “growing domestic jurisprudence” which recognises the right of Indigenous peoples to title to lands, territories and resources they currently possess. A number of examples are given, including two Australian cases: Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193 and Mabo v Queensland (No 2) (1992) 175 CLR 1.
399 In respect of Right Category 4 the authors opine that the existence of such a right “has been widely affirmed by domestic courts”, including those of a number of listed countries, among them Australia. No cases are mentioned, although reference is made to two pages from the interim report of the first ILA Committee without further particularity. The passage of the ILA interim report that appears to be relied upon reads as follows (at 42):
The provision of Article 28 finds confirmation in a huge State practice. In addition of being proclaimed by Article 16 of ILO Convention No. 169 and Article XXIV of the Draft American Declaration, the right of indigenous peoples to restitution or to other forms of reparation in the event of dispossession of their traditional lands has been affirmed and reiterated in the relevant case law at the international and domestic level. As for the former, the ‘jurisprudence’ of the HRC, the IACHR and the ACHPR emerges. At the domestic level, the right in point has been affirmed, inter alia, by the courts of Argentina, Australia, Belize, Botswana, Brazil, Cambodia, Colombia, India, Japan, Malaysia, New Zealand, South Africa and the United States. Last but not least, specific programmes of reparation have been recently developed by a number of governments that have granted redress to indigenous communities that in the past had been deprived of their traditional lands; this has happened, in particular, Australia, Canada and the United States.
(footnotes omitted)
400 In that passage, the footnotes in respect of Australia read:
See the renowned cases of Mabo v. Queensland (No 2) and Wik v. Queensland, 187 CLR 1, 1996. For a comprehensive assessment of reparations for indigenous peoples in Australia see B.A. HOCKING and M. STEPHENSON, ‘Why the Persistent Absence of a Foundational Principle? Indigenous Australians, Proprietary and Family Reparations’, in LENZERINI, Reparations for Indigenous Peoples, cit., p. 477 ff.
See D. SHELTON, ‘Reparations for Indigenous Peoples: The Present Value of Past Wrongs’, in LENZERINI, Reparations for Indigenous Peoples, cit., 47, p. 55.
401 In respect of Right Category 5 the authors express their agreement (at [56]) with a finding of the ILA interim report that the enforcement of the right is “inextricably linked to the various provisions of UNDRIP that guarantee access to ‘effective mechanisms’ for redress, ‘just and fair redress’ and ‘just and fair procedures for the resolution of conflicts and disputes”. The reason for that agreement is not specified. The referenced page of the ILA interim report is the page where the first ILA Committee’s ultimate conclusion is stated at the highest level of generality.
402 The authors then conclude with a statement that they consider there to be evidence of “sufficiently widespread and uniform state practice to support the existence and content of the rights of customary international law relating to indigenous peoples as set out at paragraphs 2 and 5 of the Applicants’ Particulars”.
The Akande Report
403 Among other things Professor Akande was asked whether there were any statements made by the authors of the Otty/Clifford Report with which he disagreed (of which there were many). He was otherwise instructed not to express an opinion on (Akande Report (at [7(b)]):
i. Whether a particular legal test (or part thereof) for the existence of a rule, right, or obligation of customary international law has (as a matter of law) been met or satisfied;
ii. The strength of the evidence supporting the existence or not of a rule of customary international law (as opposed to statements pertaining to what State practice exists); and
iii. Opinions on (i) or (ii) above found in the interim report of the ILA Committee on the Rights of Indigenous Peoples or in writings by any learned author cited in the Otty Clifford Report;
404 Those confines reflect the respondents’ position with respect to the limited role of an expert in addressing the questions before me.
405 Professor Akande’s critique includes an acceptance that state practice in connection with UNDRIP is relevant to the existence of the asserted customary international law rights and obligations. However, the author says, that practice extends beyond the mere adoption and text of UNDRIP in that it is necessary to also examine statements made in connection with its adoption and other acts engaged in after its adoption. Such statements are also relevant in determining whether there is opinio juris supporting or denying the existence of the asserted customary international law. The author states that upon the adoption of UNDRIP, some states claimed that it was a reflection of international law generally, without specifying any relevant rules or its source. Accordingly, such statements are not reliable evidence for the existence of a rule of customary international law.
406 The author opines that no state expressly asserted that UNDRIP reflected rules of customary international law and that some states adopting UNDRIP expressly stated that it did not. Whilst Australia, Canada, New Zealand and the United States later adopted UNDRIP, they did not state that it was a reflection of their obligations under customary international law. Two of them stated that it reflected their obligations under treaties. The author states that whilst subsequent to UNDRIP there has been a collective practice of states, acting through the UN General Assembly, that practice has been “in terms that suggest a lack of belief that its provisions reflect existing customary international law”.
407 With respect to each of the Right Categories, the author opines that upon the adoption of UNDRIP, no state suggested that the provisions reflecting any one of them reflected customary law.
408 The author states that practice relating to treaties (including their interpretation) will not be relevant unless that practice specifically indicates that the treaty rules are also accepted as rules of customary international law alongside their existence in the treaty. In that regard, they may have “subsidiary relevance”. The author acknowledges that there are some decisions of international tribunals and treaty bodies concerning the rights of Indigenous peoples, however they largely concern the interpretation of treaty obligations and so are largely irrelevant to determining the rules of customary international law.
409 In the course of addressing each Right Category, the author concludes that the decisions of treaty bodies referring to like treaty rights are not relevant practice establishing the co-existence of customary international law obligations. Whilst the statement of irrelevance is cast in absolute terms, I have understood the author’s opinion to mean that the decisions do not have the permissible “subsidiary” relevance to which he referred earlier, because of a lack of indication that the treaty rules under consideration are also accepted as rules of customary international law.
410 The author states that whilst decisions of domestic courts may constitute relevant state practice, they will only support the existence of such obligations if accompanied by indicators that the state (including the domestic courts of the state) accept the rules as customary international law.
411 The author states that the writing of publicists such as the first ILA Committee are not of themselves state practice or opinio juris. They may, however, be a subsidiary means for determining customary international law, depending on their rigour of analysis.
412 As to Right Category 1 (encompassing the right to self-determination and self-governance), the author recognises that “a handful” of national constitutions refer to the right, and that it is conceivable that these may be evidence of limited state practice supporting the existence of the right. However, the author states that he is not aware of the reasons for that limited state practice and specifically whether the relevant States considered the provisions in their constitutions to reflect rules of customary international law.
413 As to Right Category 2, the author states that he has not found any relevant state practice directly supporting the existence of rights of Indigenous persons relating to cultural heritage and identity. Whilst there are decisions of international and regional treaty bodies and domestic courts and tribunals, those decisions support the existence of treaty based rights but not the existence of customary international law obligations.
414 As to Right Category 3, the author opines that many of the statements of those nations adopting UNDRIP positively denied a belief that its provisions concerning land, territory and resources specifically reflected customary international law rules. The author states that with a single exception, decisions of international and regional treaty bodies and domestic decisions relating to that subject matter did not constitute relevant state practice because they concerned treaty obligations or questions purely arising under domestic law.
415 As to Right Category 4, the author accepts that states that commit wrongs against other states bear an obligation under customary international law to make reparations for the wrongs, however that custom does not equate to an obligation to provide reparations to Indigenous peoples. The author emphasises that many states who voted for or against UNDRIP (or abstained) expressly disapproved of the reparation provisions contained in the resolution. The author states that while there are international instruments, decisions of human rights bodies and domestic judiciaries relating to reparations for Indigenous peoples, none of them have proceeded on the basis that the right or interest under consideration is a right under customary international law with corresponding state obligations.
416 As to Right Category 5, the author stated that there was little or no discernible state practice in relation to it. The author disagrees that it is inextricably linked with the other Right Categories. The author states that a rule of customary international law will only emerge where there is state practice and opinio juris specifically referrable to that rule.
Consideration
417 Whilst the Consolidated OA and the Particulars refer to the ICERD, it has not been established how the NRWM Act could not be supported by the external affairs power by reference to that instrument. Precisely how that instrument is said to affect the construction of the Joint Convention remains unclear. The provisions of the NRWM Act must of course be interpreted in accordance with s 10 of the Racial Discrimination Act 1975 (Cth), which operates of its own force. But it is unclear how ICERD (given effect under domestic law by the Racial Discrimination Act) operates to affect the proper construction of the Joint Convention, whether via the Vienna Convention or otherwise.
418 I accept that there is some interrelationship between the rights of Indigenous peoples forming the subject matter of the Otty/Clifford Report. I am satisfied that the interrelationship is such that proof of state practice and opinio juris with respect to one of the Right Categories may also assist in proof of the existence of closely related rights and corresponding rules under customary international law. It is not difficult to identify a relationship between the asserted right of Indigenous peoples with respect to territory and the asserted right to cultural heritage inhering in the land. That is especially so in an Australian context where the connection of Indigenous Australians to land and waters as an aspect of their interest in land and waters is well recognised. To say that is not to introduce a lesser onus on the applicants with respect to the need to demonstrate the existence of each of the discrete Right Categories.
419 I have already rejected the applicants’ submission that art 31.3(c) of the Vienna Convention refers to “soft law” norms. The present enquiry is concerned with the existence (or not) of binding rules sourced in customary international law.
420 The resolutions of the UN General Assembly (including UNDRIP) are not binding in and of themselves. The authors of the Otty/Clifford Report employ UNDRIP to draw attention to state practice in connection with it. They also employ it as a device to articulate the content of the binding rules of customary international law, said to find expression in its various articles. Those approaches are permissible, but they cannot elevate UNDRIP to binding status.
421 The authors utilise ILO Convention No 169 in a very limited sense by way of historical background. They acknowledge that it is ratified by only 23 states (15 of whom are from Latin America) and they make very little use of it in their final analysis. I afford ILO Convention No 169 little weight.
422 Great emphasis is placed by the authors on the work of the ILA committees. As stated by Professor Akande, the work of publicists such as committees of the ILA may be relevant, however their relevance must depend on the rigour of the publicists’ analysis. What needs to occur is a rigorous analysis against each of the requirements for the determination of customary international law as discussed in Ure. Analysis of one without the other will not suffice.
423 The applicants submit that the work of the ILA assumes significance not only because it provides evidence of both state practice and opinio juris, but because the ILA has been accepted by the ICJ as one of the most highly qualified publicists and hence a source of international law: ICJ Statute, art 38.1(d). This Court recognises the eminence of the jurists comprising the first ILA Committee and the second ILA Committee, but that does not justify an approach that slavishly adopts their conclusions without scrutiny.
424 In the result, I have concluded that the opinions expressed in the Otty/Clifford Report should not be accepted, notwithstanding that they align with the conclusions of the first ILA Committee.
425 At a general level, the analysis underpinning the opinions contained in the Otty/Clifford Report is either not stated, or is otherwise lacking in sufficient rigour to enable the Court to be satisfied that the material relied upon is sufficient to support each conclusion. A pattern emerges in the second part of the opinion whereby the authors point to the conclusions of the first ILA Committee on a topic and express their agreement with it. The authors then refer to domestic jurisprudence but do no more than provide citations to the decisions without discussing their context or content. The authors refer to decisions of treaty bodies without explaining how those decisions are relevant in determining the existence of customary international law (as opposed to the construction and application of treaty rules).
426 I accept Professor Akande’s opinion that the decisions of treaty bodies will not be relevant unless they demonstrate the existence of customary international law rules (as distinct from treaty rules). I would not go so far as to say that the treaty-related decisions must expressly state that there exists a rule of customary international law to the same effect as that embodied in the treaty, as occurred in Nicaragua v United States of America. But it must at least be apparent that the subject matter of the decision has something to say on the topic of the existence and content of a co-extant or similar rule of customary international law. Accordingly, it is not sufficient for the experts to point to decisions related to treaties concerning rights or obligations on the same or similar flavour as one or more of the Right Categories. In that respect, there is a lack of analysis in the Otty/Clifford Report as to how and why the cited decisions are relevant. The Court does not require the assistance of an opposing expert to identify that (and other) deficiencies.
427 Similarly, the authors of the Otty/Clifford Report do not explain why they agree that the jurisprudence referred to confirms a “huge State practice” in the requisite sense. Attaching the adjective “huge” or “massive” to a thing does not make it so. Missing from the analysis is any reference by the authors to the legal and factual subject matter of the domestic cases to which they refer. The references to the work of the first ILA Committee does not remedy the defect, as the parts of those reports to which the authors refer do not contain the requisite analysis.
428 There is an assumption in most cases that the acts of nation states are explained by a belief in there being a legal obligation to so act. That assumption is not made good on the material before me. I accept that there may be cases where extensive and uniform state practice is demonstrated, its very existence may assist in demonstrating that the practice is explained by a sense of obligation. However, in the present case, little attention is given to the opinio juris requirement whether in a holistic way or by reference to any particular state practice.
429 The footnoted references to the judgments in Mabo, Wik Peoples v Queensland (1996) 187 CLR 1 and Santos are illustrative. This Court does not require the assistance of an expert to understand the reasons for those judgments and the factual and legal context in which they arose. It has not been shown how any of them assist in the proof of the requisite state practice or opinio juris with respect to the Right Categories, especially given how broadly the relevant rights are asserted. The High Court in Mabo declared the common law to recognise native title, unaffected by the assertion of sovereignty and the assumption of radical title in land by the British Crown. However, the High Court did not declare the common law by reference to there being a right and corresponding obligation under customary international law existing in 1992 to which Australia considered itself bound. More significantly, far from protecting native title recognised under the common law, the High Court said that acts of the sovereign following the assertion of sovereignty that were inconsistent with the maintenance of native title had the effect of extinguishing it for all time. An example of such an act is the grant of freehold title, as occurred at Napandee. And the legislature has since enacted provisions providing for the extinguishment of native title irrespective of the common law position, codified in the NT Act. The NT Act makes no provision for the restitution of lands previously occupied by Aboriginal and Torres Strait Islander people, in respect of which native title has been extinguished. I identify these issues not for the purpose of conclusively deciding them, but to illustrate that it is insufficient to merely point to a decided case or a statute as an instance of state practice without explanation or analysis, other than in instances where the supporting point is obvious. The authors’ reliance on the NT Act in support of Right Category 3 is lacking any accompanying argument as to how the enactment supports their opinion. It might be that such an argument could be formulated, but there is no attempt in the Otty/Clifford Report to do so and it is not the Court’s role to find a way for the pieces to fit together.
430 The decision in Santos was also put forward as part of relevant jurisprudence said to support the existence of Right Category 3. That case concerned the proper construction of regulations made under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The Full Court found that the expression “functions, interests or activities” encompassed the interests of traditional owners in the area in which the proposed activities were to occur, such that the traditional owners had a statutory right to be consulted. The case was cited as part of “developing jurisprudence” without any summary of its subject matter or explanation as to how it evidenced state practice or opinio juris, as opposed to an instance of the interpretation and application of domestic law.
431 The authors’ unqualified reliance upon these materials undermines my confidence in the sufficiency of the whole of their analysis underpinning their ultimate opinions. I am not assisted by mere citations to source materials without any discussion as to how they are capable of supporting the opinion expressed. To establish the existence and content of a rule of customary international law, it is not enough to point to decisions that relate to Indigenous peoples and that touch on the subject matter of one or more of the asserted Right Categories. Their relevance to the issues to be determined should be either obvious or explained.
432 It is not otherwise necessary to comment on the sufficiency of the substantive opinions expressed by Professor Akande as to the non-existence of state practice and opinio juris. The respondents have no onus to prove the negative. Except where I have otherwise stated, I accept and agree with Professor Akande’s criticisms of the Otty/Clifford Report.
433 It is sufficient to state that on the evidentiary material and submissions presented in this case, I am not satisfied that the asserted Right Categories and corresponding obligations exist as rules of customary international law within the meaning of art 31.3(c) of the Vienna Convention. They therefore have no bearing on the interpretation of the Joint Convention.
Relevance of the asserted rights
434 The respondents submit that the rules of customary international law asserted by the applicants are not “relevant” within the meaning of art 31.3(c) of the Vienna Convention, even if they were shown to exist.
435 Their submission is based in part on the limited matters that a contracting state is obliged to take “appropriate steps” to “ensure”. As explained above, the appropriate steps are to ensure the establishment and implementation of procedures for certain evaluations. They are not steps to ensure that obligations owing under customary international law are discharged. Whether the rules (if established) may supply mandatory content to the evaluations themselves is a different question.
436 The respondents submit that to construe art 13.1(ii) as requiring a contracting state to evaluate the consistency of a decision to select a site for a facility with the asserted Right Categories would be to write an amendment to the obligation in art 13.1(ii). I accept that submission at a broad level, but it can only be taken so far. Obligations owing under customary international law from time to time may be capable of assisting in the construction of phrases such as “society” and “safety impact”. The respondents have accepted that “society” in art 13.1(ii) includes Indigenous peoples and that the procedures envisaged by that provision would include the evaluation of the likely cultural heritage impacts of a facility, if the “likely safety impact of such a facility on … society” includes a risk of harm to the cultural heritage of a society or part of it. That construction might well be available by implication from the text without resorting to rules of customary international law in accordance with art 31.3(c) of the Vienna Convention. However, in accordance with Applicant A, it is inappropriate to elevate any one interpretative method in priority over another.
437 It seems to me that if a binding obligation to protect the cultural heritage of Indigenous peoples (Right Category 2) were shown to exist under customary international law, that would be relevant to construing the scope and subject matter of the evaluations to which art 13.1(ii) of the Joint Convention refers. That might support a construction that otherwise arises from the text. I do not accept that Right Category 2 (if it were established) would be irrelevant to the proper construction of the Joint Convention. The respondents’ submission is rejected to that extent.
438 As to the remaining Right Categories, the applicants’ submissions did not adequately address the connection between the subject matter of the asserted rights (or correlative obligations) with the text of the Joint Convention, other than in an abstract way. There was little discrete attention given to each Right Category so as to explain how the construction of the Joint Convention should be approached discretely by reference to each of them. The submissions returned to an assertion that “appropriate steps” must mean steps that compel (at least) consideration of the rights or otherwise steps that “accord” with them. The latter submission seeks to directly translate the asserted rights into corresponding obligations not to infringe them in substance. Given my acceptance of the respondents’ first argument, I do not accept that art 31.3(1) of the Vienna Convention may be utilised to support any such construction of the Joint Convention.
439 The applicants did not state precisely what consequences should follow for the application of the test for validity of the NRWM Act should it be established that there exists a binding obligation under customary international law to (for example) recognise, respect, fulfil and promote the right of Indigenous peoples to self-determination, autonomy or self-government (Right Category 1). It remains unclear to the Court how proof of the existence of that obligation might aid in the construction of the text of the Joint Convention and hence the task of determining whether the NRWM Act is supported by the external affairs power. The connection between the Joint Convention and the asserted obligation to “cooperate in good faith with indigenous peoples in order to give full recognition and execution to treaties and agreements concluded with indigenous peoples” (Right Category 5) is just as ambiguous.
440 To the extent that it was submitted that the evaluations referred to in art 13.1 necessitated that only that Indigenous peoples be consulted in relation to matters affecting their rights, that argument does not find expression in the Consolidated OA or in the Particulars. For the purposes of Right Category 5, it has not been shown that there exists any treaty between Australia and Indigenous persons that could form the subject matter of any such consultation in any event.
441 All of that leads me to reject the applicants’ primary contention that the Joint Convention should be construed as strictly imposing a specific regime, departure from which would render the law unsupported by the external affairs power.
442 It follows that all of the grounds alleging s 4A(3)(a) of the NRWM Act to be invalid must be rejected.
Section 4A(3)(b) and the defence power
443 As acknowledged by the applicants, a law providing for the management of “controlled material” that has been or is to be used for military purposes is a law supported by the defence power in s 51(vi) of the Constitution.
444 They submit, however, that the amount of military radioactive waste to be stored at the facility proposed for Napandee will be “very small”. They submit that the NRWM Act provides for the construction and operation of only one facility, and that what is contemplated cannot “properly to be characterised as being with respect to the naval and military defence of the Commonwealth”. The applicants submit that s 4A(3)(b) and s 4A(3)(c) of the NRWM Act would “standing alone” be within the defence power. They submit that a “Constitutional problem” nonetheless arises because the types of controlled material mentioned in s 4A(3)(a) and s 4A(3)(d) to (3)(f) of the definition are not limited to waste that is merely incidental to defence purposes and cannot be read down.
445 The problem is said to arise from what Rich J said in Attorney-General (Vic) v Commonwealth (1935) 52 CLR 533 (Clothing Factory Case). The plurality (Gavan-Duffy CJ, Rich, Evatt and McTiernan JJ) upheld the validity of s 63 of the Defence Act 1903 (Cth) which authorised the establishment of a factory in Melbourne in 1911 for the manufacture of uniforms for the armed forces and its continued use in the 1930s for the supply of clothing to Departments of the Commonwealth other than the Department of Defence, as well as to Departments of the State of Victoria and Victorian local government authorities. The plurality did not consider the proportional question, namely whether a military factory could be used for predominantly civilian purposes. Rich J did consider the question. His Honour said this (at 562 – 563):
… does it extend to the use of the factory for requirements which are not strictly naval, military, civil or otherwise departmental? I have no doubt that to fulfil these requirements must be the primary purpose of the factory. But it must be remembered that they are of a fluctuating character. All things naval and military have the-possibility of war in view, and the nature of the factory cannot be determined by peace-time requirements. A doctrine exists in the case of trading corporations that, when for the purpose of their undertakings they must control property, premises or appliances, it is within their incidental powers to utilise them for purposes akin to and not inconsistent with the primary purpose of the corporation, and thus avoid the ill consequences of their being left vacant, idle and unemployed. … It illustrates an application of the general doctrine that things may be done which are fairly incidental or conducive to the purpose for which a power is enjoyed. On the whole I think we may apply it to the peculiar situation in which the Commonwealth Clothing Factory stands. …. In the present case, however, so far as I can see, there is no inversion of the main and incidental power, and the supply to outsiders is of a minor character, and subsidiary to the main purpose of keeping a factory in going order for naval and military purposes on a scale adequate for actual and potential demand.
(footnotes omitted)
446 The applicants say that the facility proposed for Napandee cannot be supported by the defence power because its primary purpose is not for the storage and management of radioactive waste related to military activities.
Consideration
447 There is no “Constitutional problem” of the kind asserted by the applicants.
448 As Gummow and Hayne JJ observed in Wurridjal v The Commonwealth (2009) 237 CLR 309 (at [187]), when considering the validity of a law passed by the Parliament it is neither necessary nor appropriate to characterise the law as one supported by a single head of legislative power.
449 The effect of s 4A(3)(b) is that the NRWM Act authorises the storage and management of material “generated as a result of activities that relate to the defence of Australia” (defence related material). To that extent, it is a law that falls within the scope of the defence power discussed in Australian Communist Party v Commonwealth (1951) 83 CLR 1. Fullagar J there said that the power has two aspects. His Honour said (at 253 – 255):
… The tendency of the decisions of this Court, given in the course of two great wars and during the aftermath of each, has been to hold up the two aspects in sharp contrast one to another, and the dividing line between them has hitherto been regarded as sharp and clear-perhaps as sharper and clearer than it will ultimately be found to be. In its first aspect, s 51(vi) authorizes the making of laws which have, as their direct and immediate object, the naval and military defence of the Commonwealth and of the several States. This power is clearly not confined to time of war: see, e.g., Farey v Burvett, per Isaacs J.; Adelaide Company of Jehovah’s Witnesses Inc. v The Commonwealth, per Latham C.J.; Hume v Higgins, per Dixon J.; and cf. the reference by Williams J. in Koon Wing Lau v Calwell to matters ‘which could reasonably be considered to be a threat to the safety of Australia in the event of some future war.’ It is obvious that such matters as the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications, fall within this primary aspect of the defence power. These things can be undertaken by the Commonwealth as well in peace as in war, because they are ex facie connected with ‘naval and military defence’. From any legitimate point of view of a court their only possible purpose or object is naval and military defence. An interesting (and perhaps border-line) example of this primary aspect of the defence power is to be found in Attorney-General (Vict.) v The Commonwealth. But (with or without the aid of s. 51(xxxix.)) the defence power in its primary aspect includes much more than the things I have mentioned.
…
… In its secondary aspect the power extends to an infinite variety of matters which could not be regarded in the normal conditions of national life as having any connection with defence. Examples now familiar are the prices of goods and the rationing of goods, rents and the eviction of tenants, the transfer of interests in land, and the conditions of employment in industry generally. It may be that, on its true analysis, this secondary aspect of the defence power depends wholly on s 51(xxxix) of the Constitution. …
(footnotes omitted)
450 The Clothing Factory Case was concerned with the scope of the secondary aspect of the power.
451 Properly construed, the NRWM Act authorises the construction and operation of a facility that may in fact store only a small proportion of defence related material in comparison to material that is not defence related. No finding of fact with respect to the amount of defence related material in fact to be stored there is necessary. Constitutional validity of the NRWM Act turns on what it does and does not authorise, not on what will or will not in fact occur. What is authorised is the construction of a facility having the predominant purpose of storing and managing radioactive waste that is not defence related.
452 The plurality in the Clothing Factory Case held that the defence power supported the law not only in its direct authorisation for the operation of the factory, but in its conferral on the Governor-General of a power to “do all matters and things deemed by him to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State”. The maintenance of the factory in peace times met that description including because its continued operation involved the retention and training of fully engaged staff. The sale of clothing to bodies outside of the regular armed forces was not to be regarded as the main or essential purpose of the business, but as “incidents in the maintenance for war purposes of an essential part of the munitions branch of the defence arm” (at 558). Validity of the law depended on that finding because no additional or alternate source of power was relied upon by the Commonwealth.
453 If the principle identified by Rich J in the Clothing Factory Case were to be applied, it may be said that the defence power alone could not support the construction of a facility for the storage of predominantly civilian radioactive waste, and only a very small proportion of defence related waste. It may be that in such a case, an occasion for reading down or severance might arise so as to bring the law within the legislative power of the Commonwealth.
454 But the NRWM Act is not supported by the defence power alone. It is supported by the heads of power engaged by each paragraph of s 4A(3). As I have said, it is axiomatic that multiple heads of Commonwealth legislative power may support a single enactment. Therefore, the fact that a facility may be selected to store both controlled material falling within s 4A(3)(b) (supported by the defence power) and controlled material falling within other components of the definition of controlled material (supported by other heads of power) does not affect the validity of any provision of the NRWM Act.
455 All of the Constitution Grounds must therefore be rejected.
ORDERS
456 There will be an order under s 16 of the ADJR Act setting aside the Decision on the ground of apprehended bias.
457 The parties will be heard as to costs.
I certify that the preceding four hundred and fifty-seven (457) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. |
Associate:
SAD 224 of 2021 | |
DAWN TAYLOR |
