Federal Court of Australia

Kelly v Minister for the Environment and Water [2025] FCA 264

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs fixed in the amount of $10,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1    INTRODUCTION

1    This application concerns the reburial of 108 Aboriginal Ancestral Remains, including Mungo Man and Mungo Lady.  The remains of Mungo Man and Mungo Lady are dated at 40,000 to 42,000 years old.  They are the oldest human remains found in Australia and the earliest evidence of Homo sapiens outside Africa.   Recognition of the great age of Mungo Man and Mungo Lady were fundamental in establishing the cultural heritage significance of the Willandra Lakes and formed part of the basis on which the Willandra Lakes were nominated for inclusion on the World Heritage List by the Australian Heritage Commission in 1980.  The return of the Ancestral Remains to the Willandra Lakes is the culmination of cross-generational efforts by Traditional Owners at great personal cost to repatriate the Ancestral Remains to Country.

2    The Ancestral Remains demonstrate culturally significant burial rituals.  Protecting burial sites and remains is important in accordance with Aboriginal tradition, particularly for the Mutthi Mutthi, Ngayampaa, and Barkandji Peoples (the three Traditional Owner Groups), for whom the Ancestral Remains are sacred.  In broad terms, this application arises from the existence of different views among members of these groups as to the appropriate way in which the Ancestral Remains should be reburied in the Willandra Lakes area.

3    The applicant, Mr Jason Kelly, seeks judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) of a decision made by the respondent, the Minister for the Environment and Water, on 22 December 2023 under s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) with respect to the Ancestral Remains.  By that decision, the Minister rejected the application by a Mutthi Mutthi Elder, a Ngayampaa Elder and a Barkandji Elder (the original applicants) to make a declaration under s 12, with respect to reburial of the Ancestral Remains, for the protection and preservation of the Ancestral Remains from injury and desecration.

4    The application under the ATSIHP Act was made in response to the proposal to undertake each burial close to their point source of origin with a small private cultural ceremony, after which the sites will be returned to their existing conditions without markers to indicate the grave locations (the Reburial Proposal).  The proposed reburials facilitated by Heritage NSW and NPWS on behalf of the three Traditional Owner Groups commenced on 3 March 2025.  The Reburial Proposal was approved under State and Commonwealth law following extensive consultation over many years.  The proposal was intended to implement the unanimous resolutions to rebury the Ancestral Remains of the Willandra Aboriginal Advisory Group (AAG) and the Willandra Lakes Region World Heritage Advisory Committee (WLRWHA Committee) which includes the nine members of the AAG.  The AAG was formed in 2015 and is comprised of elected members from the three Traditional Owner Groups.  It is also the peak Aboriginal advisory body for the Willandra Lakes Region World Heritage Area.

5    Mr Kelly is a Traditional Owner and the son of one of the Elders who applied for the s 12 declaration.  While Mr Kelly brings these proceedings in his own right as a senior Mutthi Mutthi man, he also represented the original applicants in oral representations to the Department, and emailed a New South Wales Minister and the previous Minister in relation to reburial on behalf of the Traditional Owners.  Mr Kelly believes that he and his family are descended from some, if not all, of the Ancestral Remains.

6    The Minister accepts that Mr Kelly has standing to bring this proceeding even though he is not one of the Elders who applied for the declaration.  I am satisfied that Mr Kelly has a personal interest in the Minister’s decision beyond that of a mere member of the public, and therefore that Mr Kelly has standing to bring this proceeding.

2    OVERVIEW OF THE DECISION

7    It is important to emphasise that, in order to succeed on the application for judicial review, it is necessary for Mr Kelly to establish jurisdictional error or other error of law.  It is not open to the Court to revisit the factual findings made by the Minister in her decision; nor to decide whether or not a declaration should be made under the ATSIHP Act. These are questions as to the merits of the s 12 application which are reserved for the Minister alone under the ATSIHP Act.  As such, if Mr Kelly were to succeed and I were satisfied that relief should be granted in the exercise of discretion, the appropriate relief would be to remit the s 12 application to the Minister for determination according to law.

8    Mr Kelly advances six grounds of judicial review in his amended originating application which may be summarised as follows:

(1)    the Minister misconstrued the words “under threat of injury or desecration” in s 12 of the ATSIHP Act because the Minister proceeded on the basis that she had to be satisfied that injury or desecration “will” occur before the power to make a declaration is enlivened, rather than on the basis that injury or desecration is “likely” to occur in accordance with s 3(3) (Ground 1);

(2)    the Minister denied the original applicants procedural fairness and/or failed to take into account a relevant consideration:

(a)    by wrongly understanding the original applicants’ submission to be that free, prior and informed consent (FPIC or FPI Consent) was relied upon only as an Aboriginal tradition for the purposes of s 3 of the ATSIHP Act ((Ground 2(a)) whereas the submission was that, without FPI Consent, the Ancestral Remains were under threat of being treated inconsistently with the Aboriginal tradition of Aboriginal people visiting and maintaining the burial sites of their ancestors in order to honour them, pay respects to them, maintain a spiritual connection to them, and pass those practices on to future generations (the Burial Tradition) (Ground 2(b));

(b)    by misunderstanding the original applicants’ submission to be that mere engagement or consultation with the three Traditional Owner Groups would be sufficient, when the original applicants’ submission had been that agreement should be obtained from the three Traditional Owner Groups free of pressure after the three Traditional Owner Groups are fully informed (Ground 2(c));

(c)    by not taking into account the original applicants’ submission that, if the remains of Mungo Man and Mungo Lady (Ground 4) or the other 106 ancestral remains (Ground 3) were secretly reburied without memorials, they would be under threat of being treated in a manner inconsistent with the Burial Tradition;

(3)    further or in the alternative to Ground 4, the Minister limited herself to a consideration of whether Mungo Man and Mungo Lady were at risk of being physically harmed (rather than treated in a manner inconsistent with Aboriginal tradition) and thereby misconstrued the words “injury or desecration” (Ground 5); and

(4)    the Minister’s decision was legally unreasonable, or in the alternative the Minister denied the original applicants procedural fairness, by failing to make findings in relation to their complaints regarding the inability of the AAG to represent the views of the three Traditional Owner Groups (Ground 6).

9    I note that ground 2(a) is not a separate ground of review but rather sets out the relevant aspect of the Minister’s reasons on the basis of which Mr Kelly contends that the error alleged in ground 2(b) should be inferred.

10    For the reasons developed below, none of the grounds in the amended application have been established and the application must therefore be dismissed.  Without endeavouring to be comprehensive, key aspects of my reasons with respect to each ground may be briefly summarised as follows.

(1)    With respect to ground 1, read as a whole the Minister’s reasons do not reveal that she misunderstood the test in s 12(1)(b)(ii) of the ATSIHP Act as requiring her to be satisfied that the Ancestral Remains will be, rather than are likely to be, used or treated in a manner inconsistent with Aboriginal tradition.

(2)    Contrary to the premise underlying ground 2(b), the original applicants did not claim that the Reburial Proposal was inconsistent with the Burial Tradition alleged by Mr Kelly or make a case as to what Aboriginal tradition required.  To the contrary, the original applicants sought a declaration that the question of whether the proposed means of reburial were inconsistent with Aboriginal tradition should be determined by a process of consultation whereby the correct reburial methodology could be ascertained, with the reburials halted in the interim.  Yet there is no power under the ATSIHP Act to make such a declaration.  In any event, the Minister did consider whether reburying the Ancestral Remains in sites without memorials may be inconsistent with Aboriginal tradition.

(3)    Ground 2(c) is not established.  Section 12 of the ATSIHP Act does not empower the Minister to make a declaration for consultation to occur in order to determine whether an action would be inconsistent with Aboriginal tradition as defined in the Act.  Rather, the provision relevantly proceeds on the basis that an applicant for a declaration makes a claim that the action is likely to be inconsistent with Aboriginal tradition, and the Minister must then determine whether she is satisfied that the evidence establishes that claim.  In any event, the Minister considered that the establishment of the AAG and the public processes for the relevant state and Commonwealth approvals for the reburials project demonstrated significant, open and transparent engagement with the three Traditional Owner Groups in accordance with the principles of FPI Consent.

(4)    The Minister expressly addressed whether the Ancestral Remains, including Mungo Man and Mungo Lady, were under threat of injury or desecration as a result of the proposal for secret reburials without memorials and did not err by considering only whether the Ancestral Remains were at risk of physical injury.  This is fatal to grounds 3, 4 and 5.  Further and in any event, the Minister found that there was insufficient evidence that reburying the Ancestral Remains in sites without memorials would be inconsistent with Aboriginal tradition.

(5)    Ground 6 is not established.  Absent a finding that FPI Consent or an equivalent concept is an Aboriginal tradition and that the failure to obtain FPI Consent would result in injury or desecration of the Ancestral Remains, alleged inadequacies in the processes leading to the Reburial Proposal could not enliven the Minister’s power to make a declaration under s 12 of the ATSIHP Act.  As such, it was unnecessary for the Minister to consider the original applicants’ allegation that the AAG did not represent the views of the three Traditional Owner Groups and that FPI Consent had not been obtained for the Reburial Proposal.  In any event, the Minister considered and rejected on the evidence the original applicants’ contentions that FPI Consent to the Reburial Proposal was not obtained and that, without that FPI Consent, the Ancestral Remains will, or are likely to, be treated in a manner inconsistent with Aboriginal tradition.

11    In these circumstances, it is unnecessary to consider whether I would have declined to exercise my discretion to grant relief in the event that the application had been upheld.  However, I note in this regard that, while the reburials of the Ancestral Remains in accordance with the Reburial Proposal have commenced and Mr Kelly did not press an application for an interim injunction to delay the reburials pending this decision, contrary to the Minister’s submission I do not consider that the relief sought would necessarily lack utility:  cf e.g. Australian Institute of Professional Education Pty Ltd v Australian Skills Quality Authority [2016] FCA 814; (2016) 69 AAR 545 at [44] (Logan J); Harding v University of New South Wales [1993] NSWCA 129; Tebbutt v Egg Marketing Board (NSW) [1976] 2 NSWLR 179 at 186 (Hutley JA), 188 (Samuels JA) (Glass JA agreeing with the reasons of Hutley and Samuels JJA).  This is because, if he had otherwise succeeded on his grounds of judicial review and the Minister, on remittal, accepted that the alleged Burial Tradition was an Aboriginal tradition for the purposes of the ATSIHP Act, Mr Kelly contended that Aboriginal people could be told of the location of the burial sites and pay their respects, and memorials could be erected in line with the Burial Tradition.  I also note, for completeness, that there was, rightly in my view, no suggestion by the parties that the Court lacked jurisdiction by reason of the commencement of the reburials after these proceedings were instituted.

3    BACKGROUND

3.1    Return of the Ancestral Remains to Country

12    The Ancestral Remains were removed from the Willandra Lakes and Lake Mungo by non-Indigenous people between the late 1960s and the 1980s and taken to the Australian National University (ANU) for study.  Mungo Lady was the first of the Ancestral Remains to be removed in 1968.  The Willandra Lakes area was placed on the UNESCO World Heritage List in 1981 based on its outstanding cultural and natural values.

13    Proposals for the alternative management, but not reburial, of the Ancestral Remains began in 1984 when the Australian Archaeological Association wrote to the then Minister for Planning and Environment proposing an underground keeping place at Mungo for the Mungo Ancestral Remains.   Between 1984 and 2016, some 70 Willandra World Heritage meetings discussed repatriation, a research centre and reburial.

14    At the first Willandra Lakes Region World Heritage committee meeting between Aboriginal community members and New South Wales, Elders expressed concerns about the removal and study of the Ancestral Remains.  Aboriginal community awareness and concern about the unauthorised removal and study of the Ancestral Remains increased in the 1980s.

15    In 1989, academic and Aboriginal community participants at a Mungo Workshop agreed that the Ancestral Remains should be returned to Mungo National Park and that, as a symbol of reconciliation, keys should be held by both the Aboriginal community and researchers.

16    Aboriginal community consultation on reburial and Keeping Place options was undertaken between 1985 and 1991.  In 1992, Mungo Lady was returned to Mungo for safekeeping.

17    In 1996, a Plan of Management for the Willandra Lakes called for the development of a series of strategies for the return of the Ancestral Remains “to the satisfaction of the three Traditional Tribal Groups”.

18    In 2003, the NSW National Parks and Wildlife Service (NPWS) developed a detailed plan with the Willandra Three Traditional Tribal Elders Council for a Keeping Place, Education and Research Centre.  Forums to discuss repatriation and the final resting place for the Ancestral Remains were held in February 2015, November 2016 and April 2017.  Following the forums, consensus was reached to return all Ancestral Remains to Mungo.

19    The Ancestral Remains were moved several times during this period.  In November 2015, the Ancestral Remains were transferred from ANU to the National Museum of Australia and the ANU issued formal letters of apology to the three Traditional Owner Groups.  In 2017, the NSW Office of Environment and Heritage (now Heritage NSW) proposed to transfer the Ancestral Remains from the National Museum to Mungo National Park.  This action was referred to the Commonwealth Department of Environment and Energy which approved the transfer as “Not a controlled action if undertaken in a particular manner” under ss 75 and 77A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).  Reburial of the Ancestral Remains was not part of, and was not authorised by, that approval.

20    Pursuant to the approval, the remainder of the Ancestral Remains were transferred to a facility at Mungo under the custody of NPWS (the NPWS facility) on 17 November 2017, such that all 108 Ancestral Remains were held at Mungo.

3.2    Reburial of the Ancestral Remains

21    The continued storage of the Ancestral Remains has been a source of distress for many Aboriginal people.  In November 2018, the AAG passed a motion (the AAG Resolution) to rebury the Ancestral Remains in the following terms:

In exercising our inalienable rights and as Traditional Owners the Willandra Lakes Region World Heritage Area Aboriginal Advisory Group as duly elected representatives of the three Traditional Tribal Groups unanimously resolves to rebury the Willandra Ancestral Remains collection.  This resolution is consistent with past sentiments and views expressed by Elders and members of the various three Traditional Tribal Group representative bodies of the Willandra Lakes Region World Heritage Area over the last 40 years.

22    As earlier explained, the AAG is made up of nine elected members, comprising three people from each of the three Traditional Owner Groups.

23    Following the AAG Resolution, Heritage NSW commenced plans to implement the AAG Resolution.  The AAG discussed the process and planning for reburial in March 2019, and from 1-5 April 2019, representatives of the AAG/Three Traditional Owner Groups and Heritage NSW were part of the field assessment team which finetuned the location of assessment sites selected for reburial.  This in turn informed the preparation of a Review of Environmental Factors (REF).

24    A draft REF was made available to more than 200 Willandra stakeholders in August 2019, with four weeks within which comments could be received. The stakeholders included World Heritage Executive Officers, universities, museums, AAG members, Local Aboriginal Land Councils, Aboriginal organisations, native title holders, Elders, community members and NPWS Advisory committee members.

25    An opportunity to comment on the draft REF was also afforded to the newly formed WLRWHA Committee.  The WLRWHA Committee is a ministerially appointed advisory body agreed between the Commonwealth and NSW governments under the Intergovernmental Agreement on the Environment.  Significantly, membership of the WLRWHA Committee includes the nine members of the AAG.

26    In January 2020, the WLRWHA Committee wrote to the Commonwealth Minister for Environment and Energy in support of the proposed reburial.  That letter drew the Minister’s attention to a motion passed unanimously by the WLRWHA Committee that:

The WLRWH Advisory Committee support the Aboriginal Advisory Group’s decision to rebury ancestral remains of high cultural significance at Willandra Lakes Region World Heritage area.  That the reburial of these ancestral remains will not destroy cultural values of the Willandra Lakes Region but will reunite significant elements of the area that have been taken away.

27    The letter further advised with respect to the manner in which the proposed reburials were to take place that:

We see that the proposed reburial activity will fulfil the long-term aspirations of the Aboriginal community and is aligned with the Willandra Lakes Region World Heritage Area National Plan of Management (1996) and Mungo National Park Plan of Management (2006).  It also aligns with the Three Traditional Tribal Groups Vision Statement, particularly  “We act with integrity to ensure the preservation of our culture and heritage as representatives of our people who have given us these responsibilities” (AAG Terms of Reference 2019).

This activity will see the reburial of approximately 105 Ancestral Aboriginal remains that were removed from the region in 1960s – 1980s.  This will include Mungo Man and Mungo Woman.  All these remains are currently held at Mungo National Park and will be returned to locations close to their origin.  Small excavation pits will be dug, a small private reburial ceremony will be conducted, and the remains will be re-inter[r]ed in the landscape.  No markers will be installed to indicate the grave locations.

28    In January 2021, NPWS approved the REF under the Environmental Planning and Assessment Act 1979 (NSW) and Heritage Act 1977 (NSW).  The REF relevantly proposed that the reburials be conducted with no grave markers installed:

The proposed activity is a series of reburial ceremonies including the excavation of graves and the reburial of 108 Willandra Lakes Aboriginal Ancestors (also known as Aboriginal Ancestral remains or Aboriginal Remains) at 26 sites within the WLRWHA. Each reburial will be undertaken with a small private cultural ceremony as the remains are re-interned in the WLRWHA close to their point source of origin.

… No markers will be installed to indicate the grave locations and the sites will be returned to existing conditions.

29    The decision of NPWS was conveyed to more than 220 individual and organisational Willandra stakeholders.  Other approvals for reburial were also provided by Heritage NSW under the Heritage Act 1977 (NSW).

3.3    Approval of reburial under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

30    It was also necessary for an assessment to be undertaken under the Commonwealth’s EPBC Act because the region is a World Heritage Area.  Following the NPWS’ decision, Heritage NSW, as the proponent, therefore referred the proposal, which included the REF, on 12 May 2021 to the Commonwealth Department of Agriculture, Water and the Environment (later, the Department of Climate Change, Energy, the Environment and Water, both referred to as the Department).

31    On 31 March 2022, Minister Ley, the former Minister for the Environment, decided to approve the reburial of the Ancestral Remains under ss 130(1) and 133 of the EPBC Act.  The statement of reasons accompanying that decision importantly notes as follows:

The preliminary documentation was made available for public comment from 1 November 2021 to 31 January 2022

*    162 public submissions on the assessment documents were received, of which 77 submissions were in support, 42 submissions were against, and 44 submissions were neither in support of, nor against the proposed action.  These public submissions were included in my final approval decision brief.

*    The Summary of Public Submissions prepared by the proponent indicated that 47.5 per cent of submissions were in support of the reburial, 25.9 per cent were opposed, and 27.2 per cent neither supported nor opposed the proposed action.

*    73.3 per cent of submissions from Traditional Owners, Traditional Owner Groups, First Nations Peoples or First Nations Community Groups, Committees or Organisations were in support of the reburial.

*    All of the above information on the consultation, conducted when preparing the preliminary documentation, was included and attached to my final approval decision brief.

On 7 and 8 March 2022, I met with the AAG to consult with them on the proposed action. The AAG were in support of the proposed action.  I understood from the AAG that the uncertainty about the future of the remains was causing high levels of anxiety and pain within the community. I noted their urgency in finalising the assessment process.

Throughout the assessment, I held several meetings with key stakeholders to discuss the sensitive and complex nature of the proposed action and its impacts on the controlling provisions.  During these meetings, stakeholders expressed a range of views, both for and against the proposed action. In making my decision, I was aware of these views.  My final approval briefing also included a departmental summary of the meeting, times, key stakeholders, and the views they had expressed.

I also continued to receive correspondence through several channels throughout the assessment process.  My final approval decision brief contained all of this information. I considered all of this information when making my final decision.

Furthermore, in making my decision, I noted that members of the Willandra Lakes Indigenous community have had three workshops since 2015 to discuss the option of a Keeping Place.  I also noted that the elected Indigenous advisory body, the AAG, does not support such an option.

3.4    The First Application under the ATSIHP Act

32    On 20 May 2022, the original applicants lodged an application under s 9 of the ATSIHP Act seeking an emergency declaration to protect a particular area from a serious and immediate threat for up to 30 days (First Application). I consider the proper construction of the First Application in detail in the context of addressing ground 2 of the application for judicial review.  However, it is helpful at this stage to mention three aspects of the application.

33    First, the original applicants had legal representation throughout the process of applying for a declaration under the ATSIHP Act.

34    Secondly, in describing the significance of the Ancestral Remains, the First Application stated that:

The Willandra Lakes Ancestral Remains are incredibly significant to Aboriginal People as they provide evidence of Aboriginal People as one of the oldest continuous living cultures in the world.  They also demonstrate the long history of Aboriginal tradition and ceremony.  The Three Owner Groups believe that the Ancestors are important people who should be under the eyes of the World and our future generations, under the protection of our People.

35    Thirdly, the First Application sought a declaration to prevent the reburials from taking place in secret to provide an appropriate amount of time to enable the FPI Consent of the three Traditional Owner Groups to be obtained or to provide time for them to give their consent to the establishment of a Keeping Place for the remains.

3.5    The Second Application under the ATSIHP Act

36    On 23 May 2022, the original applicants’ legal representative requested that the First Application be considered under ss 12 and 18 of the ATSIHP Act because the First Application concerned “objects” rather than an “area”.

37    On 24 May 2022, the remains of Mungo Man and Mungo Lady were reburied in secret.  NPWS states that Mungo Man and Mungo Lady were removed from the NPWS facility by members of the AAG and buried at an unknown location.  The other 106 Ancestral Remains continued to be held at the NPWS facility in Mungo, subject to the NPWS proposal to bury the remaining Ancestral Remains in a secret location in the Willandra Lakes Region.

38    On 25 May 2022, the original applicants lodged a further application under ss 12, 18 and 21 of the ATSIHP Act seeking a declaration for the preservation or protection of the Ancestral Remains from injury or desecration (Second Application).

39    The Second Application covered similar material to the First Application, but included additional material in response to the removal and reburial of Mungo Man and Mungo Lady on 24 May 2022:

The Ancestorial Remains, are in need of protection due to actual threat of desecration.  A threat of desecration exists because Mutthi Mutthi, Ngayampaa and Barkandji People experiencesd [sic] the removal of the ancestral remains by persons unknown to rebury without consent on Tuesday 24 May 2022.

Future Harm

Given persons unknown have conducted a reburial in a manner not disclosed to the Applicants there is a concern that the remains could be degraded or desecrated.

40    On 10 June 2022, the original applicants’ legal representative advised the Department that the original applicants requested the merger of the two applications dated 20 May 2022 and 25 May 2022.  I refer to the merged application as the s 12 application.

3.6    The Consultant’s Report

41    On 17 October 2022, the Department engaged Mr David Williams of Clansadale Consulting to prepare a report in relation to the s 12 application.

42    Clansadale Consulting provided a report dated 2 May 2023 entitled “Applications under section 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984: Willandra Ancestral Remains” (Consultant’s Report).

43    The Executive Summary to the Consultant’s Report summarised the Consultant’s findings as follows:

4.     The application sought to protect the specified objects from the threat of injury or desecration, which the applicants make two claims as to the source of that threat, namely “because Mutthi Mutthi, Ngayampaa and Barkandji People have not had the opportunity to provide free, prior and informed consent on the Proposed Reburial Plan” (termed in this Report the Consent Claim), and “Given persons unknown have conducted a reburial in a manner not disclosed to the Applicants there is a concern that the remains could be degraded or desecrated” (termed in this Report the Harm Claim).

5.     Based on the evidence and information obtained through the course of my preparation of this report I make the following findings:

I.     The specified objects are of particular significance to Aboriginal people generally and the People of the 3TTGs:

*    as demonstration of their belief that Ancestors have inhabited Willandra Country, and the continent, for time immemorial;

*    as demonstration of their belief that Ancestors are an integral part of Willandra Country and are as one with Country, emerging from the mud and, on death, evidencing the traditional custom of returning directly to the earth;

*    providing evidence of the earliest-known use of funerary practices, rituals and customs;

*    as demonstration of their observance of respect for sacred lore and tradition, transmitted by verbal story-telling, ceremony and ritual from generation to generation.

II.     The specified objects are not under threat of injury or desecration as asserted in the Consent Claim, for the following reasons:

*    In my view, there is no international nor domestic legal obligation created by Australia’s support for UNDRIP [Universal Declaration on the Rights of Indigenous Peoples], including in relation to the principle of Free, Prior and Informed Consent.

*    In my view, the Applicants have not asserted a relationship between a lack of opportunity to fully exercise Free, Prior and Informed Consent, and Aboriginal Tradition as defined by the ATSIHP Act.

*    In light of the above, in my view it therefore follows that an alleged failure to provide adequate Free, Prior and Informed Consent, cannot of itself constitute a threat of injury or desecration to the specified objects, the Ancestral Remains.

III.     Further, should the Minister be minded to accept the claim that a failure to provide FPIC can constitute a threat of injury or desecration, as defined in the ATSIHP Act, I have concluded the following in relation to the specific features of this case:

*    In my view, the Applicants have not asserted a long-standing history for the exercise of Free, Prior and Informed Consent in the decision-making customs for the 3TTGs.

*    In my view, the AAG should be considered to be a valid and recognised representative body for the 3TTG People of the Willandra area.

*    In my view, and on balance, the consultation and consent decision-making processes undertaken in relation to the treatment of the Ancestral Remains can be considered as a valid exercise of Free, Prior and Informed Consent.

IV.     The specified objects are not under threat of injury or desecration as asserted in the Harm Claim, for the following reason:

*    In my view, the reburial proposals including the risk mitigation strategies, are not inconsistent with the body of traditions, observances, customs and beliefs of the 3TTG People, or of Aboriginal People generally.

6.     On the basis of the conclusions set out above, I consider that there are no grounds under s. 12(1) of the ATSIHP Act for the Minister to make a Declaration in this matter.

(Emphasis in original.)

3.7    The Decision Brief

44    On 21 September 2023, a departmental Decision Brief was sent to the Minister for the Environment and Water, to which various documents were attached including:

(1)    the departmental summary and analysis (the Departmental Analysis) (Attachment A);

(2)    the First Application and Second Application (Attachments B and C);

(3)    the Consultant’s Report (Attachment G);

(4)    the EPBC Statement of Reasons dated 18 May 2022 (Attachment I);

(5)    the REF (Attachment L); and

(6)    the proponent’s and original applicants’ responses to the Consultant’s Report (Attachments M, N and O).

45    The Decision Brief contained various recommendations to the Minister set out below at [52].  In essence, the authors of the Decision Brief recommended that the Minister find that she was not satisfied that the Ancestral Remains were under threat of injury or desecration for the purposes of s 12(1)(b)(ii) of the ATSIHP Act and therefore that it was not open to make a declaration.

46    The Decision Brief at [8] summarised the applicant’s claim that the Ancestral Remains are under threat of injury or desecration as a result of the proposed reburials by the proponent in Mungo and surrounding areas.  Paragraphs [9]-[12] of the Decision Brief summarised the basis on which recommendation 3 was made rejecting this claim:

In order for you to be satisfied there is a threat of injury or desecration, you must be satisfied, the ancestral remains will be used or treated in a manner that is inconsistent with Aboriginal tradition.

The department does not consider the applicants sufficiently demonstrated that the FPIC of all Traditional Owners is an Aboriginal tradition and considers the proponent has undertaken significant consultation processes with Traditional Owners on the reburials.

There was also insufficient evidence to support the other claims, such as potential damage due to reburial locations and methods (such as ‘shallow’ graves and erosion).  The department considers the proponent has implemented risk mitigation measures, including a monitoring process, to address concerns regarding the reburial locations and methods.

The department recommends that you find that you are not satisfied that the ancestral remains, or part of the class of objects comprising the ancestral remains, is under threat of injury or desecration.  That is, the department does not consider that there is sufficient evidence the ancestral remains will be used or treated in a manner that is inconsistent with Aboriginal tradition.

(Emphasis in original.)

47    As a consequence, paragraph [13] concluded:

The department recommends that you do not make a declaration in relation to the ancestral remains because they are not under threat of injury or desecration.

(Emphasis in original.)

48    The Departmental Analysis expresses that conclusion in similar terms at [5]:

The department recommends that you find that you are not satisfied that the ancestral remains, or part of the class of objects comprising the ancestral remains, is under threat of injury or desecration.  That is, the department does not consider that there is sufficient evidence the ancestral remains will be used or treated in a manner that is inconsistent with Aboriginal tradition.

49    In setting out legal considerations, [7(iii)] of the Departmental Analysis states that the Minister may make a declaration under s 12 if the Minister is “satisfied that … the specified object, or the whole or part of the class of specified objects, is under threat of injury or desecration”.

50    At [49]-[50], the Departmental Analysis extracted s 3(2) and (3) of the ATSIHP Act:

In order to make a declaration under section 12 of the ATSIHP Act, you need to be satisfied that the specified object is, or that all or part of the class of specified objects are, under threat of injury or desecration.  Subsection 3(2) of the ATSIHP Act provides that for the purposes of the ATSIHP Act, an object shall be taken to be injured or desecrated if it is used or treated in a manner inconsistent with Aboriginal tradition’.

Subsection 3(3) of the ATSIHP Act provides:

For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.

51    Finally, in making its recommendations, the Department explained that it had considered the Consultant’s Report on the basis that it was only one piece of relevant evidence and that it had undertaken its own independent analysis of all of the evidence against the matters which the Minister was required to consider under s 12 of the ATSIHP Act.

3.8    The Minister’s decision

52    The recommendations in the Decision Brief to the Minister were:

1.     That you note the information in this brief and its attachments.

2.     That you agree that you are satisfied that the ancestral remains are ‘a class of significant Aboriginal objects’ for the purposes of the subsection 12(1)(b)(i) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act).

3.     That you agree that you are not satisfied that the ancestral remains, or part of the class of objects comprising the ancestral remains, is ‘under threat of injury or desecration’ for the purposes of subsection 12(1)(b)(ii) of ATSIHP Act.

4.     That if you agree with recommendation 3, you agree that it is not open to you to make a declaration to protect the specified area under section 10 of the ATSIHP Act.

5.     That if you agree with recommendations 2, 3 and 4, you sign the letters at Attachment D to notify affected parties of your decision.

(Emphasis in original.)

53    On 22 December 2023, the Minister circled “Noted” in response to recommendation 1, “Agreed” in response to recommendations 2, 3 and 4, and “Signed” in response to recommendation 5.  The Minister also signed and dated her acceptance of the recommendations.  While provision was made for comments by the Minister, no comments were included.  It is convenient to refer to this signed part of the Decision Brief as the Decision Record.

54    The basis for the Minister’s decision, as articulated in the Minister’s notification letter, was that the Minister had decided that there was “insufficient evidence for me to be satisfied that the ancestral remains, or part of the class of objects comprising the ancestral remains, are under threat of injury or desecration”.

55    Following a request by the original applicants, the Minister provided a Statement of Reasons for her decision on 18 March 2024, some three months after the date of the decision.

56    In her Statement of Reasons, the Minister first explained why she had accepted that the specified objects are “significant Aboriginal objects” within the meaning of s 12(1)(b)(i) of the ATSIHP Act ([6.12]), finding that:

a)    The significance of the ancestral remains is critical to the 3 TTGs traditions, beliefs and culture.

b)    The ritual burials associated with remains (such as ochre bound and cremation) articulated in non-indigenous reports/documentation and the explanations by Traditional Owners on the significance of those burial methods, demonstrates the traditions, ceremony and knowledge have been passed down from generation to generation.

c)    The ancestral remains are significant in Aboriginal history, laws, observances and practices.

d)    The continuing advocacy by the 3 TTGs across generations to repatriate the ancestral remains to Country, at a significant cost to individuals, their families and the community, further demonstrates the spirituality, cultural and traditional interaction associated with the ancestral remains.

57    The Minister then explained her reasons for finding that she was not satisfied that the specified objects were under threat of injury or desecration for the purposes of s 12(1)(b)(ii) of the ATSIHP Act having regard to the following five considerations.

(1)    Free, prior and informed consent:  The Minister considered that there was no evidence that FPI Consent was itself an Aboriginal Tradition ([6.20]).  Further, the Minister considered that “sufficient FPIC has been obtained from Traditional Owners”.  I consider later the Minister’s reasons for so finding.

(2)    Secretly reburied without memorials:  The Minister referred to the original applicants’ representation that “a keeping place would be better than burying because it could fall into restless hands, or development could damage it”, but found that subsequent representations by the original applicants did not provide further details explaining why they consider the Ancestral Remains may be “disturbed” or “dug up” if they were reburied without memorials.  The Minister also referred to a series of mitigation measures proposed to minimise the potential for the reburial sites to be located and disturbed. and for the sites to be monitored via drone photography in the first two years following reburial to eliminate the need for vehicle tracks to each location, minimise environmental impact, and reduce the visual impacts of site visits. The Minister concluded that the original applicants had not adequately explained why they considered that the Reburial Proposal would mean that the Ancestral Remains would be at risk of being resurfaced, disturbed or dug up and that there was “insufficient evidence as to why having burial sites with memorials would be consistent with Aboriginal tradition” ([6.27]).

(3)    Reburials expose the Ancestral Remains:  The Minister considered that the proponent’s evidence from the REF demonstrated that the environmental factors such as erosion which may impact the Ancestral Remains after the burials had been considered and that the proponent had implemented risk mitigation measures.  The Minister considered that the original applicants’ evidence did not demonstrate how erosion, wind and rain were likely to impact the proposed burial sites.  That evidence, in her view, appeared to be based “on a general assessment of the area in which the Ancestral Remains were proposed to be reburied”, were “brief”, and were “unclear” as to the information taken into account) ([6.33]).  The Minister also did not consider that that the evidence demonstrated why the Reburial Proposal would likely cause exposure of the Ancestral Remains in a manner inconsistent with Aboriginal tradition ([6.35]).  Accordingly, the Minister found that the Ancestral Remains were not under threat of injury or desecration on the basis that the proposed reburial methods risked exposing them.

(4)    Ancestral remains within the NPWS facility are under threat or removal:  The Minister referred to the original applicants’ description of the removal of Mungo Man and Mungo Lady from the NPWS facility as theft and their submission that the removal of Mungo Man and Mungo Lady demonstrated that the proponent is incapable of protecting the remains from injury or desecration.  However, the Minister found that, following the reburial of Mungo Man and Mungo Lady, which had been undertaken without the proponent’s involvement or support, the security arrangements at the NPWS facility (as specified in the EPBC approval conditions) were reinstated and there was no evidence of any subsequent breach.  Nor was there any evidence of any security breaches while the security measures were in place from 17 November 2017 to 16 May 2022.  The Minister concluded on this basis that the 106 Ancestral Remains were not under threat of injury or desecration due to a risk of removal from the NPWS facility ([6.40]).

(5)    Risk of injury to Mungo Man and Mungo Lady:  The Minister considered that the fact that the original applicants did not know of the burial sites of Mungo Man and Mungo Lady did not place Mungo Man or Mungo Lady “at risk” of injury or desecration, and that the evidence provided by the proponent set out “the processes that are in place to protect Mungo Man and Mungo Lady from desecration or degradation” ([6.47]), including restricted access to the burial sites ([6.43]-[6.44]). In light of that evidence, the Minister found that the Ancestral Remains of Mungo Man and Mungo Lady are not under threat of injury or desecration.

58    Accordingly, the Minister concluded at [6.48]-[6.49]:

I find that the 108 ancestral remains are not under threat of injury or desecration as the evidence before me does not establish that:

a)    The failure to obtain FPIC would result in injury or desecration;

b)    The proposed reburial method (without memorials) would result in injury or desecration;

c)    The state of the current NPWS facility for the 106 ancestral remains would result in injury or desecration;

d)    The proposed reburials (at a shallow depth) would result in injury or desecration; or;

e)    The reburial of Mungo Man and Mungo Lady would result in injury or desecration.

Accordingly, I am not satisfied that the 108 Willandra Lakes ancestral remains, including Mungo Man and Mungo Lady, are under threat of injury and desecration for the purposes of section 12 of the ATSIHP Act.

59    The Minister therefore decided that it was not open to her to make a declaration under s 12 of the ATSIHP Act in relation to the Ancestral Remains and no such declaration was made (at [8.5]).

4    PRELIMINARY EVIDENTIAL ISSUES

4.1    The proposed confidentiality orders

60    At the hearing on 20 February 2025, counsel for the Minister submitted that certain parts of the affidavit of Mr Cain Sibley, solicitor, affirmed on 15 October 2024 (Sibley Affidavit) should be treated as confidential, so as to require notification to the parties before a non-party access request for the affidavit is allowed.  In support of proposed orders to this effect, the Minister contended that:

(1)    the information identifies where the remains of Mungo Man and Mungo Lady have been reburied;

(2)    the information includes the names of deceased persons; and

(3)    the information identifies persons who have participated in consultation processes and who have expressed certain views about Aboriginal tradition.

61    At the hearing on 10 March 2025, counsel for the Minister provided draft minutes of order which sought confidentiality orders with respect to information identifying where the remains of Mungo Man and Mungo Lady have been reburied.  Counsel for Mr Kelly indicated that Mr Kelly was prepared to consent to the orders on the basis that they do not prevent third-party access but require the Court only to provide an opportunity to make submissions on whether a third party should have access.

62    I agreed that it was necessary to prevent prejudice to the administration of justice to make orders under ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).  Accordingly, orders were made on 10 March 2025 in a form reflecting the proposed orders, subject to further order of the Court.

4.2    The Minister’s reliance upon the Minister’s Statement of Reasons

63    Following a request from the original applicants for reasons, the Minister’s Statement of Reasons was prepared six months after the Decision Brief was provided to the Minister on 21 September 2023 and three months after the Minister’s decision was made on 22 December 2023.  In his written submissions in reply, Mr Kelly objected to the Minister relying upon the Statement of Reasons, given that they were prepared after the decision was made on 18 March 2024 and the substantial period of time which had elapsed between the decision and the reasons.  In his submission, the Statement of Reasons should therefore be admitted subject to an order under s 136 of the Evidence Act 1995 (Cth) to the effect that the Statement of Reasons may not be relied upon in favour of the Minister.

64    In support of his submissions, the appellant relied, in particular, on the decision in Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 229; (1990) 23 FCR 162.  In Taveli, the Full Federal Court considered the admissibility of reasons provided under s 13 of the ADJR Act.  Davies and Hill JJ concluded that the primary judge correctly rejected the tender of the statement of reasons provided pursuant to s 13, while French J concluded the primary judge erred in rejecting the tender even though its acceptance had no material impact on the decision.

65    In Taveli, Davies J was of the view that a statement of reasons is admissible if tendered as part of the res gestae, that is, as part of the process of making the decision.  However, her Honour held that a statement under s 13 of the ADJR Act was not admissible on this basis.

66    In separate reasons for decision, Hill J considered that a statement of reasons should generally not be admitted if made after the event (at 187):

However as Davies J points out, the statement under s 13 does not itself form part of the decision-making process.  The statement need not be supplied by the decision-maker unless it is requested by a notice in writing within the times stipulated by s 13(5), which, in the case of a decision the terms of which were not recorded in writing and set out in a document furnished to the person affected by the decision, must be made within a reasonable time after the decision was made.  Were the statement of reasons under s 13 part of the decision-making process itself those reasons would then be admissible as part of the res gestae.  Where however the reasons may be prepared some considerable time after the decision-making process itself was complete it can hardly be said to be part of the res gestae and for that reason admissible.

The mere fact that the statement is required by statute does not in my view provide a reason for the adoption of a different view.  In particular the obligation to furnish a statement does not, in my view, render admissible that which was otherwise inadmissible.

…

As a matter of ordinary principle a statement made after the event will not generally be received as evidence in favour of the person making the statement: Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514, 530-533; Williams v Lloyd (1934) 50 CLR 341 at 371.  Such evidence is not only self serving but is a narrative of a past event and purports to be the equivalent of or a substitute for direct testimony of the event it narrates.  The exception to this rule that the state of a man's mind may be proved by evidence of the words and acts which identify that state of mind even when not contemporaneous with the time when the state of mind is to be considered, discussed in detail in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 6-7, is not presently relevant.

67    The reasoning of Hill J in Taveli was approved in obiter in CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529 at [61].  In that case, the Court (Kiefel CJ, Gageler and Nettle JJ) explained, citing Hill J in Taveli at 187, that:

where a statement of reasons is made after the event it will as a matter of general principle not be received as evidence in favour of the person making the statement, because it is both self-serving and a narrative of the past event which purports to be the equivalent of or a substitute for direct testimony of the event it narrates.  In terms of general principle, parity of reasoning suggests that the same is true of an ex post facto amendment to reasons for decision.  If so, except where it is admitted into evidence by consent, it should not be received.

(Emphasis added.)

68    At the trial, I rejected the Mr Kelly’s contention that the Statement of Reasons should be received in evidence but subject to a s 136 limitation that the Minister is not permitted to rely upon the Statement of Reasons in her favour.  In this regard, Mr Kelly confirmed that he did not seek a ruling in the alternative that the Statement of Reasons be excluded altogether.  However, the authorities on which the appellant relied (i.e. CRI026 at [61] (Kiefel CJ, Gageler and Nettle JJ) and Taveli at 187 (Hill J)) did not support the making of an order of the kind for which he contended under s 136 of the Evidence Act.  Rather, they stand for the proposition that, absent consent, a statement of reasons will not in general be admissible in circumstances where it was not produced in the course of the statutory decision-making process but separately and later.  Furthermore, I considered that receiving the Statement of Reasons in evidence subject to the limitation for which Mr Kelly contended would unfairly prejudice the respondent and would not be in the interests of justice.  It would mean, for example, that Mr Kelly could make his submissions as to the proper manner in which the Statement of Reasons should be construed, while leaving the Minister unable to proffer a contrary construction which supported her case.  It would also leave me, as the Judge, in a difficult position should I take a different view of the proper construction of the Statement of Reasons or consider a different construction to be open as it would deprive me of an effective contradictor on this critical issue.

69    Following my ruling on this issue at trial, Mr Kelly appropriately accepted that the circumstances in which the Statement of Reasons was produced here were not a reason for giving the reasons limited or no weight because the respondent would suffer prejudice if the applicant were permitted to raise the issue of weight for the first time at the trial.

5    LEGAL FRAMEWORK

70    Section 4 of the ATSIHP Act provides that the purposes of the Act are:

the preservation and protection from injury or desecration of areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.

71    This purpose is sought to be achieved against the fabric of Australia’s federal system.  As French J explained in Tickner v Bropho [1993] FCA 306; (1993) 40 FCR 183 at 211:

The preservation of human cultural heritage as a public duty is recognised in the laws of many nations.  … The cultural heritage of any country extends to the language, traditions, customs, stories and religions of its peoples past and present.  The drive to preserve that heritage sometimes conflicts with other perceived public interests which involve its destruction or impairment.  In Australia these conflicts in respect of Aboriginal heritage are complicated by the existence of State and Commonwealth Government which may have differing perspectives and priorities in their resolution.

72    After referring to these observations, in Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106; (2001) 123 FCR 62 at [256] von Doussa J explained that:

The background circumstances in which the [ATSIHP Act] was enacted, and the terms of the [ATSIHP Act] itself indicate that its provisions were intended to be used as a protective mechanism of last resort where State or Territory legislation is ineffective or inadequate to protect the heritage areas or objects.

(Emphasis added.)

73    Relevantly to this case, the Minister’s power to make a declaration to protect objects from injury or desecration is conferred by s 12 of the ATSIHP Act.  That section relevantly provides:

12  Declarations in relation to objects

(1)     Where the Minister:

(a)     receives an application made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified object or class of objects from injury or desecration;

(b)     is satisfied:

(i)     that the object is a significant Aboriginal object or the class of objects is a class of significant Aboriginal objects; and

(ii)     that the object or the whole or part of the class of objects, as the case may be, is under threat of injury or desecration;

(c)     has considered any effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); and

(d)     has considered such other matters as he or she thinks relevant;

he or she may, by legislative instrument, make a declaration in relation to the object or the whole or that part of the class of objects, as the case may be.

(2)     Subject to this Part, a declaration under subsection (1) has effect for such period as is specified in the declaration.

(3)     A declaration under subsection (1) in relation to an object or objects shall:

(a)     describe the object or objects with sufficient particulars to enable the object or objects to be identified; and

(b)     contain provisions for and in relation to the protection and preservation of the object or objects from injury or desecration.

74    In line with the purposes of the Act, it is therefore clear from the terms of s 12 that:

(1)    an application for a declaration under s 12 must relevantly seek preservation or protection of a specified object from injury or desecration.

(2)    the power to make a declaration is enlivened only where the Minister is satisfied that the object is under threat of injury or desecration; and

(3)    a declaration must contain provisions for the protection and preservation of the object from injury or desecration.

75    While the term “injury” is not defined, in its ordinary meaning it would plainly encapsulate physical harm as the Minister submitted.  Nor is desecration defined.  However, that is a broader concept involving taking away the consecrated or sacred character of an object or treating it otherwise than as sacred.  It is also suggestive of the treatment of a sacred object in a manner that is not respectful of its sacred or spiritual character.

76    While these terms are not defined, s 3(2)(b) of the ATSIHP Act provides that an object is “taken to be injured or desecrated” for the purposes of the Act if “it is used or treated in a manner inconsistent with Aboriginal tradition” and “references in this Act to injury or desecration shall be construed accordingly”.  The term “Aboriginal tradition”, in turn, is defined in s 3(1) as:

the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

77    With respect to the definition of “Aboriginal tradition” under the ATSIHP Act, von Doussa J in Chapman relevantly observed at [275]:

I accept that the definition [of “Aboriginal tradition”] does require a degree of antiquity to the traditions, observances, customs and beliefs.  … Taken in conjunction, the words in the expression “traditions, observances, customs or beliefs” carry with them the notion that there has been a handing down from generation to generation in accordance with the accepted understanding of the way in which Aboriginal history, laws, observances and practices have been transmitted through the aeons.

78    In other words, the definition of “Aboriginal tradition”, in accordance with the ordinary meaning of “tradition”, necessarily imports a historical dimension.  As such, as the Minister submits, the traditions, observances, customs or beliefs comprising an “Aboriginal tradition” “cannot simply be present day desires or ambitions that have not been demonstrated to originate in the beliefs and practices of earlier generations”.  Accordingly, evidence is required to establish that a relevant “Aboriginal tradition” exists and is sufficiently grounded in an accepted historical understanding.  As in native title matters, that evidence would typically include evidence from Elders and anthropologists.  Thus, as counsel for the Minister submitted:

by way of summary, where what is being claimed is non-physical harm to an object, the trigger is the existence of Aboriginal tradition and the threat that the objects will be used or treated inconsistently with that tradition.  It’s a narrow basis, your Honour, upon which the protective powers of this Act can be engaged.  Narrow but powerful in the sense that once it is engaged, then, of course, the declaration can indicate very strong measures that could be taken to protect or preserve those items.

79    Section 3(3) is also important.  That section provides that:

For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.

(Emphasis added.)

80    As such, both parties correctly agreed that the ATSIHP Act does not require that injury or desecration be inevitable or a certainty before the power in s 12 to make a declaration is enlivened.

81    It should also be noted that, while s 3 is headed “Interpretation”, it is apparent that neither s 3(2) nor s 3(3) are definitional in nature.  Rather, they require respectively an evaluative assessment to be made as to whether (relevantly) an object is used or treated in a manner inconsistent with Aboriginal tradition and whether an object is, or is likely to be, injured or desecrated.  In other words, they enact substantive law in that they prescribe criteria which must be met in order to determine whether the Minister’s power to make a declaration under (relevantly) s 12 is enlivened.  Yet, as McHugh J explained in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103], “the function of a definition is not to enact substantive law.  It is to provide aid in construing the statute”:  see also Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 at [50] (Perry and Stewart JJ).

82    Finally, s 16 provides that where, as here, the Minister refuses to make a declaration in response to an application, she or he “shall take reasonable steps to notify the applicant or applicants of his or her decision.”  This is supplemented by s 13 of the ADJR Act which provides that a person aggrieved by a decision to which s 13 applies (which includes a decision to which the ADJR Act applies) is entitled to request a statement of reasons for the decision, even though that provision was not expressly relied upon by  Mr Kelly in seeking a statement of reasons or the Minister in providing the same.

6    GROUND 1: DID THE MINISTER MISUNDERSTAND THE TEST IN S 12(1)(b)(ii) OF THE ATSIHP ACT BY IMPOSING A REQUIREMENT OF CERTAINTY?

6.1    The parties’ submissions

83    As indicated above, it is rightly not in issue that the proper construction of s 12 of the ATSIHP Act, read with s 3(3), is that an object shall be taken to be under threat of injury or desecration if it is “likely” to be injured or desecrated and, as such, injury or desecration need not be inevitable or a certainty before the power in s 12 is enlivened.  That construction accords with the plain language of the provisions and with the purpose of the ATSIHP Act as set out in s 4.

84    The disposition of ground 1 therefore turns upon the proper construction of the Minister’s Statement of Reasons.  In this regard, it is well established that the reasons for an administrative decision under review “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ).  Rather, as Brennan CJ, Toohey, McHugh and Gummow JJ observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272:

… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.

85    Mr Kelly submits that the Minister misunderstood the test in s 12(1)(b)(ii) as requiring her to be satisfied that the Ancestral Remains will be, rather than are likely to be, used or treated in a manner that is inconsistent with Aboriginal tradition.  In support of this contention, Mr Kelly relies upon the Decision Brief and attached Departmental Analysis, as well as the Minister’s Statement of Reasons.  While Mr Kelly acknowledges that the Departmental Analysis recites the correct test, in his submission that recitation must be read in the context of the Decision Brief as a whole, which Mr Kelly submits repeatedly set out the wrong test.  Alternatively, Mr Kelly contends that the Decision Brief failed repeatedly to draw the Minister’s attention to the correct test.

86    In support of this submission, Mr Kelly first relies upon the Minister’s finding under the heading “Overall conclusion on threat” at [6.48] of the Statement of Reasons that the evidence does not establish that the reburials “would result in injury or desecration” (emphasis added) in support of the proposition that the Minister imposed too exacting a standard, instead of the statutory standard of likelihood.

87    Secondly, Mr Kelly contends that in “noting” the information contained in the Decision Brief and its attachments, and “agreeing” with the Department’s recommendation 3, the Minister implicitly adopted erroneous statements in the Decision Brief and Departmental Analysis which also refer to a higher standard. In support of this contention, Mr Kelly relies upon the statements at [9] and [12] of the Decision Brief that the Minister must be satisfied that the Ancestral Remains “will” be used or treated in a manner inconsistent with Aboriginal tradition.  Although s 3(3) of the ATSIHP Act is then set out in [50] of the Departmental Analysis, Mr Kelly emphasised that this is the first time that s 3(3) is quoted and it appears some 19 pages into the Decision Brief.  Further, Mr Kelly submits that s 3(3) is set out in bare form with no analysis or guidance given to the Minister as to the interaction between ss 3(2) and s 3(3).

88    Equally, at [105] of the Departmental Analysis, Mr Kelly contends that the test is incompletely stated in the recommendation that the Minister find the specified objects “are not under threat of injury or desecration”. Mr Kelly submits that these examples demonstrate the pervasiveness of the Department’s failure to include the proper test in its advice to the Minister. Mr Kelly further submits that the fact that s 3(3) of the ATSIHP Act is quoted and included in the bundle of legislative extracts attached to the Minister’s reasons “does not mean that the legislative test has been correctly interpreted or applied”.

89    The Minister, however, contends that, fairly read as a whole, no error is apparent from the Minister’s Statement of Reasons, the Decision Brief or the Departmental Analysis.  Contrary to the applicant’s submission, the Minister contends that there is nothing in any of these documents which supports the view that the Minister considered that a likelihood of a threat of injury or desecration would not suffice to satisfy s 12(1)(b)(ii) of the ATSIHP Act and that Mr Kelly was required to meet the higher standard of certainty.  Rather, there are multiple references in the Minister’s reasons to likelihood and risk, with the latter arguably being indicative of a lower standard than likelihood being considered.  Further, in the Minister’s submissions, the passages on which Mr Kelly relies as suggesting that a higher standard was applied merely restate the operative terms of ss 12(1)(b)(ii) and 3(2).  The fact that, in these passages, reference is not expressly made to the “deeming” provision in s 3(3) cannot alone establish that the test of likelihood was overlooked, bearing in mind that, while an aspect of the substantive test, s 3(3) is located in the definitional section of the ATSIHP Act.

6.2    Disposition of ground 1

90    For the following reasons, the Minister’s submissions should be accepted.

91    First, as the Minister submits, the error for which Mr Kelly contends would be demonstrated if the Minister’s decision “proceed[ed] on the basis that what the Minister had to do was reject a claim [of a threat of injury or desecration] that was less than inevitable or a certainty”, rather than considering whether the injury or desecration was “likely” [T71.15].  I also agree that this question must be answered holistically and as a matter of substance rather than focusing, for example, merely upon what may be no more than infelicitous examples of expression.

92    Secondly, and turning to the Minister’s Statement of Reasons, I agree that certain of the Minister’s findings rendered unnecessary any separate consideration of the likelihood of injury or desecration.  This is the case with respect to the claims by the original applicants about FPI Consent because (as I find with respect to ground 2 below) the Minister did not consider that the material before her established that FPI Consent is an Aboriginal tradition which must be observed in association with the handling or burial of Aboriginal remains (at [6.20]).  With respect to the remaining considerations:

(1)    The Minister’s finding at [6.27]-[6.28] that the Ancestral Remains “are not under threat of injury or desecration if reburied in secret locations without memorials” was based on her finding that the original applicants had not adequately explained why such a reburial “would mean they are at risk of being resurfaced, disturbed or dug up” (emphasis added). As the Minister contends, if there was no such “risk”, the Minister can readily be understood to have rejected any likelihood of injury or desecration.  The same language of “risk” is used by the Minister in rejecting the claim that the 106 Ancestral Remains were under threat of injury or desecration “due to a risk of removal” from the NPWS facility (at [6.41]) and the claim that Mungo Man and Mungo Lady were “at risk of desecration or degradation” because the original applicants did not know the location of their burial (at [6.46]).

(2)    The Minister found at [6.35]-[6.36] that the original applicants’ evidence had failed to demonstrate how natural effects (such as erosion, wind and rain) “are likely” to impact the proposed burial sites or “likely” to cause exposure of the Ancestral Remains in a manner inconsistent with Aboriginal tradition.  As such, the Minister found that the Ancestral Remains were not under threat of injury or desecration on the basis that the Reburial Proposal “risk[s] exposing the ancestral remains”.  Again, as the Minister submits, not only is the reference to “risk” consistent with s 3(3), but the Minister has expressly used the language of s 3(3) in referring to likelihood.

(3)    The terminology of “risk” and likelihood is also used by the Minister in describing the original applicants’ submission as to why the Ancestral Remains were said to be under threat of injury or desecration as a result of the Reburial Proposal (at [6.3]).

93    Given, therefore, that the detailed findings underpinning the Minister’s “Overall conclusion on threat” do not reveal error in terms of the standard to be applied, I do not consider that the Minister applied the wrong test in her overall conclusion at [6.48] that the Ancestral Remains are not under threat of injury or desecration because the evidence does not establish that any of the claims “would result in injury or desecration”.  That, in my view, would take the Minister’s conclusions out of context and would not be a fair reading of her reasons overall.

94    Thirdly, Mr Kelly contends that it is not only relevant to consider the Statement of Reasons.  In his submission, it is also relevant to consider the terms of the decision itself as recorded in the Minister’s acceptance of the Department’s recommendations, and the Decision Brief and attached Departmental Analysis.  Against this, the Minister submits that the Decision Brief cannot stand in the place of the Statement of Reasons merely because the Minister circled “Agreed” next to the substantive recommendations and should therefore be treated as being of secondary importance.  In any event, I agree with the Minister that if regard is had to the Decision Brief, then it is necessary to have regard to the materials that were attached to the Decision Brief in determining whether they demonstrate error.

95    In my view, Mr Kelly has not established that the Minister was wrongly advised as to the standard which she was to apply under ss 3(2), (3) and 12(1)(b)(ii) and that it should be inferred on this basis that the Minister’s decision was tainted by the same error.

96    In written submissions, the Minister rightly accepted that paragraphs [9] and [12] of the Decision Brief, on which Mr Kelly placed weight, “are not expressed in a manner that reflects the ATSIHP Act”.  Paragraphs 9 and 12 respectively provide that:

In order for you to be satisfied there is a threat of injury or desecration, you must be satisfied, the ancestral remains will be used or treated in a manner that is inconsistent with Aboriginal tradition.

…

The department recommends that you find that you are not satisfied that the ancestral remains, or part of the class of objects comprising the ancestral remains, is under threat of injury or desecration.  That is, the department does not consider that there is sufficient evidence the ancestral remains will be used or treated in a manner that is inconsistent with Aboriginal tradition.

(Emphasis added.)

97    However, as the Minister contends, paragraph [8] of the Decision Brief is properly expressed in the language of “risk” and likelihood, while paragraph [11] refers to “potential damage” and “risk mitigation measures”.  Contrary to the applicant’s argument that paragraph [8] should be read in the context of the misstatement of the test in paragraph [9], I consider that paragraph [8] inversely serves as context for paragraph [9] by referring to risk, likelihood and threat in its substantive summary of the original applicants’ claims.

98    I also do not accept that the summary way in which the recommendations accepted by the Minister are expressed is indicative of an erroneous understanding of the statutory test, despite not setting out the nuances of that test.  This is because the recommendations are, as the Minister contended, the most high-level part of the Decision Brief.

99    It is the Departmental Analysis which contains the Department’s detailed consideration of the applicant’s claims and explanation of the Department’s views on those claims.  This analysis in turn underpins the Department’s recommendations in the Decision Brief.  Significantly, the Departmental Analysis expressly quoted s 3(3) of the ATSIHP Act at paragraph [50], as Mr Kelly acknowledged.  Contrary, however, to the applicant’s suggestion, I do not consider that any adverse inference can be drawn from the fact that s 3(3) was not quoted until page 19 of the Decision Brief.  It was before the Minister in the detailed Departmental Analysis which it can be inferred that the Minister read before making her decision, in line with the statement in her reasons that she had considered the evidence provided to her at [4.1].  Furthermore, paragraphs [8] and [11] of the Decision Brief expressly reference “risk” and likelihood, and s 3(3) is also included in the bundle of legislative extracts provided to the Minister.

100    Furthermore, in common with the Statement of Reasons, the Departmental Analysis expressly employs the language of likelihood and “risk’ in expressing the Department’s view on whether the Ancestral Remains are under threat or desecration on any of the applicant’s claims:  see the Departmental Analysis at paragraph [103] (with respect to the claimed failure to obtain FPI Consent); at paragraph [118] (secretly buried without memorials); at paragraphs [135] to [137] (reburials potentially exposing the Ancestral Remains in the future); [147] (risk of removal of Ancestral Remains from the NPWS facility); and [148], [155] and [157] (whether Mungo Man and Mungo Lady are under threat from the reburials).  As against these statements of the correct standard in the Departmental Analysis, Mr Kelly has not identified any instance in which the Departmental Analysis repeated the misstatements of law in [9] and [12] of the Decision Brief and arguably suggested that any claim that was less than inevitable or a certainty should be rejected.

101    It follows for these reason that Ground 1 must be dismissed.  Cumulatively, the factors to which I have referred weigh heavily against any inference that the Minister erred in her construction of “threat of injury or desecration” in s 12(1)(b)(ii) of the ATSIHP Act.  Rather, the weight of the evidence demonstrates that the Minister’s substantive consideration embraced risk, likelihood and threat, and that the misstatements relied upon by Mr Kelly are insufficient to displace the totality of that context.  To find error in such a case would be to adopt an impermissibly “over-zealous” approach to the construction of reasons:  Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

7    GROUNDS 2, 3 AND 4: DID THE MINISTER BREACH PROCEDURAL FAIRNESS OR FAIL TO HAVE REGARD TO RELEVANT CONSIDERATIONS BY FAILING TO ADDRESS FUNDAMENTAL ASPECTS OF THE ORIGINAL APPLICANTS’ CLAIMS?BY FAILING TO ADDRESS FUNDAMENTAL ASPECTS OF THE ORIGINAL APPLICANTS’ CLAIMS?

7.1    Relevant principles

102    The requirements of procedural fairness are concerned to ensure that a person who may be affected by an exercise of power is afforded an opportunity to be heard: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).  The content of procedural fairness is flexible and is ultimately a question of “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”:  Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ).

103    As Mr Kelly contends, it is a denial of natural justice for a decision-maker to fail to understand and respond to a substantial, clearly articulated argument relying upon established facts:  Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [23]-[25] (Gummow and Callinan JJ, Hayne J agreeing at [95]); see also Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), [105] (Nettle and Gordon JJ). Even if a claim is not expressly raised, there will also be a constructive failure to exercise jurisdiction or breach of procedural fairness if the decision-maker fails to consider a claim which “squarely” arises on the material before the decision-maker in the sense that “it is apparent on the face of the material before the [decision-maker]”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court); see also e.g. SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37] (Robertson, Griffiths and Perry JJ).  However, “[s]uch a claim will not depend for its exposure on constructive or creative activity” and a judgment that there has been a failure to consider a claim not expressly advanced is therefore not lightly made: NABE at [58] and [68] respectively.  The ultimate question is “whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim”: Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] (Meagher JA, Payne and White JJA agreeing); see also Secretary, Department of Education v Dawking [2024] NSWCA 4 at [90] (Gleeson JA, Mitchelmore and Kirk JJA agreeing).

104    With respect to the principles governing relevant considerations, it was not in issue that a failure to have regard to a relevant consideration, or the taking into account of an irrelevant consideration, which affects the exercise of power is an error of law and gives rise to jurisdictional error:  see, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–40 (Mason J); and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[84] (McHugh, Gummow and Hayne JJ).  Whether or not a consideration is a relevant or irrelevant consideration, in this sense, turns upon the proper construction of the provision in question.  To answer this question, it is necessary “to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.  … In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute””:  Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93] (McHugh, Gummow, Kirby and Hayne JJ) (quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24 (Hope, Glass and Samuels JJA)).

105    Similarly, Kiefel and Bennett JJ explained in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 at [71] that:

A relevant consideration in an administrative law sense has a limited meaning.  It is one which the decision-maker is bound to take into account in making the decision in question.  The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion.  If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act …

(Emphasis added.)

7.2    The nature of the claims made by the original applicants

106    Applying these principles, by grounds 2, 3 and 4, Mr Kelly contends that the Minister misunderstood and failed to address fundamental aspects of the original applicants’ claims.  These in turn proceed on the basis that the original applicants submitted to the Minister that:

(1)    the Ancestral Remains are under threat of being treated inconsistently with the Burial Tradition (grounds 2(b), 3 and 4); and

(2)    FPI Consent should be obtained from Traditional Owners by way of agreement free of pressure after the Traditional Owners are fully informed of the details and risks of the proposed reburial (ground 2(c)).

107    Conversely, Mr Kelly submits that the original applicants did not submit that:

(1)    FPI Consent itself is an Aboriginal tradition (grounds 2(a) and (b)); and

(2)    the threat to the Ancestral Remains is limited to physical harm (grounds 3 and 4).

108    I accept that the original applicants submitted that FPI Consent should be obtained from the Traditional Owner Groups.

109    However, there is ambiguity in the original applicants’ documents as to whether they contended that FPI Consent itself is an Aboriginal tradition for the purposes of the ATSIHP Act.  It is also evident from the following analysis of the original applicants’ submissions to the Minister and to the consultant engaged by the Department to provide advice on the s 12 application that the original applicants did not contend that there was a Burial Tradition.  Rather, they contended that a process of consultation was required in order to determine what the correct method of reburial was.

7.2.1    The First Application

110    Turning to the First Application, the original applicants sought an emergency declaration mistakenly under s 9 of the ATSIHP Act (which protects specified areas, as opposed to objects) in the following terms:

to prevent the burial from taking place in secret.  The Declaration would provide an appropriate amount of time to enable the free, prior and informed consent of the Mutthi Mutthi, Ngayampaa and Barkandji People or in the alternative, provide time for Mutthi Mutthi, Ngayampaa and Barkandji People to give their consent to the establishment of a Keeping Place for the remains, which has previously received EPBC consent.

111    In response to the question “Describe how the specified area or objects are under threat of injury or desecration” in their First Application, the original applicants explained that:

… The Ancestorial Remains, are in need of protection due to threat of desecration.  A threat of desecration exists because Mutthi Mutthi, Ngayampaa and Barkandji People have not had the opportunity to provide free, prior and informed consent on the Proposed Reburial Plan therefore the treatment of the remains are not in a manner consistent with Aboriginal tradition.

Future Harm

The Three Owner Groups do not want to see their Ancestors reburied in secret.  The Three Owner Groups and Elders past and present fear that if the Ancestors remains are secretly reburied without memorials, the risk of being resurfaced, disturbed, or dug up again is high.

The Three Owner Groups are also concerned that if the remains are reburied in secret, without memorial there is potential of further damage to the remains.  These concerns are also noted as a potential outcome in the Ministers' Reasons for Decision at [36], as below;

“The proposed action has the potential to result in the loss of, or damage to, the Willa[n]dra ancestral remains, as their unmarked locations and lack of any protective encasement may result in the ancestral remains becoming effectively lost and unrecoverable, or degrade over time due to natural processes.”

Failure to Consult

…

The AAG cannot be representative of the Three Traditional Owner Groups as the groups are unable to actively participate in making any decisions or providing direction to AAG members.

…

Failure to meet International Law Obligations

By failing to consult with local Aboriginal communities beyond the AAG, the Department demonstrates a failure in complying with International Law obligations.  The reburial of the Ancestors also threatens the wellbeing of the traditional communities.  The lack of engagement of the entire tribal community is causing significant soul sickness and cultural harm within the greater Aboriginal Community and threatens the cultural wellbeing of future generations.

(Emphasis in original.)

112    Finally, in answer to the question in the form as to why an emergency declaration was sought, the original applicants stated that:

The Applicants have been made aware that NSW Planning intends to begin to rebury the remains in the week of 23 May 2022 to 27 May 2022.  As proposed reburial appears to be commencing within the week following the Three Owner Groups urge this application requires an emergency declaration is made to prevent the proposed action relating to the reburial of our Ancestors’ Remains.

Due to the urgency of the upcoming proposed date, the Three Owner Groups reached out to the Department requesting the exact date that reburial is going to occur be provided and asked that NSW defer the reburial until no earlier than 14 days after Minister Ley provides a statutory statement of reasons.  However, the Department have not provided a response to these questions or requests beyond providing a Statement of Reasons. …

The Three Owner Groups feel as though the threat is immediate and our request is urgent as we feel voiceless within the discussion and consultation process.  If the Ancestors are secretly buried, our communities will lose the only opportunity we have to appropriately memorialise them.  Our People will also loose the only chance we have to protect our ancestors for the education and benefit of future generations whilst ensuring our ancestors are not resurfaced.

If the remains are reburied in secret, without the free, prior and informed consent of the Mutthi Mutthi, Ngayampaa and Barkandji People, they will be lost, and their souls will not rest as they should under the care and protection of our People.

The opportunity to correctly rebury and memorialise our Ancestors cannot be lost.  This is why the Three Owner Groups urge that protection is formalised immediately to prevent the reburial from occurring until the free, prior and informed consent of the Mutthi Mutthi, Ngayampaa and Barkandji People is obtained.

If the declaration sought under section 9 of the ATSIHP Act is not made urgently, significant and irreparable spiritual and cultural harm will occur within the Mutthi Mutthi, Ngayampaa and Barkandji Communities.  There will also be a risk of future harm or des[e]cration to the remains if they are resurfaced, disturbed, or dug up again.

(Emphasis added.)

113    A number of key points emerge from the First Application.

114    First, the application identified two ways in which the original applicants considered that the Ancestral Remains were under threat of injury or desecration:

(1)    if the Ancestral Remains were reburied without memorials, they were at risk of physical harm; and

(2)    there had been a failure to properly consult with the three Traditional Owner Groups.

115    Secondly, the application did not identify any Aboriginal reburial tradition and did not seek a declaration that the Ancestral Remains should be memorialised.  Nor did the application seek a declaration that reburial without memorials would be inconsistent with Aboriginal tradition.  However, it was unclear from the application whether the original applicants nonetheless alleged the existence of a link between reburial with memorials and Aboriginal tradition.

116    Thirdly, the application stated, in effect, that proper processes for obtaining FPI Consent were not followed and the original applicants therefore sought the opportunity for such processes to be followed before any further reburials occurred.

117    Fourthly, the application was ambiguous as to whether reburial in circumstances where the FPI Consent of the three Traditional Owner Groups had not been obtained was itself said to be inconsistent with Aboriginal tradition.

118    In line with the proposal for a declaration establishing a consultation process and a halt to further reburials, the original applicants also annexed an undated document signed by persons described as “Mutthi Mutthi elders and senior voices”, including Mr Kelly, which set out a proposal for a three-part process involving:

(1)    reburial of Mungo Man and Mungo Lady in a secure manner as a known location with a memorial;

(2)    community consultation with Aboriginal groups, stakeholders and the wider community “as to aspirations around Keeping Place / Education Centre / Cultural Centres / Memorials” funded by government to allow all views to be heard, including “democratic decision-making instruments”;

(3)    “Rollout Infrastructure” whereby funding was committed by government to “rollout the agreed infrastructure and management plan, with ongoing community involvement”.

119    The document concluded:

This simple three-phase plan allows for the immediate reburial of these beloved ancestors and lays down a marker for future generations, keeping the promise of what Mungo could be alive and in potential.  It also allows for the much-needed proper consultation with the 3TTGs and wider community as to what “we, the people”, want to see happen to honour Australia’s oldest human remains within the magical landscape of Australia’s oldest World Heritage Site.

(Emphasis in original.)

120    Also annexed to the First Application was an undated letter signed by a number of Mutthi Mutthi descendants of an ancestor addressed to the AAG and Willandra Lakes Region World Heritage Committee submitting that, after consulting with 85 of the ancestor’s descendants, “Mungo Man and Mungo Lady be returned to Mother Earth with memorials at their grave sites for the World to see”.  Neither of these documents clarify the uncertainties in the First Application but also left open the question as to whether reburial with memorials was an Aboriginal tradition or rather, was an aspiration only.

7.2.2    The Second Application

121    Nor did the Second Application provide greater clarity on the issues earlier identified but sought declarations to the same effect in the context where Mungo Man and Mungo Lady had since been removed without the original applicants’ consent.

122    Thus, with respect to the declarations sought, the Second Application stated that:

The Three Owner Groups urgently request a s 18 Declaration is made to any further removal of ancestral remains from a secure facility and an assurance as to the safety of the ancestral remains of Mungo Man and Mungo Lady.  The Declaration would also advert to the maintenance of the ancestral remains in a safe and s[e]cure location until such time as the free, prior and informed consent of the Mutthi Mutthi, Ngayampaa and Barkandji People has been obtained to the future respectful interment of the remains in accordance with law and custom.

123    In answer to the question of how the objects are under threat of injury or desecration, the Second Application alleges that the Ancestral Remains are in need of protection “due to actual threat of desecration”, referring to the removal of Mungo Man and Mungo Lady without consent on 24 May 2022.  Further, under the heading “Future Harm”, the original applicants stated that:

Given persons unknown have conducted a reburial in a manner not disclosed to the Applicants there is a concern that the remains could be degraded or desecrated.

124    In answer to the question of when the threat is likely to occur, the original applicants stated:

Please treat this Application as an urgent application under section 18, with a view to further consideration of making a declaration to protect the ancestral remains pursuant to section 12(3)(b) and (4)(b), and/or section 21(1) or (2) after the consent of the three traditional owner groups given that the NPWS has shown themselves incapable of protecting the remains from theft.

7.2.3    The submissions to the Consultant

125    In a letter dated 18 November 2022 to the consultant, Mr Williams, who was engaged by the Department to advise with respect to the s 12 application, the legal representative for the original applicants stated:

We rely upon our initial application and provide further information relating to the failure of the NSW Government to obtain the free, prior and informed consent of Traditional Owners before taking any action with respect to Ancestral Remains.

126    In articulating the declaration sought by the original applicants, in that letter the original applicants’ legal representative stated:

The Applicants submit that the Minister should declare:

a.     That the NSW Government obtain the free prior and informed consent of the Traditional Owners within a specified time period, say 12 - 24 months, a time that can be varied with the written consent of the Traditional Owners; and

b.     that the process to obtain the Traditional Owner’s free, prior, and informed consent must be resourced, with adequate information on the likely risk the Proposed Action and given sufficient time for that consent to be freely given;

in accordance with the Best Practice standards articulated in Dhawura Ngilan, particularly at 5, 6 and 9.

The Applicants submit that the Minister should also declare;

a.     that the ancestral remains are maintained in a safe and secure location until such a time as the free, prior, and informed consent of the Mutthi Mutthi, Ngiyampaa and Barkandji People has been obtained to the future respectful interment of the remains in accordance with law and custom.

127    On 20 February 2023, Mr Williams wrote to the original applicants seeking further information.  Specifically, Mr Williams sought information “regarding Aboriginal tradition in assessing both significance and threat, in particular”:

*    The nature of the relationship between Free, Prior and Informed Consent (FPIC) and Aboriginal tradition (as defined in relied upon by the ATSIHP Act);

*    the nature of the relationship between a claim of failure to obtain FPIC and threat of injury or desecration, ie a significant object to being used or treated in a manner inconsistent with Aboriginal tradition;

*    whether the Applicants understand the reburial is proposed by the NSW Government to be use or treatment of those Ancestral Remains to be inconsistent with Aboriginal tradition, as defined in the ATSIHP Act, and therefore to be a threat of injury or desecration to those significant Aboriginal objects; and

*    if they believe those proposals to be inconsistent with Aboriginal tradition, how they believe those significant objects should be treated which would accord with Aboriginal tradition.

128    In their response dated 6 March 2023, the original applicants’ legal representative stated:

The Applicants note that the failure of the process to afford Mutthi Mutthi, Ngiyampaa and Barkandji (the Applicants) free, prior and informed consent will lead to injury (damage) to the Ancestral remains due to the proposed method of the re-burials (group reburials at shallow depth).  The Applicants are concerned that while burials may be found at shallow depth today, that is not necessarily how people are buried traditionally, and that the proposed group burials are not reflective of how the remains were found.

…

The Applicants submit that it is the Aboriginal Tradition of the Mutthi Mutthi, Ngiyampaa and Barkandji Peoples with respect to Ancestral remains which should be the relevant Aboriginal Tradition, rather than Aboriginal People generally, or any specific individuals placed on a non statutory committee.

The Applicants do not hold themselves out in a similarly impermissible way as the final arbiters of the correct re-burial methodology to be consistent with law and custom.

(Emphasis added.)

129    As is apparent from this correspondence, the original applicants clarified that they did not seek a declaration that the reburial proposed by the NSW Government was inconsistent with Aboriginal tradition; nor did they seek a declaration which determined the correct reburial methodology.  Rather, they sought a declaration that would set down a process whereby the reburial methodology could be determined by the three Traditional Owner Groups.  As I later explain, a fundamental difficulty for Mr Kelly is that the ATSIHP Act does not empower the Minister to make a declaration of that kind.

7.3    Ground 2 (a) and (b):  alleged failure to consider the claim that absent FPI Consent, the remains were under threat of inconsistent treatment with the Burial Tradition

130    It will be recalled that the Burial Tradition alleged by Mr Kelly was the Aboriginal tradition of Aboriginal people visiting and maintaining the burial sites of their ancestors to honour them, pay respects to them, maintain a spiritual connection to them, and pass those practices on to future generations.  Mr Kelly contends that the original applicants submitted that, without the three Traditional Owner Groups giving their FPI Consent to the proposed reburial of the Ancestral Remains, the Ancestral Remains were under threat of being treated inconsistently with the Burial Tradition.  Mr Kelly contends that the Minister wrongly characterised the Burial Tradition claim as a claim that FPI Consent was an Aboriginal tradition “in and of itself”.

131    This error is said to be apparent in the Minister’s conclusion at [6.20] of her Statement of Reasons that there was insufficient evidence that FPI Consent was an Aboriginal tradition within the meaning of s 3 of the ATSIHP Act which must be observed in association with the handling or burial of Aboriginal remains.  That finding accorded with the Department’s advice at [10] of the Decision Brief that:

The department does not consider the applicants sufficiently demonstrated that the FPIC of all Traditional Owners is an Aboriginal tradition and considers the proponent has undertaken significant consultation processes with Traditional Owners on the reburials.

132    Similarly, the Departmental Analysis at [100] stated that:

The department does not consider that the information and evidence provided by the applicants establishes that FPIC (or something equivalent to FPIC) is an Aboriginal tradition which must be observed in association with the handling or burial of Aboriginal remains (so that failure to obtain FPIC would mean that the remains are being treated inconsistently with Aboriginal tradition). Outside of the applicants’ claim that FPIC is an Aboriginal tradition, no further evidence was received to support this claim.

133    It is clear that the Minister did, therefore, consider the question of whether the FPI Consent of the three Traditional Owner Groups was an Aboriginal tradition as Mr Kelly contends.  In so doing, the Minister was, in my view, being careful to address a claim which, on one view of the original applicants’ materials, appeared to be alleged.

134    However, the remainder of Mr Kelly’s submissions on grounds 2(a) and (b) raise a number of difficulties.

135    The first difficulty with respect to ground 2(a) and (b) is that the original applicants did not claim that the Reburial Proposal was inconsistent with the Burial Tradition articulated by Mr Kelly or make a case as to what Aboriginal tradition required.  Plainly, there can be no breach of procedural fairness in failing to consider a submission which was not made; nor can the failure to consider a claim which was not made and did not squarely arise on the material before the Minister amount to a breach of procedural fairness or a failure to consider a relevant consideration.

136    In this regard, it is true that there was some lack of clarity in the way in which the First and Second Applications expressed the original applicants’ claims, as I have earlier explained.  However, the consultant requested clarification of the nature of their claims, including whether the claim was that the proposed means of reburial was inconsistent with Aboriginal tradition as defined in the ATSIHP Act.  The response from the legal representative for the original applicants made it clear that they did not consider that the proposed means of reburial were “necessarily” consistent with Aboriginal tradition and indeed, they did not hold themselves out as the “final arbiters” of the correct reburial methodology.  Nor did they ask the Minister to make a finding about what Aboriginal tradition required. Rather, by seeking a declaration under s 12, they wanted a process to be undertaken whereby the correct reburial methodology could be ascertained.  In other words, as Ms Wong SC for the Minister put it, “So there has been a specific question asked of the legal representative [for the original applicants], ‘How should these objects be treated consistently with Aboriginal tradition?’, and the answer is, ‘We think that should be determined by a process of consent.’” That submission also accords with the oral submission by Mr McAvoy SC for Mr Kelly, in stating that:

it has been stated clearly in the application and the correspondence with the consultant that the free, prior and informed consent which the applicant refers to is intended to be understood as facilitative of the respect for tradition, Aboriginal tradition, and that by engaging in what is understood as a consent process, they will ensure that there is no, and there is not likely to be, any treatment or use of the objects in a manner that is inconsistent with the Aboriginal tradition.

137    This gives rise to the second fundamental difficulty with ground 2(a) and (b).  It will be recalled that the ATSIHP Act creates “a protective mechanism of last resort where State or Territory legislation is ineffective or inadequate to protect the heritage areas or objects”:  Chapman at [256] (von Doussa J).  It does that by providing for declarations to be made under s 12 containing provisions “for and in relation to the protection and preservation of the object … from injury or desecration” where, among other criteria, the Minister is satisfied that “the object … is under threat of injury or desecration” by reason of the object being used or treated inconsistently with Aboriginal tradition.  However, here the original applicants did not ask the Minister to determine whether the proposed reburials of the Ancestral Remains were inconsistent with Aboriginal tradition because the original applicants did not claim that the Burial Tradition was an Aboriginal tradition within the meaning of s 3 of the ATSIHP Act. There was, in other words, no form of injury or desecration of the objects alleged by the original applicants arising from the Burial Tradition which could engage the power in s 12.  Rather, the original applicants wanted a declaration which would enable a process to occur whereby consent to a method of reburial could be obtained and would stay the reburials pending the completion of that process.  Properly understood, therefore, the original applicants sought a declaration which the Minister did not have the power make.

138    The third difficulty for Mr Kelly is that the Minister in fact considered whether reburying the Ancestral Remains in sites without memorials may be inconsistent with Aboriginal tradition and rejected that possibility on the basis of the evidence before her.  Thus, at [6.27] of the Statement of Reasons, the Minister found that:

In my view, the applicants did not adequately explain why they considered that burying the ancestral remains without memorials would mean they are at risk of being resurfaced, disturbed or dug up.  There was also insufficient evidence as to why having burial sites with memorials would be consistent with Aboriginal tradition.

(Emphasis added.)

139    In so doing, the Minister apparently agreed with the advice at [119] of the Departmental Analysis that:

The department considers that the applicants have not demonstrated gravesites with memorials is consistent with Aboriginal tradition, and instead it appears memorials may be to enable ‘the world to see’ the final resting place.

140    In this regard, it will be recalled that the definition of Aboriginal tradition in the ATSIHP Act requires “a degree of antiquity to the traditions, observances, customs and beliefs” and the notion, therefore, that the traditions, observances, customs and beliefs have been handed down from generation to generation:  Chapman at [275] (von Doussa J).  It follows that there must be evidence which demonstrates the existence of an Aboriginal tradition in this sense to the satisfaction of the Minister.  Mere aspirations and desires do not suffice.

141    While the Minister’s conclusion that there was insufficient evidence as to why having burial sites with memorials would be consistent with Aboriginal tradition is brief, this reflects the fact that the materials before the Minister did not explain why reburying the Ancestral Remains in sites without memorials may be inconsistent with Aboriginal tradition.  The brevity of his conclusion on this issue is not, therefore, indicative of error.

142    It follows that ground 2(a) and (b) cannot succeed.

7.4    Ground 2(c):  sufficiency of “engagement” or “consultation” about the Reburial Proposal about the Reburial Proposal

143    Mr Kelly contends in the alternative to ground 2(a) and (b) that the Minister misunderstood the original applicants’ submission to be that mere “engagement” or “consultation” with Traditional Owners would be sufficient to obtain FPI Consent. Mr Kelly submits that, instead, the original applicants had submitted that agreement should be obtained from Traditional Owners “free of pressure” and “after being fully informed of the details and risks”.  Thus it will be recalled that the declaration sought by the original applicants was one which would provide the three Traditional Owner Groups with time within which to obtain FPI Consent to the reburials or establishment of a Keeping Place for the Ancestral Remains.

144    In support of these submissions, Mr Kelly also alleges that the AAG is unrepresentative and has not been given authority to speak for the three Traditional Owner Groups.  Nor, in his submission, was the AAG given the authority of the three Traditional Owner Groups to deal with matters of Aboriginal tradition on behalf of them.  Mr Kelly characterises the role of the AAG rather as limited to engagement and consultation, as opposed to a consent body.  Accordingly, Mr Kelly contends that the AAG could not make a decision on behalf of the three Traditional Owner Groups.

145    Mr Kelly further contends that the Minister and the NSW Government:

did not take into account a number of international conventions, High Court decisions and reports dealing with the rights of Indigenous persons to participate in decision-making, to speak for cultural heritage based on traditional ownership, and native title rights to maintain and protect site and places of importance, of which they were or ought to have been aware …

146    This ground must also fail.  First, s 12 of the ATSIHP Act does not empower the Minister to make a declaration providing for a process of consultation to take place in order to determine whether an action would be inconsistent with Aboriginal tradition as defined in the Act.  Rather, s 12 relevantly proceeds on the basis that an applicant for a declaration is making the application because they believe that the action is likely to be inconsistent with Aboriginal tradition, and the Minister must then determine whether she is satisfied that the evidence establishes that claim thereby enlivening the power to make a declaration under s 12.  The ATSIHP Act therefore also implicitly assumes that an application is made by an Aboriginal person or group of Aboriginal persons in circumstances where their consent has not been obtained.  As the Minister submitted:

In other words, they seek refuge, they seek the provisions, the operation of the Act, because someone is threatening to do something to their objects or to an area that is culturally significant to them without obtaining their consent.  So consent, one doesn’t see the concept of consent in this Act because it’s meant to operate in circumstances where consent has not been obtained.  But what’s the linchpin in those circumstances?  The linchpin is that there is … physical harm, clearly, or there is an Aboriginal tradition that the proposed treatment would be inconsistent with.

So that’s why there’s no process in the Act … for establishing a tradition, custom or belief by way of FPIC, nor making a declaration in order [that] the tradition be established by way of FPIC.

147    Secondly, the Minister addressed the sufficiency of the consultation process leading to the Reburial Proposal, notwithstanding her finding that the evidence did not establish that FPI Consent was an Aboriginal tradition.  The Minister summarised the original applicants’ concerns at [6.17]-[6.20] of the Statement of Reasons, which read:

The applicants submitted that it is the Aboriginal tradition of the Mutthi Mutthi, Ngayampaa and Barkandji peoples with respect to ancestral remains which should be the relevant Aboriginal tradition, rather than the tradition of Aboriginal people generally, or any specific individuals placed on a non-statutory committee.

I understand that the applicants’ submission that reliance should not be placed on ‘specific individuals placed on a non-statutory committee’ refers to the applicants’ concerns that the AAG:

a)    Is a non-statutory body with a statutory role;

b)    Is bound by confidentiality requirements that impair it from obtaining the FPIC of Traditional Owners;

c)    Did not consult with Traditional Owners in relation to the proposed reburials.

The proponent – the NSW Government – submitted that the AAG was formed in 2015 after extensive Community consultation, as a Community elected group and the peak Aboriginal advisory body for the Willandra Lakes Region World Heritage property.

I do not consider that the information and evidence provided by the applicants establishes that FPIC is an Aboriginal tradition which must be observed in association with the handling or burial of Aboriginal remains.  Outside of the applicants’ claim that FPIC is an Aboriginal tradition, no further evidence was received to support this claim.

148    The Minister then concluded in any event with the finding at [6.21] of her Statement of Reasons that the process of establishing the AAG and the consultation process “demonstrates significant, open and transparent engagement with Traditional Owners in accordance with FPIC principles”.  On that basis, the Minister found that “sufficient FPIC has been obtained from Traditional Owners as part of this process”.  Accordingly, Mr Kelly has not established that the Minister failed to engage with the original applicants’ claims that FPI Consent had not been obtained.

149    It follows that ground 2(c) must be rejected.

7.5    Grounds 3 and 4: did the Minister limit her consideration of the threat of injury or desecration to physical harm??

150    Mr Kelly submits that the Minister denied the original applicants procedural fairness by wrongly understanding their submission to be that the threat occasioned by secret reburials without memorials was limited to a risk of physical harm, namely, that the Ancestral Remains may resurface, or be disturbed or dug up again.  In his submission, the original applicants’ submission was instead that secret reburials would cause the Ancestral Remains to be under threat of being treated inconsistently with the Burial Tradition because it would deprive Traditional Owners of the opportunity to attend upon and honour the Ancestral Remains.

151    As earlier explained, the original applicants plainly submitted that there was a threat of physical injury to the Ancestral Remains by reason of the Reburial Proposal.  This claim was summarised by the Minister at [6.22] of the Statement of Reasons as follows:

The applicants also submitted that if the ancestral remains are secretly buried without memorials, there is a risk of them being resurfaced, disturbed, or dug up again.  Attached to the first application was a letter to the AAG and the Willandra Lakes Region World Heritage Committee members which states that ‘a keeping place would be better than burying because it could fall into restless hands, or development could damage it.’  The letter later goes on to reference the support for ‘Mungo Man and Mungo Lady to be returned to Mother Earth with memorials at their grave sites for the world to see’.

152    The Minister rejected those submissions at [6.23] and [6.27], finding that:

The applicants’ subsequent representations did not provide further details explaining why they consider the ancestral remains may be ‘disturbed’ or ‘dug up’ if they are to be reburied without memorials.

…

In my view, the applicants did not adequately explain why they considered that burying the ancestral remains without memorials would mean they are at risk of being resurfaced, disturbed or dug up.

153    However, the Minister then found at [6.27] that:

There was also insufficient evidence as to why having burial sites with memorials would be consistent with Aboriginal tradition.

(Emphasis added.)

154    It follows, therefore, that the Minister expressly addressed the question of whether the Ancestral Remains were under threat of injury or desecration as a result of the proposal for secret reburials without memorials, but found that the evidence was insufficient to establish such a threat.  As such, the Minister clearly did not consider herself as limited to considering whether the Ancestral Remains were at risk of physical injury, contrary to Mr Kelly’s submission.

155    Similarly, in relation to Mungo Man and Mungo Lady, the Minister found at [6.46]-[6.47] that:

I appreciate the applicants’ concern that Mungo Man and Mungo Lady were reburied without their knowledge, and that they do not know the locations of these burial sites.  I do not, however, consider that the evidence establishes that the applicants not knowing this information places Mungo Man or Mungo Lady at risk of desecration or degradation.

The evidence provided by the proponent sets out the processes that are in place to protect Mungo Man and Mungo Lady from desecration or degradation.  In light of this evidence, I find that the ancestral remains of Mungo Man and Mungo Lady are not under threat of injury or desecration.

156    The distinction drawn by the Minister between a risk of “desecration” and a risk of “degradation” also shows that the Minister, in the context of addressing the claims with respect to Mungo Man and Mungo Lady, did not limit her consideration to risks of physical harm to their remains.

157    More fundamentally, however, for the reasons given in rejecting ground 2(a) and (b) above, no submission was made by the original applicants that secret reburials would cause the Ancestral Remains to be under threat of injury or desecration by reason of being treated inconsistently with the Burial Tradition; nor did any such claim squarely arise on the material.  As such, neither Ground 3 nor Ground 4 can succeed.

8    GROUND 5: DID THE MINISTER MISCONTRUE “INJURY OR DESECRATION” SO AS TO LIMIT IT TO PHYSICAL HARM??

158    Further or in the alternative to ground 4, Mr Kelly submits that the Minister misconstrued the words “injury or desecration” in s 12(1)(b)(ii) of the ATSIHP Act as being limited to physical harm. Mr Kelly claims that the references to “injury or desecration” in the Statement of Reasons refer only to physical injury, and that the Decision Brief refers only to physical threats in the section titled “Threat”.  For the reasons given in relation to grounds 3 and 4, it is plain that the Minister made no such error but appreciated that non-physical harm may constitute injury or desecration under the Act.

9    GROUND 6: WAS THE MINISTER’S DECISION UNREASONABLE OR PROCEDURALLY UNFAIR BY FAILING TO MAKE FINDINGS ON THE AAG’s ALLEGED LACK OF AUTHORITY TO GIVE CONSENT?

9.1    Relevant principles:  legal unreasonableness

159    First, legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making:  Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58] (the Court). However, in determining whether an administrative decision is vitiated by legal unreasonableness, it is essential first to bear in mind that the Court’s jurisdiction is strictly supervisory:  Li at [66] (Hayne, Kiefel and Bell JJ).  As the Full Court of the Federal Court emphasised in Eden at [59], determining whether a decision is vitiated by legal unreasonableness:

does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker:  Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23].  Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

160    Secondly, where the contention, as appears to be the case here, is that an administrative decision is illogical or irrational or lacking in an intelligible justification, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] that “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”.

161    Thirdly, it follows that the threshold for finding that the end result or fact finding leading to the end result is illogical or irrational is high.  The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker:  SZMDS at [130] (Crennan and Bell JJ).   It follows that disagreement, indeed even emphatic disagreement, with the decision-maker’s reasoning is not sufficient to make out illogicality:  CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [61] (the Court).  As the Full Court explained in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]:

differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). …

162    Fourthly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful outcomes must be made having regard to the terms, scope and policy of the statutory source of the power:  see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ, with whose reasons Wigney J agreed at [90]).  Thus, as the Full Court explained in Eden at [63], “in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute”: see also Li at [24] (French CJ), [67] (Hayne, Kiefel and Bell JJ).

9.2    Disposition of ground 6

163    With respect to ground 6 of the application for judicial review, Mr Kelly submits that the Minister’s decision was legally unreasonable, illogical and/or irrational, and further, or in the alternative, that the Minister denied procedural fairness to the original applicants by failing to make findings in relation to the original applicants’ complaints regarding the AAG’s inability to represent the views of Traditional Owners.

164    This ground focused upon the Minister’s finding at [6.21] of her Statement of Reasons that:

I consider that the proponent’s actions to establish the AAG (that is, it undertook a public process to enable the 3 TTGs to determine the composition of the AAG), and the public processes for the relevant state and Commonwealth approvals for the reburials project, demonstrates significant, open and transparent engagement with Traditional Owners in accordance with FPIC principles. In my view, sufficient FPIC has been obtained from Traditional Owners as part of this process.

165    Mr Kelly submits that at [6.21], the Minister failed to engage with three grounds put by the original applicants, namely that:

(1)    the process by which members were appointed to the AAG was inadequate because it was not undertaken in accordance with any traditional decision-making process;

(2)    the resolution passed by the AAG in 2019 to approve the REF was passed without members being given full details of the Reburial Proposal in advance and with insufficient time for members to consider the draft REF; and

(3)    the AAG had not undertaken any, or any adequate, consultation with the three Traditional Owner Groups in relation to the Reburial Proposal, and so was not acting with the cultural authority of the three Traditional Owner Groups when it voted to approve the proposed burial.

(Cumulatively, the Three AAG Grounds.)

166    Mr Kelly submits that the Minister failed to make any finding on the issue of whether the AAG properly represented the views of the three Traditional Owner Groups.  In his submission, the Minister’s failure to make a finding on the Three AAG Grounds put by the original applicants “demonstrates the absence of any intelligible decision-making process” and that there is no clear basis for the Minister’s conclusion that engagement with the AAG was sufficient to obtain FPI Consent.  Further, Mr Kelly contends that the Minister’s engagement with the issue “should have been comprehensive” and that “important and detailed findings of fact should have been made about it”.  In addition, Mr Kelly maintains that ground 6 is also based on a denial of procedural fairness, in that the original applicants were not heard on their submissions on the AAG.

167    Ground 6, with respect, has not been established.

168    First, absent a finding that FPI Consent or an equivalent concept is an Aboriginal tradition and that the failure to obtain FPI Consent would result in injury or desecration of the Ancestral Remains, alleged inadequacies in the processes leading to the Reburial Proposal could not enliven the Minister’s power to make a declaration under s 12 of the ATSIHP Act.  In other words, as the Departmental Analysis correctly advised at [94]:

The ATSIHP Act does not stipulate any consultation and consent requirements for actions that may affect cultural heritage.  While it is generally recognised, and supported by government policies, that FPIC is the preferrable approach to engaging with Traditional Owners and obtaining consent for any proposed action, it is a moot point under the ATSIHP Act unless there is sufficient evidence that FPIC is an Aboriginal tradition, and that failure to obtain such consent in and of itself would result in harm or injury to the specified area or object.

169    Similarly, Ms Wong SC for the Minister correctly submitted that:

The [ATSIHP] Act is not a statute that is providing for cultural consensus or decision-making as to what they should do with their cultural objects.  It is a measure of last resort where, if you prove a particular tradition and that there’s acts inconsistent with that tradition, that you can obtain the force of a declaration protecting and preserving those objects.

170    However, in this case, the Minister found at [6.20] that the evidence was not sufficient to establish that FPI Consent is an Aboriginal tradition which must be observed in association with the handling or burial of Aboriginal remains.  This was because, “[o]utside of the applicants’ claim that FPIC is an Aboriginal tradition, no further evidence was received to support this claim”:  see also the advice in the Departmental Analysis at [100].

171    Given therefore the limited scope of the power to make a declaration under s 12 and the absence of evidence that FPI Consent was an Aboriginal tradition, no error is to be found in the brevity of the Minister’s reasons at [6.21] for rejecting the alleged failure to obtain FPI Consent and the absence of specific engagement with at least two of the Three AAG Grounds.  I do not accept Mr Kelly’s submission that the Minister did not make findings on the third of these grounds.  In my view, it is plain from [6.21] that the Minister made a specific finding with respect to that ground.

172    Secondly, notwithstanding the Minister’s finding that there was no evidence that FPI Consent was an Aboriginal tradition and that it was therefore unnecessary for the Minister to go further, the Minister nonetheless considered and rejected (at [6.17]-[6.21]):

(1)    the original applicants’ contention that their (and other members of the three Traditional Owner Groups) FPI Consent to the Reburial Proposal was not obtained by the proponent, the State of NSW; and

(2)    that, without that FPI Consent, the remains will be treated in a manner inconsistent with Aboriginal tradition.

173    Furthermore, there was ample evidence before the Minister which was capable of supporting her conclusions on this issue.

174    The issue was addressed in the Consultant’s Report which was before the Minister when she made her decision.  Thus, under the heading “FPIC and Aboriginal Tradition”, the consultant considered the question of whether FPI Consent should be considered relevant to determining the nature of Aboriginal tradition in this case and therefore whether there is a tangible or intangible threat of injury or desecration to the Ancestral Remains.  At [162]-[165], the consultant explained that he was concerned by the apparent assumption in the s 12 application that an inadequate exercise of the principle of FPI Consent was sufficient in itself to enliven the power in s 12, without drawing any link between FPI Consent and Aboriginal tradition as defined in the ATSIHP Act.  He explained that this concern led him to write requesting clarification from the original applicants:  see the letter dated 20 February 2023 at [127] above.  However, he considered at [165] that the original applicants’ response on 6 March 2023 (set out at [128] above):

continues the failure of the Applications and their Representation to assert that inadequate opportunity FPIC is contrary to Aboriginal Tradition.  It therefore follows that an alleged failure to provide adequate Free, Prior and Informed Consent, cannot of itself constitute a threat of injury or desecration to the specified objects, the Ancestral Remains.

175    In line with this, the consultant also concluded at [169] that the original applicants “have not asserted a long-standing history for the exercise of Free, Prior and Informed Consent in the decision-making customs for the 3TTGs.”  Nonetheless, the consultant still considered the original applicants’ contention that the AAG should not be considered as a truly representative body of the three Traditional Owner Groups and concluded, having considered the history of the Willandra region advisory bodies, that “the AAG should be considered to be a valid and recognised representative body for the 3TTG People of the Willandra area.” (at [172]).  He also considered that, on the evidence, “there has been a genuine and sustained effort over a period of years to consult as widely as possible, and to provide opportunities for the 3TTG Peoples to provide guidance and views into the AAG and associated decision-making processes”, and that, on balance, the consultation and consent decision-making processes undertaken with respect to the treatment of the Ancestral Remains can be considered as a valid exercise of FPI Consent (at [176] and [178] respectively).

176    The Departmental Analysis also comprehensively set out the original applicants’ claims with respect to FPI Consent and addressed those claims in detail at [54]-[105] with cross-references to the evidence in the other attachments to the Minister’s Brief.  Thus, for example, with respect to the formation and status of the AAG, the Department advised (at [67]-[70]) that:

The AAG was established after a 2013 review of the governance arrangements for the Willandra Lakes area.  At the time, there was 4 advisory groups and the review found that there were too many advisory groups to manage the area effectively and efficiently.  The review also found that 2 of the bodies no longer operated as separate entities and that the Elders Council needed reform (Attachment R, page 2).

In its representation dated 9 December 2022, the proponent claims the AAG was established in line with international expectations on Indigenous peoples’ rights, including FPIC:

‘The AAG was formed in 2015 after extensive Community consultation, as a Community elected group…as the self-elected peak Aboriginal advisory body for the Willandra Lakes Region World Heritage property… The AAG election process and membership was developed by the local Aboriginal Community, specifically to fulfil the role of representatives chosen by themselves in accordance with their own procedures’ [emphasis in original] (Attachment M, page 10).

The community consultation, the proponent referred to, was outlined in the Willandra Lakes Region World Heritage Area, 3TTG Forum 5 September 2015, Mildura Grand Hotel, Summary Report (2015 Community Forum report, Attachment R, page 2-4):

i.     The proponent undertook a community survey on how to best form the AAG.  In total, 42 people responded, and the ‘overwhelming’ response was to:

*    Hold the meeting in Mildura or if numbers were around 50 or less to hold on country at Mungo.

*    Hold a meeting with all 3 TTGs together as opposed to separate meetings for each Tribal Group

*    Invite young and old members of the 3 TTG

*    Have it on a weekend

*    Have a full day, not a half day meeting.

ii.     A widely advertised forum had 58 Traditional Owners present, and a further 13 apologies were received.  The proponent provided accommodation and catering for Traditional Owners who had to travel to the forum.  At the forum various options were discussed.  The forum’s agreed outcomes to establish the AAG were:

*    ‘It was strongly agreed that there should be 3 members from each of the 3 TTG – a total of 9 and that there should be a majority of 3 TTG members on the [Willandra Lakes Region World Heritage Area] Advisory Committee’

*    its representation should be determined through a democratic election process, and

*    the proposed election process was:

*    must attend election day meeting to be able to vote

*    can only vote for the tribe that you affiliate with

*    must be 18 years or older to vote

*    vote for one nominee only

*    30 days’ notice for election date.

The current AAG is comprised of 9 elected members, of which 3 are from each of the Mutthi Mutthi, Ngiyampaa and Barkandji tribes associated with the Willandra Lakes Region and Lake Mungo.  Members each serve a 3-year term. Eight of the representatives are elected through open, transparent Aboriginal community elections, and one of the Barkandji members is appointed by Barkandji RNTBC to represent its interests (Attachment M, page 6).

177    Thirdly, findings of fact do not need to be made on every argument advanced:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [14] (Keane, Gordon, Edelman, Steward and Gleeson JJ).  Rather, as Kiefel CJ, Keane, Gordon and Steward JJ explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24]:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations.  Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.  From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.  The weight to be afforded to the representations is a matter for the decision-maker.  And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” …

178    As the passages from the Minister’s Statement of Reasons set out at [176] above make clear, in my view it is plain that the Minister has had regard to what was said in the representations by the original applicants, brought her mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciated who was making them.  The fact that two of the Three AAG Grounds put by the original applicants (quoted above at [165]) were not specifically addressed by the Minister does not mean that the applicant has established that they were overlooked.  Rather, the appropriate inference to draw is that the Minister did not consider the first and second of those grounds to be material in circumstances where there was no evidence to suggest that FPI Consent is an Aboriginal tradition.  This was a view which was clearly open to the Minister and the absence by the Minister to engage with these grounds is neither, therefore, legally unreasonable nor a breach of procedural fairness.

179    Finally, given the considerations to which I have referred above, I do not consider that there was any failure by the Minister to comply with the requirements for statements of reasons in s 13 of the ADJR Act, even assuming (contrary to the Minister’s submissions) that the Minister’s Statement of Reasons was produced in this case pursuant to that provision.

10    CONCLUSION

180    It follows for these reasons that the application must be dismissed with costs.  Costs are fixed in the sum of $10,000 in line with the maximum costs order made, appropriately in my view, by consent on 10 October 2024 pursuant to r 40.51 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    28 March 2025