Invalid Consent to Destroy Heritage Objects Declared

The court declared invalid the decision to grant consent for the destruction of Aboriginal heritage objects due to procedural irregularities, failure to consider relevant matters, and contravention of the Racial Discrimination Act. The case involved judicial review proceedings under the Heritage Act.

Reported Decision : 144 LGERA 43

[NAME] of New South Wales

CITATION : [NAME] & [NAME] v The Director-[NAME] of the Department of [NAME] & Ors [2006] NSWLEC 12

APPLICANTS: [redacted] FIRST RESPONDENT: [redacted] PARTIES : [NAME] RESPONDENT: [redacted] RESPONDENT: [redacted] FOURTH RESPONDENT: [redacted]

FILE NUMBER(S) : 41501 of 2004

CORAM: Pain J

KEY ISSUES: Judicial Review :- whether decision to grant consent to destroy [NAME] objects ultra vires - whether failure to consider relevant matters - whether decision to grant consent contrary to Racial Discrimination Act 1975 (Cth) s 10

[NAME] Act 1983 s 51 Commonwealth of Australia Contitution Act 1900 (Imp) s 76, s 77, s 109 Heritage Act 1977 s 4, s 24, s 25, s 30, s 32, s 57, s 59, s 62, s 63, s 70, s 70A, s 139, s 141, s 142, s 146B, s 146C, s 156 Interpretation Act 1987 s 33 LEGISLATION CITED: Judiciary Act 1903 (Cth) s 39, s 78A [NAME] Act 1974 s 2A, s 4, s 5, s 81, s 83, s 85, s 87, s 89, [NAME], s 91A, s 91B, s 91C, s 91H, s 176A [NAME] Act 2001 Protection of the [NAME] Act 1991 s 6(2) Racial Discrimination Act 1975 (Cth) s 10

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385; Attorney-General (NSW) v Quin (1990) 170 CLR 1; [NAME] v [COMPANY] [No 6] [2004] NSWLEC 541; [NAME] v [NAME]; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426; Gerhardy v Brown (1985) 159 CLR 70; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; CASES CITED: [NAME] v [COMPANY] (1981) 149 CLR 27; [NAME] v [NAME] (1993) 31 NSWLR 65; Price v Elder (2000) 97 FCR 218; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte [NAME] (2003) 214 CLR 1; Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363; Western Australia v Ward (2002) 231 CLR 1; [NAME] v Director-[NAME] Department of [NAME] & Ors [2005] NSWLEC 165; [NAME] (2003) 127 LGERA 354; Woollahra Municipal Council v [NAME] (1991) 23 NSWLR 710

16/08/2005 17/08/2005 18/08/2005 DATES OF HEARING: 25/08/2005 (written submissions) 06/10/2005 (written submissions) 07/10/2005 (written submissions) 11/10/2005 (written submissions)

DATE OF JUDGMENT: 01/17/2006

APPLICANT: [redacted] SOLICITORS: [redacted] FIRST AND FOURTH RESPONDENTS: [redacted] SOLICITORS: [redacted] [NAME] RESPONDENTS: [redacted] SOLICITORS: [redacted]

JUDGMENT: THE [NAME] OF NEW SOUTH WALES

Pain J

17 January 2006

41501 of 2004 [NAME] and [NAME] v Director- [NAME] of the Department of [NAME] and [NAME] and [NAME] Development (Ballina) [COMPANY] and [NAME]-[NAME] of New South Wales

JUDGMENT 1 Her Honour: These are Class 4 proceedings brought by the Applicants against the Director-[NAME] of the Department of [NAME] ("the Director-[NAME]"), [NAME], and [NAME] Development (Ballina) Pty Limited ("[NAME]"). The [NAME]-[NAME] of New South Wales ("the [NAME]-[NAME]"), has intervened in these proceedings pursuant to s 78A of the Judiciary Act 1903 (Cth) ("the Judiciary Act") in relation to one issue. Background 2 [NAME] owns land at Lot 208 DP 851318, [ADDRESS], East Ballina ("the site"). The [NAME] Respondent, [NAME] is a director of [NAME]. The First Applicant, [NAME], is an [NAME] elder and a senior traditional owner of the [NAME] within the Bundjalung Nation. He is the former Chair and current member of the [NAME] of the [NAME] ("the [NAME]"). The [NAME] Applicant, [NAME], is a traditional owner of the [NAME] within the Bundjalung Nation and a member of the [NAME] of the [NAME].

3 There are four locations on the site registered on the Department of [NAME]'s (formerly the [NAME] Service, hereafter referred to as the "NPWS") [NAME]. The [NAME] maintains a database of over 44,000 registered [NAME] sites for New South Wales. The system holds all records of [NAME] sites registered by consultants, NPWS officers, [NAME] community members and the [NAME] public. The registration cards record that shell middens are identified in the four locations. Identification of a site on the register does not entitle it to any [NAME] protection under the [NAME] Act 1974 ("the [NAME]").

4 On 4 March 2003, [NAME] submitted an application pursuant to [NAME] of the [NAME] to carry out the destruction of [NAME] objects for the purpose of constructing a residential estate on the site. The application stated that the aim was to develop the site as a residential estate, infrastructure would be constructed and installed involving the excavation of trenches to a depth of about one metre but the application did not specify where such excavation would take place. On 29 May 2003, [NAME], a representative of the Director-[NAME] with delegated responsibility for granting [NAME] consents, granted consent #1667 ("the [NAME] consent"): FOR CONSENT to destroy those [NAME] objects in the course of: All works including, but not restricted to, infrastructure development and installation, roading and [NAME] construction activities associated with residential subdivision

5 The [NAME] consent granted by [NAME] contained a number of conditions, including the following: (a) that representatives of [NAME] be offered the opportunity to monitor the initial construction activities with a view to identifying and salvaging significant [NAME] objects disturbed by works (special condition 1); (b) that an identified area is reserved and dedicated as a special purpose [NAME] in recognition of prior [NAME] traditional uses of the land (special condition 2); (c) that the [NAME] consent is conditional upon all relevant development approvals being obtained; (d) that the [NAME] be offered the opportunity to salvage a selection of [NAME] objects (specific condition 5); (e) that works on the site are to stop immediately if a relic is uncovered (specific condition 6). 6 The effect of these conditions is that the majority of the site is able to be used for residential subdivision development. The conservation area does not overlap with any of the midden sites registered on the [NAME].

7 On or about 4 August 2004, [NAME] lodged a development application with the Minister for Infrastructure, Planning and Natural Resources for development consent to subdivide land and build infrastructure on the site for the purposes of a 63 lot residential development. 8 There is no time frame set out in the [NAME] in which a [NAME] consent must be issued. The Director-[NAME] has stated as part of her service "charter" that consents will be processed within three months of receipt. Issues 9 In their Amended Application Class 4 the Applicants seek the following declaration and orders:

1. A declaration that the [NAME] Act 1974 [NAME] #1667 granted by the First Respondent to the [NAME] Respondent on the 29th of May 2003, in respect of land described as Lot 208 DP 851318, [ADDRESS], East Ballina, NSW is invalid and of no effect.

2. An order that the [NAME] Respondents, their servants, agents and contractors, be restrained from carrying out any work involving clearing of vegetation, movement of soil and construction of infrastructure on the said land.

3. Alternatively, an order that the [NAME] Respondents, their servants, agents and contractors, be restrained from locating, identifying and recording [NAME] objects on the said land without the involvement of the representatives of the Applicants along with their consulting archaeologist(s) and/or [NAME](s).

4. Costs. 10 The [NAME] of Claim ("SFAPOC") dated 21 September 2005 outlined five challenges to the [NAME] consent granted by the Director-[NAME] as follows: (1) The Director-[NAME]'s decision to grant the [NAME] consent was ultra vires and the decision was therefore void because the decision in not applying the objects of the [NAME] was made for an improper purpose; (2) In the alternative, the Director-[NAME] failed to take into account a relevant consideration because the power to destroy objects of significance to [NAME] can only be exercised for the purpose of conservation; (3) Racial Discrimination Act 1975 ("the RD Act"): (a) If the Director-[NAME] does have power to grant consent pursuant to [NAME] of the [NAME], the [NAME] consent is invalid because it is contrary to s 10 of the RD Act; (b) In the alternative, the Director-[NAME] was bound to exercise her discretion in a manner consistent with the RD Act or failed to take into account the extensive purpose to be accorded to [NAME] objects under the [NAME]. (4) The Applicants had a legitimate expectation that the Director-[NAME] would consult with interested parties in relation to applications for s 87 and [NAME] consents under the [NAME] and failed to do so adequately; (5) The Director-[NAME] failed to consider relevant matters in granting the [NAME] consent, namely: (i) the heritage significance of the site and final comments of [NAME]; (ii) the nature of the proposed development; and (iii) the opinions of the Applicants. 11 The Applicants amended their pleadings and arguments after the hearing to take into account the Court of Appeal decision in [NAME] v [NAME]; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426 dated 15 September 2005 in relation to issues (1) and (4) in the SFAPOC.

Evidence 12 The Applicants relied on the affidavits of: (i) [NAME] – the First Applicant, affirmed 6 June 2005; (ii) [NAME] – the [NAME] Applicant, affirmed 6 June 2005; and (iii) [NAME] – chairperson of the [NAME] during the period the [NAME] consent was granted, affirmed 29 April 2005. (iv) [NAME] – convenor of [NAME] during the period the [NAME] consent was granted, affirmed 29 April 2005.

13 The affidavit of [NAME] provides evidence of the history of the [NAME] and his predecessors as the traditional owners and custodians of the Angels Beach area. In his affidavit [NAME] sets out of his knowledge of historical events occurring in the Angels Beach area and the history of [NAME]. The affidavit also outlines his role within the [NAME] as part of the [NAME] and his interaction with the NPWS in relation to the s 87 and [NAME] consents granted in relation to the site.

14 The affidavit of [NAME] confirms the information set out in the affidavit of [NAME] in relation to the history of the [NAME] as the traditional owners and custodians of the Angels Beach area and provides evidence of her knowledge of historical events occurring in the Angels Beach area. Her affidavit also outlines her role within the [NAME] as part of the [NAME] and her interaction with the NPWS in relation to the s 87 and [NAME] consents granted in relation to the site.

15 The affidavit of [NAME] outlines his role as the chairperson of the [NAME] at the time the s 87 and [NAME] consents were granted in relation to the site and the sequence of events leading up to the grants of consent.

16 The affidavit of [NAME] outlines her role as the convenor of the [NAME] at the time the s 87 and [NAME] consents were granted in relation to the site and the sequence of events that occurred at a meeting with officers of the NPWS on 11 April 2003.

17 The Director-[NAME] relied on the affidavit [NAME], Manager of the [NAME] of the NPWS, affirmed 8 April 2005. [NAME] had delegated power from the Director-[NAME] to grant consents under s 87 and [NAME] of the [NAME]. In his affidavit, [NAME] outlines the sequence of events that occurred in the exercise of his delegation in relation to the s 87 and [NAME] consents granted in relation to the site. [NAME] also gave oral evidence.

18 Numerous documents drawn substantially from the parties' respective files and correspondence in the matter were also tendered. Issue 1 - The [NAME] consent was ultra vires because the decision was contrary to the objects of the [NAME] (SFAPOC 15-29) 19 Section 2A of the [NAME] outlines the objects of the Act and states: (1) The objects of the Act are as follows: … (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to [NAME], and … (2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development. (3) In carrying out functions under this Act, the Minister, the Director-[NAME] and the Service are to give effect to the following: (a) the objects of the Act, …

20 Pursuant to s 2A(3)(a) of the [NAME] the Director-[NAME], in carrying out functions under the Act, is required to give effect to the objects of the Act. The functions of the Director-[NAME] in respect of [NAME] objects and places are expressed at s 8(4) and s 8(5) of the [NAME] as follows: The Director-[NAME] may promote such educational activities, and undertake such scientific research, in respect of [NAME] objects and [NAME] places as the Director-[NAME] thinks fit, either separately or in conjunction with [NAME] persons or bodies. As soon as practicable after an [NAME] object is discovered on any land reserved under this Act, the Director-[NAME], after such consultation with the Australian Museum Trust as appears necessary or expedient, is required to assess the scientific importance of the [NAME] object. 21 The powers of the NPWS in relation to [NAME] objects and places are expressed in s 12(d) and (h) of the [NAME] as including: (d) the identification, conservation and protection of, and prevention of damage to, [NAME] objects and [NAME] places, … (h) the conduct of research into and the monitoring of any of the matters referred to in paragraphs (a) – (e) 22 Pursuant to s 85(1) of the [NAME] the Director-[NAME] is the authority for the protection of [NAME] objects and [NAME] places in New South Wales. 23 Pursuant to s 85(2) of the [NAME] the Director-[NAME] is responsible: (a) for the proper care, preservation and protection of any [NAME] object or [NAME] place on any land reserved under this Act, and

(b) subject to s 87, for the proper restoration of any such land that has been disturbed or excavated for the purpose of discovering an [NAME] object.

24 Section 87 of the [NAME] states: (1) Subject to section 88, the Director-[NAME] may, upon such terms and conditions as the Director-[NAME] thinks fit, issue a permit to do any act or thing referred to in section 86 (a), (b), (c), (d) or (e). (2) Terms and conditions imposed by the Director-[NAME] under subsection (1) may include terms and conditions relating to the proper restoration of land disturbed or excavated. (3) A failure to comply with a term or condition authorised by subsection (2) shall be deemed to be a contravention of section 86. (4) The Director-[NAME] may, at any time: (a) revoke a permit issued under this section, or (b) vary the terms and conditions of such a permit.

25 Section 90 of the [NAME] states: (1) A person who, without first obtaining the consent of the Director-[NAME], knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, an [NAME] object or [NAME] place is guilty of an offence against this Act. … (1A) Subsection (1) does not apply with respect to an [NAME] object that is dealt with in accordance with [NAME] tradition pursuant to section 85A. (2) The Director-[NAME] may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein.

26 The [NAME] objects located on the site have been the subject of several archaeological and anthropological studies prepared over several years before the [NAME] consent was granted. These reports include: (a) [NAME] " Angels Beach Development [NAME] " (December 1991); (b) [NAME] " [NAME] Estate, Ballina, NSW: options for heritage management " (November 2001); (c) [NAME] " Archaeological Test Excavations at Lot 208 (DP 851318) [ADDRESS], East Ballina, Northern New South Wales – Draft Report " (February 2003); (d) [NAME] " Documentation in relation to section 90 Consent for Lot 208 DP 851318 [ADDRESS], East Ballina " (March 2003); (e) [NAME] " Anthropological Assessment of [NAME] of Lot 208, [NAME] Development Area, Draft Report " (February 2003); and (f) [NAME] "[NAME] 208, Provisional Conclusions and Recommendations" (May 2003).

These reports have attributed a level of medium archaeological significance to the site and an anthropological significance to the [NAME] objects located on the site ranging from medium to high. Applicants' submissions 27 The Applicants originally argued that the Director-[NAME] did not have power under the [NAME] to consent to the destruction of [NAME] objects for a purpose not identified in the [NAME], in [NAME] for the purpose of facilitating land development. Having regard to the Court of Appeal decision in [NAME] the Applicants accepted that the Director-[NAME] could grant a consent to destroy [NAME] objects pursuant to [NAME] of the [NAME] for the purpose of permitting land development. The Applicants also accepted that the exercise of the Director-[NAME]'s power is not restricted solely to the proper care, preservation and protection of any [NAME] object.

28 However, the Applicants submitted that the power of the Director-[NAME] must be exercised having regard to the objects contained in s 2A of the [NAME]. In exercising the power pursuant to [NAME] of the [NAME] the Director-[NAME] was required to be objectively satisfied as to whether the [NAME] objects on the site were of cultural value or significance to [NAME]. Having regard to the archaeological and anthropological studies before the Director-[NAME] as set out in par 26 above the Applicants argued that the Director-[NAME] could not have been objectively satisfied that the [NAME] objects on the site were of no cultural significance, and in the circumstances the Director-[NAME]'s decision to grant consent to destroy the [NAME] objects was ultra vires. 29 This requirement was emphasised by the reference to ecologically sustainable development ("ESD") in the objects of the [NAME]. The Applicants argued that implementation of the precautionary principle and the principle of inter-generational equity supports the Applicants' arguments that there is no power within the [NAME] to allow the destruction of significant [NAME] objects to facilitate land development. Contrary to the submissions of the Director-[NAME], the reference to ESD in s 2A of the [NAME] does not establish that land development is a legitimate purpose for the exercise of the Director-[NAME]'s power in [NAME] of the [NAME] where consent is being granted to destroy objects of cultural value or significance. Director-[NAME]'s submissions 30 The Director-[NAME] argued that she did have power to issue consent pursuant to [NAME] by virtue of the objects in s 2A(2) of the [NAME]. While s 2A states that one of the objects of the [NAME] is conservation it also provides that the objects are to be achieved by applying principles of ESD. As the [NAME] explicitly contemplates the occurrence of development, it is wrong to suggest that s 2A requires that no decision made under the [NAME] can be made for purposes which include economic or development purposes.

31 The Director-[NAME] argued that in any event the Applicants' arguments failed at a factual level. It is clear from the conditions imposed in relation to the provisions of an [NAME] that the [NAME] consent was directed at conservation and that the purposes included conservation (see par 5).

32 The Director-[NAME] put forward four further arguments prior to the decision of the Court of Appeal in [NAME] which are still relevant. Firstly, the Director-[NAME] noted that while s 2A(2) specified how the objects are to be achieved, s 2A(3) only required the Director-[NAME] to give effect to the objects of the [NAME].

Accordingly, s 2A(2) specified the outcomes to be achieved, where as s 2A(3) did not. Secondly, the principle invoked in Woollahra Municipal Council v [NAME] (1991) 23 NSWLR 710, where it was held that a lease could not be granted over national parklands for the purpose of conducting a private university because such a purpose did not advance the objects of the [NAME], does not apply here on its facts. In Woollahra the activity did not have any purpose which advanced the objects of the [NAME]. Thirdly, the effect of an objects clause on an unconfined discretion does not operate to circumscribe the power as the Applicants contend. Fourthly, the Director-[NAME] noted that s 2A related to objects and features of significance to [NAME], whereas [NAME] of the [NAME] related to [NAME] objects, which is wider in definition. It is therefore logically incorrect to apply the purposes of s 2A(1), which apply only to a limited subclass of [NAME] objects, to the whole class of [NAME] objects.

33 The Director-[NAME] adopted the submissions of [NAME] and [NAME] in relation to the effect of [NAME]. [NAME]'s and [NAME]' submissions 34 [NAME] and [NAME] submitted that [NAME] did not support the proposition that a consent may not be given to destroy an [NAME] object that is of cultural value or significance to [NAME]. While the Director-[NAME] was required to take into account the actual or potential significance of an [NAME] object for [NAME] under [NAME] of the [NAME] does not suggest that a consent to destroy issued pursuant to [NAME] of the [NAME] cannot be granted for an [NAME] object that is considered to be significant.

35 Secondly, [NAME] and [NAME] submitted that the objects of the [NAME] were not limited in the way the Applicants contended. The objects of the [NAME] contained in s 2A demonstrate that the scheme of the Act does not provide any presumption against development, or any unqualified protection of [NAME] objects, whether significant or not. The scheme of the [NAME] in relation to [NAME] objects is to provide wide prohibitions, combined with wide relieving discretionary powers in the Director-[NAME], including the discretionary power to consent to the destruction of objects. That power is necessarily inconsistent with their conservation.

Accordingly, having regard to the scheme created by the [NAME] and [NAME] submitted that the [NAME] consent granted by the Director-[NAME] was within power.

36 [NAME] and [NAME] submitted that even if the Applicants' construction of [NAME] was preferred, the argument would still fail. [NAME] and [NAME] argued that [NAME] did consider whether the objects were significant and reached an objective conclusion about the significance of [NAME] objects on the site. Finding on issue 1 37 The objects contained in s 2A of the [NAME] were introduced in 2001 by the [NAME] Act 2001 ("the [NAME] Act"). In his [NAME] (New South Wales, Legislative Assembly, Hansard, 16 November 2001 at 18762), the Minister stated that: Presently, the [NAME] Act does not contain an objects clause. This is essential to establish a clear framework for the functions of the [NAME], the Director-[NAME] of [NAME], and the [NAME] Service itself.

Accordingly, the bill has a proposed set of objects for the Act. These are consistent with the present role of the [NAME] Service and will better guide the Act's administration. This amendment will provide an unambiguous statement of the legislation's intent, as well as assist in legislative interpretation. Importantly, the objects will serve to reinforce the fundamental importance of the conservation of nature, including the conservation of ecosystems, biodiversity and significant landforms under the Act. They will also focus the Act on the conservation of our cultural heritage, both [NAME] and historic. 38 In Williams v Director-General National Parks and Wildlife Service & Ors (2003) 127 LGERA 354 Bignold J stated at 363 to 365 that: The texts of s 87 and [NAME] do not compel the conclusion that the Director-[NAME] is vested with a power or discretion in contradistinction to a duty or function. Nor, properly analysed in the context of Part 6 of the [NAME] Act , is it appropriate to classify the Director-[NAME]'s role under s 87 or [NAME] as merely a power or discretion. If resort to such terminology be sought, then I would conclude that the Director-[NAME] is vested with a power or discretion coupled with a duty . That duty is founded upon the plain terms of s 85 …

In my judgment, s 85 read in the light of the declared objects of the Act ( s 2A ) and the statutory functions conferred upon the Director-[NAME] ( s 8 ) is a pivotal and foundational provision of Part 6 of the [NAME] Act which deals with "[NAME] objects" and "[NAME] places", and gives colour and content to [NAME] specific functions conferred upon the Director-[NAME] by Part 6 , including the functions conferred by s 87 and [NAME] …

Accordingly, I conclude that the duty imposed by s 2A(3)(a) to give effect to the objects of the Act applies to the role of the Director-[NAME] in issuing a permit under s 87 or a consent under [NAME] . However, Bignold J held at 372 that the [NAME] consent granted in that case was not invalid, on the basis that the significance of [NAME] objects at the subject site had been properly considered by the first respondent.

39 In [NAME] v Director-[NAME] Department of [NAME] & Ors [2005] NSWLEC 165, Bignold J at [26] relied on his reasons in Williams v Director-General National Parks and Wildlife Service & Ors (2003) 127 LGERA 354 to hold in similar factual circumstances that the respondent was not bound by the objects of the [NAME] in a fashion that precluded the issue of a consent under [NAME] of the [NAME].

[ADDRESS] of Appeal in [NAME] v [NAME]; Williams v Director-General National Parks and Wildlife (2005) 141 LGERA 426 upheld the decision of Bignold J in [NAME] v Director-[NAME] Department of [NAME] & Ors [2005] NSWLEC 165. [NAME] (with whom Spigelman CJ and Giles JA agreed) stated at [62] – [67] that: There are a number of reasons for concluding that the obligations of the Director-[NAME] with respect to the protection of [NAME] objects cannot be interpreted in an absolute way so as to preclude, for all practical purposes, the grant of consent to destroy objects. No doubt it is true to say that such a restrictive construction would not read the power to grant consent entirely out of the Act. Appropriate protection for a midden, for example, may require survey and research work which would have the effect of damaging the midden. A consent to conduct such research would, as was pointed out on behalf of [NAME], require consent and consent could properly be given consistently with the protective responsibility of the Director-[NAME].

However, there are reasons to think that the power to consent is not so limited. First, if it were intended to operate in that way Parliament could have said so… neither s 2A nor s 85 imposes an express requirement that the only considerations that the Director-[NAME] may have regard to in giving a consent under [NAME] are "the proper care, preservation and protection of" the relevant [NAME] objects. Indeed, this language, which is taken from s 85(2)(a), identifies a function of the Director-[NAME] in respect of objects and places "on any land reserved under this Act". There does not appear to be any reason to apply the geographical qualification to [NAME] places only and not to [NAME] objects…

Secondly, it is possible to read too much into the obligation imposed on the Director-[NAME], pursuant to s 2A(3), to "give effect to" the objects of the Act, in carrying out her functions under the Act. As was pointed out on behalf of the Director-[NAME], s 2A(2) prescribes that the objects of the Act "are to be achieved" by applying the principles of ecologically sustainable development, being principles identified in s 6(2) of the Protection of the [NAME] Act 1991. According to that provision, "ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes". These principles may not have direct application to the conservation of [NAME] objects, but the reference to them in s 2A(2) provides an explicit recognition that the [NAME] Act is but one piece of legislation which must operate in conformity with [NAME] legislation governing land development activities. … No doubt these provisions merely reflect the obvious, namely that there will often be a tension between development activities and environmental protection. Where, in the public interest, protection considerations prevail, the land will usually be set aside for public purposes or any absolute constraint on development of private land will be made explicit. [NAME] objects may be found on land throughout the State, including private land, especially in rural areas where there has not been intensive development. The breadth of the definition of [NAME] objects demonstrates that almost any land which has not been the subject of intensive development is likely to be [NAME]. If the presence of such objects was to be a bar to the development of private land in any manner which might lead to damage, defacement or destruction of the objects, one would expect the statute to make that explicit and unambiguously clear. Whilst the [NAME] Act does give a high level of protection to known [NAME] objects, the conferral of an express power on the Director-[NAME] to consent to them being damaged, defaced or destroyed, in circumstances which are not explicitly restricted, should not be understood as subject to an implied restriction, which would prevent the power being exercised in relation to development of private land.

41 In light of these findings the Applicants now argue, in the SFAPOC filed after [NAME] was handed down, that the Director-[NAME]'s decision to grant the [NAME] consent was contrary to the objects of the [NAME] because she could not have objectively been satisfied that the objects to be destroyed were of no cultural value or significance. The Applicants submitted that [NAME] does not preclude an argument that the Director-[NAME] is required to objectively determine the significance of [NAME] objects before making a decision to grant consent. If her finding is that the objects do have cultural value or significance to [NAME] then a decision to grant a consent to destroy would be contrary to the object expressed in s 2A(1)(b)(i) of the [NAME] of conserving those significant objects. The [NAME] set aside as a condition of the [NAME] consent does not overlap at all with the four midden sites identified on the [NAME]. As a result of the [NAME] consent being issued the majority of the site will be available to be developed for residential subdivision and all of the midden sites destroyed. Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 was relied on by the Applicant to argue that the objects clause should be given substantive efficacy. In [NAME] held at [48] that: … a construction that would promote the object of the Act is to be preferred to a construction that would not promote that object. 42 The Applicants maintained the argument that because the only purpose for which the [NAME] consent was granted was for the facilitation of the residential subdivision of the land where the objects to be destroyed were identified as having cultural value and significance, then the power was exercised for an improper purpose. 43 In their submissions in reply the Applicants argued that while the principles of ESD are to be applied in order to achieve the objects of the [NAME], their inclusion does not establish that land development is a legitimate purpose for the exercise of the Director-[NAME]'s powers in s 87 and [NAME] of the [NAME] where consent is being granted to destroy objects of cultural value or significance. The Applicants argued that [NAME]'s findings at [65] do not detract from this submission but that is debatable in my view. In his judgment [NAME] notes that while the Director-[NAME] is required to give effect to the objects of the [NAME] this is to be done by applying the principles of ESD. Section 2A(2) of the [NAME] provides "the objects of the Act are to be achieved by applying the principles of ecologically sustainable development". He states that: These principles may not have direct application to the conservation of [NAME] objects, but the reference to them in s 2A(2) provides an explicit recognition that the [NAME] is but one piece of legislation which must operate in conformity with [NAME] legislation governing land development activities . (at [65]). 44 In [NAME] at [64] [NAME] states that s 2A does not impose an express requirement that the Director-[NAME] have regard only to the proper care, preservation and protection of [NAME] objects when granting a consent to destroy under [NAME].

45 In [NAME] at [67] [NAME] held that: Whilst the [NAME] does give a high level of protection to known [NAME] objects, the conferral of an express power on the [NAME] to consent to their destruction should not be understood as subject to an implied restriction. 46 The [NAME] confers wide discretion on the Director-[NAME] in relation to the issue of [NAME] consents to destroy. [NAME] is binding authority for the proposition that the Director-[NAME] and her delegates are able to grant consent to destroy [NAME] objects under [NAME] in the context of land development. This case is an extension of the legal issue considered in [NAME] which dealt with the issue of whether the Director-[NAME] can issue a [NAME] consent at all in the context of land development. The Applicants are seeking to argue that if the Director-[NAME] or her delegate is aware that objects have significance for [NAME] she cannot consent to their destruction because of the objects of the [NAME] to which she must give effect. Reliance was placed on [NAME] at [52] in [NAME] where he states: For reasons which will appear below, the Director-[NAME] can consent to the destruction of [NAME] objects where the destruction takes place in the course of development and is reasonably necessary for the purposes of the development. Nevertheless, the legality of a consent in those circumstances may depend upon the Director-[NAME] taking into account the actual or potential significance of the [NAME] object for [NAME], in accordance with s.2A of the [NAME] Act.

Accordingly, it would be arguable that a consent which permitted the destruction of an unknown object, regardless of whether it has no significance or high significance might well involve an error of law. However, that question will depend in part upon factual considerations as, for example, whether on the material before her, the Director-[NAME] was entitled to form the view that there was no realistic chance of any object of significance to [NAME] being at risk. In that case, the omission to take account of the theoretical possibility might not constitute a legal error. 47 It is accepted by the Director-[NAME]'s delegate that he has responsibility to consider the conservation of [NAME] objects when granting a [NAME] consent to destroy. His argument is that he has done so by issuing the [NAME] consent subject to the conditions set out at par 5 above. While the [NAME] consent does have conditions said by the Director-[NAME] to be for conservation purposes, namely, the requirement for the defined special purpose [NAME], the Applicant argued that this condition did not advance a conservation or protective purpose because there were no known [NAME] objects in the area and it was designated because it was the most suitable location to facilitate residential subdivision development. It is [NAME]'s evidence however that this area was identified early in the process of considering the [NAME] consent because it was an area identified by members of the local [NAME] community, including the Applicants, as a significant site as there was likely to be someone buried there. There is no evidence to suggest that the conservation measures imposed under the [NAME] consent have any purpose [NAME] than conservation.

48 The Applicants relied on [NAME] v [NAME] (1993) 31 NSWLR 65 and Woollahra Municipal Council v [NAME] (1991) 23 NSWLR 710 to support their argument that the power of the Director-[NAME] pursuant to [NAME] of the [NAME] could only be used to advance the objects and purpose of the [NAME]. [ADDRESS] of Appeal in [NAME], and in Woollahra, found the decision of the Minister was beyond power because the purpose underlying the exercise of the Minister's discretion did not advance the objects the [NAME]. However, in those cases the purpose underlying the exercise of the Minister's discretion was held to be inconsistent with [NAME] purposes relating to national parks in the [NAME]. In this case, the grant of the [NAME] consent did impose conditions which included measures for the conservation of [NAME] objects to some extent, as is evidenced by the conditions set out at par 5. I therefore do not consider that these cases apply in this situation. 49 The Applicants' argument is that the Director-[NAME] or her delegate cannot exercise the discretion to allow the destruction of [NAME] objects of cultural significance when measured objectively. In [NAME] words, if the Director-[NAME]'s delegate receives an archaeologist's report which finds that there is an object or objects of cultural significance and/or the recognised traditional custodians tell her that the objects have cultural significance, she cannot exercise her discretion to allow their destruction in the context of land development. 50 Given the findings in [NAME], I do not consider it is open for me to find that her discretion is so constrained. In this case the [NAME] consent granted does have conservation conditions imposed. It cannot be said in light of [NAME] that the Director-[NAME]'s delegate has acted on the basis of an improper purpose in issuing the [NAME] consent and the decision to issue it is not void on this ground. The Applicants are unsuccessful on this ground. 51 Given that issues 2 and 5 both raise arguments concerning the failure to take into account certain matters I will deal with these together in the last section of this judgment. Issue 3(a) - Section 90 of the [NAME] is contrary to s 10 of the RD Act (SFAPOC 31-35) 52 Section 10 of the RD Act states: (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, [NAME], colour or national or ethnic origin do not enjoy a right that is enjoyed by [NAME], colour or national or ethnic origin, or enjoy a right to a more limited extent than [NAME], colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned [NAME], colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as [NAME], colour or national or ethnic origin. (2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention. …

53 Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination ("CERDS") states: In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to [NAME], colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

… (e) Economic, social and cultural rights, in [NAME]: … (vi) The right to equal participation in cultural activities; …

54 [NAME] rights also identified in the SFAPOC (par 32) are: … (ii) Article 15 of the international Covenant on Economic, Social and Cultural Rights ("ICESCR") recognises the right of everyone to take part in cultural life. (iii) Article 27 of the International Covenant on Civil and Political Rights ("ICCPR") affirms that "members of cultural minorities shall not be denied the right, in community with [NAME] members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language". (iv) Principle 22 of the Rio Declaration on the [NAME] and Development stated that "[NAME] … have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their participation in the achievement of sustainable development."

Applicants' submissions 55 The Applicants submitted that the operation of [NAME] was contrary to s 10 of the RD Act. The Applicants compared the regime for the protection of [NAME] relics under the [NAME] and the regime for protection of buildings, works and relics under the Heritage Act 1977 ("the Heritage Act"). The Applicants argued that there were lesser rights conferred on indigenous persons for the protection of indigenous cultural heritage under the [NAME] compared to rights conferred on non-indigenous persons for the protection of non-indigenous cultural heritage pursuant to the Heritage Act. Therefore s 10 of the RD Act operated so as to read down or invalidate the operation of [NAME] of the [NAME] by virtue of s 109 of the Commonwealth of Australia Constitution Act 1900 (Imp) ("the Constitution Act"). [NAME]-[NAME]'s submissions 56 The [NAME]-[NAME] intervened in the proceedings under s 78A of the Judiciary Act to oppose the Applicants' submissions. The [NAME]-[NAME] submitted that in comparing the degree of protection afforded by the [NAME] on the one hand and the Heritage Act on the [NAME] hand, it could not be said that [NAME] persons enjoyed a more limited right to protect cultural objects. The [NAME]-[NAME] argued that a greater degree of protection was afforded to the preservation of indigenous cultural objects under the [NAME] than that afforded to non-indigenous cultural heritage under the more piecemeal regime in the Heritage Act.

57 If the Court did find that the degree of protection afforded to relics by the [NAME] was less than that afforded under the Heritage Act, it did not necessarily follow that [NAME] persons thereby enjoyed their right to participate in cultural activities unequally with non-[NAME] persons. Rather, it is necessary to look to the practical effect of the different degrees of protection and make an assessment of the social and cultural impact of the different legislative regimes on the enjoyment of the right to equal participation in cultural activities.

58 In any event, the [NAME]-[NAME] submitted that the effect of the RD Act was not the invalidity of [NAME] of the [NAME]. Section 10 of the RD Act operated to confer a Commonwealth right for [NAME] equivalent to the right conferred as a matter of State law on persons of the [NAME]. The [NAME]-[NAME] argued, accordingly, that s 10 of the RD Act did not render [NAME] of the [NAME] invalid and the Applicants were not entitled to the relief that they sought. The Director-[NAME] adopted these submissions. [NAME]'s and [NAME]' submissions 59 [NAME] and [NAME] submitted, firstly, that neither the [NAME] nor the Heritage Act conferred rights to participate in cultural activities of the kind described in par 32(i) – (iv) of the SFAPOC. Secondly, the protection provided for in the [NAME] was "blanket" protection under [NAME]. It did not depend upon identification and listing protection conferred under the Heritage Act. [NAME] objects had greater protection than was conferred for non-indigenous relics, objects and places under the Heritage Act. Thirdly, even if the Applicants' contention that the Heritage Act confers greater protection were correct, the effect of s 10(1) of the RD Act would be to confer a right to seek the protection of specified [NAME] objects under the Heritage Act. Finding on issue 3(a) – application of the RD Act 60 The Applicants' submission that this Court is vested with the necessary jurisdiction to determine this issue by virtue of s 39(2) of the Judiciary Act and s 76(i) and (ii) of the Constitution Act as authorised by s 77(iii) was not disputed by the Director-[NAME] or the [NAME]-[NAME].

(i) Operation and effect of s 10 of the RD Act 61 The effect of s 10 of the RD Act is to guarantee equality before the law in circumstances where inequality is occasioned to [NAME]. In Gerhardy v Brown (1985) 159 CLR 70, Mason J stated at 94 that: Section 10 is not aimed at striking down a law which is discriminatory or is inconsistent with the Convention. Instead it seeks to ensure a right to equality before the law by providing that persons of the [NAME] discriminated against by a discriminatory law shall enjoy the same rights under that law as [NAME] persons.

62 Mason J then considered at 98 – 99 the two types of cases in which s 10 of the RD Act may operate: If racial discrimination arises under or by virtue of State law because the relevant State law merely omits to make enjoyment of the right universal, i.e. by failing to confer it on [NAME], then s 10 operates to confer that right on persons of that [NAME]. In this situation the section proceeds on the footing that the right which it confers is complementary to the right created by the State law. Because it exhibits no intention to occupy the field occupied by the positive provisions of State law to the exclusion of that law the provisions of the State law remain unaffected.

… When racial discrimination proceeds from a prohibition in a State law directed to [NAME], forbidding them from enjoying a human right or fundamental freedom enjoyed by [NAME], by virtue of that State law, s 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by [NAME]. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State law. But, the important question which would then arise is: would the invalidity of the prohibition under s 109 of the Constitution result in the [NAME] provisions of the State law also becoming inoperative, notwithstanding a manifest Commonwealth legislative intention that so much of the State law as conferred the relevant right on the persons of the privileged [NAME] should remain on foot? Although it is unnecessary to pursue this question to a conclusion, I should mention that total inconsistency of the State law would only ensue in the unlikely event that it appeared that the provisions conferring a benefit on the privileged [NAME] were intended to operate if, and only if, the prohibition took effect. In that unlikely event the prohibition and the [NAME] provisions of the State law would be interdependent with the result that the provisions could not be severed.

63 The consequences of the operation of s 10 of the RD Act as stated by Mason J in Gerhardy were approved in similar terms by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward (2002) 213 CLR 1 at [107] – [108]. [NAME] stated at [115]: In determining whether a law is in breach of s 10(1), it is necessary to bear in mind that the sub-section is directed at the enjoyment of a right; it does not require that the relevant law, or an act authorised by that law, be "aimed at" native title, nor does it require that the law, in terms, makes distinction based on [NAME]. Section 19(1) is directed at "the practical operation and effect" of the impugned legislation and is "concerned not merely with matters of form but with matters of substance". Mason J in Gerhardy put the matter this way: "[Section] 10 is expressed to operate where [NAME], colour or origin, or do not enjoy a right that is enjoyed by [NAME], colour or origin, or do not enjoy that right to the same extent." (Original emphasis.)

64 I agree with the Applicants' submission that the right for [NAME] to enjoy objects of [NAME] heritage is a right recognised by Article 5 of CERDS and consequently s 10(1) and (2) of the RD Act. For [NAME], participation in cultural activities is associated with those places and objects that are of cultural value or significance. If [NAME] heritage is destroyed, their ability to participate and enjoy participation in associated cultural activities is diminished.

65 The [NAME]-[NAME] argued that if the Applicants were successful the result was that the Heritage Act would apply to [NAME] objects, not that [NAME] of the [NAME] would be struck down as the Applicants argued. The terms of s 10 of the RD Act and cases such as [NAME] suggest this interpretation is correct. Applying the passage of Mason J quoted above and a reading of s 10 of the RD Act strongly suggests that if there is a right conferred by the Heritage Act which is not able to be enjoyed by [NAME], and that results in discrimination on the basis of [NAME], the legal answer is that the right under the Heritage Act would also be able to be applied to [NAME]. It does not follow that the legal response to the application of s 10 of the RD Act in relation to [NAME] of the [NAME] is that it is struck down, assuming there is any discriminatory operation on the basis of [NAME] found. As will become clear in the next section, a comparison between the two different heritage protection regimes does not provide a clear cut conclusion that [NAME] itself operates in such a way that it results in discriminatory practices adverse to [NAME] heritage in a way inferior to protective measures available to non-[NAME] heritage items or buildings.

Comparison of the [NAME] Act 66 The Applicants argued that if inequality of [NAME] persons is the result of the operation and effect of a State law the State law is inconsistent with a law of the Commonwealth and is therefore invalid. The comparison the Applicants' counsel seeks to make is between two different schemes, one under the Heritage Act and one under the [NAME]. The Applicants' case did not focus on one section in each of these respective Acts, that is [NAME] of the [NAME] and an equivalent section or sections in the Heritage Act, but asked the Court to examine the [NAME] operation of both Acts. While on one view there is not a direct equivalent provision of [NAME] of the [NAME] in the Heritage Act against which to compare [NAME], the point I am seeking to emphasise is that it was the operation of the two statutory schemes which the Applicants argued showed the relevant discriminatory practice under the [NAME]. 67 The SFAPOC at par 33 identified the following broad areas as demonstrating the lesser protection afforded to [NAME] objects under the [NAME] when compared to the Heritage Act: (a) The Heritage Act affords a greater protection to heritage items through the approval process under Part 4 Div 1, 2 & 3 of the Heritage Act than the approval process for the damage/destruction of [NAME] objects under Pt 6 of the [NAME]; (b) The Heritage Act affords public consultation in respect of approvals/consents to destroy that is not provided for under the [NAME]; (c) The [NAME] requires a higher standard of proof for criminal liability for destruction of items of [NAME] heritage (s90) compared to the equivalent provision of the Heritage Act for non-indigenous relics and objects (s139); (d) The [NAME] provides for a penalty regime for offences committed in relation to the destruction and damage of [NAME] objects that is vastly inferior to that afforded to non-indigenous relics and objects under the Heritage Act; (e) The power to issue a stop-work order under the [NAME] is much narrower than under the Heritage Act; (f) The Heritage Act provides greater prospective protection measures for non-indigenous objects than those provided for under the [NAME] for [NAME] objects; (g) Differences in the ownership of [NAME] objects and non-indigenous objects under the respective statutory regimes operate to grant a lesser degree of protection to [NAME] objects; (h) The Heritage Act provides greater access to information by the provision of a State Heritage Register under Pt 3A of the Heritage Act than the [NAME] which has no statutory Register of [NAME] cultural objects and places.

68 The Applicants' submissions essentially went through the provisions of each of the [NAME] in some detail and sought to highlight differences between them. A lengthy 24 page table was provided which purported to compare the two regimes. This was used as the basis for submissions from the Applicants that the regime for protection of [NAME] heritage under the [NAME] is inferior to that afforded to non-[NAME] heritage under the Heritage Act. I will not traverse all that material here as it is arguably not relevant to the question of whether [NAME] operates in a discriminatory way. An examination of the matters in (c), (d) and (e) appear to be of little use in analysing the matters relevant to an assessment of [NAME] and its operation and I will not consider these. Key provisions relating to the extent of interim and permanent protection of [NAME] and non-[NAME] heritage and the level of public participation afforded in the relevant regimes are considered (SFAPOC (a), (b) and (f)). 69 As emphasised in [NAME] it is necessary to look at the practical operation of the respective laws. Given that the two schemes are not identical and there is very little or no evidence before me about their [NAME] operation, any such comparison is difficult in this case.

70 Under s 83 of the [NAME], ownership of [NAME] objects is deemed to be, and deemed to have always been, vested in the Crown. "[NAME] object" is defined in s 5 of the [NAME] as: any deposit, object or material evidence (not being a handicraft made for sale) relating to the [NAME] habitation of the area that comprises New South Wales, being habitation before or concurrent with (or both) the occupation of that area by [NAME], and includes [NAME] remains. Section 4 of the Heritage Act expressly provides in the definition of "relic" that it does not apply to [NAME] deposits, objects, or material evidence. 71 The Applicants argued that the relevant comparison for the purposes of the present case was between the protection afforded to "[NAME] objects" under the [NAME], as the focal point of indigenous cultural heritage, and "buildings" or "works" under the Heritage Act, as the focal points of non-indigenous cultural heritage. The [NAME]-[NAME] submitted that the relevant comparison for the purposes of the present case was between the protection afforded to "[NAME] objects" under the [NAME] and "relics" under the Heritage Act. The relevant provisions in relation to "relics" and "buildings" or "works" under the Heritage Act are set out.

(i) The protection afforded to "[NAME] objects" under the [NAME] 72 Under Pt 6 of the [NAME] the Director-[NAME] is vested with powers for the transfer and preservation of [NAME] objects and places. Under s 85 of the [NAME], the Director-[NAME] is the authority for the protection of [NAME] objects and [NAME] places in New South Wales. Pursuant to s 89, the Director-[NAME] may enter into an agreement for the preservation or exhibition of an [NAME] object. [NAME] of the [NAME] there is a prohibition on the destruction of an [NAME] object without a permit. The prohibition applies in respect of all [NAME] objects irrespective of any assessment of their significance. The grant of a consent under [NAME] to destroy [NAME] objects is a discretionary decision of the Director-[NAME]. Pursuant to [NAME](3) of the [NAME], appeal rights are limited to the person whose application for consent is refused or is dissatisfied with any condition or restriction under which the consent is given. No appeal rights for consent granted under [NAME] are available to [NAME] parties.

73 Under s 91A of the [NAME] the Director-[NAME] may recommend to the Minister the making of an interim protection order in respect of an area of land which in the Director-[NAME]'s opinion has natural, scientific or cultural significance. Under s 91B, the Minister may, after considering a recommendation made under s 91A, make an interim protection order in respect of the area of land the subject of the recommendation. Pursuant to s 91C, the Minister is not required, before making an interim protection order, to notify any person who will be [NAME] by the order of the intention to make the order. Pursuant to s 91H, an [NAME] of an area subject to an interim protection order may appeal to the Court.

74 Pursuant to s 176A(1) of the [NAME] any person may bring proceedings in this Court for an order to remedy or restrain a breach of the [NAME], whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (ii) The protection afforded to "relics" under the Heritage Act 75 "Relic" is defined in s 4 of the Heritage Act as: any deposit, object or material evidence: (a) which relates to the settlement of the area that comprises New South Wales, not being [NAME] settlement, and (b) which is 50 or more years old.

76 Under s 32 of the Heritage Act a relic may be listed on the State Heritage Register if the Minister is of the opinion that the relic is of State heritage significance. Under s 24 of the Heritage Act a relic may be subject to an interim heritage order if the Minister considers that on further investigation it may be found to be of State or local heritage significance. Under s 25 of the Heritage Act a relic may be subject to an interim heritage order if a council authorised by the Minister considers that on further investigation it may be found to be of State or local heritage significance. Pursuant to s 30 of the Heritage Act an [NAME] may appeal to the Court against the making of an interim heritage order by a council. Where an interim heritage order or listing on the State Heritage Register or permanent heritage order applies to a relic, there is a prohibition on moving, damaging, destroying, altering or carrying out development in relation to that relic without approval under s 57(1). The Minister may grant an exemption to s 57(1) under s 57(2).

77 Applications can be made for approval to move, damage, destroy, alter or carry out development in relation to relics listed on the State Heritage Register or subject to an interim heritage order under s 59 of the Heritage Act. In determining such applications, the approval body must have regard to the considerations listed in s 62 of the Heritage Act: (a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage, (b) the representations, if any, made with respect to that application under section 61(3), (c) such matters relating to the conservation of that item or land as to it seem relevant, and (d) such [NAME] matters as to it seem relevant.

78 Under s 70 of the Heritage Act, an applicant dissatisfied with the decision of the Heritage Council with respect to an approval may appeal to the Minister. Under s 70A of the Heritage Act, an applicant dissatisfied with the decision of a council with respect to an approval may appeal to the Court. 79 Section 139(1) of the Heritage Act provides that a person must not disturb or excavate any land knowing or having reasonable cause to suspect that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed unless the disturbance or excavation is carried out in accordance with an excavation permit. Section 139(2) of the Heritage Act provides that a person must not disturb or excavate any land on which the person has discovered or exposed a relic except in accordance with an excavation permit. The Heritage Council has a discretion to grant a permit pursuant to s 141 of the Heritage Act. Pursuant to s 142 of the Heritage Act an applicant dissatisfied with a determination of the Heritage Council with respect to his or her application for a permit may appeal to the Minister. No appeal rights are available to [NAME] parties. 80 Pursuant to s 146B of the Heritage Act, a relic may be directed to be delivered to specified bodies or persons who have the facilities and expertise to conserve the relic. A relic that is the subject of a direction under s 146B is to be forfeited to the Crown under s 146C of the Heritage Act. 81 Under s 156 of the Heritage Act a person must not contravene or fail to comply with an interim heritage order, heritage listing or [NAME] order made in respect of a relic under the Heritage Act. (iii) The protection afforded to "buildings" or "works" under the Heritage Act 82 "Building" is defined in s 4 of the Heritage Act as including "part of a building, a structure or a part of a structure". "Work" is not defined in the Heritage Act.

83 Under s 32 of the Heritage Act a building or work may be listed on the State Heritage Register if the Minister is of the opinion that the building or work is of State heritage significance. Under s 24 of the Heritage Act a building or work may be the subject of an interim heritage order if the Minister considers that on further investigation it may be found to be of State or local heritage significance. Under s 25 of the Heritage Act a building or work may be subject to an interim heritage order if a council authorised by the Minister considers that on further investigation it may be found to be of State or local heritage significance. Pursuant to s 30 of the Heritage Act an [NAME] may appeal to the Court against the making of an interim heritage order by a council. Where an interim heritage order or State Heritage Register listing applies to a building or work, there is a prohibition on moving, damaging, destroying, altering or carrying out development in relation to that building or work without approval pursuant to s 57(1)(c) of the Heritage Act. The Minister may grant an exemption to s 57(1) under s 57(2).

84 Applications can be made for approval to move, damage, destroy, alter or carry out development in relation to buildings or works listed on the State Heritage Register or subject to an interim heritage order under s 59 of the Heritage Act. In determining such applications, the approval body must have regard to the considerations listed in s 62 of the Heritage Act. Where an application for approval is made to demolish the whole of a building or work the approval body shall determine the application by refusal pursuant to s 63(2) of the Heritage Act. Under s 70 of the Heritage Act, an applicant dissatisfied with the decision of the Heritage Council with respect to an approval may appeal to the Minister. Under s 70A of the Heritage Act, an applicant dissatisfied with the decision of a council with respect to an approval may appeal to the Court.

85 Comparing these regimes is problematic because, as submitted by the [NAME]-[NAME]'s counsel, it is necessary to consider their practical operation to determine if in fact there is any inequality of protection in practice. While there are some procedural and substantive differences, there are also broad similarities in that both Acts provide for interim protection orders as well as permanent protection albeit in different ways, require approvals before protected items can be damaged or destroyed and provide for appeals against the making of protection orders and approvals.

Finding on whether [NAME] of the [NAME] is contrary to s 10 of the RD Act 86 On its face the prohibition on the destruction of [NAME] objects in [NAME] appears to provide wider protection than is the case with relics and buildings under the Heritage Act which do not enjoy such blanket protection. The fundamental underpinning of the Applicants' counsel's argument that the [NAME] provides less protection than the Heritage Act was that the legal protection of all [NAME] objects regardless of their significance under [NAME] was of little value because it could be removed by the exercise of the Director-[NAME]'s broad discretion to allow destruction of such objects.

87 In considering whether [NAME] of the [NAME] is contrary to s 10 of the RD Act, I agree with the approach of the Director-[NAME] as to the effect of [NAME]. The decision in [NAME] does not hold that [NAME] is an untrammelled power unconfined by conservation and protective purposes. Rather, [NAME] at [52] explicitly holds that the actual or potential conservation of the relevant [NAME] object is to be taken into account. It is this interpretation of [NAME] which is to be utilised when considering whether [NAME] of the [NAME] is inconsistent with s 10 of the RD Act.

88 In terms of considering the practical operation of this section, there is only a small amount of evidence about the [NAME] approach of this delegate to the grant of [NAME] consents to consider in relation to whether, as a practical matter, the regime under the [NAME] is inferior to the Heritage Act. [NAME]'s oral evidence is that he has undertaken his current job of Manager of the [NAME] in NPWS for eight years and has received about 30 applications per year under [NAME] for consents to destroy. He has approved all of these, except one application which was refused and one deferred. [ADDRESS] has no information about these numerous consents such as the areas or objects they relate to and any conditions imposed such as conservation measures, so that it is difficult to draw any conclusions about the extent to which [NAME] heritage in the northern area of New South Wales is protected under the regime for issuing [NAME] consents. As the level of significance or scarcity of the objects the subject of these applications is unknown I am unable to draw any conclusion on the impact of the high rate of approval of [NAME] consents by this delegate on the conservation of [NAME] heritage generally in the northern area of New South Wales for which he is responsible.

89 I do not therefore agree that the Applicants have demonstrated that [NAME] of the [NAME] operates in a way which is discriminatory on the basis of [NAME] and no breach of s 10 of the RD Act has been demonstrated. The ultimate result is that the Applicants fail in their application that [NAME] should be declared void in these proceedings. Areas of difference 90 There are some differences that can be identified between the two Acts. Under the Heritage Act, the Minister has a discretion to place relics, buildings or works on the State Heritage Register. However, no such register is available for [NAME] objects under the [NAME], although they are subject to a [NAME] requirement for protection under [NAME] of the [NAME]. Obtaining interim or permanent protection for relics or buildings under the Heritage Act is not automatic but rather subject to the exercise of discretion. Whether that protection is ultimately provided under the mechanisms specified in the Heritage Act depends on the exercise of the Minister's discretion. Part 3A of the Heritage Act specifies the process for the listing of items on the State Heritage Register. Under s 32(1) of the Heritage Act the Minister may list an item on the State Heritage Register that the Minister considers is of State heritage significance, but only if the Heritage Council recommends the listing. Under s 33(1) of the Heritage Act, before recommending an item be listed on the State Heritage Register, the Heritage Council is required to give each person that it considers to be an [NAME] written notice that it is going to consider whether or not to recommend the listing of the item concerned, and cause a notice of intention to consider listing to be published in a newspaper circulating in the area in which the item is situated, inviting submissions to be made with respect to the listing. The Heritage Council is then required to consider any submissions made before making a decision to recommend to the Minister that an item be listed on the State Heritage Register. 91 There are also differences in respect to the level of public consultation under the two Acts. Under s 61 of the Heritage Act, where an application for approval is made in respect of an item of environmental heritage and that application, if approved, would, in the opinion of the approval body, materially affect the significance of that item as an item of environmental heritage, the approval body must give public notice of that application in a daily newspaper circulating throughout the State. Pursuant to s 62, in determining an application, the approval body must consider any representations received within 21 days of the public notice. The [NAME] does not provide for a statutory public consultation process in respect of approvals or consent for activities in relation to, or the destruction of, [NAME] objects or places. 92 I consider there may be issues as to whether there should be a remedy afforded to the Applicants in relation to the ability to utilise some mechanisms under the Heritage Act, but this falls outside the Applicants' case, requires further argument and evidence in any event, and is not a matter in relation to which relief is sought. The Applicants are unsuccessful on this ground. Issue 3(b) – The Director-[NAME] was bound to exercise her discretion in a manner consistent with the RD Act or failed to take into account the conservationist purpose to be accorded to [NAME] objects under the [NAME] (SFAPOC 35A) Applicants' submissions 93 The Applicants argued that, in the alternative, the Director-[NAME] was bound to exercise her discretion in accordance with the provisions of the RD Act which required her to ensure that items of indigenous cultural heritage were treated in an equal fashion to non-indigenous items of cultural heritage. In the further alternative, the Director-[NAME] failed to take into account the protectionist purpose of the [NAME].

Director-[NAME]'s submissions 94 The Director-[NAME] submitted that there was no additional constraint imposed on the Director-[NAME] to exercise her power pursuant to [NAME] in accordance with the RD Act. In addition, there was no evidence that the Director-[NAME] failed to take into account the conservationist purpose to be accorded to [NAME] objects under the [NAME].

[NAME]'s and [NAME]' submissions 95 [NAME] and [NAME] adopted the submissions of the Director-[NAME] on this issue.

Finding on issue 3(b) 96 It is not required that the Director-[NAME]'s delegates specifically consider s 10 of the RD Act when exercising a discretion to grant a consent to destroy under [NAME]. There is evidence that the Director-[NAME]'s delegate did consider the cultural significance of the [NAME] objects on the site. Given my earlier finding that [NAME] is not void by virtue of s 10 of the RD Act, it is difficult to see how the Director-[NAME]'s discretion is somehow "fettered" by s 10 in the context of the [NAME]. The Applicants are unsuccessful on this ground. Issue 4 - Legitimate expectation/Procedural fairness (SFAPOC 36-54) 97 It is necessary to set out in detail the background surrounding the grant of the [NAME] consent and the earlier s 87 consent issued over the site. The site has been cleared at an earlier time and again in 1972 and 1983. Prior to 2002 the site was the subject of a number of archaeological surveys which were associated with, or in response to, various development proposals. It is apparent from each of those reports that the site contains [NAME] objects.

98 On 4 September 2002, [NAME] lodged an application for a consent under s 87 of the [NAME] to conduct an archaeological survey for preliminary research purposes on the site. After receiving the application, the relevant NPWS officers attended two meetings with [NAME] and [NAME] representatives, and sought submissions from [NAME] in relation to the application.

99 On 13 November 2002 [NAME] and [NAME], an archaeologist, met with [NAME] to discuss the s 87 application. Present at the meeting were both Applicants, their son the Chair of [NAME], coordinator of [NAME], and [NAME], convenor of [NAME]. According to the NPWS file note [NAME] was informed that: (a) the first applicant was concerned about the unearthing of human ancestral remains; (b) the first applicant would not support the issue of any licences which would allow disturbance of the Land; (c) the first applicant believed there was a bora ring located at Angels Beach to the north; (d) the [NAME] applicant was concerned that there was a "clever woman" buried in Ballina; and (e) [NAME] indicated he was having lunch with the Mayor that week and could NPWS hold off issuing any s 87 consent until then.

100 On 21 November 2002, [NAME] received a letter from [NAME], the coordinator of the [NAME]. The letter requested that [NAME] issue a statement in writing that stated that no further consents would be granted to allow any future development to proceed at the site. The letter also stated that if development proceeded an interim protection order would be requested over the site under s 91A of the [NAME].

101 On 22 November 2002, [NAME] attended a meeting with [NAME] and [NAME], an NPWS archaeologist, in relation to the s 87 application. At the meeting the NPWS officers informed [NAME] that they were considering granting a permit under s 87. [NAME] told the NPWS officers that he did not want any of the site to be disturbed because he was worried that it would affect the remains of his ancestors which he knew to be buried there and that there was a bora ring in the northern part of the site. Subsequently, [NAME] informed the NPWS officers that he did not support the issue of a consent under s 87 that would allow disturbance of the site. 102 On 9 December 2002, [NAME] wrote to the [NAME] seeking comments in relation to the s 87 consent. The letter stated: The [NAME] Service (NPWS) are in receipt of a request for us to issue a Preliminary Research Permit for the above proposed development area. The NPWS are now seeking written comments from [NAME] and the [NAME] community regarding any concerns or objections you may have.

… It is there requested that a written response be forthcoming within the next fourteen days (ie 23 December 2002) for NPWS to finalise this matter.

103 On 20 December 2002, [NAME] wrote to [NAME] expressing concerns that some digging on the site had commenced and that feedback from the community gave a strong suggestion of objection to any kind of development on the site given its extreme cultural significance.

104 On 23 December 2002 a consent was issued pursuant to s 87 of the [NAME] to carry out an archaeological survey for preliminary research purposes on the site subject to several conditions. [NAME], on behalf of [NAME], commenced the survey on 8 January 2003.

105 On 24 January 2003, [NAME] wrote to [NAME] outlining the terms of reference for an anthropological investigation, as the NPWS was of the view that the Angels Beach site retained anthropological value, with a copy sent to [NAME]. The letter stated: [NAME] Community Involvement · All research and investigation is to be conducted wherever possible in consultation with relevant [NAME] community members. · All knowledge-holders are to and persons having information relevant to the study area are to be listed and their links to the study area are to be discussed · The issue of intellectual property rights is to be discussed with the participants in the project and appropriate agreements are to be entered into with participants regarding the use and distribution of their information · Visits to the study area should be encouraged and facilitated as far as possible and conducted either singly or in groups at the discretion of the consultant and in accordance with the wishes of the project contributors.

… The timing of the project is also at the discretion of your company, but should be organised to ensure that the [NAME] participants in the study do not feel pressured to provide information within an overly short or constrained timeframe. [NAME] was appointed to prepare an anthropological report on the [NAME] significance of the site by [NAME].

106 On 7 February 2003, [NAME] sent a facsimile to [NAME] in relation to the submission of [NAME]' archaeological report. The facsimile states: NPWS will await the submission of the final archaeological report… We would expect that the final report would incorporate the views of the Land Council.

We look forward to seeing [NAME]'s response to the results of the investigations. 107 On 12 February 2003 a meeting involving [NAME], described as the "[NAME]", and [NAME], as well as several others, took place at the [NAME] office. The minutes of that meeting state: 3. [NAME] confirmed that following the meeting held at [NAME] on 9 December it had been decided to undertake the archaeological and anthropological studies and that [NAME] (and [NAME] interested [NAME]) would be given the opportunity to have input into that report.

108 On 26 February 2003, [NAME] wrote a letter to [NAME] in relation to the draft report of [NAME]. [NAME] stated: As promised, [NAME] will be provided with a copy of the first draft, as will [ADDRESS] & Wildlife Service in Coffs Harbour. For obvious reasons it would be preferable for [NAME] to have their comments and suggestions included.

109 On 27 February 2003, [NAME] wrote a letter to [NAME] in relation to the reports of [NAME] and [NAME]. [NAME] reiterated his availability to meet with [NAME] and discuss the matter.

110 On 4 March 2003 [NAME] lodged an application for a consent to destroy [NAME] objects under [NAME] of the [NAME]. The application contained a letter of support from the [NAME] sites officer [NAME]. 111 By 19 March 2003 the report of [NAME] had been provided to the NPWS. In addition, by that time [NAME] had provided a report to [NAME] titled "Anthropological assessment of [NAME] significance of Lot 208, [NAME] Development Area" ("the February 2003 Report"). [NAME] states in his February 2003 Report that he spoke with numerous [NAME], including the Applicants. The report was made available to [NAME] on 27 February 2003.

112 On 19 March 2003, [NAME] wrote a letter to [NAME] stating: The [NAME] Service (NPWS) makes reference to the recent referral to NPWS to two [NAME] heritage investigation reports ([NAME] 2003 & [NAME] 2003)… The NPWS gave a commitment during the last meeting between [NAME] ([NAME]) that after both groups had reviewed the documents, [NAME] meeting would be arranged to discuss them.

On this basis we proposes [sic] that NPWS and representatives of [NAME] meet at [NAME] at 11.00am on Friday 11th April … The NPWS will assume that during this meeting that the LALC has reviewed the documents and has had an opportunity to consider the recommendations contained within each of these documents. 113 [NAME] attempted to contact [NAME] unsuccessfully by telephone on 19 March 2003 and 20 March 2003. He sent a fax on 20 March 2003 and that he called again on 21 March 2003 until the phone rang out.

114 Contact was made on 9 April 2003 when [NAME] of [NAME] indicated in a telephone call that [NAME] would convene a meeting on 11 April 2003. On 9 April 2003 [NAME] sent a facsimile to [NAME] stating: I have just had a call from [NAME] who prepared the anthropological assessment to indicate that he will no longer be able to get here to answer our questions regarding his report. However, he did agree that if we tabled a list of questions/queries and forwarded them to him he would do his best to address these issues and provide a response. I hope this is acceptable to the Land Council. We could do the same if there are issues raised in [NAME] report which the Land Council needs further information on.

115 The meeting took place between [NAME] and members of the NPWS on 11 April 2003. At that meeting no comments were received on either [NAME]' or [NAME]'s reports. The meeting was, therefore, rescheduled to 12 May 2003 to allow comments to be received.

116 On 15 April 2003 [NAME] wrote to NPWS indicating that it had lodged its application for a [NAME] consent on 4 March 2003 and that it was essential for the consent to be issued so that it could make a development application and lodge a Master Plan with Planning NSW.

117 On 29 April 2003 [NAME] wrote to [NAME] and asked him to clarify matters in his report and, particularly, asking him to prepare a map of the site setting out any areas of significance to the [NAME] community.

118 On 1 May 2003 [NAME] wrote to [NAME] indicating its intention to set aside an area in the north west corner of the land as a conservation site to be managed by NPWS. [NAME] agreed that [NAME]'s report should be expanded in accordance with the suggestions in the letter from [NAME] to [NAME] on 29 April 2003. On 1 May 2003, [NAME] replied in writing to [NAME], with a copy sent to [NAME]. The letter stated: The NPWS has recently forwarded a letter to [NAME] (the land Council) indicating that following a recent meeting between the NPWS and the Land Council's Culture and Heritage Committee, the NPWS now requests confirmation in writing of the views of the Land Council with regard to the investigation reports. The NPWS has indicated to the Land Council that their representations will be considered during review of your [NAME] application. However, if the Land Council is unable to provide a response by C.O.B. 12th May 2003, the NPWS will continue to process the application based on the results of the investigations and the outcomes of discussions between the NPWS and the Land Council to date.

…

In conclusion, as discussed the NPWS awaits submissions of the final anthropological assessment report in addition to advice from [NAME] regarding their view on the investigations. Upon receipt of this information the NPWS will discuss with you your plans for the development area in greater detail to identify the most practical means of applying licensing to Lot 208. 119 On 1 May 2003, [NAME] also wrote to [NAME] stating: On Friday 11 April 2003, the [NAME] Service (NPWS) met with yourself and members of the [NAME].

At this meeting it was agreed that additional time be given for members to read both the anthropological reports and archaeological reports and to provide comments back to NPWS.

To date the NPWS has not received any comments on either report, which I find unusual since some objections were made during our meeting.

I now write to ask for any objections or further recommendations not listed in the reports to be received by Monday 12 May 2003.

120 At the same time, on 1 May 2003 [NAME] wrote again to [NAME] providing him with an amended terms of reference. The letter stated that: Specifically, the tasks which the NPWS wish to see completed to conclude the assessment in a manner which will assist negotiations regarding the management of the values of the subject land are as follows:

1. Preparation of a map prepared at an appropriate scale which clearly shows any areas of significance to the [NAME] community as identified by them. The consultant should also identify which individuals or groups nominated these areas… 2. The NPWS suggests that the consultant contact the following persons giving them the opportunity to contribute to the investigation… The consultant may also wish to consult [NAME] community [NAME] as nominated by knowledge holders in the course of the investigation 3. Full transcripts of interviews should be provided where possible to provide context to quotes used in the body of the report.

4. Reference is made in the draft report to relevant information contained within a privately owned and produced video shown to the consultant by the [NAME]. Further information is required with regard to the content of this video which is briefly referenced in the draft report. In [NAME], should the owners of the video agree, the NPWS would wish to see a transcript of the relevant portions of the tape, or your recollections of the content of the tape if a transcript cannot be obtained.

5. Inclusion of a plain english executive summary for potential wider distribution of the findings of the report as previously recommended.

121 On 12 May 2003 [NAME] responded by letter to the letter from [NAME] dated 1 May 2003 and indicated that further archaeological work needed to be done and stating that it had been denied the opportunity to participate.

122 On 14 May 2003 a meeting took place within the office of NPWS between [NAME] and two of his subordinates [NAME] and [NAME]. [NAME] told them that he had decided to issue the [NAME] consent. [NAME] indicated her view that it was inappropriate to issue a [NAME] consent until such time as a development consent had been issued.

123 On 20 May 2003, [NAME]'s employment as a sites officer of [NAME] was terminated after a meeting of the [NAME] moved a motion to show why [NAME]'s position should be terminated.

124 On 21 May 2003 [NAME] replied to [NAME] rejecting any suggestion that it had not had the opportunity to comment and indicating that on the basis of [NAME]' report and the February 2003 report of [NAME] he proposed to issue the [NAME] consent.

125 On 27 May 2003 [NAME] provided a draft of his supplementary report to [NAME] titled "[NAME] 208, Provisional Conclusions and Recommendations" ("the draft supplementary report"). The eight page draft supplementary report gave supplementary information in relation to the history and significance of the site. The draft supplementary report stated that: These conclusions are preliminary and provisional and attempt to anticipate as accurately as possible the [NAME] supplementary report I have been asked to prepare for NSW NPWS … A combination of archaeologically significant remains, the proximity of known bora rings, and the proximity of sites and routes of [NAME] victims of settler conflict combine to make the Angels beach area a site of significance for the local Bundjalung custodians. The numerous archaeological reports confirm that although there was a significant midden deposit along this part of the coast, much of the material had been removed and used for construction and [NAME] purposes in the early 20th century. There seems to be no disagreement that this shell material also at one time contained human remains and artefacts.

126 Following receipt of [NAME]'s draft supplementary report, [NAME] sent an email to [NAME] requesting the following information:

1. Preparation of a map showing areas of significance to the [NAME] community.

2. The NPWS suggested addition [NAME] community contacts – outcomes.

3. Transcripts of interviews.

4. Further information in regard to the content of the [NAME] video which is briefly referenced in the draft report.

In addition I am interested in your views on the following two questions which relate to the crux of our recent amendments to the terms of reference. Do you believe the area delineated for the proposed Conservation Area will adequately, or at least to some degree, address the concerns of the [NAME] community? Do you believe this [NAME] area (Conservation Area) retains greater significance in the minds of the [NAME] interviewed? Would you suggest based on your own investigations, any alterations to the size, alignment or orientation of the proposed Conservation Area in the north west corner of the development site which is to be excluded from future residential development.

127 [NAME] forwarded the draft supplementary report to [NAME] in her facsimile of 27 May 2003 and informed [NAME] of her request for further information from [NAME].

128 On 28 May 2003, [NAME] provided a memorandum objecting to the issue of the [NAME] consent to [NAME] (which recorded the matters she had raised on 14 May 2003).

129 In oral evidence, [NAME] stated that he had a telephone conversation with [NAME] on 28 or 29 May 2003 to discuss the conclusions in his supplementary report. [NAME] stated that during this conversation [NAME] informed him that there was no new information [NAME] should be aware of that was not in his first report.

130 [NAME] granted the [NAME] consent on 28 May 2003. The consent contained conditions requiring the heavily vegetated area in the north-west be retained as a conservation area; that the conservation area would be used to place recovered objects from [NAME] parts of the site; that signs and plaques were to be erected acknowledging the significance of the area; that roads were to have Bundjalung names; that [NAME] site monitors were to be employed by [NAME]; that a [NAME] plan be prepared; and that [NAME] tradespersons be used where possible.

131 [NAME]'s final 64 page supplementary report entitled "Anthropological Assessment of [NAME] of Angels Beach Area: Supplement" dated May 2003 ("the final supplementary report") was submitted at a later date after the Director-[NAME]'s delegate made the decision to grant the [NAME] consent. The final supplementary report expanded on the eight page facsimile transmission provided to [NAME] on 28 May 2003. It included further information in relation to the cultural and anthropological significance of the site and included transcripts of interviews and further information in relation to the [NAME] video referred to in the draft report. Applicants' submissions 132 The Applicants submitted that the Director-[NAME] had a duty to afford procedural fairness to the Applicants because they had a legitimate expectation that they would be afforded a high level of consultation. This duty required that the Applicants be given the opportunity to be involved in the identification and assessment of the significance of [NAME] objects and places within the site. The Applicants submitted that in the period leading up to the grant of the [NAME] consent, the consultation between the Applicants, as members of [NAME] and the First, [NAME] Respondents was not real and genuine consultation.

Accordingly, the duty to afford procedural fairness was breached.

133 The Applicants outlined five grounds upon which the duty to afford procedural fairness was breached: (a) The Applicants argued that they were given insufficient time to comment upon the s 87 application in the two week period immediately before Christmas 2002 at a time when members of [NAME] were burdened by funerals and [NAME] commitments. (b) There were occasions when the nominated members of [NAME] were unable to attend investigations, and for some of the time, [NAME], who was not a representative of [NAME], was the only person present. (c) Members of [NAME] were unable to attend a meeting with [NAME] and their comments in relation to her report were not incorporated into the application for the [NAME] consent. (d) The Applicants were given inadequate time in which to consider the material provided with the [NAME] application. (e) Most significantly in the view of the Applicants, they were not provided with a draft copy of [NAME]'s final supplementary report, and had no input into the final conclusions and recommendations of that report.

134 In submissions the Applicants relied on the cases of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte [NAME] (2003) 214 CLR 1 and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Director-[NAME]'s submissions 135 The Director-[NAME] submitted that the NPWS Statement of Reconciliation and NPWS Consultation Policy could not give rise to any legitimate expectation on the part of the Applicants. Nor was there any evidence of any practice on which the Applicants could rely in making its claim. The Director-[NAME] submitted that if the NPWS Consultation Policy generated a legitimate expectation (and this was not conceded by the Director-[NAME]), that legitimate expectation was only that [NAME] would be consulted in relation to the identification, assessment and management of their cultural heritage regarding the site. On any view, it was consulted. It participated in [NAME]' excavations, attended multiple meetings, was provided with all of the reports by the NPWS and had opportunities to comment.

136 The Director-[NAME] submitted that even if it were accepted that she had not given effect to any legitimate expectation held by the Applicants, this did not render the consent necessarily invalid. The Director-[NAME] was only required to provide the Applicants with a hearing before deciding whether to alter the alleged policy to consult. To assume the consent would be invalid in this circumstance would elevate the legitimate expectation into a procedural right. The Director-[NAME] relied on [NAME] in making this point. [NAME]'s and [NAME]' submissions 137 [NAME] and [NAME] submitted that there was no legitimate expectation that the Applicants be given the opportunity to be involved in the identification and assessment of the significance of [NAME] objects upon the site. No legitimate expectation arose because the NPWS Cultural Heritage Community Consultation Policy was not a public document. While the document provided for the involvement of [NAME] in the assessment of the significance of [NAME] objects as a matter of practice, the document was only distributed internally within the NPWS.

Accordingly, the document did not give rise to a legitimate expectation that the Applicants be given the opportunity to be involved in the identification and assessment of the significance of [NAME] objects upon the site. In addition, no legitimate expectation arose because there was no specific undertaking made by the Director-[NAME] that the Applicants would be able to comment on [NAME]'s final supplementary report.

138 Even if a duty to afford procedural fairness existed, [NAME] and [NAME] submitted that the consultation and opportunity afforded to members of the [NAME] to be involved in the identification, assessment and management of cultural heritage was real and proper. The Applicants were given the opportunity at every stage of the process to make submissions. As well, at all relevant times until 20 May 2003 [NAME] was in fact the [NAME] sites officer and there was no suggestion that he was not a [NAME] representative. [NAME] and [NAME] submitted, accordingly, that on the basis of the consultation that did occur, and the opportunity to be heard that was repeatedly afforded to [NAME], including the Applicants, there was not any lack of consultation nor any denial of procedural fairness.

Finding on issue 4 (i) Whether a duty of procedural fairness is owed to the Applicants 139 In [NAME] outlined the steps involved in determining whether there is an obligation to accord procedural fairness at [72] – [74]: The first concerns the identification of the person responsible for according [NAME] procedural fairness. If such an obligation exists, it must condition the exercise of statutory power by the Director-[NAME], or her delegate responsible for deciding whether or not to grant consent under [NAME]. However, the steps to be taken in that regard were treated by the Director-[NAME] as the responsibility of the applicant for consent, namely [NAME]. [NAME], in its turn, contracted with its consulting archaeologist, to fulfil that obligation. Its contract with [NAME] required him to: "Consult with [NAME] groups in accordance with NPWS requirements to identify suitable [NAME] representatives for site archaeological assessment."

This provision in his contract effectively imposed on [NAME] an obligation to act in accordance with NPWS requirements, including, it was submitted, its "Cultural Heritage Community Consultation Policy" and its "Statement of Reconciliation". In a practical sense, whether procedural fairness was accorded or not depended on steps taken by [NAME]: nevertheless, the obligation remained that of the Director-[NAME].

Secondly, it is necessary to identify the nature of the obligation, which in turn will require consideration of how it arose. This matter has two limbs: first, whether the obligation extended specifically to consultation with [NAME] and, secondly, what level of consultation was required. These questions give rise to issues of some importance, in part because there was indeed considerable consultation with representatives of [NAME] groups identified as potentially having an interest in the area and there was, at least at one stage of the process, direct consultation with [NAME] himself.

Thirdly, it is necessary to identify the legal basis of the obligation in question. An obligation to accord procedural fairness may arise in one of three ways, namely by:

(a) the express terms of, or implication derived from, a statute; (b) a public statement or practice adopted by the decision-maker, or (c) an express promise made to, or arrangement with, the person [NAME].

The manner in which the obligation is said to have arisen is important, because it will affect the nature of the obligation in specific circumstances.

140 The category of persons entitled to complain of a lack of procedural fairness is fairly broad and does not depend upon the existence of a strict legal entitlement. The person must be able to show that he/she is [NAME] in a [NAME] way by the making of the decision; that he/she has at the very least a "legitimate expectation" in relation to that decision. That expectation may be of a substantive right or benefit, or it may merely be an expectation that the complainant would have the benefit of certain procedures being followed (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 21). Mason CJ in Quin, at 20: It is the presence of a legitimate expectation which conditions the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case. The content of that duty is dependent upon the circumstances of the [NAME] case, but its existence is determined by reference to legal principle. So, a legitimate expectation may be created by the giving of an assurance [ Salemi v MacKellar (1977) 137 CLR 487, at p. 440; Kioa v West (1985) 159 CLR 550, at p. 583; Council of Civil Service [NAME] v Minister for the Civil Service [1985] AC 374, at p. 401], the existence of a regular practice [ Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp. 508-509; [NAME] at p. 583]; Council of Civil Service [NAME] at p. 401] , the consequences of denial of the benefit to which the expectation relates [ F.A.I. Insurances Ltd v Winneke (1982) 151 CLR 342; [NAME] at p. 583] or the satisfaction of statutory conditions [ In re H.K. (An Infant) [1967] 2 Q.B 61]. The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate.

141 There is no dispute that the Applicants are senior traditional owners of the [NAME] and are recognised traditional custodians of land in the Angels Beach locality. The Applicants are members of the [NAME] established under s 51 of the [NAME] Act 1983. The Applicants are within the category of persons likely to be recognised as having an "interest" in the [NAME] objects on the site; ([NAME] v [COMPANY] (1981) 149 CLR 27).

142 It is necessary however to identify whether there is any basis for a legitimate expectation of procedural fairness according to the Applicants' arguments based on: (i) statutory provision,

(ii) a public statement or practice adopted by the decision-maker, or

(iii) an express promise to the Applicants ( [NAME] at [74]). 143 There is no statutory requirement in the [NAME] that there be consultation with [NAME] in the situation of the Applicants (as in [NAME] at [75]). The Applicants rely on the NPWS Statement of Reconciliation and the NPWS Cultural Heritage Community Consultation Policy, together with evidence of a practice of consulting with [NAME] persons by the Director-[NAME]'s officers in relation to s 87 and [NAME] applications. 144 The NPWS Statement of Reconciliation provides: We recognise that the [NAME] peoples of NSW, despite being dispossessed, maintain a diversity of living cultures and a unique and deeply felt attachment to the lands and waters of NSW. In our role of managing and conserving natural and cultural heritage we commit ourselves not only to respect this attachment but also to learn from it. (at p 1)

This document is publicly available. 145 The NPWS Cultural Heritage Community Consultation Policy provides: NPWS will endeavour to consult all relevant and interested parties in the identification, assessment and management of their cultural heritage and in doing so will adopt the following guiding principles and protocols for consultation.

There is a dispute between the parties as to whether this is a public document. The Applicants argued that it was, and the Director-[NAME] argued that it was not. 146 In relation to s 87 and [NAME] applications it states in [NAME] that: [t]he involvement of [NAME] in the assessment of the significance of the object or place, although not required by the Act is sought as a matter of course. 147 The NPWS application form for a [NAME] consent contained the statement: IMPORTANT: A letter from the relevant local [NAME] group(s) which shows its views on the proposed development/activity must be attached, or attach evidence of attempts to obtain these views.

148 [NAME] had similar, although not identical, facts. In that case [NAME] argued that the NPWS Statement of Reconciliation and NPWS Cultural Heritage Community Consultation Policy gave rise to a legitimate expectation which had been denied him that [NAME] would be involved in the identification of objects, through on the ground surveys of the whole of the land the subject of a [NAME] application. At first instance the trial judge in this Court agreed. Upholding an appeal against that decision [NAME] (with whom Spigelman CJ and Giles JA agreed) stated at [91]: It is important to observe that the only public statement, the Statement of Reconciliation, was a brief and aspirational document involving no detailed guidelines or identified procedures. It is also significant that there was no evidence of a practice resulting from the adoption of any [NAME] policy, whether internal or publicly available. A practice is a public statement of policy by conduct, although, taken by itself, it will often be imprecise as to when and how it operates. Nevertheless, there is an important distinction between an internal policy document and one which has given rise to a level of public knowledge. Where there has been a personal assurance given to an [NAME] individual, one may readily infer that unfairness will result if the assurance is departed from without prior notice: see, eg, Re Refugee Review Tribunal; Ex parte [NAME] (2000) 204 CLR 82; compare Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte [NAME] (2003) 214 CLR 1. However, where the expectation follows from public conduct or policy statements, subjective reliance is not required because the unfairness in a [NAME] circumstance need not be appreciated at the time, by the [NAME] individual: it is sufficient that others may identify the unfairness or that the individual concerned may realise at a later point that he or she has been unfairly treated. As the joint judgment of [NAME] JJ noted in Ex parte [NAME] , the use of the term "expectation" in this latter sense may be misleading: 214 CLR 1 at [90] and [91]. [NAME] referred to the remarks of Aickin J in Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 where his Honour spoke of "an expectation on the part of members of the public" that a customary permission to attend a racecourse on the payment of a fee would continue. In such cases, no subjective belief is required. [NAME] further referred to the discussion by [NAME] in [NAME] v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 641 of two specific cases, namely FAI Insurances Ltd v Winneke (1982) 151 CLR 342 and Heatley . The joint judgment in [NAME] continued at [94]: "The latter [ Heatley ] he described as an illustration of a course of conduct creating a legitimate expectation. The former concerned an expectation founded in the nature of the privilege or benefit required for continued conduct of a [NAME] business. In [NAME] itself, the expectation was founded in the detailed policy statement by the Minister to the House of Representatives as to what would guide the exercise by the Minister of the statutory power of deportation." 149 Further, [NAME] held at [93] that the NPWS Cultural Heritage Community Consultation Policy did not give rise to a legitimate expectation: … there is no express statement in the Policy that the level of involvement in relation to the identification of the significance of [NAME] objects includes involvement in the survey work by which the objects were identified. It is at precisely the point at which a detailed statement might be expected to bite that the vagueness and uncertainty of the Policy becomes apparent. Nor is that lack of detail surprising: consultation about cultural heritage could occur in numerous circumstances, with varying degrees of existing knowledge, need for inspection, temporal constraints and so on. A broad statement of principle is unlikely to give rise to any clear implication as to precise processes in [NAME] circumstances. There is a danger in viewing a broad statement of principle through the glasses of [NAME] known circumstances, so that an assumption is made that the Policy was intended to apply in these circumstances and, with the knowledge of the [NAME] circumstances, in a [NAME] way…

With respect, it is doubtful that being an [NAME] person was sufficient to give [NAME] an interest in the [NAME] objects that might be found in the transmission line corridor. If [NAME] had no traditional connection or historical association with the area, it would be most unlikely that he could satisfy the test of "interest" as articulated in [NAME] v [NAME] . Nor was his interest put on that basis in the present appeal.

150 As the Applicants have pointed out, the facts in this case differ to those in [NAME]. I have already held that these Applicants would be likely to satisfy the "interest" test identified in [NAME] which [NAME] was held not to satisfy in [NAME]. The Applicants are not seeking recognition of the same rights to participate in survey work as [NAME] sought. The passage of [NAME] is instructive however in that it suggests caution must be exercised in applying broad policy statements to reach a finding that [NAME] processes are required in specific circumstances, a matter I will return to. 151 As I understand the Applicants' case they argued that the NPWS Cultural Heritage Community Consultation Policy was a public document and, if it was not, in any event it underpinned the existing practice of consulting [NAME] undertaken by NPWS officers in relation to [NAME] consents. The Applicants claimed there was evidence of this practice, the Director-[NAME] argued there was no such evidence. In cross-examination, [NAME] stated that it was the policy of the NPWS to only issue [NAME] consents after consultation with the [NAME] community [NAME] had taken place. Documents presented in evidence also, in my view, confirm that there was a practice of consulting with [NAME] persons in the position of the Applicants by the Director-[NAME]'s officers, whether directly or through the applicants and their consultants. The application form issued by the NPWS for [NAME] consents suggests that consultation is a requirement. I agree with the Applicants that the practice of consultation was manifest in written and verbal communication between the [NAME] and the Applicants whether in their capacity as individuals or in their capacity as members of [NAME] (see par 79 of Applicants' written submissions and footnotes). 152 It is worthwhile noting my finding in [NAME] v [COMPANY] [No 6] [2004] NSWLEC 541 where I stated at [79] that: The [NAME] Act does not impose any requirement on the [NAME] Respondent to undertake consultation in relation to applications made for permits pursuant to [NAME] of the [NAME] Act. However, I accept, and the [Director-[NAME]] does not deny, that the [Director-[NAME]] had a policy or practice of consulting all relevant [NAME] groups in relation to all applications received by the [Director-[NAME]] for [NAME] permits prior to determining these applications. It is clear that the existence of such a policy or practice can give rise to a legitimate expectation by [NAME] persons that notice will be given to them and that any representations they make will be considered before any consent is granted, and that a failure to so do denies [NAME] persons natural justice or procedural fairness: Somerville v Dalby (1990) 69 LGRA 422 and Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84. 153 I consider that the Applicants had a legitimate expectation that they would be consulted. The recognition of the interests of members of the [NAME] community is clear having regard to the policy documents produced by the NPWS, including the NPWS Statement of Reconciliation and the NPWS Cultural Heritage Community Consultation Policy. This is so even if the NPWS Cultural Heritage Community Consultation Policy is not a public document. As identified by Mason CJ and Deane J in Teoh at 291: It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. 154 Further there is evidence of the practices adopted by the Director-[NAME] to consult members of the [NAME] community when making decisions pursuant to s 87 and [NAME] of the [NAME]. The issue to then determine is whether the consultation undertaken was adequate given the Director-[NAME]'s obligation. (ii) Whether the consultation with the Applicants was sufficient 155 The Applicants argued in this case that the standard of procedural fairness required must be high, particularly where there is destruction of [NAME] objects of significance being authorised. 156 It is clear from the evidence at par 101 and 115 particularly, that consultation had taken place with the Applicants and [NAME] in relation to the s 87 application and then the [NAME] application of [NAME]. On several occasions, [NAME], identified as the [NAME] sites officer attended and participated in the process. The Applicants argued that [NAME] did not represent the [NAME] but the evidence is to the contrary, that he was the [NAME] sites officer until he was terminated from that position on 20 May 2003. On 12 February 2003 a meeting involving [NAME] and [NAME], as well as several others, took place at the [NAME] office. In the minutes of that meeting [NAME] was described as the "[NAME]". On 18 February 2003, [NAME] wrote to [NAME], chairperson of [NAME]. In that letter, [NAME] stated that while he was disappointed neither [NAME] nor [NAME] were able to attend, it was good to see [NAME] as the "[NAME]" attending and participating in the process. A work agreement between [NAME] and [NAME] dated 6 January 2003 showed that [NAME] was one of four monitors for [NAME] who signed the agreement. The work agreement provides for members of the [NAME] to monitor archaeological work undertaken by [NAME] on the site in relation to the s 87 consent. [NAME] meetings between the NPWS, [NAME] and [NAME] took place on numerous occasions in relation to the s 87 consent and the [NAME] consent as detailed in par 101 – 124.

157 The Applicants have specified five failures in consultation set out at par 132. As identified in their arguments the most significant failure is (e) relating to [NAME]'s final supplementary report. [NAME] at [91] I do not think the [NAME] four alleged failures to properly consult are supported by evidence of any established practice to underpin any of these grounds. In the absence of that specific evidence [NAME] at [91] makes clear that [NAME] policy does not lead to a legal requirement for specific procedures in a [NAME] case. An argument that a high level of consultation was required, assuming this is accepted, does not enable an applicant to rely on every perceived inadequacy of a process as evidence of an overall failure to consult where the evidence before the Court demonstrates that there were extensive efforts made by NPWS directly and through [NAME]' consultants to consult with the Applicants and the [NAME] in relation to the s 87 and the [NAME] consent applications.

[NAME]'s final supplementary report 158 As noted in [NAME] ([NAME] at [72]) the obligation to afford procedural fairness, if it exists, falls on the Director-[NAME] and her delegate. While it is the practice of the NPWS to require any necessary consultation to be conducted by the applicant for a permit and its consultants, in this case through [NAME], the responsibility remains that of the Director-[NAME]. It is necessary to look at the evidence of what undertakings were given to the Applicants by NPWS in relation to [NAME]'s final supplementary report, to identify if there was an express or implied promise that the Applicants would have the opportunity to comment on the final supplementary report of [NAME] commissioned by [NAME] and [NAME].

159 Examination of the relevant documents in evidence discloses no specific undertaking to provide the final supplementary report to the Applicants for comment before [NAME] made his decision. While the Applicants' counsel argued that a specific undertaking was given to do so, the documents relied on in support of this argument do not so provide (see Exhibit A p 69C, 81 and 82 ). 160 The Applicants were both involved in the production of [NAME]'s final supplementary report as he interviewed them in the course of its preparation. The additional work was undertaken at the request of the NPWS officer, [NAME], who reported to the Director-[NAME]'s delegate. On 27 May 2003 she asked that [NAME] undertake further work, including making reference to transcripts of interviews and to the context of the [NAME]'s video referred to in the draft supplementary report (see par 120). [NAME] informed [NAME] of her request for further information in a facsimile attaching the draft supplementary report on 27 May 2003. The Applicants also argued that as they were never told that the Director-[NAME]'s delegate would make his decision before receipt of their comments on the final [NAME] report, they were denied procedural fairness. As identified in the quotation of [NAME] in [NAME] at par 149 above, caution must be exercised in extrapolating from broad principle or practices specific requirements concerning [NAME] circumstances. As there was no specific undertaking given to the Applicants that this would be done I do not consider there has been a denial of procedural fairness on this part of the Applicants' case. The Applicants were given the opportunity to comment on earlier reports of [NAME] and [NAME]. On 1 May 2003 the Applicants were told of the procedure whereby any comments on the [NAME] and [NAME] reports were to be made by 12 May 2003. 161 This approach is supported by the decision of the High Court in [NAME]. In [NAME] CJ stated at [34] that: [I]t is clear that the content of the requirements of procedural fairness may be [NAME] by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed … But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.

The High Court held that the applicant had not, in reliance on the alleged representation, demonstrated any unfairness and as such no breach of procedural fairness had been demonstrated (per Gleeson CJ at [34], per [NAME] JJ at [106], and per Callinan J at [149]). 162 Is there any denial of procedural fairness by virtue of the fact that the Director-[NAME]'s delegate did not wait to receive the final written report of [NAME] which his staff member had requested to be prepared and the preparation of which involved the Applicants? While I can accept that from the Applicants' point of view it appears unsatisfactory that the Director-[NAME]'s delegate did not wait for the final supplementary report, in terms of procedural fairness it is not clear that this decision by [NAME] amounts to a denial of procedural fairness to the Applicants in the circumstances here.

163 Even if the Director-[NAME] had not given effect to the Applicants' legitimate expectation that they be adequately consulted, the consent would not necessarily be invalid. As noted in [NAME] at [98], the requirements of procedural fairness cannot be departed from by a decision-maker. However, this is distinct from any rights which may arise because of the legitimate expectation held by the Applicants. To assume that the consent would be invalid in this circumstance elevates the legitimate expectation to a procedural legal right (see [NAME] at [95]). This distinction was also noted in Teoh where Mason CJ and Deane J stated at 291 – 292 that: The existence of a legitimate expectation that a decision-maker will act in a [NAME] way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a [NAME] way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. And that, as we have already said, is what Lee and Carr JJ seem to have done because the obligation to initiate inquiries and reports appears to stem from a view that the Minister's delegate was bound to apply Art 3.1.

But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons [NAME] should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated. 164 I consider that the consultation undertaken in the course of processing the [NAME] consent was adequate to discharge the Director-[NAME]'s obligations to accord the Applicants procedural fairness. The Applicants are unsuccessful on this ground. 165 I will now deal with the arguments raised about relevant considerations.

Issue 2 - The Director-[NAME] failed to take into account a relevant consideration (SFAPOC 30) Applicants' submissions 166 The Applicants argued that in granting the consent the Director-[NAME] failed to take into account a relevant consideration, namely that the power to destroy objects of significance to [NAME] could only be exercised for the purpose of conservation, preservation and protection of [NAME] objects. By exercising her power for [NAME] purpose, namely the purpose of facilitating development, which lies outside the objects of the [NAME], the Director-[NAME] erred. Director-[NAME]'s submissions 167 The Director-[NAME] submitted that the Applicants' arguments should be rejected, firstly, because s 2A(2) of the [NAME] explicitly contemplates the occurrence of development so that the purpose of facilitating development is not an improper purpose. The Director-[NAME] submitted that she had not failed to consider the objects of the [NAME]. Secondly, the evidence does not establish that the purpose of the Director-[NAME] was to facilitate development, as the creation of the conservation area exhibits. Thirdly, as the evidence establishes that at least one of the purposes of the grant of the [NAME] consent was conservation, it is necessary for the Applicants to show that the [NAME] forbids all circumstances where the development leads to the destruction of [NAME] objects. This argument is untenable given the reference to ESD in s 2A(2) of the [NAME]. [NAME]'s and [NAME]' submissions 168 [NAME] and [NAME] submitted that the Director-[NAME] did not fail to consider that the power to destroy should be exercised in accordance with the objects of the [NAME]. This is made clear by having regard to the imposition of conditions that require the dedication of a special purpose [NAME], the requirement that representatives of the [NAME] be given the opportunity to monitor the initial construction activities, and by [NAME] conditions directed to cultural heritage preservation.

Finding on issue 2 169 The NPWS Act does not specify any mandatory matters which must be considered when granting a [NAME] consent to destroy [NAME] objects. Section 2A(3) states that in carrying out the functions of the Act, the Minister, Director-[NAME] and the NPWS are to give effect to the objects of the Act. The Applicants have to establish that the Director-[NAME] failed to take into account a relevant matter which she was bound to take into account in light of this statutory framework. In Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363, Deane J stated at 375 that: In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

170 In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, Mason J stated at 39 – 40 that: (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see [NAME] v Australian Broadcasting Tribunal; Ex parte 2HD [COMPANY] , adopting the earlier formulations of Dixon J in [ADDRESS] v [NAME] , and Water Conservation and Irrigation Commission (NSW) v Browning . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a [NAME] matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

171 It is necessary to consider this case law in relation to the circumstances before me. In Williams v Director-General National Parks and Wildlife Service and Ors (2003) 127 LGERA 354, Bignold J identified at 368 – 369 a number of factors that he considered relevant matters that a decision- maker should take into consideration in determining whether or not to issue a [NAME] consent. Those matters included: (i) the objects of the [NAME]; (ii) the results of studies carried out pursuant to an investigation permit for the land; (iii) assessment reports from prior archaeological reports; (iv) the views of members of the [NAME] community who had been consulted in respect of the application; (v) any relevant expert reports, including previous archaeological findings. What is disputed in this ground is whether [NAME] took into account the object of the [NAME] as he was bound to.

172 In [NAME] stated at [52] that: … the Director-[NAME] can consent to the destruction of [NAME] objects where the destruction takes place in the course of a development and is reasonably necessary for the purposes of the development. Nevertheless, the legality of a consent given in those circumstances may depend upon the Director-[NAME] taking into account the actual or potential significance of the [NAME] object for [NAME], in accordance with s 2A of the [NAME] Act.

Accordingly, it would be arguable that a consent which permitted destruction of an unknown object, regardless of whether it has no significance or high significance might well involve an error of law. However, that question will depend in part upon factual considerations as, for example, whether on the material before her, the Director-[NAME] was entitled to form the view that there was no realistic chance of any object of significance to [NAME] being at risk. In that case, the omission to take account of the theoretical possibility might not constitute legal error.

173 As has been set out above [NAME] went on to hold that a [NAME] consent to destroy could be issued in relation to land development. What was not considered in that case was what would the position be where the consent to destroy was issued in relation to objects of significance to [NAME]. The Applicants argued that [NAME] failed to take into account as a relevant consideration in his decision to issue the [NAME] consent that the objects of the [NAME] only allowed him to exercise his powers to conserve objects of significance to [NAME].

174 [NAME] stated in his affidavit at par 18, 82 and 83 the following in relation to the midden sites on the site: I note that of the four sites now registered on lot 208, all are midden sites and none of the sites is a burial site. Contained in the Exhibit and marked Tab F is information explaining the significance of shell middens.

Contained in the Exhibit and marked Tab G are the registered details of the 4 sites on lot 208 numbered 04-5-0010, 04-5-0171, 04-5-0172 and 04-5-0173. These registration cards record that shell middens, but not bora rings or skeletal remains were identified at the premises. A search of the [NAME] indicates that on the North Coast (defined as the Ballina, Byron and Tweed Local Government areas "LGAs") there are a total of 126 registered midden sites. Contained in the Exhibit and marked Tab G1 is a printout from the [NAME] for those 3 LGAs.

The reports listed in paragraph 9 of this affidavit all concluded that the Ballina area is of "high significance to the [NAME]". However none of the investigations had located burials, bora rings, hunting or ceremonial objects on lot 208. Nor were any items of high cultural significance located, only highly disturbed midden material mainly consisting of broken shell fragments.

175 [NAME] does not specifically state in his affidavit that he took into account the [NAME] report and the February 2003 report and draft supplementary report of [NAME] but he clearly received them and I infer that he was aware of and read them. Further he stated in cross-examination that he took them all into account and adopted their findings. As a result he granted the [NAME] consent allowing destruction of the middens subject to the various conservation measures specified in the conditions. I consider there was material before him, such as statements about the state of the middens on the site and previous clearing activity on the site, on which he could reasonably conclude that a [NAME] consent should be granted. In [NAME]' report, for example, she states on p 6 of Attachment 3 to her report that: In Summary: · The physical condition of the archaeological material, especially the shell material, appears to be degraded by the prior land clearing activities… the condition, integrity and archaeological research value of the area has been compromised. All of the archaeological material appear to be within a disturbed soil profile. …

176 In judicial review proceedings I am not able to enter into the merits of a [NAME] application such as whether, in my view, the conservation measures required by [NAME] are adequate. What I am asked to consider as a result of the Applicants' arguments is whether [NAME] has correctly, in the legal sense, applied to his consideration of the [NAME] application the objects of the [NAME]. Given that he has made provision for the conservation of objects of significance to [NAME] which are more than token measures, I cannot conclude that he has not considered the objects of the [NAME] in relation to the conservation of objects of significance to [NAME].

For the reasons set out above in relation to issue 1, I do not consider that [NAME]'s discretion is as constrained as the Applicants' argument implies.

177 Given the findings in [NAME] I do not think this ground is maintainable. It is really a restatement of issue 1 which focussed on improper purpose. It has been clearly recognised by the Court of Appeal in [NAME] that the Director-[NAME] is able to issue a [NAME] consent in the context of land development and I am bound by that decision. The exercise of her power is not limited to the destruction of objects only for the purpose of conservation, preservation and protection of [NAME] objects. The Applicants must fail on this ground.

Issue 5 - The Director-[NAME] failed to consider relevant matters (SFAPOC 55-74) Applicants' submissions 178 The Applicants submitted on this ground that the Director-[NAME] failed to take into consideration three matters which were fundamental to the assessment of the [NAME] consent: (i) The heritage significance of the land and final comments of [NAME] (SFAPOC 55 – 65); (ii) The nature of any proposed development (SFAPOC 66 – 69); (iii) The opinions of the Applicants (SFAPOC 70 – 74).

(i) The heritage significance of the land and final comments of [NAME] Applicants' submissions 179 The Applicants submitted that the Director-[NAME] was on notice of the cultural significance of the site and was required to consider the cultural value of the site in exercising her functions under the [NAME]. The Applicants argued that the Director-[NAME] was aware of the [NAME] significance of the site through correspondence between the Applicants and the Director-[NAME] and by reference to a number of reports in her control or custody. However, the Director-[NAME] did not or was not in a position to assess the extent of the cultural significance of the site, as evidenced by [NAME]'s instructions to [NAME] and [NAME] to commission a cultural heritage report prior to [NAME]'s consideration of the [NAME] application.

180 The cultural value of the objects are determined by consideration of both the archaeological value and anthropological value of the objects on the land. The task of assessing the archaeological value of the objects located on the land was undertaken by [NAME] on behalf of [NAME]. In relation to the archaeological significance of objects on the land, [NAME] concluded in her report that the site had a medium level of archaeological significance.

181 The task of assessing the cultural value of the site was undertaken by [NAME] on behalf of [NAME]. [NAME] was formally engaged by [NAME], the terms of reference for his report were dictated by the NPWS. In relation to the anthropological significance of objects on the land, [NAME] concluded that the site had a medium to high level of anthropological significance. [NAME]'s conclusions in his draft report were based upon limited consultation that resulted from his three to four day site visit in February 2003. [NAME]'s final supplementary report includes interviews with a number of [NAME] who are traditional landowners of the land and includes information about the association of the land with a historical massacre and the previous occupation of the site as a residential base.

182 The Applicants submitted that the Director-[NAME] could not have appreciated the cultural significance of the land to the Applicants and [NAME] members of the [NAME], without reviewing [NAME]'s final supplementary report and taking into consideration any comments or feedback from the Applicants and [NAME] members of [NAME] about the findings of that report. While the Director-[NAME] may have recognised that the [NAME] significance of the land to the Applicants extended beyond the presence of [NAME] objects upon the land, she failed to adequately investigate the extent of that cultural significance. While the Director-[NAME] required [NAME] to engage an anthropologist to investigate the cultural heritage significance of the land, the delegate did not wait for all the relevant and significant material to be before him when he made his decision (SFAPOC 63).

Accordingly, the Director-[NAME] failed to take into account a relevant consideration and the decision to grant the consent was not made based upon the most recent material, being the final supplementary report which was known by [NAME] to be in preparation.

183 [NAME] and [NAME] placed reliance on a telephone conversation between [NAME] and [NAME] as evidence that the contents of [NAME]'s final supplementary report were considered by [NAME], the Applicants submitted that the evidence given by [NAME] in cross-examination was ultimately unclear as to whether the conversation took place before or after the grant of the [NAME] consent. In any event, the Applicants argued that the substance of the conversation did not relate to the significance of the site as evidence of traditional occupation of the land and the association of the land with the massacre in the mid-1800s.

Accordingly, it did not appear that [NAME] was aware of all [NAME]'s conclusions in relation to the significance of this matter before granting the [NAME] consent.

184 In submissions in reply, the Applicants' approach changed to focus on [NAME]'s consideration of the material before him arguing that [NAME] did not give proper, genuine and realistic consideration to the cultural significance of the [NAME] objects. The Applicants noted that reliance was placed by [NAME] (at par 82 of his affidavit) on the fact that there were no items of "high" cultural significance located in the "disturbed" middens and that no burials, bora rings or ceremonial objects were found on the site. This led to [NAME]'s conclusion (at par 83 of his affidavit) that the archaeological and anthropological reports did not support claims of burials, bora rings and spiritual sites. The Applicants argued that while [NAME]'s conclusions about bora rings may be correct, his conclusion that the anthropological and archaeological reports did not support claims of cultural significance was contrary to the material that was before him in the [NAME] and [NAME] reports. In cross-examination, [NAME] stated that he was aware of the findings about the significance of the site in the [NAME] and [NAME] reports and that he accepted the conclusions of those reports. However, notwithstanding those findings, [NAME] still issued the [NAME] consent. The Applicants argued that this evidenced that he did not give proper, genuine and realistic consideration to the cultural significance of the objects located on the site. 185 In reply the Applicants also argued that [NAME]'s comments about the absence of objects of "high" significance suggested that his determination was premised upon the need to only protect or conserve those sites which were determined to meet that threshold which is not a threshold embraced by s 2A of the [NAME]. The inference to be drawn from [NAME]'s affidavit is that this was not sufficient to warrant protection. Applying such a high threshold was not consistent with the requirement to give effect to the objects of the [NAME] and indicates that even if [NAME] turned his mind to the objects of the Act, then in so doing asked himself the wrong question. Director-[NAME]'s submissions 186 While the SFAPOC refer to the cultural significance of the land, what is in issue is the significance of the [NAME] objects on the site. The Director-[NAME] submitted that her delegate did not fail to consider the cultural significance of the [NAME] objects on the site. The Director-[NAME] argued that her delegate took into account the February 2003 report and the draft supplementary report which summarised the pending final supplementary report. Further, [NAME] gave evidence of a telephone call with [NAME] immediately prior to issuing the consent and in which he was made aware of the conclusions of the final supplementary report. In any case, the Director-[NAME] submitted that there was nothing in [NAME]'s final supplementary report that altered the conclusions of his supplementary report which was taken into account. [NAME]'s and [NAME]' submissions 187 [NAME] and [NAME] submitted that the cultural significance of the land was not a matter that the Director-[NAME] was obliged to have regard to, and accordingly, that any failure to consider the matter did not amount to an error. The [NAME] application concerned [NAME] objects, not an [NAME] place as defined, nor land reserved as an [NAME] area under s 30K of the [NAME]. While the significance of [NAME] objects was a matter to which the Director-[NAME]'s delegate had to have regard, as a matter of law, [NAME]'s final supplementary report was not a matter to which [NAME] was obliged to have regard. In any event, the substance of [NAME]'s conclusions were considered, both by way of a lengthy conversation between [NAME] and [NAME] and by [NAME]'s draft report, which apart from interview transcripts, sets out virtually all the substantive matters contained in the final supplementary report.

188 Further, [NAME] and [NAME] submitted that the Director-[NAME] did have regard to the cultural significance of the site. This was clear from the terms of the consent itself which provide for the protection and salvage of significant objects, and the special condition attached to the consent requiring reservation and dedication of the land as a special purpose [NAME]. The whole course of correspondence, as well as the decision-maker's affidavit, shows that the decision-maker was aware from the outset of the claims of significance, set out to evaluate them, and reached a conclusion that was clearly open on the evidence, even having regard to the material contained in the [NAME] report, and the [NAME] reports. Findings on issue 5(i) 189 I have set out already in the finding on issue 2 the pertinent case law to consider in determining whether a relevant consideration has been ignored where the statute does not provide for any mandatory matters to be considered; see [NAME]. The context of the [NAME] and the objects of the [NAME] clearly suggest that cultural significance is a relevant consideration for the Director-[NAME]'s delegate to consider in any assessment of a [NAME] consent. This is particularly clear from s 2A(1)(b)(i) of the [NAME]. 190 [NAME] compiled three reports detailing the anthropological significance of the site: (i) the February 2003 Report (see par 111 above), (ii) the draft supplementary report (see par 125 above). Following the submission of the draft supplementary report, the NPWS requested further information from [NAME] as stated in par 126 – 128 above and the final supplementary report (see par 131 above) was then provided after the [NAME] consent was issued.

191 The Respondents submitted that the Applicants were attempting to elevate to a mandatory level the consideration of all matters about which [NAME] considered he should be informed, relying on Price v Elder (2000) 97 FCR 218. That case dealt with whether there is an obligation to make further inquiry because an applicant raised material which, had the inquiry been made based on that material, further relevant information would have been forthcoming. The Full Federal Court held that there was no such obligation. I consider the circumstances here are different in that the test of relevance must be determined by a consideration of the scope and purpose of the legislation and the role that [NAME]'s report played in advising [NAME] of matters relating to cultural significance about which he was required to be informed in order to discharge his obligation under the [NAME]. 192 The evidence and submissions about the significance of the [NAME] objects relied on by the Applicants and their counsel has included the reliance on the presence of the objects at the [NAME] site because of the cultural associations of the [NAME] to the site. The pleadings and the Applicants' arguments refer to the failure to take into account the significance of the land rather than just the objects, a matter about which the Respondents criticised the Applicants' case. The Applicants' evidence deals with the use of the land and events at the site over many generations, inter alia, as one reason why the objects are significant. I do not consider the Applicants' evidence and submissions in relation to the significance of the objects as evidence of that use of the land should be discounted as the Respondents suggest. This is made clear in [NAME]'s final supplementary report at p 15, where he states that [NAME] objects have substantial significance for their traditional owners because they are associated with human activity.

193 The connection between the land and the [NAME] objects is recognised in the anthropological reports of [NAME] where he holds that the site was a site of significance for the local Bandjalung custodians. The final supplementary report was specifically requested by NPWS as part of the processing of the [NAME] consent in order to ensure the delegate was properly informed about relevant matters. I accept the Applicants' submissions that in the context of this application [NAME]'s final supplementary report did contain material which was relevant to the question of the significance of the objects on the land as is made clear by the comparative table relied on in the Applicants' submissions in reply. Cultural significance of the site was a relevant consideration, and it is important that that consideration is based upon the most recent and accurate information the decision-make has on hand. In [NAME], Mason J stated at 45 that: It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the [NAME] principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

194 There were several matters addressed in [NAME]'s final supplementary report that were not addressed in his draft supplementary report. The final supplementary report includes transcripts of interviews with a number of [NAME] who are traditional owners of the site, including [NAME] which are not contained in the draft supplementary report. The final supplementary report also attaches several documents, which are not attached to the draft supplementary report, such as a copy of a written story depicting the local history of the site, notes of an audio tape owned by [NAME], notes on a video tape owned by the [NAME], and a hand drawn map of the site showing "sleeping goanna".

195 While the overall conclusions of the report were known to [NAME], as the Respondents sought to emphasise, he could not have been aware of all the detail contained in the report given the lengthy interviews enclosed with it including two interviews with one of the Applicants, [NAME].

196 In relation to the oral evidence of a phone call made by [NAME] to [NAME] on 27 or 28 of May 2003, which was omitted from his affidavit despite it purporting at par 20 to include all relevant matters, I have trouble accepting that all of the detailed material identified in the final supplementary report was communicated in that telephone discussion. I also note that under cross-examination [NAME] had difficulty recalling which day he had the phone call with [NAME] and it is not clear that he did in fact have that discussion before or after he issued the [NAME] consent.

197 Accordingly, in the context of the [NAME] and the purpose manifest in the objects of the Act to which [NAME] is bound to give effect I consider that his failure to review the final supplementary report of [NAME] prior to granting the [NAME] consent resulted in a failure to take into account relevant mandatory material. [NAME] was required to consider the most recent and comprehensive information, being the final supplementary report, which was known by him to be in preparation. Without considering the final supplementary report of [NAME] could not have fully appreciated the extent of the cultural significance of the site. The Applicants are successful on this ground.

198 In addition, I should note that it is the evidence of the Applicants that as a result of the issue of this [NAME] consent one of the last intact areas of their ancestors would be destroyed. Regarding the Angels Beach site, the southern half of Angels Beach has already had a consent to destroy issued in 1990 in relation to it and a residential subdivision has been built there. The affidavits of the Applicants, [NAME] and [NAME], both state that the issuing of the [NAME] consent in this case will lead to "one of the last areas of my ancestors that is still intact being destroyed" suggesting that this land and the objects in it has considerable significance for them.

199 There is no reference in [NAME]'s affidavit or oral evidence to the principles of ESD which he is required to apply under s 2A(2) in achieving the objects of the Act. One of the principles of ESD is that of inter-generational equity. He is not literally required by the [NAME] to refer to these but in the circumstances of this case it is striking that he has not referred to issues relevant to an assessment of significance from an inter-generational perspective. This is particularly so in light of the Applicants' claim that the reason this site was so important to them was because of the destruction on the [NAME] half of Angels Beach of [NAME] objects significant to the [NAME]. A subdivision was built on that site in the early 1990s at which time a consent to destroy under [NAME] was also issued. Inter-generational equity is the principle whereby the present generation should ensure that the health, diversity and productivity of the [NAME] be maintained or enhanced for the benefit of future generations (Protection of the [NAME] Act 1991 s 6(2)). A key matter attested to in the Applicants' affidavits and evidence in the case is the importance to [NAME] of sites where their ancestors have been present demonstrated by, inter alia, the presence of objects which they consider significant by virtue of that association. Obviously the fewer of these sites that remain the less opportunity there will be for future generations of [NAME] to enjoy the cultural benefits of those sites. 200 I have set out at par 173 the relevant parts of [NAME]'s affidavit dealing with midden sites where he states there are 126 registered midden sites for the Ballina, Byron and Tweed Local Government Areas. In cross-examination he said he was unaware of how many of these may have been the subject of a [NAME] consent to destroy. In order for an essential analysis of significance to be undertaken as required by the ESD principles, [NAME] should have undertaken or ensured was undertaken an analysis of how many intact middens relevant to the [NAME] remained in the immediate area. It would appear that a consideration of the cumulative impact of destruction of [NAME] objects of significance to [NAME] traditional owners is relevant to the assessment of significance of [NAME] objects in any [NAME] consent application. I consider there has been a failure on [NAME]'s part to take into account the significance of the objects in this context and that this is a relevant consideration to which he should have had regard before issuing the [NAME] consent.

201 The Applicants are successful on this ground.

Issue 5(ii) The nature of any proposed development Applicants' submissions 202 The Applicants submitted (SFAPOC 59-62) that in order to properly carry out her functions under the [NAME], the Director-[NAME] was required to consider the full extent of the development proposed in order to determine whether the grant of the [NAME] consent would be consistent with the objects and purposes of the [NAME]. The Applicants argued that in the absence of any documents detailing the proposed development being before the Director-[NAME]'s delegate, this matter could not have been given due consideration.

Director-[NAME]'s submissions 203 The Director-[NAME] submitted that her delegate was fully aware of and took into account the fact that the development was going to be for residential purposes. Accordingly, the Director-[NAME] did not fail to consider the likely future development on the site.

[NAME]'s and [NAME]' submissions 204 [NAME] and [NAME] submitted that the likely future development of the land was not a matter that the Director-[NAME] was obliged to have regard to and, accordingly, that any failure to consider the matter did not amount to an error. Reliance was placed on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a [NAME] statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds for judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the [NAME] findings of fact upon which the decision-maker acts.

Finding on issue 5 (ii) 205 There is no specific requirement in the [NAME] that the nature of the development proposed be taken into account. However, it must be axiomatic that as part of the process of determining whether a [NAME] consent to destroy ought be issued, the nature of the development intended to be undertaken must be considered otherwise it would be impossible to determine what, if any, conditions should be imposed to ensure the conservation of [NAME] objects of significance to [NAME] as required by s 2A(1)(b)(i) of the [NAME]. The application for the [NAME] consent identified the intended development for the site was residential subdivision. For the Applicants to succeed I have to find that obtaining further detail of the proposed subdivision was a mandatory relevant consideration before [NAME] could issue the [NAME] consent. The Applicants did not make any written submissions on this issue and I am not entirely clear on what basis it is argued beyond what is in the SFAPOC.

206 The primary relevant evidence could be considered to be the memorandum of [NAME] objecting to the grant of the [NAME] consent. In her memorandum dated 28 May 2003 to [NAME] stating her opposition to the grant of the [NAME] consent, [NAME] stated that while NPWS policy in regard to processing s 87 and [NAME] consents does not require that the applicant have an approved development consent prior to lodging an application, in her view it was NPWS best practice to await evidence of approval of the relevant development or building plans prior to processing [NAME] applications. In [NAME]'s view, the grant of a s 87 or [NAME] consent prior to the grant of an approved development application, placed the NPWS in a weakened position with regard to the management and protection of [NAME] objects if, for example, a developer chose to substantially change its proposal and the proposed impacts on the site.

Accordingly, in her memorandum, [NAME] concluded that the [NAME] application should be refused or resubmitted at a later date when a development application had been approved. 207 While there would appear to be sound policy reasons for [NAME]'s views in her memorandum the fact that she disagreed with [NAME]'s approach in issuing the [NAME] consent before development consent was granted on the basis of plans which would then be available to the NPWS, does not render those plans or similar information a relevant consideration. The Applicants are unsuccessful on this ground. (iii) The opinions of the Applicants Applicants' submissions 208 The Applicants submitted that as the Director-[NAME] failed to consider detailed comments provided by the Applicants in determining the [NAME] application, the consent was invalid and of no effect. The Applicants argued that prior to the grant of consent, the Director-[NAME] failed to consider a centrally relevant matter, being the opinions of the Applicants and [NAME]. Rather, the Director-[NAME] relied on letters in support of the [NAME] consent from [NAME], the cousin of [NAME], and [NAME], neither of whom represented the views of [NAME]. On 12 May 2003, [NAME] wrote to [NAME] raising concerns about the adequacy of the archaeological surveys and the need for further detailed investigation. In the absence of consideration of any further detailed comments from the Applicants, the Director-[NAME] erred. Director-[NAME]'s submissions 209 On the facts, the Director-[NAME] argued that the opinions of the Applicants were considered by the Director-[NAME]. Many attempts were made to obtain the views of representatives of [NAME], but these representatives generally did not attend the scheduled meetings. The Director-[NAME] argued that a proper reading of the evidence discloses that her delegate was at pains to involve the [NAME], including the Applicants, and that these efforts were ignored.

[NAME]'s and [NAME]' submissions 210 [NAME] and [NAME] submitted that contrary to the Applicants' contentions, the Director-[NAME] did take into account their opinions in determining to grant the [NAME] consent. Finding on (iii) 211 It is clear from the evidence that the Director-[NAME]'s delegate did make substantial efforts to seek the views of the Applicants and the [NAME] and was aware of their views. On 21 November 2002, [NAME] received a letter from [NAME], the coordinator of the [NAME] requesting a statement in writing that stated that no further consents would be granted to allow any future development to proceed at the site. The letter also stated that if development proceeded, an interim protection order would be requested over the site under s 91A of the [NAME]. In his affidavit, [NAME] states that he attended a meeting with [NAME] and [NAME] on 22 November 2002 where he told the NPWS officers that he did not want any of the site to be disturbed because he was worried that it would affect the remains of his ancestors which he knew to be buried there. Subsequently, [NAME] informed the NPWS officers that he did not support the issue of a licence that would allow disturbance of the site.

212 In the affidavit of [NAME], he stated that in a letter dated 20 December 2002 he wrote to [NAME] expressing concerns that some digging on the site had commenced and that feedback from the community gave a strong suggestion of objection to any kind of development on the site given its extreme cultural significance. On 12 February 2003 a meeting took place between NPWS officers and [NAME] at the [NAME] office (see par 107 above) and on 11 April 2003 a further meeting took place between [NAME], including the Applicants, and members of the NPWS. [NAME] was also provided with information of an interview conducted by [NAME] with [NAME] in [NAME]'s draft supplementary report.

213 In addition, in his affidavit [NAME] gave evidence of letters of support from [NAME] and [NAME], the cousin of [NAME], attached to the [NAME] application dated 4 March 2003. [NAME] nor [NAME] had objections to the grant of the [NAME] consent. While the Applicants argued that [NAME] did not represent the views of [NAME], on the evidence I do not consider that it was unreasonable for the NPWS to consider he was the [NAME] sites officer. While on 20 May 2003 [NAME]'s employment as a sites officer of the [NAME] was terminated, as outlined at par 156 above, [NAME] was previously described as a sites officer of [NAME] for the period during which the [NAME] consent was proposed.

214 On the evidence it appears that the Applicants never asserted an interest separate to [NAME]. They participated in meetings as representatives of [NAME], including on 11 April 2003. The Applicants were aware that the they had until 12 May 2003 to provide comments to [NAME], and on 12 May 2003, [NAME] was sent a letter by [NAME] indicating that in its view further archaeological work was needed to be done.

215 I consider the Applicants' views were broadly known to the delegate at the time this decision was made. The Applicants are therefore unsuccessful on this ground. Orders 216 For the reasons stated above in issue 5(i) I intend to make declaratory order 1 in the Amended Application Class 4. However, it is not clear to me that I need to make the consequential orders sought in prayers 2 and 3 of the Amended Application Class 4. If the Applicants wish to seek further orders pursuant to prayers 2 and 3 of the Amended Application Class 4 they should arrange for the matter to be placed back in the list. [ADDRESS] makes the following orders:

1. A declaration that the [NAME] Act 1974 [NAME] #1667 granted by the Director-[NAME] to the [NAME] Respondent on the 29 May 2003, in respect of land described as Lot 208 DP 851318, [ADDRESS], East Ballina, New South Wales is invalid and of no effect;

2. Costs are reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The [NAME] remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.