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CITE

Notable Unreported Decision

Kohler & others v Croton as delegate of the Minister for Natural Resources, Mines & Energy[2021] QSC 72Bond J
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Kohler & others v Croton as delegate of the Minister for Natural Resources, Mines & Energy[2021] QSC 72

SUPREME COURT OF QUEENSLAND

CITATION:	Kohler & others v Croton as delegate of the Minister for Natural Resources, Mines & Energy [2021] QSC 72
PARTIES:	In BS 4872 of 2020: ERNST KOHLER (applicant) v LUKE CROTON AS DELEGATE OF THE MINISTER FOR NATURAL RESOURCES, MINES AND ENERGY (respondent) In BS 4869 of 2020: GOLD EXPLORER PTY LTD ABN 90 147 220 451 (applicant) v LUKE CROTON AS DELEGATE OF THE MINISTER FOR NATURAL RESOURCES, MINES AND ENERGY (respondent) In BS 4871 of 20: KABIRI RESOURCES PTY LTD ABN 28 118 563 652 (applicant) v LUKE CROTON AS DELEGATE OF THE MINISTER FOR NATURAL RESOURCES, MINES AND ENERGY (respondent)
FILE NO/S:	BS 4872 of 2020 BS 4869 of 2020 BS 4871 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	9 April 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2020
JUDGE:	Bond J
ORDER:	The orders of the Court are: The applications are dismissed. I will hear the parties as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where the applicants made separate applications for exploration permits under the Mineral Resources Act 1991 (Qld) – where the respondent, as the delegate of the Minister, was charged with the responsibility of making the decisions in relation to all the applications – where the applicants had been previously convicted of wilful contravention of an environmental protection order – where the respondent made a decision to refuse all applications – where the procedural steps leading up to, and the reasons for refusal were substantially identical – whether the applicants could succeed on an application for statutory review under the Judicial Review Act 1991 (Qld) – where the three applications for statutory review were consolidated ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – where the applicants contended that the respondent had made errors of law by finding that it was permissible for the respondent to consider the public interest in determining whether to grant the applications pursuant to s 136 of the Mineral Resources Act 1989 (Qld) – whether the public interest was a relevant consideration in accordance with the legislative intention of the application to s 136 of ss 386M and 386N – where the relevant sections of the statute did not specifically advert to “the public interest” – where the applicants further argued that the respondent decided the applications on the basis that the statute placed some form of onus on the applicants to demonstrate that it was in the public interest to grant the applications – where the applicants further argued that the respondent erred in law by finding that a decision could be made under s 136 without considering the criteria in s 137 – whether a decision-maker is bound to consider the criteria in s 137 in every case in which a decision is to be made under s 136 ADMINISTRATIVE LAW – JUDICIAL REVIEW – FAILURE TO CONSIDER – where the applicants contended that, in determining that the applications were not in the public interest, the respondent failed to take into account relevant considerations – whether the respondent was bound to consider the criteria in s 137(5) of the Mineral Resources Act 1989 (Qld) ADMINISTRATIVE LAW – JUDICIAL REVIEW – IRRELEVANT CONSIDERATIONS – where the applicants argued that in determining that the applications were not in the public interest, the respondent took into account irrelevant considerations – whether the statute required the respondent to consider the public interest issues in any particular way Judicial Review Act 1991 (Qld), s 20(2), s 23 Mineral Resources Act 1989 (Qld), s 136, s 137, s 386M, s 386N Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40, applied Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, cited Underwood v Queensland Dept of Communities [2013] 1 Qd R 252; [2012] QCA 158, applied
COUNSEL:	P Ambrose QC, with D D Keane, for the applicant S A McLeod QC, with M T Hickey, for the respondent
SOLICITORS:	Sparke Helmore for the applicant Crown law for the respondent

Introduction

[1]
In 2017 and 2018, Mr Kohler and two companies of which he was the sole director separately made applications for exploration permits for minerals other than coal (EPMs) under the Mineral Resources Act 1989 (the MRA). Mr Kohler made six applications and each of the companies made two applications.
[2]
The respondent was the delegate of the Minister charged with responsibility for making the decisions in relation to all ten applications. The procedural steps leading up to the decisions were substantially identical.
[3]
By decisions made in March 2020, the respondent refused each application for substantially identical reasons, namely that he found that “it would not be in the public interest to grant the application.” He explained that in making his decision, he had not considered the prescribed criteria under s 137 of the MRA, because he concluded that the application would still be refused on public interest grounds.
[4]
Mr Kohler and the two companies each brought an application for statutory review pursuant to the Judicial Review Act 1991 (the JR Act) in respect of the respondent’s decisions on their respective applications for an EPM. An order was obtained which consolidated the three applications for statutory review.
[5]
The applicants relied upon these four grounds for review of the respondent’s decisions:
1. (a)
  The respondent’s decisions involved errors of law pursuant to s 20(2)(f) of the JR Actin finding that it was permissible for the respondent to consider the public interest in determining whether to grant an EPM pursuant to s 136 of the MRA.
2. (b)
  The respondent’s decisions involved an error of law pursuant to s 20(2)(f) of the JR Act in finding the applicant was under a duty to satisfy the respondent that it was in the public interest to grant the EPMs.
3. (c)
  The respondent’s decisions involved improper exercise of the power pursuant to s 20(2)(e) of the JR Act in determining whether the grant of the EPMs was not in the public interest, in that the respondent failed to take into account relevant considerations and took into account irrelevant considerations.
4. (d)
  The respondent’s decisions involved errors of law pursuant to s 20(2)(f) of the JR Act that a decision could be made pursuant to s 136 of the MRA without considering the criteria under s 137 of the MRA.

[6]
The identity between the relevant procedural steps; the decisions made; the reasons given; and the grounds for review for each of the decisions under review was such that it is unnecessary to distinguish between the decisions in order to determine the applications for review.

[7]
I turn first to identify the legislative context within which the decisions were made.

The legislative context

[8]
The objects of the MRA are set out in s 2 as follows:

2 Objectives of Act

The principal objectives of this Act are to—

(a)
encourage and facilitate prospecting and exploring for and mining of minerals;

(b)
enhance knowledge of the mineral resources of the State;

(d)
encourage environmental responsibility in prospecting, exploring and mining;

(e)
ensure an appropriate financial return to the State from mining;

(f)
provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;

(g)
encourage responsible land care management in prospecting, exploring and mining.

[9]
Section 6D provides that there are five types of authority contemplated under the MRA: a prospecting permit; a mining claim; an exploration permit; a mineral development licence; and a mining lease. There are two types of exploration permits: for minerals other than coal (i.e. EPMs) and for coal: s 130(1). Certain formal requirements for applications for exploration permits are specified, including that only “eligible persons” may apply for or hold them and that the application must be made in a particular form and must provide particular specified information about the proposed exploration activities: ss 128, 131 and 133.
[10]
Pursuant to s 129, holding an exploration permit:
1. (a)
  permits the holder to do certain things upon the land in respect of which it is granted, including carrying out specified activities involving such machinery and equipment as is necessary for the purpose of exploring for the mineral the subject of the permit: s 129(1)(a);
2. (b)
  subject to compliance with the MRA, gives the holder priority in an application for a mining claim, a mineral development licence or a mining lease in relation to the area the subject of the permit: s 129(1)(b);
3. (c)
  permits the holder to enter the area the subject of the permit for other specified reasons: s 129(1)(c);
4. (d)
  obliges the holder and each person entering the land under the authority of the permit to comply with certain applicable terms and conditions: s 129(7).
[11]
Exploration permits are subject to certain conditions specified by s 141 of the MRA, including:
1. (a)
  that the holder and any other person carrying out an authorised activity for the permit must comply with codes governing access to the land concerned; and
2. (b)
  requiring the holder shall carry out specified programs of work; and
3. (c)
  that the holder must carry out improvement restoration for the exploration permit; and
4. (d)
  that prior to the termination of the exploration permit the holder shall remove all equipment and plant on or in the area of the exploration permit unless otherwise authorised by the Minister; and
5. (e)
  that the holder must give the Minister the reports, returns, documents and statements required to be given to the Minister under a regulation; and
6. (f)
  that the holder shall deposit security as required by the Minister and pay rental as prescribed; and
7. (g)
  that the holder shall comply with the MRA and other mining legislation.
[12]
The sections of the Act which governed the subject decisions in this case were ss 136, 137, 386M and 386N of the Act. The relevant parts of those sections are set out below:

136 Grant of exploration permit on application

(1)
The Minister may, for an application for an exploration permit under this part–

(a)
grant an exploration permit, with or without conditions; or

(b)
refuse the application.

(2)
However, the Minister must not grant an exploration permit unless the Minister is satisfied the prescribed criteria for the grant of the permit are met.

(3)
Also, subject to subsection (4), the Minister must not grant an exploration permit for land if all or any part of the land is—

(a)
in a fossicking area; or

(b)
subject to an exploration permit for the same mineral.

(4)
Subsection (3)(a) does not apply if the application for the exploration permit was made, but not decided, before the land became a fossicking area.

137 Prescribed criteria for grant of exploration permit

(1)
This section states the criteria (prescribed criteria) for the grant of an exploration permit under part 2 or 3.

(2)
The criteria are as follows–

(a)
the requirements of this Act have been complied with;

(b)
the applicant is an eligible person;

(d)
the Minister has, under subsection (3), approved a work program for the term of the permit;

(e)
the Minister has not, under subsection (4), decided the person is disqualified from being granted the permit.

…

(3)
In deciding whether to approve the work program for the term of the exploration permit, the Minister must have regard to–

(a)
for a work program (activities-based)–the following matters–

(i)
the extent of the proposed activities in the proposed area of the permit;

(ii)
when and where the applicant proposes to carry out exploration activities in the proposed area of the permit;

(iii)
whether the applicant has the financial and technical capability of carrying out the proposed activities; or

(b)
for a work program (outcomes-based)–the following matters–

(i)
whether the applicant has an adequate technical knowledge of the geology of the proposed area of the permit;

(ii)
whether the proposed outcomes ensure appropriate exploration of the proposed area of the permit;

(iii)
whether the applicant has the financial and technical capability of pursuing the proposed outcomes.

(4)
The Minister may decide an applicant is disqualified from being granted an exploration permit if—

(a)
the Minister reasonably believes the applicant or, if the applicant is a company, an associate of the applicant has, at any time, contravened a provision of this Act, the repealed Acts or other mining legislation (whether or not the applicant or associate has been charged or convicted of an offence for the contravention); and

(b)
having regard to the matters mentioned in subsection (5), the Minister considers the applicant is not a suitable person to carry out activities under the exploration permit.

(5)
For subsection (4)(b), the matters to which the Minister may have regard are as follows–

(a)
the nature of the contravention, including, for example–

(i)
whether it relates to an administrative or procedural requirement; and

(ii)
the extent to which the applicant or applicant’s associate was involved in the contravention; and

(iii)
whether the contravention involved the applicant or associate engaging in fraudulent or dishonest conduct; and

(iv)
the degree of harm caused or likely to be caused by the contravention to persons other than the applicant or to the environment;

(b)
whether the applicant or applicant’s associate has been proceeded against for the contravention and, if so, the outcome of the proceeding;

(c)
whether the applicant or an associate of the applicant has previously engaged in similar contraventions or other contraventions of a kind mentioned in subsection (4)(a), and the nature of the contraventions and the outcome of any proceedings for the contraventions;

(d)
any other matters the Minister considers relevant.

(6)
In this section–

associate, for an applicant that is a company, means–

(a)
an officer or employee of the company; or

(b)
another person who in the Minister’s opinion is in a position to control or influence substantially the company’s affairs.

386M Particular criteria generally not exhaustive

(1)
This section applies if another provision of this Act permits or requires the Minister to consider particular criteria in deciding an application.

(2)
To remove any doubt, it is declared that the Minister may, in making the decision, consider any other criteria the Minister considers relevant.

(3)
However, subsection (2) does not apply—

(a)
in relation to an EP tender; or

(b)
if the provision otherwise provides.

(4)
In this section—

criteria includes issues and matters.

386N Particular grounds for refusal generally not exhaustive

(1)
This section applies if another provision of this Act provides for particular grounds on which the Minister may refuse an application.

(2)
To remove any doubt, it is declared that, unless the other provision otherwise provides, the Minister may refuse the application on another reasonable and relevant ground.

(3)
This section does not apply to an EP tender.

(4)
In this section—

refuse, an application, includes refuse the thing the subject of the application.

[13]
Some observations may be made at the outset about the operation of those sections.
[14]
Section 136 is found in Chapter 4 “Exploration permits”, Part 2 “Obtaining exploration permit for a mineral other than coal”. Section 136(1) empowers the Minister to make a decision on an application for an EPM. Three decisions are possible, namely (1) the Minister may grant the application without conditions; (2) the Minister may grant the application with conditions; or (3) the Minister may refuse the application.
[15]
Section 136 must be regarded as providing for the Minister to make a decision to grant an application for an EPM (whether with or without conditions) only if the Minister has formed the state of satisfaction referred to in s 136(2), namely the state of being satisfied that the prescribed criteria for the grant of the EPM are met. Section 137 states those criteria. The section does not in terms specify whether the Minister is permitted or required to take anything else into account. However, the structure of s 136 plainly attracts the operation of s 386M, with the result that s 386M clarifies that the Minister may, in making the decision for an application for an EPM, consider any other criteria the Minister considers relevant. The “any other criteria” is a reference to any criteria other than the particular criteria stated in s 137(2).
[16]
Section 136 must also be regarded as providing for the Minister to make a decision to refuse an application for an EPM in two circumstances, namely where the Minister has not formed the state of satisfaction referred to in s 136(2) and where all or any part of the land falls within the description of s 136(3)(a) or (b). The first of those two circumstances should also be construed as implicitly providing for a third circumstance in the following way. Section 137(4) empowers the Minister to make a decision that an applicant for an EPM is disqualified from being granted the permit in the circumstances elaborated upon in s 137(4) and (5). If that decision is made, then the criterion specified in s 137(2)(e) could not be met. The consequence would be that the state of satisfaction referred to in s 136 would never be formed. It would follow that s 137 should be construed as providing for another ground on which the Minister may refuse an application for an EPM, namely that the Minister has decided that the applicant is disqualified from being granted the permit in the circumstances elaborated upon in s 137(4) and (5).
[17]
Apart from the three grounds just identified, s 136 does not in terms specify whether there are any other grounds on which the Minister may make a decision to refuse an application under s 136.
[18]
The question of whether s 136 also attracts the operation of s 386N turns on whether it may be regarded as a section which “provides for particular grounds on which the Minister may refuse an application”. I think it must be so regarded. The phrase “provides for” is a phrase of wide import. It should at least be regarded as encompassing sections of the Act which should be construed as specifying or stipulating or affording or yielding grounds on which the Minister may refuse an application for an EPM.^[1] The use of a phrase of such wide import suggests that the legislature did not intend that s 386N would apply only to sections of the MRA which are in the form “the Minister may refuse on [specified grounds]”.
[19]
Section 136 provides for grounds on which the Minister may make a decision to refuse, namely the two grounds I have identified at [16] above, the first of which also carries with it the third ground which I have identified. Accordingly, it should be regarded as attracting the operation of s 386N, with the result that the Minister may, in making the decision for an application for an EPM, refuse the application on “another reasonable and relevant ground”.
[20]
The result is that the following propositions may be stated in relation to decisions under s 136:
1. (a)
  the Minister may grant an application for an EPM only if the Minister has formed the state of satisfaction referred to in s 136(2), namely satisfaction that the “prescribed criteria” stated in s 137(2) have been met;
2. (b)
  the Minister may refuse an application for an EPM on the following grounds:
  1. (i)the Minister has not formed the state of satisfaction referred to in s 136(2), namely satisfaction that the “prescribed criteria” stated in s 137(2) have been met;
  2. (ii)all or any part of the land falls within the description of s 136(3)(a) or (b); or
  3. (iii)another reasonable and relevant ground; and
3. (c)
  in making the decision on the application for an EPM the Minister may consider any criteria other than those stated in s 137(2) which the Minister considers relevant.

The respondent’s decision

[21]
I will shortly turn to consider each of the four grounds of review relied upon by the applicants. Before doing so, it is appropriate to identify in further detail the way in which the respondent went about making his decision.
[22]
The respondent identified as relevant to his decision, findings which had been made in a Magistrates Court prosecution of Mr Kohler and Affinis Pty Ltd (Affinis) for willful contravention of an Environmental Protection Order (EPO) made under the Environmental Protection Act 1994 (EPA). The Department of Environment and Heritage Protection (EHP) had been the responsible agency.
[23]
The respondent’s reasons noted:
1. (a)
  Between 2006 and 2016, Mr Kohler was the Managing Director of Echo Resources.
2. (b)
  From 2006, Echo Resources owned Affinis as a subsidiary company.
3. (c)
  Affinis held Mining Lease Numbers 5771, 5789 and 6606 at Mt Chalmers near Rockhampton.
4. (d)
  Since 2006 the EHP had been trying to get Affinis to prepare a proper plan of operations and to ensure that the financial assurance was adequate. Affinis failed to fulfil its obligation in this regard.
5. (e)
  The Magistrates Court had found that in 2013, Affinis wilfully contravened an EPO and that, as the Managing Director of the parent company, Mr Kohler was guilty of an offence for failing to ensure that the corporation complied with the EPA.
6. (f)
  On 11 December 2014, Affinis was placed into voluntary liquidation by Echo Resources. Mr Kohler was the Managing Director of Echo Resources at this date. The mining leases were subsequently disclaimed by the liquidators, causing the costs for supervision, monitoring and restoration of the site to be borne by the State.
7. (g)
  The Department of Natural Resources, Mines and Energy (DNRME) was concerned as to what those events revealed as to the management practices that were led by Mr Kohler from 2006 and therefore as to the potential risks to the State if the applications for the EPMs were granted.
8. (h)
  The DNRME initially gave consideration to the possibility of making a decision under s 137(4) to disqualify the applicants from being granted an exploration permit, because Mr Kohler might not be regarded as a person suitable to carry out activities under an EPM.
9. (i)
  Submissions were solicited and received from the applicants on that issue. However, the progress of the applications was paused when DNRME later considered that s 137(4) was not an appropriate head of power because while Mr Kohler and Affinis had contravened the EPA, and although the EPA was relevant to the objectives of the MRA and to the granting of an EPM, it was not mining legislation within the meaning of s 137(4).
10. (j)
  The DNRME then sent a further letter dated 20 June 2019 outlining the concerns it had regarding Mr Kohler's past performance relating to the management of granted resource authorities in Queensland and the potential risks to the State if the EPMs were to be granted. Mr Kohler was again provided with an opportunity to submit written views on the matters raised which would be taken into account by the decision-maker prior to making a decision.
11. (k)
  The respondent had taken account of and recorded submissions which Mr Kohler had made in response to the DNRME’s letter.
12. (l)
  The respondent concluded that there were a range of factors which favoured a view that it would not be in the public interest to grant the EPM. He found that Mr Kohler has not accepted responsibility for, nor given a satisfactory explanation for the lack of proper maintenance while he was in a governing position at Echo Resources between 2006 and 2014 (when liquidators were appointed to Affinis and Mr Kohler resigned as director).
13. (m)
  The respondent found that, on his review of the material before him, he too had significant concerns about the prior management of granted resource authorities within Queensland and the potential risks to the State if the EPMs were to be granted.
[24]
The respondent expressed his decision and reasons in these terms:

“After careful consideration of the material and other evidence identified above, and having made the above findings of fact, I have decided to refuse the EPM application made by [the applicant] on the basis that it would not be in the public interest to grant the application

The responses provided by Mr Kohler do not demonstrate to my satisfaction that the public interest will not be adversely affected if the EPM is granted, on the basis that:

[Mr Kohler] and a corporate entity under his control have been previously prosecuted for offences under the EPA for failing to ensure a corporation complies with the [EPA] and to wilfully contravene an EPO.
The Magistrates’ [sic] decision of 17 March 2015 outlined that under Mr Kohler’s management, the problems at the Mt Chalmers site had been left unattended and developed over a long period of time and further, outlines behaviour which is inconsistent with the objectives of the MRA.
Based on the past performance of Mr Kohler, I cannot be satisfied that the grant of [the EPM] would be in the public interest.

In making my decision, I have not considered the prescribed criteria under section 137 of the MRA, because even if [the applicant] were able to satisfy all of the criteria under this section, the application would still be refused on public interest grounds.”

[25]
Against that background it is appropriate to turn to consider each of the alleged grounds for review.

The first ground for review

[26]
The applicants contended that the respondent had made errors of law by finding that it was permissible for the respondent to consider the public interest in determining whether to grant an EPM pursuant to s 136 of the MRA.
[27]
The determination of what considerations a decision-maker must and, conversely, must not take into account in the exercise of a statutory power is question of law which must be made as a matter of construction of the statute which created the power, including, if necessary, by implication from the subject matter, scope and purpose of the statute: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Mason J at 39–40; Underwood v Queensland Dept of Communities [2013] 1 Qd R 252 per Muir JA, with Dalton J agreeing, at 258–9 [32].
[28]
An irrelevant consideration is one which, as a matter of construction of the relevant legislative provisions, the decision-maker cannot permissibly take into account. The taking of an irrelevant consideration into account in the exercise of a power is an improper exercise of the power and gives rise to a ground of review: ss 20(2)(e) and 23(a) of the JR Act.
[29]
Similarly, a relevant consideration is one which, as a matter of construction of the relevant legislative provisions, the decision-maker is bound to take into account. Failing to take into account a relevant consideration in the exercise of a power is an improper exercise of power and gives rise to a ground of review under ss 20(2)(e) and 23(b) of the JR Act.
[30]
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82], McHugh, Gummow and Hayne JJ observed that:

“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

[31]
The essence of the applicants’ argument was that there were other sections in the MRA which had specifically adverted to “the public interest”, noting in particular ss 74(3), 136S(5), 267(b) and 269(4)(g) & (k) of the MRA. No such language appeared in ss 136 or 137 and, the applicants contended, neither of ss 386M or 386N provided a sufficient basis to justify the importation of a broad public interest test.
[32]
However, the applicants’ argument could only succeed if I concluded that on the proper construction of s 136, the respondent was bound not to take into account the considerations encompassed by his use of the phrase “public interest grounds”. In other words, that the respondent was bound not to take into account the concerns that he had as to the risks to Queensland posed by granting an EPM to an applicant who the respondent had found to have a concerning prior history of management of resources in compliance with legislative requirements (albeit legislative requirements not of the nature of those referred to in s 137(4)).
[33]
I reject that construction. In my view, the legislative intention of the application to s 136 of ss 386M and 386N must be taken to have greatly widened the conception of what might be regarded as “relevant considerations” in relation to a decision under s 136 and, conversely, to have greatly narrowed the conception of what might be regarded as “irrelevant considerations”. So construing those sections is entirely consistent with the subject matter, scope and purpose of the statute, including the objectives specified in s 2 of the MRA, most notably ss 2(d) and (g). That other sections of the statute specifically grapple with public interest in a particular way does not provide a sufficient basis to reach any different construction. And having regard to those matters, it is impossible to see any basis on which the respondent could be regarded as bound not to take into account concerns of the nature of those which he had identified.
[34]
The applicants did not present any principled argument of construction justifying the conclusion that a consideration of what was in the public interest, in the sense used by the respondent, would necessarily be outside the ambit of considerations which – using the language of the s 386M declaration – he might consider to be relevant to his decision. Nor did they present any such argument justifying the conclusion that a consideration of such matters would necessarily be outside the ambit of considerations which – using the language of the s 386N declaration – he might consider to be a reasonable and relevant ground other than those which s 136 had provided for as grounds on which he might make a decision to refuse.
[35]
This ground for review fails.

The second ground for review

[36]
The applicants contended that the respondent made an error of law in finding the applicants were under a duty to satisfy the respondent that it was in the public interest to grant the EPMs.
[37]
The essence of this point is that the applicants contended that the respondent concluded that the MRA placed some form of onus on the applicants and decided the application on the basis that the applicants had failed to discharge their onus.
[38]
I reject that argument. A fair consideration of the respondent’s reasons reveals the applicants had been afforded procedural fairness by being given an opportunity to advance submissions on matters which other material raised as issues for concern, and that the respondent formed his view based on a consideration of all the material which was before him. He did not construe the statute as placing an onus on the applicants to persuade him that it was in the public interest to grant the EPMs.
[39]
This ground for review fails.

The third ground for review

[40]
The applicants contended that in determining that the grant of the EPMs was not in the public interest, the respondent failed to take into account relevant considerations and took into account irrelevant considerations.
[41]
The applicants’ first point here was that the respondent did not have regard to the prescribed criteria set out in s 137(5) of the MRA. And because he did not do that, he failed to apply the considerations identified in ss 137(5)(a)(i), (iii), (iv) and (c) of the MRA, mutatis mutandis, to the contravention of the EPA. Accordingly, he failed to take into account relevant considerations in determining whether the contravention of the EPA warranted Mr Kohler being disqualified from receiving an EPM.
[42]
Given my conclusion that by considering the public interest in the way he did, the respondent could not be regarded as having taken into account irrelevant considerations, this argument could only succeed if I was persuaded that on the proper construction of the MRA the respondent was bound to take that consideration into account in the same way which he would have been required to consider matters which did fall under s 137(4).
[43]
The argument fails because there is no warrant in the statute for concluding that the respondent was bound to consider the public interest issues he considered in any particular way. How he did so was a matter for him, not the court. In Minister for Aboriginal Affairs v Peko-Wallsend Limited, Mason J explained at 41 that:

“…in the absence of any statutory indication of the weight to be given to various considerations it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising statutory power.”

[44]
The applicants advanced other arguments under this ground of review:

“Secondly, The Delegate failed to have regard to the fact that the prosecution in proceedings RM1237/14 related to a failure to provide proper financial assurance and a proper plan of operations for the restoration of the Mt Chalmers site in circumstances where the site had not been mined since 1982 and was only brought under the control of Echo Resources by its acquisition of Affinis. The contraventions themselves related to the conduct Mining Leases (ML 5771, 5789 and 6606) rather than Exploration Permits. No consideration was given to the differences in the rights, obligations and permissible acts of the holder of an Exploration Permit and that of a Mining Lease.

Thirdly, the Minister's Delegate failed to have regard to the change in circumstances arising from current legislation in particular [s] 277 of the MRA and the Mineral and Energy Resources (Financial Provisioning) Act 2018 which provides for other requirements for the delivery of financial provision in the form of an Estimated Rehabilitation Cost (ERC) prior to a Mining Lease necessary to rehabilitate any works conducted. The Mineral and Energy Resources (Financial Provisioning) Act 2018 effectively means that the consequence of any breach of an Environmental Authority granted under the EPA cannot have the effect of having the costs of supervision, monitoring and restoration of the site being borne by the State. The Delegate failed to have regard to the fact that the relevant breach was in relation to a different type of tenement in circumstances where the consequences of the breach can no longer materialise.

Fourthly, the Delegate failed to have regard to what risks might be incurred to the State by the grant of the Exploration Permits. In the absence of doing so the Delegate was not in a position to consider that the contravention in proceedings RM1237/14 may give rise to an increased likelihood of those risks materialising.”

[45]
These arguments, like the first argument, amounted to inviting the court to embark, impermissibly, on a merits review of the decision. They are not a proper basis to seek to establish this ground for review.
[46]
This ground for review fails.

The fourth ground for review

[47]
The applicants contended that the respondent erred in law by finding that a decision could be made pursuant to s 136 of the MRA without considering the prescribed criteria under s 137 of the MRA.
[48]
The argument here required the applicants to establish that in every case in which the Minister must make a decision under s 136, the Minister is bound to consider whether the prescribed criteria for the grant of the permit are met.
[49]
That argument cannot succeed. For reasons I have expressed, on the proper construction of the section, the Minister may refuse an application for an EPM on the following grounds:
1. (a)
  the Minister has not formed the state of satisfaction referred to in s 136(2), namely satisfaction that the “prescribed criteria” stated in s 137(2) have been met;
2. (b)
  all or any part of the land falls within the description of s 136(3)(a) or (b); or
3. (c)
  another reasonable and relevant ground.
[50]
The Minister is plainly permitted to decide to refuse to grant an application on the second of those grounds without considering the “prescribed criteria”. There is no warrant in the MRA for concluding that the position is any different for the third of those grounds. That the ground is introduced by the word “another” does not require that the prescribed criteria be considered first.
[51]
This conclusion is also supported by the application to the decision of the s 386M declaration. It does not follow from the fact that the declaration permits the Minister to consider any “other” criteria the Minister considers relevant, that the Minister must consider the “prescribed criteria” as well. The language of the section which requires or obliges the Minister to consider those criteria suggest that it is only obligatory if the Minister is considering granting the application.
[52]
This ground for review fails.

Conclusion

[53]
All the grounds for review having failed, the following orders should be made:
1. (a)
  The applications are dismissed.
2. (b)
  I will hear the parties as to costs.

Footnotes

[1] The four present participles I have used all derive from the dictionary definition of “provide”.

Editorial Notes

Published Case Name:
Kohler & others v Croton as delegate of the Minister for Natural Resources, Mines & Energy
Shortened Case Name:
Kohler & others v Croton as delegate of the Minister for Natural Resources, Mines & Energy
MNC:
[2021] QSC 72
Court:
QSC
Judge(s):
Bond J
Date:
09 Apr 2021
White Star Case:
Yes

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Minister for Aboriginal Affairs v Peko Wallsend Ltd	View on:JADE(1986) 162 CLR 24	2 citations Jump To Cite 1 - (1986) 162 CLR 24 Cite 2 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd	View on:JADE[1986] HCA 40	1 citation Jump To Cite 1 - [1986] HCA 40
Minister for Immigration & Multicultural Affairs v Yusuf	View on:JADE(2001) 206 CLR 323	2 citations Jump To Cite 1 - (2001) 206 CLR 323 Cite 2 - (2001) 206 CLR 323
Minister for Immigration and Multicultural Affairs v Yusuf	View on:JADE[2001] HCA 30	1 citation Jump To Cite 1 - [2001] HCA 30
Underwood v Queensland Department of Communities (State of Queensland)	[2013] 1 Qd R 252; [2012] QCA 158	3 citations Jump To Cite 1 - [2012] QCA 158 Cite 2 - [2013] 1 Qd R 252 Cite 3 - [2013] 1 Qd R 252

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Kohler & others v Croton as delegate of the Minister for Natural Resources, Mines & Energy[2021] QSC 72