TERRAMIN EXPLORATION PTY LTD v THE STATE OF SOUTH AUSTRALIA [2026] SASCA 15

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) [2025] SASC 3 First Appellant: TERRAMIN EXPLORATION PTY LTD Counsel: MR D BLIGHT KC WITH MR S EVANS SC - Solicitor: FINLAYSONS Second Appellant: TERRAMIN AUSTRALIA LTD Counsel: MR D BLIGHT KC WITH MR S EVANS SC - Solicitor: FINLAYSONS Respondent: THE STATE OF SOUTH AUSTRALIA Counsel: MR M WAIT SC WITH MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 03/11/2025 File No/s: CIV-25-001473 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. TERRAMIN EXPLORATION PTY LTD & ANOR v STATE OF SA [2026] SASCA 15 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice Stanley and the Honourable Auxiliary Justice Mitchell) 5 March 2026 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW ENERGY AND RESOURCES - MINERALS - MINING FOR MINERALS - TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - MANDATORY CONSIDERATIONS ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - EXCLUSION OF PROCEDURAL FAIRNESS - GENERALLY STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION Appeal against a decision of a single judge of the Supreme Court of South Australia dismissing an application for judicial review of three administrative decisions. -- 1 of 44 -- On 8 February 2023, the Minister for Energy and Mining refused to grant the appellants (collectively, ‘Terramin’) a mining lease and a miscellaneous purpose licence (‘MP licence’) in relation to its proposed mining project, commonly referred to as the Bird in Hand Gold Project. On 27 April 2023, the Governor of South Australia reserved the land the subject of the proposed mine from the operation of the Mining Act 1971 (SA) (‘Act’), pursuant to s 8(1)(c) of the Act. Terramin sought judicial review of the decisions to refuse its applications, and of the decision to reserve the area from the operation of the Act. The primary judge dismissed the application for judicial review. In summary, the issues arising on appeal are: • whether the Minister’s decisions to refuse the mining lease and MP licence applications were made under ss 34 and 47 of the Act respectively, or ss 37 and 50 respectively (Ground 1); • whether the Minister’s decisions were irrational (Ground 2); • whether the Minister was bound to act in accordance with the assessment undertaken pursuant to s 56ZA of the Act (Ground 3); • whether the Minister was entitled to refuse the applications on ‘environmental’ grounds insofar as he was satisfied under ss 37 and 50 that the appropriate environmental outcomes would be able to be achieved (Ground 4); • whether the decision to reserve the land from the operation of the Act (‘the reservation decision’) was procedurally unfair (Ground 6); • whether the reservation decision was irrational (Ground 7); and • whether s 8(1)(c) of the Act authorised the reservation decision in circumstances where Terramin held existing exploration licences over the land (Ground 8). Held (by the Court), allowing the appeal on Ground 8, but dismissing the balance of the grounds of appeal: 1. Sections 34 and 47 are the sole sources of power to grant or refuse mining lease and MP licence applications respectively, each conferring a discretion on the Minister to grant or refuse the applications. Sections 37 and 50 respectively prescribe barriers to the positive exercise of the discretions under ss 34 and 47. 2. The assessment undertaken pursuant to s 56ZA of the Act provides a comprehensive measure against which the Minister is held accountable for the subsequent decision. The Minister was not bound, when exercising the discretion under ss 34 and 47, to act only in accordance with the positive conclusions in the assessment report that favoured the grant of the applications. 3. The thresholds in ss 37 and 50 do not operate to fetter the Minister’s capacity to consider environmental matters in the exercise of his discretion. 4. Terramin’s complaint of procedural unfairness with respect to the reservation decision fails. Terramin did not identify what it would have provided in support of its position in addition to the material it provided in support of its mining lease application. Neither did it explain why it failed to respond substantively within the 14 days it was given. Procedural fairness did not require Terramin to be informed of the matters forming the basis of Executive Council’s recommendation to the Governor to exercise the power to reserve land under s 8 of the Act. 5. In circumstances where the Court has rejected the challenge to the lawfulness of the Minister’s decisions, Terramin’s contention that the reservation decision was tainted with the same jurisdictional error said to have tainted the Minister’s decisions necessarily fails. -- 2 of 44 -- 6. Section 8(1)(c) of the Act does not differentiate between forms of mineral tenement, nor does it make any reference to the effect of a proclamation on accrued rights under the Act. The putative extinguishment of rights conferred under the Act by a declaration would operate, without differentiation, to land subject to a valuable mining lease and land subject to an exploration licence of merely contingent value. If Parliament had objectively intended to extinguish, without compensation, existing rights held against the Crown under mineral tenements granted pursuant to the Act, it would be expected to make explicit provision in that regard. Mining Act 1971 (SA) ss 6, 8(1)(c), 9A, 15AB, 16, 21, 26(3), 28, 29, 30A, 30AB, 33B, 34–38, 42– 51, 56I(2), 56W, 56ZA; Legislation Interpretation Act 2021 (SA) s 11, 16(1), 19, 21; Statutes Amendment (Mineral Resources) Act 2019 (SA); Migration Act 1958 (Cth) ss 200, 201, 501, referred to. South Australia v O’Shea (1987) 163 CLR 378; Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558, applied. Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, distinguished. Macdougall v Paterson (1851) 11 CB 755; 138 ER 672; Brown v West (1990) 169 CLR 195; Johns v Australian Securities Commission (1993) 178 CLR 408; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151; Kioa v West (1985) 159 CLR 550; Disorganized Developments v South Australia (2023) 280 CLR 515; Clissold v Perry (1904) 1 CLR 363; Potter v Minahan (1908) 7 CLR 277; Al-Kateb v Godwin (2004) 219 CLR 562; Lee v NSW Crime Commission (2013) 251 CLR 196; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; Minister of Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400; R v Wallis (Wool Stores Case) (1949) 78 CLR 529; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, considered. -- 3 of 44 -- -- 4 of 44 -- TERRAMIN EXPLORATION PTY LTD & ANOR v STATE OF SA [2026] SASCA 15 Court of Appeal – Civil: Bleby and Stanley JJA and Mitchell AJA 1 THE COURT: On 8 February 2023, the Minister for Energy and Mining (‘the Minister’) refused to grant the appellants (collectively, ‘Terramin’) a mining lease in respect of a proposed gold mine in the Adelaide Hills near Woodside and a miscellaneous purposes licence (‘MP licence’) in respect of the existing Angas Zinc Mine and the associated ore processing facilities located near Strathalbyn. The proposed mining project is commonly referred to as the Bird in Hand Gold Project. 2 On 27 April 2023, the Governor reserved the land the subject of the proposed mine from the operation of the Mining Act 1971 (SA) (‘the Act’), pursuant to s 8(1)(c) of the Act. 3 This is an appeal against a decision of a judge of this Court dismissing an application for judicial review of those three administrative decisions.1 Broadly speaking, the issues arising on the appeal are:2 • whether the Minister’s decisions were made under ss 34 and 47 of the Act respectively, or ss 37 and 50 respectively (Ground 1). This issue raises a question of law as to whether: a. the relevant decision-making powers are conferred by ss 34 and 47, subject to the restrictions in ss 37 and 50 as to when the relevant power may be exercised; or b. ss 37 and 50 are separate sources of power to make and refuse the relevant grants, which must be exercised in favour of making the grant when the conditions set out in the relevant section are met. Depending on the answer to that, Terramin raises various further issues of construction and application of the Act; • whether the Minister’s decisions were irrational (Ground 2); • whether the Minister was bound to act in accordance with an assessment undertaken pursuant to s 56ZA of the Act (Ground 3); • whether the Minister was entitled to refuse the applications on ‘environmental’ grounds insofar as he was satisfied under ss 37 and 50 that the appropriate environmental outcomes would be able to be achieved (Ground 4); 1 Terramin Exploration Pty Ltd & Anor v State of SA [2025] SASC 3. 2 Terramin abandoned Ground 5 at the hearing. -- 5 of 44 -- [2026] SASCA 15 The Court 2 • whether the decision to reserve the land from the operation of the Act was procedurally unfair (Ground 6); • whether the decision to reserve the land from the operation of the Act was irrational (Ground 7); and • whether s 8(1)(c) of the Act authorised the decision to reserve the land from the operation of the Act in circumstances where Terramin held existing exploration licences over the land (Ground 8). The decisions the subject of the application for judicial review 4 On 1 September 2014, the first appellant was granted exploration licence EL5469 over land at Woodside in the Adelaide Hills. The licence was granted for the period 1 September 2014 to 31 August 2019. On 25 February 2019, the first appellant was granted a further exploration licence, EL6319, for the period 25 February 2019 to 24 February 2024. On 28 May 2019, the first appellant was granted a mineral claim, MC4473, being approximately 195 hectares, within an area covered by the two exploration licences totalling 31,400 hectares. EL5469 subsequently expired and was replaced by EL6447, which was valid from 1 September 2019 to 31 August 2024. The decisions to refuse the applications for a mining lease and an MP licence 5 On 21 June 2019, the first appellant submitted an application for a mining lease over an area within the mineral claim, MC4473. On the same date, the second appellant submitted an application for an MP licence over existing tenements held by Terramin and which made up the Angas Zinc Mine. 6 Claims, leases and licences under the Act are ‘mineral tenements’ within the meaning of the Act.3 7 In August 2022, officers of the Department of Energy and Mining prepared an assessment report in respect of these applications for mineral tenements (‘the assessment report’). Notwithstanding some curiosities of language in the assessment report, the respondent accepted that the assessment report was made pursuant to s 56ZA of the Act. Section 56ZA, as in force at the time, provided: 56ZA—Assessment reports (1) The Minister must prepare a report (an assessment report) that sets out or includes the Minister's assessment in respect of the following: (a) an application for a mineral tenement under this Act; (b) without limiting paragraph (a), the ranking of applications for exploration licences in relation to an exploration release area; 3 Mining Act 1971 (SA) s 6. -- 6 of 44 -- [2026] SASCA 15 The Court 3 (c) an application for retention status under section 33B; (d) an application to amalgamate the areas of 2 or more mineral tenements under Division 6; (e) an application for a change in operations under Division 7; (f) a decision to cancel, suspend or surrender a mineral tenement under Division 8; (g) a decision to exempt a tenement holder from an obligation to comply with a term or condition of a mineral tenement, or from a requirement of this Act; (h) any other matter prescribed by the regulations. (2) The Minister must, in preparing a report under this section— (a) set out or include information about any submission that was made to the Minister in connection with a matter referred to in subsection (1); and (b) set out or include information or material provided by an applicant or tenement holder in connection with a matter referred to in subsection (1) (including any response provided to the Minister in relation to any submission made to the Minister); and (c) include any other information or material that the Minister thinks fit. (3) The Minister may publish an assessment report in such manner, and to such extent, as the Minister thinks fit. (4) No liability attaches to the Minister in connection with— (a) a decision by the Minister to include any particular matter, information or material in an assessment report; or (b) a decision by the Minister to publish an assessment report. 8 On 25 November 2022, the Chief Executive of the Department of Energy and Mining endorsed a briefing to the Minister. The briefing contained 28 attachments, including public submissions, a copy of the assessment report and a CSIRO independent peer review. The briefing made a number of recommendations, including that the Minister note the brief and various attached materials and ‘the completion of the assessment processes to enable decision making on Terramin’s applications’, and that the Minister: 3. Undertake the decision-making process by reviewing all of the relevant information and determining whether or not a Mining Lease and/or a Miscellaneous Purposes Licence should be granted to Terramin Australia for the Bird in Hand mine project. 9 On 8 February 2023, the Minister refused both applications. In the case of the mining lease, the Minister checked the box offering him the option to: Record your decision to refuse the application for a mining lease over Mineral claim 4473 under section 37 of the Mining Act 1971 -- 7 of 44 -- [2026] SASCA 15 The Court 4 10 In the case of the MP licence, the Minister recorded his decision in the same format, citing s 50 of the Act. 11 Each record of the decision is accompanied by a document entitled ‘Attachment – Reasons for Decision’. The reasons given for each refusal are the same. They read: While the assessment considered technical matters in detail, other relevant considerations include broader State interests including potential socio-economic and amenity impacts and the level of uncertainty on whether the proposed approaches will be effective to the degree expected by existing industries, the community, or tourists. The area of the proposed mine is home to a world-class viticulture industry, producing some of Australia’s best-loved wines. Tourism to the region is a critical contributor to the local economy and, on balance, there remains a possibility this proposed short-term mine may affect the established and significant long-term agricultural and tourism industries of the Woodside area immediately adjacent the project areas. As such, I am not willing to risk these established local industries against the opportunity this short-term mine may provide and have decided it is in the State’s interest to decline the Mining Lease and the Miscellaneous Purposes Licence applications by Terramin for its Bird in Hand Gold Project. 12 On the same date, the Acting Mining Registrar wrote to the Chief Executive Officer of Terramin, advising of the Minister’s decisions. This letter identified that the decisions were made pursuant to ss 37 and 50 of the Act respectively. The letter also advised that pursuant to s 26(3) of the Act, Terramin’s mineral claim, MC4473, would lapse as a decision had been made. Terramin continued to hold its exploration licence in respect of the area, being EL6447. 13 On 14 February 2023, the Department of Energy and Mining published the assessment report. The reservation decision 14 On 17 March 2023, that is, approximately five weeks after the Minister refused Terramin’s applications, the Minister wrote to the Chief Executive Officer of Terramin. The Minister advised that he proposed to seek that the Governor reserve the area of land previously defined by Terramin’s mineral claim, MC4473, from certain provisions of the Act, by proclamation under s 8 of the Act. Section 8 provides, in part: 8—Declaration of mineral land etc (1) The Governor may, by proclamation— (a) declare any land in the State or any land under coastal waters on the landward side of the baseline to be mineral land; or -- 8 of 44 -- [2026] SASCA 15 The Court 5 (ba) divide mineral land into a surface stratum and one or more subsurface strata and fix the depth of the surface stratum and the depth of any subsurface stratum below which lies any further subsurface stratum resulting from the division; or (c) reserve from the operation of this Act, or any provisions of this Act, any land specified in the proclamation, and the proclamation shall have effect according to its terms. (2) The Governor may, by subsequent proclamation, vary or revoke any proclamation made pursuant to this section. … 15 The Minister’s letter concluded: Should Terramin have a submission to make in relation to this proposal, it may do so prior to the decision being made, by 5:30pm on 31 March 2023. 16 On Friday, 31 March 2023, at 3:42 pm, that is, a little under two hours before the deadline, the Chief Executive Officer of Terramin emailed the Minister, saying: I attach a response to your letter dated 17 March 2023. I appreciated our conversation at the AMEC Breaking Ground seminar yesterday morning. Thank you for offering to meet with me to discuss this project. Please let me know when and where is convenient for you. 17 The attached letter read as follows: I refer to your letter dated 17 March 2023. Your recent decision to refuse our application for a mining lease in respect of the Bird in Hand Gold Project has severe adverse financial consequences for our company, wiping out a substantial investment made by our shareholders made over 8 years including 5 years of extensive engagement with your department. This extensive engagement resulting [sic] in your department supporting the issue of a mining lease. The Adelaide Hills community will miss out on the opportunity to be involved in a mining project which would be a model for operating mines near farming communities as well as the creation of 140 highly paid direct jobs and over 600 indirect jobs. Given the seriousness of this matter, I am still taking advice on the matters raised in your letter and consulting with my board and I will need more time before I can provide you with an informed response. Accordingly, I would appreciate an extension of time in which to respond to your 17 March letter to 30 April 2023. 18 Also, on 31 March 2023, the Minister approved a recommendation that he sign a Cabinet Submission regarding the proclamation of the area to be reserved from the operation of the Act. -- 9 of 44 -- [2026] SASCA 15 The Court 6 19 On 15 April 2023, the Chief Executive Officer of Terramin wrote to the Premier of South Australia, seeking a meeting with the Premier and the Minister: … to discuss the recent decision by the South Australia Government to reject Terramin’s mining lease application for our Bird in Hand Gold Project in the Adelaide Hills. We would also like to understand why your Government is considering issuing a proclamation under section 8 of the Mining Act to ban any future mining at the Bird in Hand Gold Project site. 20 The letter went on to express opinions about the merits of the applications and concerns about the process that had resulted in the refusals. It concluded: Our view is that the Government should consider giving Terramin an opportunity to revisit our mining lease application to explore whether there are avenues to proceed which address ministerial concerns. Given many proposed mines are located in prime agriculture areas across South Australia, this is a practical approach to policy development and would demonstrate that the South Australian Government is serious about consultation with the business community in relation to these matters. 21 On 20 April 2023, the Premier’s office responded, advising that Terramin’s meeting request had been sent to the Minister, as the matter fell within his portfolio. 22 On 27 April 2023, there was a meeting of Executive Council. The Governor made a proclamation under s 8 of the Act reserving the area from the operation of Parts 4, 5, 6, 8 and 8A of the Act. The application for judicial review 23 On 1 August 2023, Terramin filed an application for judicial review of the decisions to refuse Terramin’s applications, and of the decision to reserve the area from the operation of the Act, pursuant to s 8 of the Act. On 20 January 2025, a judge dismissed the application.4 24 The judge summarised the grounds of review of the Minister’s decision to refuse Terramin’s applications as follows:5 Terramin’s challenge to the validity of the Minister’s decision to reject the applications for the mining lease and the MP licence, rests on multiple grounds which I would summarise and classify as follows: 1. The Minister misapprehended the nature and source of the statutory power to grant the mining lease and the MP licence. 2. The Minister wrongly apprehended that he was not authorised to grant the mining lease or the MP licence, when in fact the exploitation of the BIH gold mine posed no risk to the environment because any risks could be appropriately managed, controlled and mitigated. 4 [2025] SASC 3. 5 [2025] SASC 3 at [2]. -- 10 of 44 -- [2026] SASCA 15 The Court 7 3. Insofar as the Minister was satisfied that the appropriate environmental outcomes would be achieved: • the Minister was precluded from exercising the power to refuse the mining lease and the MP licence on the ground that there was any residual risk that those outcomes might not be achieved; • environmental outcomes include the adverse effects on other land uses in the locality of the BIH gold mine. 4. Insofar as the Minister was not satisfied that appropriate environmental outcomes would be achieved, his refusal to grant the mining lease and the MP licence was unreasonable in that it was inconsistent with the assessment report prepared pursuant to s 56ZA of the Mining Act. 5. The Minister was bound by the report prepared pursuant to s 56ZA of the Mining Act or, alternatively, the Minister was precluded from refusing to grant the mining lease and the MP licence for any reason which was not included in the assessment report. 6. The Minister wrongly took into account the irrelevant consideration that the adjacent wineries would make significant investments in their businesses if the licence were refused. 7. The Minister failed to have regard to the relevant consideration that: • The risks identified by the Minister for refusing the applications for a mining lease and licence have been satisfactorily addressed by Terramin. • The BIH gold mine would bring significant economic benefits to the State. • The economic benefits to the State from the BIH gold mine would be significantly greater than those identified in the assessment report given increases in the gold price and favourable exchange rates applicable at the time the discretion-based decision was made. 25 These complaints comprise the substance of the complaints on appeal. It is necessary here only to summarise the judge’s disposition of them. The judge dismissed Grounds 1 and 2 on the basis that the Minister’s mistaken reference to s 37 as being the source of his decision-making power was a ‘slip’. That had no material effect on the exercise of the power to grant the mining lease, which was conferred by s 34. The judge held that s 37 imposes preconditions to the favourable exercise of the power conferred by s 34, but that the discretion may nonetheless be exercised adversely to the appellants even if the s 37 preconditions are satisfied.6 26 As to Ground 3, the judge held that the Minister was entitled to refuse the application for the mining lease on the ground that there was a residual risk that environmental outcomes might not be achieved. He held that environmental outcomes did not include adverse commercial effects on other land uses.7 He dismissed Grounds 4 and 5 on the basis that Terramin did not establish that the 6 [2025] SASC 3 at [3], [25]-[32]. 7 [2025] SASC 3 at [4], [33], [49]. -- 11 of 44 -- [2026] SASCA 15 The Court 8 Minister proceeded on a finding that environmental outcomes could not be achieved and that, in any event, it was not unreasonable for the Minister to take a different view from that expressed in the assessment report.8 27 As to Ground 6, the judge found that the prospect of adverse effects on investments by other businesses was not an irrelevant consideration and that Terramin had failed to show the Minister’s finding in that respect was erroneous. He found that the Minister did take into account the considerations listed in Ground 7.9 28 The judge summarised the grounds of review of the Governor’s decision to reserve the land from the operation of the Act as follows:10 Terramin impugns the Governor’s decision to reserve the land which was to be mined on grounds which I summarise as follows: 1. the 14 days allowed for the making of submissions was insufficient; 2. the Governor failed to take into account that the risks of the proposed mining operation were negligible and wrongly failed to take into account the benefits of the mine; 3. the Governor came to the conclusion, without any evidence, that the reservation of land under s 8(1)(c) of the Mining Act would or could “ensure full control by Government over the ability for anyone to take future application for mineral tenements over the small area”; 4. The decision was unreasonable; 5. the decision was motivated by political considerations; and 6. the decision to reserve the land was predetermined. 29 As to Ground 1, the judge held that 14 days was a sufficient period of time. He held that Grounds 2 and 6 were not established on the evidence. He dismissed Ground 3 on the basis that a decision to refuse land does, for all practical purposes, preclude future applications for a mining lease over the land. He dismissed Ground 4, considering that it would be difficult to envision any case where a court could determine that the inscrutable decision of the Governor and her Ministers, in the exercise of high government policy and based on confidential correspondence, was unreasonable. He held that Ground 5 was meaningless in the context of a decision made by the Governor in accordance with the constitutional principles of Westminster government.11 8 [2025] SASC 3 at [4], [53]-[55], [69]. 9 [2025] SASC 3 at [5]. 10 [2025] SASC 3 at [8]. 11 [2025] SASC 3 at [9], [75]-[92]. -- 12 of 44 -- [2026] SASCA 15 The Court 9 The appeal Whether the Minister’s decisions were made under ss 34 and 47 of the Act respectively, or ss 37 and 50 respectively (Ground 1) 30 The significance of the source of the Minister’s power to refuse the applications lies in Terramin’s contention that ss 37 and 50 were sources of power to refuse the mining lease and MP licence applications respectively, and that the Minister did, on the evidence, act under those heads of power. This, in turn, had consequences for the lawfulness of the Minister’s decisions. Ground 1, in its entirety, reads as follows: The Minister’s decisions were made under ss 37 and 50 of the Act 1. The primary Judge erred in finding in his judgment of 20 January 2025 (J) at [3] and [26] that the Minister made a “mistaken reference” to ss 37 and 50 of [the Act] which was merely a “slip which had no material effect on the exercise of the power to grant the mining lease”. There was no evidence for this finding, including because the Minister decided not to give evidence, and the documentary evidence was to the effect that the decisions were made under ss. 37 and 50. Consequently the primary Judge should have found (including by drawing an adverse inference against the Respondent) that: 1.1 the Minister refused the applications pursuant to ss 37 and 50 of the Act (not ss 34 and 47); 1.2 the Minister’s one-page reasons for his decisions attached to the decision notification forms signed by him expressed the Minister’s conclusion that he was not satisfied of the matters in ss 37(1)(a)(ii) and 50(1) of the Act i.e., that “appropriate environmental outcomes will be able to be achieved”; 1.3 the Minister’s conclusion was contrary to, and inconsistent with, his own assessment of the applications as recorded in his assessment report prepared pursuant to s 56ZA of the Act (as to s 56ZA, see grounds 2 and 3 below), which report assessed inter alia that “all environmental outcomes relevant to the continuation of existing land use can be achieved and that the mine would result in a net economic benefit to the state” (p 141 of the Minister’s assessment report), such that the Minister’s decisions were irrational and unreasonable; and 1.4 further or in the alternative, the Minister misconceived the statutory test contained in ss 37(1)(a)(ii) and 50(1) of the Act which required the Minister to be satisfied only that “appropriate environmental outcomes will be able to be achieved”, whereas the Minister proceeded on the erroneous basis that he was required to be satisfied that there was no possibility that the mine may affect existing land use immediately adjacent to the mine, as recorded in his one-page reasons refusing the applications. 31 There are numerous complaints embedded in this ground as particularised. The primary ‘no evidence’ ground and, indeed, the complaints that follow in the particulars, are premised on the contention that ss 37 and 50 are sources of power to refuse the respective applications. It is necessary first to address this foundational contention. -- 13 of 44 -- [2026] SASCA 15 The Court 10 32 Part 6 of the Act, which is headed ‘Mining leases’, commences with s 34. This provides: 34—Preliminary (1) Subject to this Act, the Minister may grant a mining lease to the holder, or to a related body corporate of the holder, of— (a) a registered mineral claim, in respect of the whole or part of land comprised in the claim; or (b) an exploration licence, in respect of the whole or part of land comprised in the licence; or (c) a retention lease, in respect of the whole or part of land comprised in the lease. (2) If a registered mineral claim or exploration licence relates to a particular stratum, the mining lease must, if granted, relate to the same stratum. (3) A mining lease must not be granted in respect of land within a subsurface stratum except on the authority of a resolution passed by both Houses of Parliament. (4) A mining lease is not required to be registered under the Real Property Act 1886. 33 Section 35 provides for the nature of a mining lease, the rights it confers, the facility for different classes of mining lease and the capacity of a mining lease to be subject to terms and conditions. Section 36 sets out the requirements of an application for a mining lease. 34 Section 37 then provides as follows: 37—Approval of application and registration (1) The Minister— (a) must not grant a mining lease unless the Minister is satisfied— (i) that there is a reasonable prospect that the land in respect of which the lease is sought could be effectively and efficiently mined; and (ii) that appropriate environmental outcomes will be able to be achieved; and (b) must not grant a mining lease if the Minister considers that sufficient investigations have not been carried out in order to enable the Minister to determine the terms and conditions on which the lease could be granted. (2) However, if the Minister cannot grant a mining lease by virtue of the operation of subsection (1), the Minister may instead, with the concurrence of the applicant for the mining lease (and on the basis of such further application by the applicant as the Minister thinks fit), grant a retention lease under Part 7. -- 14 of 44 -- [2026] SASCA 15 The Court 11 (3) If the Minister decides to grant a mining lease, the lease will be taken to be granted under this Act when the lease is registered on the mining register (and the term of the lease will be taken to commence from the date of registration). 35 Part 7 of the Act, comprising ss 42–46, is concerned with retention leases. It follows a similar structure to that of Part 6. Part 8, comprising ss 47–51, is concerned with MP licences, and follows a similar structure again. Section 47 provides: 47—Preliminary (1) The Minister may grant to any person a miscellaneous purposes licence in respect of mineral land. (2) A miscellaneous purposes licence may not be granted over an area of land exceeding the maximum permissible area prescribed by the regulations. 36 Section 48 provides for the nature of an MP licence. Section 49 sets out the requirements for applications for MP licences. Section 50 then provides: 50—Approval of application and registration (1) Without limiting any other provision, the Minister must not grant a miscellaneous purposes licence unless the Minister is satisfied that appropriate environmental outcomes will be able to be achieved. (2) If the Minister decides to grant a miscellaneous purposes licence, the licence will be taken to be granted under this Act when the licence is registered on the mining register (and the term of the licence will be taken to commence from the date of registration). 37 The essential structure of each Part of the Act being substantially the same, the analysis that follows can be applied, with minor modifications, to each. The primary judge took that approach; he applied his construction of ss 34 and 37 to the common structure of ss 47 and 50. 38 The primary judge held that s 34 was the single source of power to grant a mining lease under the Act. Section 37(1)(a) limited the discretionary power in s 34 such that the Minister could only grant a mining lease if satisfied that the thresholds in s 37(1)(a) had been met.12 It was on this basis, that s 34 was the single source of statutory power to grant a mining lease, that the judge held that the Minister’s reference to s 37, rather than s 34, was merely a slip.13 39 Terramin’s essential contention before the primary judge, and this Court on appeal, was that once the Minister was satisfied of the preconditions in s 37, there remained no discretion under s 34 to refuse to grant a mining lease. In effect, once the s 37 preconditions were satisfied, it was necessary to read ‘may’ in s 34(1) as 12 [2025] SASC 3 at [25]. 13 [2025] SASC 3 at [26]. -- 15 of 44 -- [2026] SASCA 15 The Court 12 ‘must’. In that sense, the grant was governed, absolutely, by the question of satisfaction of the conditions in s 37. 40 Terramin submitted that this interpretation arose in the first instance by reason of the text of the section. It does not. On a purely textual analysis, s 34, by the use of the word ‘may’, imports a discretion.14 The leap from ‘may’ to ‘must’ that Terramin attempted was, rather, a function of contextual inference. Terramin relied, in support of this construction, on authorities where an apparent discretion was construed to impose an obligation where certain preconditions to the exercise of the power were met. 41 In Finance Facilities Pty Ltd v Federal Commissioner of Taxation,15 s 46(3) of the Income Tax Assessment Act 1936 (Cth) provided that the Commissioner ‘may allow’ a private company a further rebate in its assessment ‘if the Commissioner is satisfied’ of any one of certain alternative matters. The question arising was whether, where one of the alternatives was satisfied, the further rebate was mandatory or whether the Commissioner nonetheless had a discretion to refuse it. Justice Windeyer explained:16 This does not depend on the abstract meaning of the word “may” but of whether the particular context of words and circumstances make it not only an empowering word but indicate circumstances in which the power is to be exercised – so that in those events the “may” becomes a “must”. 42 Thus, Windeyer J held that where the Commissioner was satisfied of facts out of which the power to allow a rebate arose, he could not nevertheless refuse to allow it. The facts contemplated by the section contributed to this conclusion: the third, for example, was where the Commissioner was satisfied that having regard to all the circumstances, it would be reasonable to allow the further rebate.17 43 This was an instance of a recognised class of case where ‘may’ was construed not to confer a discretion, but rather a power, the required exercise of which depended on the proof of certain facts.18 By contrast, in Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (‘Pilbara’),19 on which Terramin also relied, the designated Minister was required either to declare a service for the purposes of third parties being able to access infrastructure owned by others, or decide not to declare it. The Minister could not declare it unless satisfied of six criteria. The Court held that the six criteria were an exhaustive list of the considerations that could bear on a declaration decision. Upon their being satisfied, there was no residual discretion to decide not to declare. 14 Legislation Interpretation Act 2021 (SA) s 11. 15 (1971) 127 CLR 106. 16 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134. 17 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 135. 18 See further, e.g., Macdougall v Paterson (1851) 11 CB 755; 138 ER 672 at 679, cited in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-5. 19 (2012) 246 CLR 379. -- 16 of 44 -- [2026] SASCA 15 The Court 13 44 Terramin relied on Pilbara as an instance of the exercise of the power being subject to negative criteria. That is, as with s 37 of the Act, the power could not be exercised unless certain criteria were satisfied. An obvious difference, however, lay in the Minister’s power in Pilbara being couched in terms of an obligation to declare or not to declare. The section did not use the language of discretion. 45 Ultimately, the analysis is a combined one of text, context and purpose. Textually, on its face s 34 confers a discretion. Section 37, in terms, erects barriers to the positive exercise of that discretion. 46 As a further matter of text, Terramin pointed to the headings of the sections, which now form part of the Act.20 Section 34 is headed ‘Preliminary’, whereas s 37 is headed ‘Approval of application and registration’. While these headings do suggest, when read without any context, that the approval power is more likely to reside in s 37 than s 34, they cannot be considered absent that context. By themselves, they are a weak indicator at best. 47 There are further textual indicators within s 37 that speak against Terramin’s construction. Section 37(3) commences, ‘If the Minister decides to grant a mining lease…’. On its face, this contemplates the Minister having a function of deciding whether or not to grant a mining lease, that is, a discretion. 48 There are then the contextual considerations of the term of any lease and the conditions to be imposed on any lease. Section 38 provides that a mining lease may be granted for such term as may be determined by the Minister and specified in the lease. This obvious discretion to limit the lease term sits most awkwardly with the Minister being obliged to grant a mining lease on being satisfied of the matters in s 37. Section 38(2) provides that the holder of a mining lease may apply for the renewal of the lease before the expiration of the term of the lease. Renewal does then seem to be a matter of discretion. Sub-sections 38(5) and (6) provide: (5) If an application for the renewal of a mining lease is not decided before the date on which the lease is due to expire, the lease continues in operation until the application is decided and, if the lease is renewed, the renewal dates from the date on which the lease would, but for this subsection, have expired. (6) If the Minister decides to grant a renewal, the mining lease will be renewed for a term determined by the Minister and specified in the lease. 49 These subsections again indicate the existence of a discretion to renew (‘If the Minister decides…’) and to confer a discretion on the Minister as to the term of the renewal. They run counter to a construction that suggests a positive obligation on the Minister to grant a mining lease. 50 Similarly, the Minister has considerable discretion as to the matters to be taken into account in determining the terms and conditions to which certain 20 Legislation Interpretation Act 2021 (SA) s 19. -- 17 of 44 -- [2026] SASCA 15 The Court 14 mineral tenements, including mining leases and MP licences, are to be subject. Sub-section 56I(2) provides: (2) The Minister must, in determining the terms and conditions subject to which a mineral tenement is to be granted on an application to which this section applies, give proper consideration to— (a) any aspect of the environment that may be affected by the conduct of authorised operations under the tenement; and (b) any other lawful activities that may be affected by those authorised operations; and (c) any Aboriginal sites or objects within the meaning of the Aboriginal Heritage Act 1988 that may be affected by those authorised operations, and may take into consideration such other factors or matters as the Minister considers appropriate in the particular case. 51 While there are certain matters that the Minister must take into account when determining terms and conditions, there remains a considerable discretion. Again, this sits ill with the idea of a foundational obligation to grant a mining lease on the satisfaction of certain conditions. 52 Then, there are the prohibitory conditions imposed by s 37 itself. Assuming that there has been sufficient investigation to satisfy s 37(1)(b), s 37(1)(a) prohibits a grant of a mining lease unless the Minister is satisfied (i) that there is a reasonable prospect that the land in respect of which the lease is sought could be effectively and efficiently mined; and (ii) that appropriate environmental outcomes will be able to be achieved. The effect of Terramin’s contention is that the Minister’s satisfaction of these matters triggers an obligation to grant a mining lease. Terramin has provided no convincing textual or contextual basis for this construction. 53 The question also arises of what statutory purpose would be achieved by hinging an obligation to grant on these considerations? Sections 34 to 37, and their counterparts in Parts 7 and 8 of the Act, were substituted by the Statutes Amendment (Mineral Resources) Act 2019 (SA) which commenced operation on 1 January 2021. Terramin drew on aspects of the Second Reading Speech on the introduction of the Statutes Amendment (Mineral Resources) Bill 2018.21 In the first instance, it pointed to the following passages in the Second Reading Speech:22 Mining is a key enabler in the transition to energy solutions and reduced pollution. Critical minerals that will form the foundation of Australia’s future economy, such copper, cobalt, graphite, nickel and rare earths, are found in significant quantities in our state. We will continue to position South Australia at the forefront of future technological changes, working to capture emerging industries by connecting developers with product value chains, from research and development, mining operations and mineral refinement, through 21 Hansard, Thursday, 2 August 2018, p 2084 (HA). 22 Hansard, Thursday, 2 August 2018, p 2085 (HA). -- 18 of 44 -- [2026] SASCA 15 The Court 15 to downstream manufacturing opportunities. And we must do this with agriculture and other landholder interests clearly in mind. Mining and agriculture must grow together, as neither one on its own is sufficient for our state. … Responsible debate is crucial to finding good outcomes, to enable the right balance between competing interests and opinions and, more importantly, identifying where co-operative opportunities exist … The broad intention of the Bill … remains a responsible compromise between stakeholders’ interests, balancing a very wide spectrum of social, environmental and economic matters. It is important to say again, this bill is the first in a series of steps toward improving mining regulation and especially with regard to landholder engagement and fair treatment as exploration and mining companies seek to access resources below agricultural land. We will improve the processes for both the mining and the agriculture sectors. Both sectors deserve ongoing development of clarity, efficiency and fairness. … The Bill significantly increases transparency and procedural fairness, reduces uncertainty and supports genuine and quality interactions between all affected parties. 54 Then, with respect to the provisions in question, the Minister said:23 The Bill proposes a number of measures to improve environmental protection. The Bill will modernise investigatory powers to assist evidence gathering for environmental prosecutions under the Act. It will deliver a new power to reinstate expired tenements through full use of compliance and enforcement tools under the Act. There will be a new test for the grant of leases and miscellaneous purposes licences, so that the Minister must not grant one unless satisfied that appropriate environmental outcomes can be achieved. There will also be an expanded scope for compliance directions. (Emphasis added.) 55 There is nothing in these passages that supports the proposition that satisfaction of the conditions in s 37 results in an obligation on the Minister to grant the mining lease. The passages express aspirations at a high level for improving the processes and outcomes for both the mining and agricultural sectors, insofar as mining operations are concerned. The reference to the operation of s 37 simply rehearses the words of the section. 56 Terramin also pointed to the Explanation of Clauses in the Second Reading Speech. The explanation of s 34 reads: The proposed section outlines the circumstances in which the Minister may grant a mining lease. 57 The explanation of s 37 reads: 23 Hansard, Thursday, 2 August 2018, p 2086 (HA). -- 19 of 44 -- [2026] SASCA 15 The Court 16 The proposed section states the circumstances in which the Minister may or may not grant a mining lease. 58 Section 16(1) of the Legislation Interpretation Act 2021 (SA), the operation of which includes Second Reading Speeches, provides: 16—Use of extrinsic material in interpretation (1) In the interpretation of a provision of an Act or a legislative instrument, if any material not forming part of the Act or instrument is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material— (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made); or (b) to determine the meaning of the provision— (i) if the provision is ambiguous or obscure; or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made) leads to a result that is manifestly absurd or is unreasonable. 59 On the other hand, a statement in a Second Reading Speech that mis-describes the clear effect of a section cannot be used to force a different interpretation. The explanation of s 37 in the Second Reading speech is not accurate on any propounded view of the section. 60 The Second Reading speech does not confirm that the meaning of s 34 or s 37 (being the meaning for which Terramin contended) is the ‘ordinary meaning’ conveyed by the text of the provision. Neither does it assist in determining the meaning of either section (to the effect contended for by Terramin) in circumstances where the meaning is obscure, or where the ordinary meaning leads to a result that was manifestly absurd or unreasonable. 61 The Second Reading Speech provides no assistance in interpreting the sections at all. 62 Terramin’s asserted constructions of ss 34 and 37, and thereby ss 47 and 50, cannot withstand the plain drafting of the sections, the numerous contextual indicators that s 34 confers a discretion and s 37 merely prescribes barriers to a positive exercise of the discretion, and the absence of any purposive consideration in its favour. Terramin’s foundational propositions that s 37 is a source of power -- 20 of 44 -- [2026] SASCA 15 The Court 17 for granting a mining lease, and that if the conditions in s 37(1) are satisfied the Minister must grant a mining lease, are without merit. 63 The primary judge was correct to hold that s 34 was the sole source of power to grant or refuse a mining lease, and that it conferred a discretion. It followed that s 47 was the sole source of power to grant or refuse an MP licence, and that this too conferred a discretion. We turn to the specific complaints on appeal, adopting that premise. The finding of a ‘slip’ 64 The Minister’s reference to having refused the applications pursuant to ss 37 and 50, respectively, was erroneous. However, the misidentification of a power does not invalidate the exercise of the power, as long as that is not indicative of jurisdictional error.24 There was nothing in the Minister’s reasons that suggested, for example, that the misidentification of the source of power caused the Minister to misapprehend the scope of his power or commit some other jurisdictional error. It is in that sense that we understand the primary judge’s reference to a ‘slip’: that the invocation of ss 37 and 50 were mere misidentifications of the sources of power with no jurisdictional consequence. 65 So understood, the conclusion of a ‘slip’ did not require the Minister to give evidence. Neither was the judge required to draw an adverse inference against the respondent for not calling the Minister. As the respondent observed, there was no relevant competing inference or matter left unresolved that was within the Minister’s knowledge, and requiring explication, for the judge to be in a position to understand the purported exercise of power so as to reach a conclusion as to its lawfulness. 66 It also follows that Particular 1.1 should be dismissed. The judge was not required to find that the Minister refused the applications pursuant to ss 37 and 50 of the Act. ‘Appropriate environmental outcomes’: Particulars 1.2-1.4 67 Section 37(1)(a)(ii) provides that the Minister must not grant a mining lease unless satisfied that appropriate environmental outcomes will be able to be achieved. Terramin submitted that the Minister’s reasons for refusal, set out above, expressed his conclusion that he was not satisfied that ‘appropriate environmental outcomes will be able to be achieved’. However, Terramin pointed to what it asserted was a contrary conclusion in the assessment report that: … all environmental outcomes relevant to the continuation of existing land use can be achieved and that the mine would result in a net economic benefit to the state. 24 See, e.g., Brown v West (1990) 169 CLR 195 at 203-204; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426, 429; Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [10]-[11]. -- 21 of 44 -- [2026] SASCA 15 The Court 18 68 This was only one conclusion in the assessment report, on the topic of existing land use and economic impact. The assessment report covers topics described as groundwater, social, traffic, air quality, noise, visual amenity, blasting, existing land use and economic impact, surface water and other environmental values. Where relevant, it offers opinions on the appropriateness of the relevant environmental outcome under each heading. 69 The final conclusion of the assessment report reads as follows: Terramin and stakeholders including community members have identified potential impacts associated with the application. Government has assessed the potential impacts of proposed mining operations and authorised operations based on the information provided in Terramin’s application, all public submissions, the response document and other relevant evidence. The draft Groundwater Chapter was independently peer reviewed by the CSIRO and government’s recommendations endorsed. The assessment concludes that with effective mitigation and management strategies implemented to control impacts, proposed operations can be undertaken in an environmentally responsible manner. 70 The assessment report does not use the language of s 37(1)(a)(ii). Nevertheless, at the very least, it provides an evidential basis for the Minister to be satisfied of the threshold imposed by that section, that appropriate environmental outcomes will be able to be achieved. 71 Terramin’s contention in Particular 1.3, that the Minister’s decision was irrational and unreasonable, depends on the proposition that the Minister’s refusal was based on an adverse assessment of environmental outcomes such that s 37(1)(a)(ii) was not satisfied, notwithstanding the conclusion in the assessment report. However, once it is understood that the Minister’s refusal was made in the exercise of the discretion under s 34, there is no basis for thinking that the reasons the Minister gave were necessarily his iteration of non-satisfaction of that mandatory requirement. Indeed, they were not expressed in terms that reflected the s 37 considerations. Rather, the reasons read as acknowledging the positive conclusions of the assessment report, including with respect to the mandatory matters prescribed in s 37, but then turning to other considerations in the exercise of the discretion. Thus, the Minister said: While the assessment considered technical matters in detail, other relevant considerations include broader State interests … 72 The respondent accepted that this could be characterised as the Minister adopting a more ‘risk averse’ approach than that provided for by s 37(1)(a)(ii). In any event, once it is understood that s 37(1)(a)(ii) simply requires a refusal unless a certain threshold is met, for the Minister to impose a more stringent threshold in the exercise of his discretion in a particular case is, by itself, neither irrational nor unreasonable. For the reasons given earlier, the exercise of the power to grant or -- 22 of 44 -- [2026] SASCA 15 The Court 19 refuse under s 34 remains discretionary, even if each threshold prescribed by s 37 is met. 73 Terramin’s alternative complaint within this ground (Particular 1.4) is that the Minister misconceived the statutory test in s 37(1)(a)(ii) by proceeding on the basis that he was required to be satisfied that there was no possibility that the proposed mine may affect existing land use immediately adjacent to the mine. Again, this complaint is premised on the basis that the power to grant resides in s 37, and that satisfaction of the s 37(1) thresholds then requires the Minister to grant the mining lease. For the reasons given earlier, that premise is misconceived. The Minister did not proceed on the misapprehension so described by Terramin. The Minister considered that notwithstanding the s 56ZA assessment that appropriate environmental outcomes would be able to be achieved: … there remains a possibility this proposed short-term mine may affect the established and significant long-term agricultural and tourism industries of the Woodside area immediately adjacent the project areas. 74 Consequently, the Minister concluded in his reasons that he was: not willing to risk these established local industries against the opportunity this short-term mine may provide … 75 These reasons made it clear that the Minister was exercising his discretion to refuse the application on account of that remaining possibility. The reasons do not suggest that the Minister considered himself to be bound by some higher standard. 76 For these reasons, we dismiss Ground 1 of the appeal. Irrationality and the s 56ZA assessment (Grounds 2 and 3) 77 Grounds 2 and 3 complain that the judge erred in finding that the Minister’s decisions were not irrational or unreasonable, even if they were made in the exercise of discretions under ss 34 and 47 of the Act. The premise of this asserted irrationality was that the s 56ZA assessment was, under the Act, the Minister’s own assessment, the positive conclusions of which (as set out above) were irreconcilable with the decision to refuse the applications. Indeed, Ground 3 asserts that the Minister was ‘bound’ by the assessment. 78 We have set out s 56ZA earlier. The primary judge observed that ‘assessment’ can mean a final opinion or judgment but can also mean the process of assessment.25 He noted that s 56ZA required the Minister to set out or include, in an assessment report, information or material provided by the appellants and any submission made to the Minister in connection with the application. Section 56ZA did not require the Minister’s decision and reasons to be included in the 25 [2025] SASC 3 at [51]. -- 23 of 44 -- [2026] SASCA 15 The Court 20 assessment report, for the obvious reason that the assessment report necessarily preceded the making of a decision pursuant to s 34. 79 The judge then considered that the authors of the assessment report proceeded mistakenly on the premise that the report was the report of the ‘Government’ and that its purpose was to make recommendations to the Minister. The assessment report did not, on its face, purport to be a report by the Minister.26 In this regard, it made ‘recommendations’ and expressed conclusions that we have set out earlier. It recommended that, should the mining lease be granted, it should be for a term of 16 years and should the MP licence be granted, that should be for a term of 30 years. 80 Finally, the assessment report made recommendations in the following terms: The Government assessment recommends: 1. That in accordance with the requirements of the Mining Act 1971, the Minister for Energy and Mining (or delegate) considers, on the basis of the application, the results of public statutory consultation, the response document, the government assessment and any other relevant information, whether or not to grant a mining lease and a miscellaneous purposes licence to Terramin. 2. That if a decision is made to grant a mining lease and a miscellaneous purposes licence to Terramin, the body of recommended terms, conditions, requirements and clauses identified in Appendix 5 and 6 of this Assessment Report become legal requirements of the Lease and Licence. 81 The report therefore did not recommend that the Minister grant the mining lease and the MP licence. It did reach conclusions that were favourable towards these being granted. It also made recommendations as to the terms on which any grant should be made, if it were made. In this regard, the primary judge explained the misapprehension that underlay the approach taken in the assessment report, by reference to the roles in executive government of Ministers on the one hand, and departmental officers who advise Ministers, on the other:27 Section 56ZA of the Mining Act does not expressly provide for the making of recommendations. Nor is there a division between the “Minister” and the “Government” apparent on the face of the section. The assessment report prepared in respect of the BIH gold mine proceeds on a mistaken view of its purpose and on a mistaken view of the relationship between Ministers, their departments, and Executive Government itself. Departmental officers give advice to Ministers who make administrative decisions statutorily entrusted to them, almost always after obtaining Cabinet approval, or who bring matters to Cabinet for determination by Executive Council. The decisions of Ministers and Executive Council are the decisions, and manifest the opinions of, the Executive Government. The advice of departmental officers does not. 26 [2025] SASC 3 at [57]-[58]. 27 [2025] SASC 3 at [66]. -- 24 of 44 -- [2026] SASCA 15 The Court 21 82 As to the fact of the inclusion of recommendations and the expression of opinions by departmental officers, the judge said:28 Even though s 56ZA of the Mining Act does not mandate the inclusion of modelling and opinions of the Department in the assessment report there is no reason why it should not be included. Departmental advice is, after all, an important part of the material on which a Minister will grant or refuse an application. It is a matter for the officers of the Department, subject to any Ministerial direction, for which the Minister is ultimately accountable to Parliament, to choose what additional material and/or advice to include in the report in addition to that mandated by s 56ZA of the Mining Act. However, the inclusion of conclusions as to the ultimate questions to be determined by the Minister, albeit in the form of recommendations, sits awkwardly in what is intended to be a report on the process of assessment. 83 This awkwardness lies in the fact that pursuant to s 56ZA, the assessment report is the report of the assessment of the Minister in respect of the applications. As the judge noted, the respondent conceded that the assessment report was prepared pursuant to s 56ZA.29 The mistaken apprehension of the premise of the report was that it was a report of ‘Government’ to the Minister with a function of making recommendations. As a matter of law, however, the report recorded assessments for which the Minister was responsible. 84 The assessment report was expressed in terms that supported the grant of a mining lease and an MP licence. The judge held, however, that this was of no material consequence as ‘the legal significance and effect of an assessment report is confined by boundaries of the statutory duty to prepare it’.30 Most importantly, the statutory function of the assessment report was not to pre-empt the Minister’s exercise of discretion to grant or refuse the applications. The judge concluded:31 Insofar as the assessment report contains material which expresses the opinions of others, including those of officers of the Department, on some or all of the relevant considerations, it is not irrational, in itself, for the Minister to form a different opinion. 85 Terramin complains in Ground 2 of the appeal that the decisions to refuse the applications were irrational and therefore unreasonable, in that that they lacked an evident and intelligible justification.32 Terramin went to some effort to identify that the assessment report concluded that in every relevant respect, appropriate environmental outcomes would be able to be achieved. Then, when it came to the Minister’s reasons for refusing the applications, Terramin submitted: • the reasons did not refer to any new facts or matters arising between the assessment report and the decision; 28 [2025] SASC 3 at [67]. 29 [2025] SASC 3 at [68]. 30 [2025] SASC 3 at [69]. 31 [2025] SASC 3 at [69]. 32 Citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 572-574 (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 332, 367, 375 (Gageler J). -- 25 of 44 -- [2026] SASCA 15 The Court 22 • the reasons were cursory and brief; • the assessment report was not confined to ‘technical matters’ as asserted in the reasons. If there were other matters the Minister was to rely on in his decision, they had to be assessed and set out in his report; • the possibility that the proposed mine may affect immediately adjacent agricultural and tourism industries, which the Minister relied on, had been assessed in the assessment report; • the risks that the Minister was not willing to take were the very risks assessed in the assessment report, with the positive conclusions referred to earlier; • the reasons used the language of a ‘possibility’ of a ‘risk’ that the proposed mine ‘may affect’ adjacent landowners. A decision based on a tenuous, mere possibility when compared to the assessment report was, in Terramin’s submission, illogical and irrational. 86 Terramin submitted in conclusion that it was ‘impossible to comprehend’ how the refusal decisions were arrived at in circumstances where they were inconsistent with the assessment report, and where nothing had changed between the assessment report and the decisions. Terramin submitted that there was no logical or rational basis to reach the decision on the material before the Minister and that the decisions lacked an evident, rational and intelligible justification. 87 This submission fails. The Minister’s reasons were brief. Nonetheless, as the primary judge observed:33 It is apparent from the Minister’s reasons that he had regard to: • the technical matters canvassed in the assessment report; • broader State interests; • the risk that notwithstanding Terramin’s proposed ameliorative measures there may still be adverse impacts on the amenity of the locality; • what the Minister considered to be the relatively short-term benefits of the BIH gold mine; • the adverse socio-economic impacts of the BIH gold mine generally and what the Minister’s [sic] considered to be the long-term world-class viticulture, and associated tourist industries, in the locality of the BIH gold mine; and • uncertainty over whether Terramin’s proposed ameliorative measures would be effective in meeting community, including industry and tourist, expectations. 33 [2025] SASC 3 at [12]. -- 26 of 44 -- [2026] SASCA 15 The Court 23 88 As the primary judge held, assessment reports are mandated in order to serve purposes of transparency and accountability. The Minister is required to set out the material and information in the assessment report against which the subsequent decision, in the exercise of the broad discretion in s 34, is to be judged.34 The function of preparing an assessment report, given its technical and detailed content, will likely usually be delegated under s 12 of the Act. It was clearly enough prepared by a delegate in this case. That does not mean that it is not ‘the Minister’s assessment’ for the purposes of s 56ZA. It provides a comprehensive measure against which the Minister is accountable for his subsequent decision. That is its function. 89 That does not make it irrational or unreasonable for the Minister, in the subsequent exercise of his discretionary decision-making function, to depart from, or take a more conservative view than, the opinions expressed by the authors of the report. In any event, in this case, there is nothing in the reasons to suggest that the Minister rejected the conclusions in the assessment report. By implication, at least, he adopted them. He then brought to bear further considerations. 90 Terramin submitted that such a step could not occur, for the purposes of s 56ZA, without a supplementary assessment report being prepared. That submission has no statutory foundation. It fundamentally misconceives the function of an assessment report and assumes, without any statutory basis, that the s 34 discretion is confined, in its rational parameters, by the conclusions expressed in the assessment report. 91 Finally, the fact that the Minister based his decision on the remaining possibility of future adverse effects on the adjacent agricultural and tourism industries does not make the decision irrational. It makes it risk-averse and likely open to criticism from some perspectives. It nonetheless has an intelligible justification. 92 Terramin’s complaint of irrationality in Ground 2 therefore fails. Ground 3 does not survive the above analysis either. That ground complains: Further to ground 2 above, the primary Judge erred in finding at J [66] – [69] that the s 56ZA assessment report proceeded on a “mistaken view” and the advice or “opinions of others” as recorded in the report did not comprise the assessment of the Minister by which he was bound. These findings were contrary to the proper construction of s 56ZA of the Act and the case run at trial by the Respondent, including the Respondent’s concession that the report was the record of the Minister’s assessment within the meaning of s 56ZA of the Act. 93 For the reasons given above, the Minister was not ‘bound’, when exercising his discretion under s 34 (and under s 47), to act only in accordance with the positive conclusions in the assessment report. Otherwise, the judge did not find that the assessment report was not the Minister’s report for the purposes of s 56ZA. He found that others authored it, which was obvious. For the Minister to depart 34 [2025] SASC 3 at [55]. -- 27 of 44 -- [2026] SASCA 15 The Court 24 from the assessment authored by others, but in respect of which he held the ultimate statutory responsibility, was not of itself demonstrative of unreasonableness. This complaint is again premised on a misunderstanding of the separate functions of s 56ZA on the one hand, and ss 34 and 47, on the other. 94 The assessment report did not go so far as to recommend that the Minister grant the mining lease and MP licence. As the judge observed:35 The Ministerial Briefing Note on Terramin’s applications correctly expressed the legal position. It recommended that the Minister note the completion of the assessment process and undertake the decision-making process by reviewing all of the relevant information and determining whether or not a mining lease and/or MP Licence should be granted to Terramin for the BIH gold mine. 95 It was not unreasonable or irrational for the Minister to then refuse the applications. We dismiss Grounds 2 and 3. Whether the Minister was entitled to refuse the applications on ‘environmental’ grounds (Ground 4) 96 Ground 4 complains: If (contrary to ground 1) the primary Judge was correct in finding that the Minister made a discretionary decision to refuse the applications under ss 34 and 47 of the Act, he erred in then finding at J [30] – [32] that the Minister had the power to refuse the applications on environmental grounds and in finding at J [33] – [49] that the Minister’s refusal of the applications was not based on concerns regarding the environment. The primary Judge should have found, on a proper construction of the Act, that once the Minister was satisfied under ss 37 and 50 that appropriate environmental outcomes would be able to be achieved (being the sole test of environmental impact under the Act), the Minister could not then proceed to refuse the applications on environmental grounds as recorded in the Minister’s one-page reasons. 97 This complaint rests on two propositions: • that the Act provides a single, objective statutory environmental test (being that expressed in s 37(1)(a)(ii)), with no capacity for consideration of residual risk; and • there was no basis for the Minister to refuse the applications on ‘environmental grounds’ when the sole statutory environmental test was satisfied. In this regard, ‘environmental outcomes’ include outcomes which affect commercial impacts on adjacent businesses and industries. 98 As discussed earlier, the ‘environmental outcomes’ test in s 37(1)(a)(ii) sets up a threshold, non-satisfaction of which requires the Minister to refuse the application. Terramin submitted that this new test, which was inserted in the 2019 amendments, is ‘emphasised by ss 36(1)(c)(ii) and (iii) and 49(1)(c)(ii) and (iii) of the Act’. These sections require applicants for mining leases and MP licences 35 [2025] SASC 3 at [70]. -- 28 of 44 -- [2026] SASCA 15 The Court 25 respectively to provide information about the expected environmental outcomes and the criteria for measuring them. 99 Terramin was not able to explain how these sections, which manifestly support the threshold requirement in s 37(1)(a)(ii) in the case of mining leases and that in s 50(1) in the case of MP licences, take on the mantle of a ‘single, objective statutory environmental test’ effectively for all purposes of the Act. It submitted, in effect, that such an all-purpose test would provide an objective standard that would create a ‘responsible compromise between stakeholder interests’ by promoting the interests of mining and agricultural interests, and achieve clarity, efficiency and fairness for both sectors (a goal expressed in the Second Reading Speech). 100 The fact that a restraint on the exercise of a discretion would promote certainty, and that certainty was a purpose invoked in the Second Reading Speech, does not convert a standard imposed for one purpose of the Act into a limit on a discretion conferred by a different section. Terramin’s submission sets at nought the ordinary analysis of text, context and purpose. The submission went so far as to rely on the ‘good sense’ of such a test in order to support its existence. It seemingly had to – there is no basis in the text of the Act from which to conclude that the s 37(1)(a)(ii) threshold, if satisfied, operated as a fetter on the Minister’s capacity to consider environmental matters in the exercise of his discretion. 101 Terramin submitted that if the Minister had a discretion to refuse an application, notwithstanding being satisfied that ‘appropriate environmental outcomes’ would be achieved, unintended consequences would arise: • this would not strike the ‘responsible compromise’ or achieve the ‘clarity, efficiency and fairness’ spoken of in the Second Reading Speech; • this would ‘impermissibly convert the Act’s sole environmental test from an objective question based on material submitted pursuant to [ss 36 and 49], to a discretionary, subjective question’; and • the purpose of the 2019 amendments would be frustrated. 102 The first and third of these asserted unintended consequences seeks to elevate abstractions spoken of in the Second Reading speech to objective standards. The second assumes the existence of a ‘sole environmental test’. It deploys circular reasoning. The very question is whether the Minister nonetheless has a discretion to consider environmental matters beyond being satisfied that ‘appropriate environmental outcomes’ would be achieved. 103 The primary judge said:36 36 [2025] SASC 3 at [30]. -- 29 of 44 -- [2026] SASCA 15 The Court 26 Terramin contends that the Minister is bound to exercise the discretion conferred by s 34, favourably to an applicant, if satisfied of the two pre-conditions stipulated by s 37(1)(a) of the Mining Act. Alternatively, Terramin contends that if the Minister is satisfied appropriate environmental outcomes will be achieved, the Minister cannot have regard to any residual risk that, despite his satisfaction, the environmental outcomes might not be achieved. I reject those contentions. It would be a curious result, which does not serve any conceivable public interest, if the Minister were impotent to protect the community from a catastrophic environmental consequence even though the risk of that catastrophe is relatively small. 104 Terramin submitted in challenge to this passage that ‘the public interest of setting a single objective environmental test is cogent, if not self-evident’. It would provide certainty to interested parties in the mining sector. Terramin also submitted that the judge’s reference to protection from a ‘risk’ and ‘catastrophic environmental consequence’ has no basis in the Act and that the evaluation of risk was expressly and exhaustively encompassed by the objective test in the Act and the accompanying rigorous application process. 105 These submissions failed to engage with the terms of the Act itself. The mere fact that a particular interpretation might assist an identifiable public interest does not assist in the interpretation of the Act. Secondly, the judge’s reference to protection from risk and catastrophic environmental consequence was a reference to matters that may nonetheless be taken into account in the exercise of the broad discretion in s 34. They do not need to be referenced specifically in the Act to be permissible matters of consideration. Terramin’s submission fundamentally misunderstands the nature of the broad discretion. Finally, the ‘objective test’ to which Terramin referred is, again, the function of the threshold consideration in s 37(1)(a)(ii). It does not exhaust the discretion. 106 We reject as untenable Terramin’s submission that the Act imposes a ‘single, objective environmental test’ that leaves no capacity for the consideration of residual risk in the exercise of the discretion under s 34. 107 The other aspect of Terramin’s complaint under this ground concerned the Minister’s reasons, insofar as they show that he had regard to the adverse business effects of the operation of the proposed mine on other land uses in the locality. The primary judge rejected Terramin’s submission that considerations of that nature were ‘environmental outcomes’ within the meaning of that term in s 37.37 108 Terramin’s contention that effects on other businesses were ‘environmental outcomes’ within the meaning of s 37 was, as the judge observed, strategic. The assessment report essentially reached favourable conclusions about the effect of the proposed mine on nearby business operations. Nonetheless, as noted earlier, the Minister’s reasons indicated that he was not prepared to risk the ‘possibility’ that the mine ‘may affect the established and significant long-term agricultural and tourism industries of the Woodside area immediately adjacent the project areas’. If, however, these considerations were ‘environmental outcomes’, then on 37 [2025] SASC 3 at [35]. -- 30 of 44 -- [2026] SASCA 15 The Court 27 Terramin’s thesis of a ‘single, objective environmental test’, the positive conclusions of the assessment report would preclude the Minister from taking into account any residual risk of damage to nearby industries. Thus, as Terramin submitted: Second, the Minister refused the applications on “environmental” grounds, i.e., on grounds covered by the statutory test, which included the proposed mine’s possible effect on the immediately adjacent wineries and associated tourism industry. There was no basis to decline the applications by reason of a “risk” of a vague, unidentified, residual environmental impact. A commonsense interpretation of the words in the legislation, “environment” and “environmental outcomes”, includes outcomes which affect economic impacts on adjacent business and industries … 109 For the reasons given above, even if the effects on other businesses could properly be construed as ‘environmental outcomes’, the Act does not impose a ‘single, objective environmental test’. Positive conclusions in the assessment report about the effects on other industries, etcetera, would not preclude the Minister, in the exercise of his discretion, from having regard to residual risks to those businesses and industries. 110 It follows that it is not necessary to determine whether the primary judge was correct in holding that the word ‘environmental’ in s 37 does not extend to the commercial effects on other land uses which are caused only by that land’s proximity to the mine, and not from any impact on the nearby land itself.38 The Minister was permitted to take into account residual risks in that regard on either view. 111 We dismiss Ground 4 of the appeal. Whether the decision to reserve the land the subject of the proposed mine from the operation of the Act was procedurally unfair (Ground 6) 112 Ground 6 complains: The primary Judge erred in finding at J [80] – [92] that the decisions to recommend to the Governor to make, and the Governor’s decision to make, the Mining (Reservation from Act) Proclamation 2023 (SA) (Proclamation) were procedurally fair. The primary Judge should have found that 14 days to respond to the Proclamation proposal shortly after the release of the Minister’s detailed s. 56ZA assessment report and the Minister’s decision to refuse the applications was insufficient in circumstances where the Appellants had not been provided with any reasons (the one-page written reasons were only released as part of the proceedings below) or other information informing the Appellants of the basis and purpose of the Proclamation proposal, thereby denying the Appellants the practical ability to make any submissions as to why the Proclamation should not be made. 113 There was no contest to the proposition that Terramin was entitled to be heard in relation to the proposal that the Governor reserve the land under s 8 of the Act. The content of the required procedural fairness in the circumstances is a different matter. We have set out the essential elements of the correspondence between the 38 [2025] SASC 3 at [49]. -- 31 of 44 -- [2026] SASCA 15 The Court 28 Minister (and Premier) and Terramin, earlier. In response to Terrain’s complaint of a denial of procedural fairness in the decision to reserve the land, the primary judge said:39 The recitation of the correspondence between the Minister and the Premier on the one hand and Terramin on the other, shows that Terramin was given an opportunity to make submissions but that it declined to take advantage of the procedural fairness it was accorded. Terramin’s challenge to the reservation on that ground must be dismissed. 114 As to the letter enclosed within an email from the Chief Executive Officer of Terramin to the Minister and received on Friday, 31 March 2023 at 3:42 pm, just before the deadline, the judge said:40 It is to be observed that the letter was sent on the very last day for making submissions. Terramin had no reason to expect that an extension would be granted. It chose to squander its limited opportunity to make submissions by seeking an extension of time in the minutes before midnight. Terramin has not put into evidence any explanation for the failure to take up procedural fairness which it was accorded. In particular, there is no evidence as to why it was not possible to meet the deadline having regard to the extensive submissions made in support of the grant of the mining lease. 115 Terramin made several challenges to these findings and conclusion. First, it submitted that there was evidence as to why it had not taken up the 14-day invitation. This appears to be a reference to Terramin’s letter of 31 March 2023 (the last day for making submissions). The covering email to this letter referred to a conversation between Terramin’s Chief Executive Officer and the Minister on 30 March 2023 (i.e., the day before) at the AMEC Breaking Ground seminar. The Chief Executive Officer of Terramin thanked the Minister ‘for offering to meet with [him] to discuss this project’ and requested that the Minister let him know when and where would be convenient. 116 Contrary to Terramin’s submission, this is not evidence of why it did not take up the invitation. At its highest, it is evidence of Terramin’s understanding of an offer to discuss the Bird in Hand Gold Project in the future, which could only have taken place after the 14-day period had elapsed. Otherwise, the letter advised the Minister that the Chief Executive Officer of Terramin needed more time to respond. That statement in correspondence was not evidence on the judicial review of the reasons for Terramin’s failure to respond. 117 Then, in a letter dated 15 April 2023, that is, well after the 14-day period had expired, Terramin wrote to the Premier stating that it ‘would also like to understand why your Government is considering issuing a proclamation under section 8 of the Mining Act…’. This lack of information as to why the government was considering recommending to the Governor a reservation of the land from the Act seems to be at the heart of the complaint of a denial of procedural fairness. 39 [2025] SASC 3 at [92]. 40 [2025] SASC 3 at [85]. -- 32 of 44 -- [2026] SASCA 15 The Court 29 118 The content of procedural fairness in a given case ordinarily requires that the person whose interests would be affected by the decision must have an opportunity to address matters adverse to their interests that the decision-maker proposes to take into account.41 However, a decision to reserve land under s 8 is a decision of the Governor, necessarily on the advice of Executive Council. The proceedings of Executive Council are confidential. As Mason CJ observed in South Australia v O’Shea:42 It could scarcely be supposed that a court could require Cabinet to give particulars to an interested person of its possible objections to his application or submission so that he might meet them or that a court could pronounce a decision invalid because Cabinet had not given such particulars. Nor would a court ordinarily require the Minister to disclose his submission to Cabinet, because to do so would compel disclosure of material considered by Cabinet. 119 Procedural fairness required reasonable notice to Terramin of the proposal to reserve the land. It also required giving Terramin an opportunity to supply information or make submissions as to matters within its knowledge, as the holder of the exploration licence, that may be relevant to a decision to exercise the reservation power under s 8 of the Act. It did not require that Terramin be informed of information that might form the basis of the recommendation to the Governor to exercise the power.43 We reject Terramin’s complaint that the 14-day period was inadequate on this account. 120 Terramin also complained that the 14-day period was unreasonable having regard to the lack of urgency in proceeding with the proclamation, the ‘significant worth of the gold deposit’ and consequent financial impact on Terramin and the prospect that circumstances, such as the value of gold, may change over time. None of these matters assist in circumstances where Terramin did not respond to the invitation to make representations until two hours before the deadline. 121 Terramin did not identify what it would have provided in support of its position, in addition to the material supporting the mining lease application, in the event of having been given longer to respond. Neither did it explain its failure to respond substantively within the 14 days it was given. Its complaint under this ground rests on two propositions: first, that 14 days was insufficient; and second, that it was entitled to know the matters Executive Council considered in recommending that the Governor reserve the land. Neither proposition succeeds. 122 We dismiss Ground 6. Whether the reservation decision was irrational or unreasonable (Ground 7) 123 Ground 7 reads: 41 Kioa v West (1985) 159 CLR 550 at 628 (Brennan J). 42 (1987) 163 CLR 378 at 387. 43 Disorganized Developments v South Australia (2023) 280 CLR 515 at [45] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). -- 33 of 44 -- [2026] SASCA 15 The Court 30 The primary Judge failed to consider the validity of the Proclamation if (contrary to his findings) the Minister’s decisions were affected by jurisdictional error. The expressed purpose for the Proclamation (as per the memoranda to the Minister dated 17 March 2023, referred to at J [80]) was that the Minister’s decision was justified, that the basis for refusal was unable to be addressed easily in any new application, and therefore that future applications should be prevented and the government should retain control over the ability to develop the mineral resource at the project site. As stated in the above grounds, the Minister’s decisions were not made according to law but rather were affected by jurisdictional error, such that the Proclamation decision was affected by the same jurisdictional error, and the Proclamation decision was itself irrational and without justification. 124 The essence of this ground is that because the Minister’s decisions were tainted by jurisdictional error, the reservation decision was thereby also tainted with the same jurisdictional error in that, as Terramin submitted, the reservation decision was ‘plainly based on the Minister’s unlawful refusal decisions’. 125 In circumstances where we have rejected the challenge to the lawfulness of the Minster’s decisions, this ground must necessarily fail. That does not mean that the asserted logic of the ground would otherwise succeed. The Governor’s power to reserve land under s 8 of the Act is distinct from the Minister’s discretion in s 34. As the respondent submitted, the powers are conferred on different decision- makers, they entail different procedural requirements and operate quite differently. As the primary judge said of the power to reserve land:44 There may be many reasons; [sic] environmental, economic, or social for a government to exercise that power. In particular, it may do so to send a clear signal to prospective miners who might otherwise expend resources in the hope of gaining mineral tenement. Governments might also wish to assure anxious occupants of other land that no mineral tenements will be granted in their locality. Aside from unlawful or improper conduct, it is difficult to conceive a purpose or motive which falls outside the broad discretion conferred by s 8(1)(c). The reservation may be characterised by some as the use of a metaphorical sledgehammer, but in matters of broad State interest, the reservation may be characterised by others as decisive and unambiguous action. True it is that the Executive Government of the State might have left the matter to individual applications which would be considered by the Minister on their merits. However, that approach would leave potential applicants in considerable uncertainty, and engender much anxiety in the occupants of nearby land. The most likely outcome of not reserving the land is the largely futile expenditure of private and public resources. 126 The reservation decision was clearly within the contemplation of s 8(1)(c) of the Act. Terramin’s attack seeks to draw a line from the matters that informed the Minister’s reasons for refusing the applications for a mining lease and MP licence to the reservation decision. In this regard, it relied on a briefing paper to the Minister and a press release on the making of the reservation decision. Those 44 [2025] SASC 3 at [76]-[77]. -- 34 of 44 -- [2026] SASCA 15 The Court 31 documents cannot be taken to reveal the reasoning process of Cabinet, which remains confidential. 127 In any event, as already noted, Terramin has not established the premise of this ground, being that the Minister’s decisions were unlawful. We dismiss Ground 7. Whether s 8(1)(c) authorised the reservation decision in circumstances where Terramin held exploration licences over the land (Ground 8) 128 Ground 8 is new. Terramin did not raise it at first instance. However, given the nature of the ground, which raises a pure question of law, the respondent accepted, appropriately, that it suffered no prejudice by the ground being raised for the first time on appeal and offered no objection to its prosecution. The ground reads as follows: Section 8(1)(c) of the Act did not authorise the making of the Proclamation in circumstances where exploration licences held by the Appellants were subsisting in the land the subject of the Proclamation. The Act prescribes specific powers to affect exploration license rights after their grant, and the general power in s 8(1)(c) of the Act to reserve land from the operation of the Act is impliedly constrained to exclude land over which existing rights have been granted in relation to mineral tenements, including the exploration licences held by the Appellants at the time the Proclamation was made. Accordingly, the Governor’s reliance upon s 8(1)(c) of the Act to make the Proclamation was not authorised and beyond power such that the Proclamation should be set aside. 129 Terramin invoked several principles of construction in aid of its contention that s 8(1)(c) did not authorise the making of the proclamation in circumstances where Terramin held exploration licences over the land. Having set out s 8(1)(c) earlier, it is helpful first to set out the relevant provisions of the Act. 130 As noted earlier, the proclamation reserved the area from the operation of Parts 4, 5, 6, 8 and 8A of the Act. Part 5 of the Act, comprising ss 28-33B, is concerned with exploration licences. Relevantly, s 29(1) provides: 29—Nature of exploration licence (1) An exploration licence authorises the holder of the licence to carry out exploration operations of a kind described in the licence in respect of land described, or referred to, in the licence. 131 Section 30A governs terms and renewals of exploration licences. Section 30AB empowers the Minister to excise land from the total area comprised in a licence, where that land is required for a public purpose. Section 30AB then creates attendant rights of compensation as follows: 30AB—Excise of land for public purposes (1) If, in the opinion of the Minister, any land comprised in an exploration licence is required for a public purpose, the Minister may, in a manner and form prescribed by the regulations, excise that land from the total area comprised in the licence, and the -- 35 of 44 -- [2026] SASCA 15 The Court 32 licence will then cease to apply to the land (but the land will not be considered to be open ground for the purposes of this Part). (2) If the Minister acts under subsection (1), the tenement holder may apply to the appropriate court for an order that the Minister pay compensation to the tenement holder for the money expended by the tenement holder in prospecting for minerals in the area excised from the total area comprised in the exploration licence. (3) The appropriate court may, on hearing an application under subsection (2), determine an amount that would fairly compensate the tenement holder to the extent referred to in that subsection and order that the amount so determined be paid by the Minister to the tenement holder (and this amount will be recoverable from the Minister). 132 The Act also has several other provisions by which rights under exploration licences may be removed or altered. Section 9A(1) empowers the Minister to declare ‘any land’ to be exempt from mining or, among other things, the Act. However, s 9A(4) provides: (4) A notice under subsection (1) will not have effect— (a) in relation to a mineral tenement in force at the time that the notice takes effect; or (b) so as to prevent a person applying for (and being granted) a subsequent tenement on account of a right arising under a mineral tenement in force at the time that the notice takes effect; or (c) so as to prevent a person establishing a mineral claim (identified in any manner allowed or approved under this Act) after the notice takes effect on account of a right to carry out exploratory operations under an exploration licence in force at the time the notice takes effect, or under a subsequent tenement under paragraph (b), where the tenement holder has reported to the Director of Mines the discovery on the relevant land of minerals that are potentially capable of economic production (including so as to allow a person to apply for (and being granted) a mineral tenement on account of the establishment of the mineral claim), but otherwise a person does not have a right to apply for a mineral tenement in respect of land subject to the operation of the declaration unless specifically authorised to do so by the Minister (either under the terms of the notice under subsection (1) or under a specific authorisation granted by the Minister in connection with the operation of this section). 133 Then, s 56W provides that the Minister may cancel or suspend a mineral tenement (including an exploration licence) if the tenement holder contravenes or fails to comply with a term or condition of the tenement or a provision of the Act. 134 Against the background of these specific provisions for removal or alteration of rights under exploration licences on terms, Terramin submitted that the purported effect of the proclamation was to exclude it from exercising its accrued rights under the exploration licences. This included its rights ‘to carry out exploration operations of a kind described in the licence in respect of land -- 36 of 44 -- [2026] SASCA 15 The Court 33 described, or referred to, in the licence’ (s 29(1)); to apply for a renewal of the licence (s 30A) and to apply for retention status (s 33B). It also denied Terramin the right, as the holder of exploration licences, to apply for a mining lease over the land identified and described in the proclamation (pursuant to ss 34 and 37, contained in Part 6, which was also reserved by the proclamation). 135 Terramin invoked a recognised manifestation of the principle of legality in support of its contention that s 8 did not authorise the reservation of land that was subject to exploration licences. This is to the effect that legislation should be assumed not to interfere with statutory and vested proprietary rights unless Parliament has used clear and unambiguous language. In as early a case as Clissold v Perry, Griffith CJ observed:45 In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest. 136 Contemporary formulations of the principle of legality have tended to focus on its operation as a presumption that Parliament would not abrogate a fundamental right, freedom or immunity without expressing its intention with irresistible clearness.46 The issue tends to arise on a question of statutory construction where Parliament’s intention to encroach on a fundamental right or freedom is contentious:47 The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law. 137 The working hypothesis extends to property rights and rights conferred by statute. Thus, in Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (‘Jemena’), the plurality said:48 45 Clissold v Perry (1904) 1 CLR 363 at 373. 46 Potter v Minahan (1908) 7 CLR 277 at 304 (O’Connor J), citing PB Maxwell and W Wyatt-Paine, On the Interpretation of Statutes (Sweet & Maxwell, London, 4th ed, 1905), p 122, cited in Al-Kateb v Godwin (2004) 219 CLR 562 at [19] (Gleeson CJ) and Lee v NSW Crime Commission (2013) 251 CLR 196 at [171] (Kiefel J). 47 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at [21] (Gleeson CJ). 48 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558 at [37]. -- 37 of 44 -- [2026] SASCA 15 The Court 34 Legislation is commonly construed not to expropriate or extinguish rights unless just terms are provided in their place. That is because there is a common law rule of statutory interpretation requiring that “clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation”49. (Citations in original.) 138 In the present context, the working hypothesis proposes that if s 8(1)(c) were to operate in respect of land subject to an existing mineral tenement, such that all the rights conferred by the Act on account of the mineral tenement would be removed by the reservation, clear and unambiguous language would be necessary. As to this, the respondent made two key submissions. 139 The first was that an exploration licence confers no vested rights, for example, to apply for a mining lease, to challenge a refusal of a mining lease by way of judicial review or to compensation under s 30AB. The rights that Terramin possessed were at all times contingent on the operation of other steps made under the Act, including decisions to be made by the Governor or the Minister, as the case may be. 140 This submission has limited utility in the construction exercise. The Act does confer statutory rights on the grant of an exploration licence, such as the right to carry out exploration operations (s 29(1)) and the right to apply for a mining lease (ss 34 and 36). It may be accepted that the right to apply for a mining lease is not a ‘vested’ right and does not have a proprietary character. The value of that right would appear to be linked to subsequent contingencies provided for by the Act. It is, nonetheless, a statutory right that provides certain advantages to the holder of an exploration licence. Further, the rights conferred by s 29 may be described as vested rights which may be the subject of assignment in the manner contemplated by s 15AB of the Act. The rights conferred by an exploration licence may be characterised as being in the nature of personal property. 141 More significantly, s 8 does not differentiate between forms of mineral tenement in its broad application; it says nothing about them at all. Thus, if a person held a mining lease, rather than an exploration licence, over land that was made the subject of a reservation under s 8(1)(c), and s 8(1)(c) operated on its terms, the person would lose considerably more valuable statutory rights, notably those conferred by s 35(1), in Part 6: 35—Nature of mining lease (1) A mining lease— (a) confers an exclusive right on the holder of the lease to carry out mining operations subject to the provisions of this Act and the terms and conditions 49 Mabo v Queensland [No 2] (1992) 175 CLR 1 at 111 (Deane and Gaudron JJ). -- 38 of 44 -- [2026] SASCA 15 The Court 35 of the lease for the recovery of minerals from the land comprised in the lease; and (b) authorises the holder of the lease to sell, or dispose of, minerals recovered in the course of mining operations carried out under the lease or to use any such minerals. 142 A construction of s 8 that operated differentially depending on the type of mineral tenement granted over the land (and the nature of the rights thereby held) would be unusual and potentially tortured. The potential loss of valuable rights conferred by a mining lease gives cause to expect that had Parliament intended such rights to be lost, it would have used clear language to that effect in the section. Then, in circumstances where s 8(1)(c) says nothing about any form of mineral tenement, Parliament’s intention with respect to the potential loss of, for example, exploration licences should be taken to be the same as with respect to the loss of potentially much more valuable mining leases. That is to say, for s 8 to have an operation on land that effectively removed rights attaching to any existing mineral tenement, clear and unambiguous language would be necessary. 143 The respondent’s second key submission was that s 8 was, indeed, clear and unambiguous. We will turn to the language of s 8 shortly. Before doing so, however, it is helpful to consider some further contextual indicators in the Act, on which Terramin calls in support of the applicability of a further principle of construction. 144 Terramin invoked an application of the maxim expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded), here associated with what is known as the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia50 (‘the Anthony Hordern principle’):51 When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. 145 The effect of this principle in the present case, in Terramin’s submission, is that the general power to reserve land in s 8(1)(c) is to be read down and impliedly constrained by the specific provisions concerning exploration licences, such that s 8(1)(c) did not authorise the Governor to make the proclamation. Terramin relied here primarily on s 9A, which empowers the Minister, by notice in the Gazette, to declare any land to be exempt from mining. Section 9A(4), set out earlier, provides that a notice will not have effect in relation to a mineral tenement in force at the time the notice takes effect, or so as to prevent the grant of subsequent tenements 50 (1932) 47 CLR 1. 51 Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J). -- 39 of 44 -- [2026] SASCA 15 The Court 36 on account of rights arising under the tenement in force at the time, or the establishment of a mineral claim pursuant to an existing exploration licence. 146 Terramin also pointed to s 30AB, which empowers the Minister to excise land from the total area comprised in a licence where that land is required for a public purpose, and creates rights of compensation, and s 56W, which allows the Minister to cancel or suspend a mineral tenement, essentially for cause. 147 In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (‘Nystrom’),52 a non-citizen moved to Australia as an infant, following which he was granted a permanent entry permit as an accompanying dependent. He remained in Australia and was subsequently convicted of criminal offences. He consequently had a substantial criminal record within the meaning of s 501(7) of the Migration Act 1958 (Cth) and did not pass the character test under s 501(6). This rendered him liable to the Minister exercising the power of visa cancellation under s 501(2). He had committed the offences more than 10 years after he arrived in Australia, so he was not liable to deportation under ss 200 and 201 of that Act. 148 One question before the Court was whether the unavailability of the deportation power in s 200 affected the ambit of s 501 (the visa cancellation power). Justices Gummow and Hayne referred,53 with approval, to Minister of Immigration and Multicultural Affairs v Gunner, in which the Full Federal Court had said:54 Sections 501 and 502 are quite separate sources of power. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment. 149 Justices Gummow and Hayne explained of the Anthony Hordern principle:55 Underlying Anthony Hordern and later cases is the notion “that affirmative words appointing or limiting an order or form of things may also have a negative force and forbid the doing of the thing otherwise”. This statement was made by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers’ Society of Australia56 and applied to Ch III of the Constitution as a “very evident example”. Counsel for the Minister, in oral argument, invoked the maxim expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded), and its affinity with the above statement will be apparent. But, whilst “rules” or principles of construction may offer reassurance, they are no substitute for consideration of the whole of the particular text, the construction of which is disputed, and of its subject, scope and purpose. 52 (2006) 228 CLR 566. 53 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [53]. 54 Minister of Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 408. 55 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [54]. 56 (1956) 94 CLR 254 at 270. See also APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 409 [241]. -- 40 of 44 -- [2026] SASCA 15 The Court 37 (Citations in original.) 150 These judges then examined Anthony Hordern57 and subsequent cases that applied the principle.58 They concluded:59 Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”60, or are with respect to the same subject matter61, or whether the general power encroaches upon the subject matter exhaustively governed by the special power62. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions. (Emphasis added; citations in original.) 151 The Court in Nystrom held that the different powers in ss 200 and 501 of the Migration Act did not deal with the same subject matter so as to attract the operation of the principle, notwithstanding that their exercise would result in the same practical outcome. The scheme of the Act did not treat visa cancellation and deportation as having the one identity.63 152 The Court also reviewed the ‘distinct and different provenances of the powers of deportation and cancellation’.64 These differences could not be ignored by reason of their being directed to the same practical outcome:65 Two examples will suffice. First, whereas a person whose visa is cancelled is subject to mandatory detention pursuant to s 189 prior to removal pursuant to s 198, a deportee is not subject to mandatory detention. Such a person may be detained pending deportation under s 253(8), but the Minister has a general discretion at any time to order that person's release under s 253(9). This difference arises from the circumstance that a deportee is not an "unlawful non-citizen"; a deportee is a lawful non-citizen in respect of whom a deportation order is in force (s 5(1)). That difference may be important where avenues of judicial review are being pursued in respect of the Minister's decision. Secondly, a person whose 57 (1932) 47 CLR 1. 58 R v Wallis (Wool Stores Case) (1949) 78 CLR 529; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167. 59 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [59]. 60 Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7. 61 Wool Stores Case (1949) 78 CLR 529 at 550. 62 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation [No 2] (1980) 44 FLR 455 at 468-469. 63 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [61]. 64 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [62]-[66]. 65 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [67]. -- 41 of 44 -- [2026] SASCA 15 The Court 38 visa is cancelled has the opportunity of applying for a protection visa (s 501E(2)) which, if granted, will automatically take him or her outside the removal power in s 198 by removing his or her status as an unlawful non-citizen. Although a deportee is not precluded from applying for a protection visa, a deportation order continues in force until executed, unless it is revoked by the Minister (s 206). 153 Returning to the present case, the Solicitor-General conceded in argument that he could not discern any practical difference between declaring land to be exempt from specified provisions of the Act, as contemplated by s 9A(1)(c), and reserving land from the operation of provisions of the Act, as contemplated by s 8(1)(c). The difference lies in the carve-out, in s 9A(4), of any effect on existing mineral tenements, which s 8(1)(c) does not contemplate. Terramin submitted, relying on the Anthony Hordern principle, that the power in s 8(1)(c) is necessarily confined by the restrictions contained in s 9A(4). 154 The primary difference relied on by the respondent, and one that ultimately stands in the way of direct application of the Anthony Horden principle in this case, is that Governor exercises the s 8(1)(c) power, while the power in s 9A(1) is exercised by the Minister. 155 We would not go so far as to say that the mere fact of a different repository of power would necessarily always prevent application of the principle, although we are not aware of any case where the principle has been applied in such an instance. Rather, the difficulty lies in the nature of the repository and consequences for the power in each case. As discussed above, a reservation by the Governor under s 8(1)(c) is done on the advice and consent of Executive Council.66 However expressed, it is a decision at the highest level of policy making, one of several such powers conferred by s 8(1) that are broadly concerned with the application of the Act. 156 A decision under s 9A, by contrast, is ministerial, with attendant Parliamentary oversight. Section 9A(2) provides: (2) The Minister must, as soon as practicable after the publication of a notice under subsection (1), prepare a report on the matter (including an outline of the reasons for the declaration and the expected impact of the declaration) and cause copies of the report to be laid before both Houses of Parliament. 157 Section 9A was inserted in 2011 by the Mining (Miscellaneous (Amendment) Act 2010 (Cth), 10 years after s 8 was last amended. Its provenance is different from that of s 8. Then, for the reasons discussed earlier in the context of Ground 7 of the appeal, while both exercises of power are amenable to judicial review, the confidential character of the advice given to the Governor in respect of a proposed proclamation will practically limit the scope of review of a reservation under s 8(1)(c). 66 Legislation Interpretation Act 2021 (SA) s 21. -- 42 of 44 -- [2026] SASCA 15 The Court 39 158 In our view, it is not possible to say that the Act confers only one power to remove land from its operation.67 Section 9A is a different kind of power from that reposed in the Governor by s 8. 159 For these reasons, we do not accept that the Anthony Hordern principle has direct application. 160 However, that is not the end of the matter. It is still necessary to consider the limits of the power conferred by s 8(1)(c) by reference to the statutory context in which the provision appears. As explained below, s 9A and other provisions such as s 30AB and s 56W form a significant part of that context. 161 Returning to the language of s 8(1)(c), the respondent submitted that the language of s 8 was clear and unambiguous, having regard to the words, ‘reserve from the operation of the Act … any land specified’. To this may be added the chausette, ‘and the proclamation shall have effect according to its terms’. 162 This language is unqualified, but it is also broad and makes no reference to the effect of a proclamation on accrued rights under the Act. The putative extinguishment of rights conferred under the Act by a declaration would operate, without differentiation, to land subject to a valuable mining lease as it would to land subject to an exploration licence with only contingent value. 163 It is necessary to return to the observation of the plurality in Jemena.68 The fact that s 8(1)(c) says nothing specifically about the extinguishment of rights under the Act, or compensation, therefore, raises the prospect of the presumption that Parliament did not, by this section, intend to interfere with any accrued statutory rights under the Act, including valuable mining leases. 164 There is a tension between the high-level, policy-informed nature of the power in s 8(1)(c) on the one hand, and the language that, while unambiguous, does not advert to the possibility of existing rights under the Act being affected. In the provision of the different power in s 9A, the Act adverts squarely to the matter of existing rights. 165 Ultimately, we are troubled by the fact that not only does s 8 not expressly provide for the extinguishment or suspension of existing rights on a reservation, but it does not advert to them at all. It does not preserve them. It makes no provision for compensation on their loss. It does not distinguish between, for example, valuable mining leases and contingent exploration licences. 166 The silence of s 8 as to these matters is significant when having regard to the statutory context provided by s 9A, s 30AB and s 56W of the Act. These sections deal with the removal of rights which may be conferred by a mineral tenement 67 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [59]. 68 (2011) 243 CLR 558 at [37]. -- 43 of 44 -- [2026] SASCA 15 The Court 40 against the Crown, in which property in minerals is vested under s 16 of the Act. The power conferred by s 9A may be exercised in respect of land that is the subject of an existing mineral tenement, but the rights conferred by the tenement are expressly preserved. Section 30AB enables land to be excised from an exploration licence but only on condition of payment of compensation. While s 56W enables a mineral tenement to be cancelled without payment of compensation, that cancellation must be for cause, being contravention of or a failure to comply with a condition of the tenement or a provision of the Act. 167 This context counts against the power in s 8(1)(c) being able to be exercised to expropriate existing rights conferred against the Crown by mineral tenements without cause and without compensation. The existence of these limits against expropriation without compensation in other parts of the Act count against the general language of s 8(1)(c) being construed as allowing that outcome. 168 Notwithstanding the high policy concerns of s 8, if Parliament had objectively intended to extinguish existing rights held against the Crown under mineral tenements granted pursuant to the Act without compensation, it would be expected to make explicit provision in that regard. Parliament having not done so, we are not prepared to impute to it an intent to expropriate or extinguish potentially valuable rights without fair compensation. Having reached that conclusion, we consider that the Act does not then provide any basis for differentiating between types of right (valuable or contingent) for the purposes of the interpretation exercise. 169 For these reasons, we conclude that s 8(1)(c) of the Act does not authorise the Governor to reserve land which is the subject of an existing mineral tenement from the operation of the Act. In circumstances where Terramin held exploration licences over the land, s 8 did not authorise the Governor to reserve the land from the operation of the Parts of the Act specified in the purported reservation. Conclusion 170 We allow Ground 8 of the appeal in respect of the reservation decision. We dismiss the balance of the grounds of appeal. 171 We make the following orders: 1. The appeal is allowed. 2. The orders made in CIV-23-008451 on 20 January 2025 are set aside and the following orders are substituted: (a) The Mining (Reservation from Act) Proclamation 2023 published in Gazette 27 April 2023 at page 863 is set aside. (b) The Application for Review is otherwise dismissed. -- 44 of 44 --