ERO Georgetown Gold Operations Pty Ltd v Cripps, Minister for Natural Resources & Mines & Anor [2015] QSC 1

SUPREME COURT OF QUEENSLAND CITATION: ERO Georgetown Gold Operations Pty Ltd v Cripps, Minister for Natural Resources & Mines & Anor [2015] QSC 1 PARTIES: ERO GEORGETOWN GOLD OPERATIONS PTY LTD ACN 104 826 959 (applicant) v ANDREW CRIPPS, MINISTER FOR NATURAL RESOURCES & MINES (first respondent) THOMAS PETER HENRY (second respondent) FILE NO/S: 6046 of 2014 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 16 January 2015 DELIVERED AT: Brisbane HEARING DATE: 8 October 2014 JUDGE: Martin J ORDER: Application dismissed. CATCHWORDS: JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the Minister renewed the applicant’s mining lease with conditions relating to public use of a track traversing the mining lease – where the second respondent is the lessee of an adjoining parcel of land – where the track is the most practical way to access that property – where the applicant seeks to review the Minister’s decision to renew with particular reference to the conditions imposed on the renewal – where the Minister determined that the imposition of conditions on the mining lease was in the public interest – whether the Minister’s decision accorded with the requirements of procedural fairness, particularly in relation to the briefing note the Minister relied upon – whether the Minister took into account irrelevant considerations or failed to take into account relevant considerations – whether the Minister’s decision was manifestly unreasonable – whether the Minister’s decision goes against the weight of the evidence -- 1 of 15 -- 2 Judicial Review Act 1991 Mineral Resources Act 1989, s 2, s 276(1)(d), s 286A, s 403 Mining and Quarrying Safety and Health Act 1999 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343 Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436 East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 Habib v Director-General of Security (2009) 175 FCR 411 Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433 Kioa v West (1985) 159 CLR 550 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration, Local government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 Minister for Local Government v South Sydney CC (2002) 55 NSWLR 381 O’Sullivan v Farrer (1989) 168 CLR 210 Re Minister for Immigration and Multicultural Affairs ex p. Applicant S20/2002 (2003) 198 ALR 59 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex p. Lam (2003) 214 CLR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Waterford v Commonwealth of Australia (1987) 163 CLR 54 COUNSEL: S Grant for the applicant S McLeod for the first respondent M Alexander for the second respondent SOLICITORS: Miller Harris Lawyers for the applicant G R Cooper Crown Solicitor for the first respondent Emanate Legal for the second respondent [1] The applicant, ERO Georgetown Gold Operations Pty Ltd, is the holder of a mining lease – ML30124 – which is situated near Georgetown in the Etheridge Shire. On 1 November 2010 ERO lodged an application to renew the mining lease. The Minister granted that application on 29 May 2014 subject to certain conditions. ERO seeks to review that decision under the Judicial Review Act 1991 (JR Act) with particular reference to the conditions imposed on the renewal. -- 2 of 15 -- 3 Statutory background [2] In Queensland, mining leases are granted pursuant to the provisions of the Mineral Resources Act 1989 (MRA). [3] The principal objectives of the MRA are set out in s 2. They include: “(a) encourage and facilitate prospecting and exploring for and mining of minerals; (b) … (c) minimise land use conflict with respect to prospecting, exploring and mining;” [4] Section 276 provides that each mining lease is subject to the terms set out in that section. Section 276(1)(d) sets out the condition: “(d) … that without the prior approval of the Minister the holder shall not obstruct or interfere with any right of access had by any person in respect of the area of the mining lease” [5] The Minister may renew a lease in accordance with section 286A. It relevantly provides: “(1) Subject to schedule 1A, part 6, division 5, the Minister may grant an application for the renewal of a mining lease if satisfied of each of the following— (a) the holder has complied with— (i) the terms of the lease; and (ii) this Act in relation to the lease; (b) the area of the lease— (i) still contains workable quantities of mineral or mineral bearing ore; or (ii) is otherwise required for purposes for which the lease was granted; (c) the proposed term of the renewed lease is appropriate; (d) having regard to the current and prospective uses of the area of the lease, the operations to be carried on during the renewed term of the lease— (i) are an appropriate land use; and (ii) will conform with sound land use management; (e) the land and surface area for which the renewal is sought is of an appropriate size and shape in relation to the activities proposed to be carried out; (f) the financial and technical resources available to the holder to carry on mining operations under the renewed lease are appropriate; (g) the public interest will not be adversely affected by the renewal; (h) for a lease subject to a condition mentioned in section 285— the lease should be renewed. … (5) The renewed lease is subject to— (a) any conditions prescribed under a regulation; and -- 3 of 15 -- 4 (b) any conditions decided by the Minister. (6) Without limiting subsection (5), the Minister may decide a condition of the renewed lease if the Minister considers the condition is in the public interest. (7) The Minister may refuse the application if the Minister— (a) has served on the holder a notice in the approved form asking the holder to show cause, within the period stated in the notice, why the application should not be refused; and (b) after considering the holder’s response, is satisfied the application should be refused. (8) Without limiting subsection (7)(b), the Minister may refuse the renewal if the Minister considers the renewal is not in the public interest. (9) As soon as practicable after deciding the application, the Minister must give the holder a written notice stating— (a) the decision; and (b) if the decision is to grant the renewal on conditions or refuse the renewal—the reasons for the decision.” Factual background [6] The mining lease is irregular in shape and straddles two parcels of land – the “Delaney Holding” and “Flat Creek Station”. The plan for the Delaney Holding notes a road reserve which crosses part of the mining lease (within the Delaney Holding) and ends at the boundary to Flat Creek Station. ERO contends that a miners’ access track through the mining lease and onto Flat Creek Station lies within the mining lease but is adjacent to the road reserve. The track is known locally as either “Western Creek Road” or “Flat Creek Road”. [7] The registered lessee of Flat Creek Station is the second respondent. ERO and Mr Henry entered into a compensation agreement in March 2012. Mr Henry claimed that Flat Creek Road was either a public right of way or a public road through which he was entitled to obtain access to Flat Creek Station. [8] In October 2013 ERO erected fencing and gates across Flat Creek Road because, it said, it was required to pursuant to obligations imposed on it by the Mining and Quarrying Safety and Health Act 1999 and, also, to prevent breaches of s 403 of the MRA. [9] In December 2013 the Minister wrote to ERO advising it that he was considering granting renewal of the mining lease but excluding from the lease the surface area of the access track known as Flat Creek Road and making the mining lease subject to conditions that ERO: (a) reinstate access to all persons using Flat Creek Road, and (b) remove the fencing across Flat Creek Road. [10] ERO and the Minister then engaged in correspondence which concluded in May 2014 when the Minister decided to grant a renewal of the mining lease subject to certain conditions. Those conditions were: “1. The Holder shall not undertake, on the Mining Lease, any surface disturbance upon the constructed portion of Flat -- 4 of 15 -- 5 Creek Road, as constructed and maintained by ESC [Etheridge Shire Council], unless an alternate access has been constructed to allow continued public access to all persons using the road. The alternate access must be to a standard commensurate with other roads of this type as constructed and maintained by ESC. 2. Within 20 business days of notification of the renewal of the Mining Lease, the Holder shall remove all existing fencing and gates installed by the Holder which prevent public access along Flat Creek Road where the constructed access traverses the mining lease. 3. After removal of the fence/gates as required by condition 2, the Holder shall not obstruct or interfere with access, through the mining lease, to all persons using Flat Creek Road, as constructed and maintained by ESC, except for where condition 1 applies or for mine safety purposes. 4. In circumstances where the Holder must obstruct or interfere with access for mine safety purposes along Flat Creek Road, as constructed and maintained by ESC, the Holder shall provide alternative access as prescribed at condition 1. 5. In the event that the Holder has dug up, or disturbed the surface of Flat Creek Road as it traverses ML30124 it will, within 20 business days of the renewal of the mining lease reinstate and repair the road to the condition it was in prior to any disturbance by the Holder, unless alternative access is provided in accordance with condition 1.” [11] Whether or not Flat Creek Road is a “road” within the meaning of the relevant legislation is a matter currently before the Land Court. Mr Henry commenced proceedings in February 2014 seeking an order that the compensation agreement be reopened on the basis that the track known as Flat Creek Road was a public road giving him a right of access. That matter was concluded on 17 July 2014 and the parties await a decision. The grounds for review [12] The applicant relies upon a number of grounds available under the JR Act. They are: (a) that the Minister failed to afford ERO natural justice in relation to the material considered by him as part of making the decision to review the mining lease with conditions; (b) the Minister failed to afford the applicant natural justice in that the briefing note on which he based his decision did not adequately, accurately and fairly summarise the submissions made by ERO or the facts in issue; (c) there has been an improper exercise of power in that the Minister, in making the decision, has (i) taken into account irrelevant considerations; and (ii) failed to take into account relevant considerations (d) the decision of the Minister to apply the conditions was so unreasonable that no reasonable person would have applied them; and -- 5 of 15 -- 6 (e) the evidence available to the Minister did not support the imposition of the conditions. The Minister’s decision [13] In addition to imposing the conditions set out above, the Minister made the following observations in the reasons (given in accordance with s 286A(9) of the MRA) for his decision. [14] He said: (a) That he was satisfied of each of the matters referred to in s 286A(1)(a) to (f); (b) That with respect to s 286A(1)(g) of the MRA he was of the view that the public interest might be adversely affected by a renewal of the mining lease unless certain conditions were applied to that renewal; (c) That the gates and fences erected by ERO along those parts of Flat Creek Road which intersect with the mining lease obstruct access to Flat Creek Road of the leaseholders of both Flat Creek Station and Delaney Station and the general public; (d) The road, as formed, has been used and accessed for many years by not only the local pastoral leaseholders but also by the public for access to Flat Creek Station; (e) Flat Creek Road is the most direct and practical access between Flat Creek Station and Georgetown for the owner of Flat Creek Station, its employees and those members of the public who use the campsite; (f) The obstruction of Flat Creek Road has impacted adversely on the leaseholder; (g) Continued access to Flat Creek Road by the leaseholders of Flat Creek Station and Delaney Station and by members of the public may have some impact on the mining operations of ERO; and (h) He considered it in the public interest to first, renew the mining lease and secondly to apply conditions to the renewal which will minimise the effect of ERO’s mining activities on the passage of the pastoral leaseholders and members of the public over Flat Creek Road. “Public interest” [15] The Minister, in his reasons, said that he was of the view that the public interest might be adversely affected by a renewal unless certain conditions were applied. He made specific reference to s 286A(1)(g). The effect of that subsection is that a Minister may not grant an application for renewal unless satisfied that the public interest will not be adversely affected by the renewal. A similar condition was considered in Harburg Investments Pty Ltd v Mackenroth.1 In that case, the Court of Appeal considered s 30(1) of the Gaming Machine Act 1991 which, so far as is relevant, concerned the determination of appeals by the relevant Minister from the Queensland Gaming Commission. Section 30(1) of that Act provided that the Minister was to consider various specified matters and “such other information or material as the Minister considers relevant”. The subsection then went on to say: 1 [2005] 2 Qd R 433. -- 6 of 15 -- 7 “and, if the Minister is satisfied that the integrity of gaming and the conduct of gaming will not be jeopardised and that the public interest will not be adversely affected, the Minister may direct …” [16] McPherson JA (with whom Jerrard JA and White J agreed) said: “[3] A statutory provision which sets up, without defining it, ‘public interest’ as the relevant criterion for decision and vests the power of determining it in a Minister of the executive government leaves little room for challenging the decision in a court of law. The expression ‘in the public interest’, when used in a statute, was said in O’Sullivan v Farrer (1989) 168 CLR 210, 216, to import: ‘a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.’ See generally Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, at 40. Such a discretionary judgment extends to include taking account of “the likely reaction of the community” to the action proposed: South Australia v O’Shea (1987) 163 CLR 378, 388. There may, it was said in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, 455, be cases: ‘in which a decision-maker, especially a Minister, may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister’s continuance in office’. The ‘whole object’ of a statutory provision placing a power in the hands of a Minister is so that ‘he may exercise it according to government policy’.” [17] The Minister relies upon what McPherson JA said and submits that ERO’s grounds of challenge must be examined in light of the manner in which the Minister approached his decision-making task, that is, in the context of the public interest. ERO submits that the Minister made his decision outside the confines “of the subject matter and the scope and purpose of” the MRA. This was a reference to the extract from O’Sullivan v Farrer2 referred to by McPherson JA. It was argued in the written reply by ERO that if the result of the Minister’s decision is that the applicant cannot conduct its activities otherwise authorised under the MRA, then the decision is outside the scope and purpose of the MRA. [18] That contention was one which was unsupported by other argument and evidence. In any event, given the provisions of s 276(1)(d), the subject matter and the scope and purpose of the MRA must be taken to include matters relating to rights of access. 2 (1989) 168 CLR 210. -- 7 of 15 -- 8 The limits of review [19] The JR Act does not provide the court with an unfettered capacity to review an administrative decision. An applicant must identify relevant legal error before the court can make an order under s 30 of that Act. Any application must be considered in the light of these principles: (a) The JR Act does not make the Supreme Court a merit review tribunal.3 (b) The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a relitigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power.4 (c) The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.5 Natural justice/procedural fairness [20] The main complaint of ERO concerns what it says was a denial of natural justice or, as it is more usually categorised, procedural fairness. It was not disputed that the rules of procedural fairness applied to the decision making process in this case. The principles which should be applied have been the subject of attention in a number of cases. For the purposes of this proceeding, the relevant principles may be summarised in this way: (a) The content of the obligation is shaped by: (i) the statute pursuant to which the decision has been made, (ii) the interests of the individual, (iii) the interests and purposes (public or private) which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.6 (b) What is required by procedural fairness is a fair hearing, not a fair outcome. The relevant question is about the process, not the decision. The statutory framework within which the decision is made is critical when considering what procedural fairness requires.7 (c) The process will ordinarily require that a person liable to be directly affected by the decision be given the opportunity to ascertain the relevant issues and be informed of the nature and content of adverse material.8 (d) In the ordinary case, a person should be given an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made.9 3 Concord Data Solutions Pty Ltd v Director-General of Education [1994] 1 Qd R 343 at 346–347. 4 Re Minister for Immigration and Multicultural Affairs ex p. Applicant S20/2002 (2003) 198 ALR 59 per Kirby J at [114]. 5 Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 35-36. 6 Kioa v West (1985) 159 CLR 550 per Mason J at 584-585. 7 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]-[26] 8 Ibid at [32]. 9 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88. -- 8 of 15 -- 9 (e) It follows from the two principles set out above that a person is not entitled to see and respond to any and every “adverse” submission sent to a decision maker.10 (f) An adequate opportunity to be heard may be satisfied in some cases if the gist of any adverse information is disclosed without the entire text or document in which that information is contained necessarily also being disclosed.11 (g) Whether the obligation has been discharged is a “practical” matter that is “not to be evaluated minutely”.12 [21] The principles set out above make it clear that the assessment of whether procedural fairness has been observed is not to be examined as if the various pieces of information and submissions received by and relied upon by the decision maker were pleadings in an ordinary civil suit. [22] A person asserting a failure to provide procedural fairness must establish it at a practical and not a theoretical level. As Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex p. Lam13: “[37] A common form of detriment suffered where a decision- maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu … was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. [38] No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness.” (emphasis added, citations omitted) [23] The evidence establishes that the Minister was provided with a briefing note concerning the renewal of the mining lease. ERO argues that the briefing note demonstrates that the Minister relied upon material which was not provided to it. [24] The briefing note comprised 150 pages. It included: (a) The briefing note of 6 pages, (b) Plans and maps, (c) A departmental document setting out the history of the lease, (d) The correspondence between ERO and the Minister on this issue, (e) A letter from Etheridge Shire Council, 10 Minister for Local Government v South Sydney CC (2002) 55 NSWLR 381 per Mason P at [245]. 11 Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436 per McColl JA at [71]. 12 Habib v Director-General of Security (2009) 175 FCR 411 at [77]. 13 (2003) 214 CLR 1. -- 9 of 15 -- 10 (f) A departmental assessment dealing with the criteria under s 286A(1) of the MRA, and (g) An exhibit from an affidavit used in the Land Court proceedings. [25] ERO repeats a complaint on a number of occasions to the effect that the briefing note did not clearly state or in some other way recite the submissions made by ERO to the Minister on the issue of access to the “road”. All of the letters, both from ERO and its solicitors, were contained in the document provided to the Minister for his consideration. They are specifically referred to in the briefing note. A “briefing note” is no more than that. Its purpose is to provide an overview of the matters which the Minister might take into consideration in making a decision. It is sufficient if relevant correspondence is attached to such a note. [26] Complaint is made that the “specific impact” on Mr Henry and the holders of Delaney Station was not put to ERO for comment. That was not necessary. It was clear from the correspondence (Minister to ERO, 20 December 2013) that the Minister sought to “solve the access issue”. That issue concerned the ability of the owner of Flat Creek Station and the general public to have full access to the “road”. ERO was, at all times, aware that its actions in erecting the fences and gates denied public access onto the mining lease. In a letter to the Minister, it recited its legal advice that public access was illegal and as a result of the public continuing to use the “road”, ERO put up barriers to prevent access. In the letter from ERO to the Minister of 10 January 2014 the contentions of ERO concerning the history of the “road”, the availability of alternative access and the fact that ERO’s actions denied persons the ability to use the “road” are set out in full. The “specific impact” was clear to ERO – so clear as to cause it to set out its arguments against the use by Mr Henry and others of the “road”. [27] Complaint is made that the letter from Etheridge Shire Council of 24 March 2014 was not provided for the comment of ERO. In the Minister’s reasons he stated that: “[The Etheridge Shire Council] has expressed its preference to have Flat Creek Road as it is presently formed, maintained as the preferred access to Flat Creek Station due to accessibility and safety”. ERO argues that the briefing note failed to outline the submissions it made as to the legitimacy of the conduct of the Council in maintaining Flat Creek Road. The applicant must have been aware of this as it specifically raised this issue in correspondence to the Minister (18 March 2014). Thus, ERO was aware and had commented upon the actions of the Council in improving the road and maintaining access to the track. [28] ERO argues that the briefing note failed to identify the concerns raised by it as to safety within the small area of the mining lease. That is not correct. Those matters were raised in the correspondence which was annexed to the briefing note. ERO also complains that the departmental assessment concerning the criteria under s 286A(1) were not advised to ERO for comment. While the author of the comments was not disclosed in correspondence to ERO, the gist of those comments was made apparent in the letter of 10 March 2014, in particular where the proposed conditions were outlined. [29] A further complaint is made that photographs from an affidavit of the legal representative for the second respondent in the Land Court proceedings were -- 10 of 15 -- 11 included in the briefing note. The prerequisite that these documents be “adverse” to ERO’s interests has not been established. They were photographs of the work which had been performed by ERO in closing the access. [30] The following further complaints were made: (a) Two emails from members of the public expressing their concern about not being able to access Flat Creek Station by way of Flat Creek Road should, ERO says, have been provided to it for comment. It is difficult to understand why. The emails merely record that the actions by ERO designed to deny access to the public have been successful. (b) A similar complaint is made about an email from Mr Henry to the Minister for Tourism, Major Events, Small Business and the Commonwealth Games which was referred to the Minister for response. Again, this simply demonstrates that the actions taken by ERO had the effect desired by ERO. It is difficult to see how these are adverse to the claim of right made by the applicant. (c) It is said that the Minister “failed to either provide or properly detail information or submissions from the applicant which were relevant to the decision”. There is no requirement for a decision-maker to provide details of submissions made to the person who made those submissions. (d) The Minister failed to provide details as to the belief or information that the access track known as Flat Creek Road was a public road. The Minister does not refer to Flat Creek Road as a public road. [31] Further complaint is made by ERO that the briefing note did not contain each and every point made by ERO and, set out in detail, the arguments made by it and on its behalf in correspondence. I have dealt with this above. It would be an impractical use of time and effort to extract from correspondence the submissions rather than simply annexing the letters and submissions. [32] It is also argued by ERO that the briefing note and the departmental assessment fail to accurately summarise the evidence and submissions made by the applicant. This is said to amount to a breach of natural justice. But this submission is nothing more than an assertion. The arguments being placed before the Minister were similar, in some aspects, to arguments which have been placed before the Land Court. [33] The approach taken by ERO on this aspect of its case is inconsistent with the principles which have been outlined above. What is sought to have been done is to examine in minute detail some aspects of submissions which had been made (and which were provided to the Minister) and to proceed on the basis that any information not provided to ERO must have been adverse. There is nothing to support that type of contention. No practical injustice has been shown and ERO lost no opportunity to advance its case. This part of the applicant’s case fails. Taking into account irrelevant considerations [34] The applicant concedes in its written submissions that the four irrelevant considerations set out in its application do not fall within the matters that are required to be considered by the Minister pursuant to s 286A and, so, this contention is no longer pressed. ERO goes on, though, to submit that these are matters where -- 11 of 15 -- 12 the court “should apply the limited application of the law that, where facts relied upon are either unsubstantiated or incorrect, then they should be treated as irrelevant considerations.” See Minister for Immigration, Local government and Ethnic Affairs v Pashmforoosh.14 [35] ERO contends that the briefing note asserts that the use of the Flat Creek Road by the second respondent and the public “occurred as of right”. It goes on to submit that “this is a fact that is based on conjecture”. The briefing note does not contain an assertion that the use by Mr Henry and the public of Flat Creek Road occurred as of right. There was evidence before the Minister of the use made by the second respondent and the public. This was known to ERO and, indeed, is referred to in its own correspondence. The Minister did not accept the assertions made by ERO in its correspondence. If the Minister erred in making a wrong finding as to the nature of the access road, that does not constitute an error of law15. [36] ERO contends that the Minister did not take into account the following relevant considerations: (a) The access track known as Flat Creek Road is not a public road; (b) The existence of access to Flat Creek Station by way an alternative gazetted public road, being Green Hills Road; (c) The use of the access track known as Flat Creek Road by pastoral lease holders and the public across ML30124 without authorisation of ERO was in breach of s 403 of the MRA; (d) The obligations of the applicant as holder of ML30124 under the Mining and Quarrying Safety and Health Act 1999; (e) The submissions made on behalf of the applicant by way of correspondence from its lawyers dated 18 March 2014; (f) The impact of procedures to manage access by the second respondent and any invitees (including the public) across the area of ML30124 on the ability to work the mining lease efficiently given the shape and narrow parameters of the mining lease; (g) In the context of the narrow parameters of ML30124, ERO had no legal right to construct any form of alternate access outside the boundaries of the mining lease. [37] Before a reviewable error can arise as a result of a failure to take into account a relevant matter, it must be demonstrated that the decision maker is bound to take that matter into account.16 This principle was emphasised by Brennan J in Peko- Wallsend when he said: “The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power”.17 14 (1989) 18 ALD 77. 15 Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77. 16 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39. 17 Peko-Wallsend at 55. -- 12 of 15 -- 13 [38] The matters referred to by ERO as being considerations which needed to be taken into account are not said to be relevant to any of the matters set out in s 286A(1) or any conditions which might exist and should be considered pursuant to s 286A(5). [39] A submission is made that the Minister needs to “be satisfied” of each of the factors listed in s 286A(1). So much is clear. But ERO then submits that the Minister needs to do more than merely note that the applicant had made submissions. The submissions made by ERO on this point are misguided. The Minister was advised, and accepted, that the matters set out in s 286A(1)(a)-(f) could be taken as being satisfied. The area of dispute is concerned with the Minister’s action with respect to the public interest provision in s 286A(1)(g). The wide remit of a Minister when dealing with issues of public interest have been referred to above. In the circumstances of this case it cannot be said that an omission to deal with matters which were being decided in ERO’s favour demonstrated a failure to take into account relevant considerations. The Minister’s decision concerned the issue of access and access only. It would have been a pointless waste of time to engage in an exercise by which each of the considerations was set out, discussed and decided when there was no contention by any party that they should be decided other than in the way that the Minister did decide them. Unreasonableness of decision [40] ERO identifies nine matters to support its contention that the Minister’s decision was unreasonable. They are: “(a) it is impossible for the applicant to mine in the area of the access track known as Flat Creek Road within the confines of ML30124 without disturbing the surface of the land; (b) it is impossible as a result of the shape of the mining lease, therefore, for the holder to provide or construct an alternative access within the confines of ML30124 for the area where the access track known as Flat Creek Road crosses ML30124; (c) the applicant has no authority or right to construct the required alternative access outside of the area of the mining lease; (d) the access track known as Flat Creek Road is not a public road; (e) the existence of access to Flat Creek Station by way of an alternative gazetted public road, being Green Hills Road; (f) the use of the access track known as Flat Creek Road by pastoral lease holders and the public across ML30124 without authorisation of the applicant was in breach of s 403 of the MRA; (g) the existence of obligations on the applicant and its employees and officers under the Mining and Quarrying Safety and Health Act 1999; (h) in finding that any health and safety issues which might arise from the continued use of the access track known as Flat Creek Road as it crosses ML30124 could be reasonably managed if a co-operative approach is taken by the members of the public and others, the first respondent has assumed a -- 13 of 15 -- 14 future state of affairs without any the factual or other reasonable basis for his belief in the future existence of that state of affairs; (i) the respondent has, without stating any factual or other basis, adopted an assumption that members of the public who are unidentified, and cannot be identified with certainty, will adopt a cooperative approach to manage health and safety issues arising from the continued use of the access track known as Flat Creek Road as it crosses ML30124”. [41] In order to establish this ground it must be demonstrated that the decision is manifestly unreasonable in that it defies comprehension or because it is obvious that the decision-maker consciously or unconsciously acted perversely.18 [42] The mere assertion that a decision is unreasonable is insufficient to establish an error of law. It is not unreasonable simply because the decision-maker has disagreed with the assertions of the interested party.19 [43] The issue before the Minister was the requirements of the “public interest” with respect to access across the mining lease. It falls within the description used in O’Sullivan v Farrer20 of a “discretionary value judgment to be made by reference to undefined factual matters”. It was a matter for the Minister to determine what was or was not in the public interest. The fact that the conditions might cause difficulty for ERO was a matter which was within the Minister’s purview to dismiss when considering other matters available to him. The “evident or intelligible justification” for the conditions imposed on the renewal of the mining lease are, with respect, obvious. It is clear that the Minister took the view that the public interest required that access be maintained and the conditions have been drawn in order to achieve that objective. The decision has not been shown to be unreasonable. Weight of the evidence [44] The applicant’s submissions on this point appear to be based upon a misapprehension that the Minister was concerned with the issue of “legal” access or whether leaseholders or the public had a “right of access”. Neither of those matters appear to have been prominent in the reasons for decision. The issue decided by the Minister was that the public interest required that the leaseholders and members of the public be allowed to continue to use the road known as Flat Creek Road for access purposes. [45] It is for that reason (and for the reasons concerning the public interest) that ERO’s submissions on this point cannot be accepted. Neither the status of the “road” nor the contention that reasonable management of any problems in the future could be achieved can be said to outweigh in any sense the broad discretion given to the Minister when dealing with the public interest. This is an archetypal example of where the Courts are ill-equipped to oversee these types of decisions and would be ill advised to embark upon a review of them. 18 East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [183]. 19 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. 20 Referred to above. -- 14 of 15 -- 15 Conclusion [46] ERO has not demonstrated that there are any grounds for review. The application is dismissed. -- 15 of 15 --