Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment
High Court of Australia · 2026
Mpwerempwer Aboriginal Corporation RNTBC v Minister for Territory Families and Urban Housing as delegate of the Minister for the Environment [2026] HCA 23
A Minister granted a 30-year water licence, and her published reasons never mention the statutory pre-condition for a term over ten years. Can a court still work out what she did consider, and from what?
What happened?
On 15 November 2021 the Minister for Territory Families and Urban Housing, acting as delegate of the Minister for the Environment, granted Fortune Agribusiness Funds Management Pty Ltd a 30-year licence to extract groundwater for irrigating Singleton Station under the Water Act 1992 (NT) ([16]). The appellant, Mpwerempwer Aboriginal Corporation RNTBC ("MAC"), is the prescribed body corporate for the native title holders of the Singleton Station pastoral lease ([16]). Fortune had sought to extract up to 40,000 ML a year ([31]).
The Controller of Water Resources had granted a 30-year licence in April 2021, after the Minister for Environment gave an opinion under the then s 60(4) that special circumstances justified that term ([35]). MAC and others sought review by the Minister under s 30, and the matter went to the Water Resources Review Panel ([36]). On 29 September 2021 s 60(4) was amended, so that a licence of more than ten years required the Controller, or the Minister on review, to be "satisfied that special circumstances justify the longer period" ([22]-[23], [38]).
The delegate Minister received two briefings on 12 November 2021 and decided on 15 November, less than one business day after receiving them ([48]-[49]). The briefings did not annex or refer to the terms of the old or the new s 60(4), and the phrase "special circumstances" was not mentioned in their body ([48]). The delegate Minister's reasons made no reference to any need to be satisfied of special circumstances, nor to s 60(4) ([51]).
The primary judge (Barr J) dismissed MAC's application for judicial review, deciding among other things that the decision was made correctly in accordance with the former s 60(4) ([53]). The Court of Appeal considered that the primary judge had wrongly applied the former provision, but applied the amended one and inferred that the delegate Minister had in any event found sufficient special circumstances ([53]). In the High Court MAC's first ground was that the delegate Minister did not form the opinion s 60(4) required and so failed to discharge her statutory function ([17]).
What did the Court decide?
The appeal was allowed. The Court of Appeal's order was set aside; the Supreme Court's order was set aside and in its place the licence granted on 15 November 2021 was quashed and the matter remitted to the Minister administering the Water Act to be decided according to law ([97]). Grounds one and three (the statutory pre-condition and procedural fairness) were upheld, and ground two (a mandatory relevant consideration, Aboriginal cultural values) failed ([18], [73], [82], [95]).
All seven Justices joined in those orders ([15], [97], [117], [163]). The reasons are in four judgments: Gageler CJ at [1]-[15]; Gordon, Steward, Gleeson and Beech-Jones JJ jointly at [16]-[97]; Edelman J at [98]-[117]; and Jagot J at [118]-[163].
Proposition
What is the principle?
Joint reasons (Gordon, Steward, Gleeson and Beech-Jones JJ). MAC made two arguments. The first was that s 71E of the Water Act, which requires a review decision to include reasons, meant the court should decide ground one by the delegate Minister's reasons "and to nothing else" ([57]). The second was that, where a statute makes satisfaction on a matter of policy a pre-condition of power and the reasons do not disclose it, a court cannot infer that it was formed; MAC relied on LPDT [29] ([58]). The joint reasons rejected the first because s 71E "does not by its terms limit in any way the material that a court may consider" ([62]). Whether a Minister exercised the function fully and in accordance with the law is a question of fact:
> "It requires the Court to consider all of the material that bears upon that issue, including any reasons given, the materials before the decision maker, the applicable legal regime, and the relevant context, including historical context where relevant." ([61])
The second argument was "too prescriptive". A court cannot cure an omission by supplying new reasons, which would be impermissible merits review, but the drawing of an inference that a matter was not considered, or that a required satisfaction was not reached, simply because the reasons do not mention it "is not 'mandatory'". The reasons, read in context, "may support the drawing of an inference, on the balance of probabilities, that a matter, although not expressly adverted to, must be considered to have been taken into account or addressed", and "[n]o different rule applies because the subject matter of the decision making concerns matters of policy, or because the reaching of a state of satisfaction is a condition for an application of such statutory power" ([64]). Whether a function was discharged "can only be answered by a full consideration of all of the materials that bear upon that issue, including reasons where they have been furnished, and by the drawing of inferences concerning the decision-making process", with the applicant bearing the onus ([65]-[66]). On that approach the delegate Minister did not address herself to the question s 60(4)(b) posed ([67]-[73]).
Gageler CJ. His Honour held that the applicant must establish on the balance of probabilities that the delegate Minister did not form the required satisfaction ([7]-[8]), and that s 71E does not confine the evidence ([9]). An omission from the reasons of an essential ground supports an inference that the ground was overlooked, an inference that other evidence may support or contradict ([10]). He drew it here, reinforced by the sequence of events, the briefings and the Review Panel's report ([11]-[12]).
Jagot J. Her Honour treated the question as one of fact decided by ordinary fact-finding principles, with the party asserting non-compliance bearing the onus ([122]). Section 71E did not confine the court to the reasons ([129]-[130]), and the evidence discharged MAC's onus ([141]).
Edelman J. His Honour agreed generally with the joint reasons ([98]) but read the word "satisfied" in s 60(4)(b), for reasons drawn from s 60(4)(a), the reasons regime in Pt 6A and the amendment's stated aim of transparency ([112]-[114]), as "a requirement that the Minister manifest satisfaction of special circumstances in the reasons given by the Minister" ([102]). On that reading the question is the interpretation of the reasons, in light of all background and surrounding circumstances ([111], [115]), and the onus "is not entirely an onus upon an applicant" ([110]).
Why does this case matter?
Judicial review problems often come with a decision maker's published reasons that say nothing about a required step, and answers tend to end where the reasons end. The case matters because the High Court was asked what follows from that gap, and because four sets of reasons, all agreeing in the orders, handle it differently enough that an examiner can ask a student to tell them apart.
Exam and application relevance
Where a problem turns on whether a decision maker considered a matter or formed a required satisfaction, set out what the reasons say and omit, then what else is before the court (briefings, advice, sequence of events, the statute) and the onus on the applicant. The joint reasons' conclusion rested on that combination: the reasons' silence, briefings that did not tell the delegate Minister she had to be satisfied of special circumstances, and advice that referred to the superseded provision ([67]-[70]).
The case was decided on a Northern Territory statute and a pre-condition of satisfaction. Edelman J said that "[e]verything depends on the proper interpretation of the particular statutory provisions" ([100]), so his reading of s 60(4)(b) is his own account of that provision.
Check your understanding
1. What two arguments did MAC make about the delegate Minister's reasons, and which paragraph of the joint reasons deals with each ([57]-[58], [62], [64])? 2. What did the joint reasons say a court cannot do about an omission in a decision maker's reasons, and what may it do ([64])? 3. Who bore the onus on ground one according to the joint reasons, Gageler CJ and Jagot J, and what did Edelman J say about it ([66], [8], [122], [110])? 4. How did Edelman J's reading of s 60(4)(b) differ from the joint reasons' approach to the same ground ([102], [115])? 5. Which features of the material before the Court led the joint reasons to conclude that the delegate Minister had not addressed s 60(4)(b) ([67]-[72])? 6. What did Gageler CJ say an omission from the reasons of an essential ground supports, and what might contradict that inference ([10])?