Foundation for Aboriginal and Islander Research Action Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 20 (25 January 2002)

Last Updated: 31 January 2002

FEDERAL COURT OF AUSTRALIA

Foundation for Aboriginal and Islander Research Action Aboriginal Corporation v Minister for Aboriginal and Torres Strait Islander Affairs [2002] FCA 20

NATIVE TITLE - native title representative body - application to be recognised as representative body under Native Title Act 1993 - change in statutory regime - whether decision of Minister subject to rules of natural justice.

ADMINISTRATIVE LAW - natural justice - legitimate expectation - whether decision to recognise native title representative body subject to the rules of natural justice - whether failure to accord opportunity to comment upon adverse material - whether affected party entitled to know and comment upon adverse material or preliminary conclusions - whether affected party entitled to confirm accuracy of material - whether decision-maker's failure to consider material when making decision amounted to an error of law

STATUTES

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 7(1)(e)(i)

Native Title Act 1993 (Cth) ss 202, 203A, 203AA, 203AD, 203AI

CASES

Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 Applied

Commissioner for ACT Review v Alphaone Pty Ltd (1994) 49 FCR 576 Applied

Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 Applied

Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Applied

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 Followed

Sinnathamby v Minister, Immigration and Ethnic Affairs (1986) 66 ALR 502 Referred to

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 Applied

FOUNDATION FOR ABORIGINAL AND ISLANDER RESEARCH ACTION ABORIGINAL CORPORATION v MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

Q 44 of 2001

KIEFEL J

BRISBANE

25 JANUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 44 OF 2001

BETWEEN:	FOUNDATION FOR ABORIGINAL AND ISLANDER RESEARCH ACTION ABORIGINAL CORPORATION APPLICANT
AND:	MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	25 JANUARY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 44 OF 2001

BETWEEN:	FOUNDATION FOR ABORIGINAL AND ISLANDER RESEARCH ACTION ABORIGINAL CORPORATION APPLICANT
AND:	MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS RESPONDENT

JUDGE:	KIEFEL J
DATE:	25 JANUARY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 The applicant, Foundation for Aboriginal and Islander Research Action Aboriginal Corporation ("FAIRA"), held the position of a representative body for the Queensland Metropolitan Zone (Brisbane Regional Council Area) pursuant to a determination made by the Minister on 20 October 1994 under s 202(1) Native Title Act 1993 (Cth) (the "NTA"). Pursuant to the legislation then in force the Minister was able to determine that there be more than one representative body in relation to any area: s 202(2) NTA. Representative bodies provided services and assistance to current and potential native title claimants and they were entitled to apply for funding to perform these functions. Pursuant to s 7(1)(e)(i) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) one of the functions of the Aboriginal and Torres Strait Islander Commission ("ATSIC") is to advise the Minister on matters relating to Aboriginal and Torres Strait Islander affairs, including the administration of legislation.

2 By amendments to the NTA which took effect on 30 October 1998 (Act No 97 of 1998) representative bodies were to continue to perform their existing functions, together with certain other functions, in a transition period between 30 October 1998 to 30 June 2000. At the end of that period a new representative body regime was to commence, pursuant to which there was to be only one representative body to perform the functions set out in s 202(4) for each of the newly defined areas in Australia: s 203AD(4). During the transition period "eligible bodies" were to be invited by the Minister to apply for recognition as representative bodies under the new regime: s 203A(1). If there were existing representative bodies in an area invitations were initially to be made to them: s 203AA(3). If those bodies were unsuccessful in being recognised for the new invitation area, or did not apply for recognition, the Minister was able to invite other bodies to apply for recognition in respect of that area, during the transition period: s 203AA(4).

3 A detailed description of these provisions was given by Merkel J in Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539, 543-544 [8]-[11]. As his Honour there pointed out (at [9]), if a representative body was not recognised in respect of the new area, it ceased to have any statutory role or functions under the NTA in respect of its area after 1 July 2000. There is no dispute that that is what occurred in this case. An invitation was first sent by the Minister on 14 May 1999, inviting the applicant to apply for recognition and it did so (a process described in submissions as "the first round"). On 14 March 2000, after receiving an assessment report and a "decision brief", the Minister decided not to recognise the applicant as the representative body for the Queensland South area. No other body was recognised as the representative body for that area at that time. Neither the "first round decision" nor the litigation which followed it is in issue here, although at some points the parties made reference to aspects of the processes then undertaken.

4 Invitations (the "second round") were issued by public notices between 13 and 17 May 2000 to eligible bodies to apply for recognition (:s 203AA(4)(b) and s 203A). Shortly prior to the invitations being issued, the applicant was provided with a document entitled "Procedures Relating to Applications for Recognition as a Native Title Representative Body" and a form for applying for recognition as a representative body. The applicant's application on the second round was received by the Minister's office on 13 June 2000.

5 By letter dated 1 September 2000 Mr Stacey of ATSIC wrote to the applicant advising that the second round of applications would involve a "field visit" of one to two days duration, to discuss the applicant's application and related matters. In advance of this visit another officer of ATSIC, Mr See, wrote to the applicant seeking further information from it. The letter contained a list of questions and advised that the visit had been rescheduled for 12 October 2000. The applicant sought an extension of time to provide the information and an extension, to 13 October 2000, was granted. At the same time the applicant was advised that the information would not obviate the need for a field visit. A new time for the field visit was to be advised.

6 By letter dated 2 October 2000, Mr Stacey replied to an earlier enquiry of the applicant, to the effect that it would not be assessed as a representative body, since it was no longer one. He advised that the applicant's past performance in that capacity would however be a relevant matter to which the Minister might have regard. He drew to the applicant's attention the provisions of s 203AD NTA which specifies the criteria about which the Minister must be satisfied before a body is recognised as a representative body under the new regime.

7 The applicant furnished answers to the questions by letter dated 17 October 2000 and also attached other documents. It asked whether a field visit was still necessary. Mr See advised, by letter of 25 October 2000, that such a visit was still considered to be necessary and confirmed the agreed date of 31 October 2000 for that purpose. The following day, 26 October, the applicant sought the intervention of the Chair of ATSIC in relation to the field visit. It is apparent from the correspondence, and the applicant's affidavits, that concerns were held about the approach which was being taken by ATSIC to its application. On 30 October 2000 Mr Stacey contacted Ms Carroll of the applicant concerning the letter of 26 October and advised her that the applicant did not have to participate in the field visit. Its purpose was said to be to attempt to validate information provided in the application and to give the applicant an opportunity to respond to issues of concern. He advised that if the applicant did not participate ATSIC would brief the Minister on what was contained in the application, but if some of it had not been verified, it could count against the applicant. Ms Carroll advised that the applicant's Board had decided that the applicant would not participate in the field visit, scheduled for the following day. In a letter sent the same day however the applicant was less definite. It advised the Chair of ATSIC that, because there were issues, legal and otherwise, which needed to be resolved about the process and method employed, it could not give any indication of its views concerning the visit. On 6 November 2000 Mr Stacey asked the applicant to advise, within seven days, whether the field visit could proceed prior to the end of November, failing which the assessment team would prepare its advice on the application.

8 Further correspondence was exchanged through to the end of November. In it the applicant agreed to provide and did provide additional information on 27 and 28 November 2000, and agreed to a field visit on conditions, including one that the discussions be recorded on videotape. ATSIC subsequently agreed to that condition. By letter dated 29 November 2000, Mr See advised the applicant that he understood that it had not obtained legal advice in relation to the field visit but that it was to meet with its legal adviser that day. He advised that the applicant's failure to confirm the visit was causing "unnecessary delays" and "has cast serious doubts about whether ATSIC can meet its undertaking to the Minister to provide him with advice on all second round applications to enable them to be determined before Christmas". ATSIC could no longer guarantee the availability of all consultants for the Assessment Team for the new date proposed for the field visit, 4 December. Accordingly Mr See advised that unless a written undertaking was provided that day, with respect to the field visit, advices on the application would be prepared without the benefit of a field visit.

9 The applicant wrote to ATSIC on 30 November 2000 advising that its Executive Committee took the view that it did not consider the field visit to be necessary. In the absence of any advice from ATSIC to the contrary, the applicant said that it would assume that its performance as a representative body was considered satisfactory. As it was not now a representative body, there was no useful purpose in assessing its current activities. By letter dated 8 December 2000 Mr See advised that the assessment on the first round had not found that the applicant had satisfactorily performed its functions as a representative body and further that s 203AI(3) did not limit the matters which the Minister might take into account. The Assessment Team was of the view that the applicant's current activities were likely to be relevant, he advised. He concluded:

"If the Assessment Team decides to seek any further additional written material from FAIRA I will write to you as soon as practicable."

10 The Assessment Report was completed in January 2001, without a visit to the applicant or further information having been sought from it. A decision brief was then prepared by ATSIC for the Minister on about 18 January 2001. On 29 January 2001, the Minister decided not to recognise the applicant. A Statement of Reasons was provided. It is a lengthy document and it is not necessary to refer to it in detail. Of the matters set out in s 203AD(1)(a) to (f), the Minister was not satisfied as to four of them in the main because of the lack of information on a topic or its clarity. On the same day the Minister decided to recognise the Queensland South Representative Body Aboriginal Corporation ("QSRBAC") as the native title representative body for the Queensland South area taking effect from 30 January 2001. It remained the representative body at the time of this application and its hearing.

11 The applicant seeks review of the decision made by the Minister concerning it on one ground, namely that it was denied procedural fairness. It does not seek to affect the decision made appointing QSRBAC and that Corporation is not a party to the proceedings. Even were the applicant to establish some breach of the requirements of natural justice it would not seem to me likely that it could obtain anything more than a bare declaration, even assuming that such an order is appropriate. I put this question to one side for the present.

12 In Pilbara at 553-554 [52], [53], [56] and [57], Merkel J identified the factors, arising from the provisions of the NTA, which had the effect that the Minister must observe the requirements of natural justice with respect to an application such as this. I respectfully agree. Such a conclusion was not in any event disputed in submissions. The issue the applicant sought to raise was whether the requirements had been observed. That involves, in the first place, the question of the extent of the Minister's obligation or the obligation on those acting on his behalf.

13 Merkel J (Pilbara, 548-553 [35]-[52]) pointed out the distinction between cases involving forfeiture or non-renewal of existing rights such as licences, and cases where the grant of a right is applied for. The former might give rise to a legitimate expectation that it would not be refused without first affording the party affected an opportunity to be heard on the issue upon which the refusal is to turn. His Honour did not consider that the decision in question, which is of the same nature as the decision in these proceedings, was of that category. I respectfully agree. However, in Pilbara his Honour (at 553-554 [54]-[58]) found that an expectation on the part of the applicant had been created by ATSIC and that a decision should not have been made without giving it an opportunity to respond to any potentially adverse material from outside sources. This had arisen because of promises made by the respondent to follow such a procedure. In that case ATSIC had afforded the applicant an opportunity to address the matters which were adverse to its application. The question which arose was whether it was also obliged to allow it to address the adverse observations and opinions of the Assessment Team which were set out in the report to the Minister. A similar question arises here.

14 Particulars of the breaches of natural justice said to have occurred in this case are now to be found in the affidavit of the applicant's Administrator, Mr Foley. Principal amongst them are those matters set out in paras (2) and (3):

"(2) The assessment report and the Statement of Reasons both contain many statements and/or assertions that the assessment team was unclear on a number of points or issues. Among these matters that were claimed to be unclear are:

(a) which family groups of traditional owners have not accepted the new geographic regions and how this could impact on the Applicant's ability to implement its regional service delivery model (page 7 of the assessment report);

(b) how many family groups have cross regional interests, and how the Applicant proposes to deal with that phenomenon (page 7 of the assessment report);

(c) why the Applicant's planning cycle is predominantly intra-regional when it has acknowledged the existence of cross regional interests (page 7 of the assessment report);

(d) in what ways the geographical boundaries of the four regions correlate to the on-ground groupings of native title claimants (page 7 of the assessment report);

(e) why the difficulties encountered with the previous language group structure will not translate to the new regional structure given the apparent similarities between the systems (page 7 of the assessment report);

(f) a lack of information on which Traditional Owner groups are not participating in the Applicant's regional research projects (page 6 of the assessment report);

(g) when next elections would be held and that the Applicant's organisational structure and membership criteria had a lack of clarity about composition of the Governing Committee (page 10, 19 and 20 of the assessment report);

(h) that it was unclear the basis on which the Applicant will enter details of bona fide Traditional Owners onto the Register (page 15 of the assessment report) and that no evidence had been provided to indicate whether the Register presently contains information in relation to all known traditional owners in the area (Statement of Reasons, para 48);

(i) that there was no explanation as to how the Applicant would provide Traditional Owners, not on the Register, with Native Title services (page 16 of the assessment report);

(j) what the relationship would be between the Traditional Owners and the Native Title Management Group and how conflicting interests will be managed (pages 18 and 19 of the assessment report);

(k) that it is difficult to assess if the Applicant intends to delegate its Native Title functions to the Native Title Management Group (p 19 of the assessment report);

(l) there is a lack of information as to how the Northern Region Native Title Management Group operates in practice (page 25 of the assessment report and Statement of Reasons, para 62);

(m) that insufficient information was provided to enable verification of the Applicant's assertions about its attempts to include the Turrbal Applicants in processes to resolve issues with other Traditional Owners identifying for the same area (page 63 of the assessment report).

(3) The assessment report and the Statement of Reasons both contain comments and conclusions which are false, and are able to be demonstrated as false. Among these matters are:

(a) that staff employed in the indigenous rights branch have some responsibility in delivering Native Title services (Statement of Reasons, para 42)

(b) that the "Registrar of Future Act Notifications" is not an identified position in the Applicant's proposed staffing structure (page 15 of the assessment report);

(c) that in the Application there was no process governing the exchange of information between Research Officers and the Notifications Officer responsible for maintaining and updating the Register (page 17 of the assessment report);

(d) that the Applicant's confusion over the Native Title Management Group structure is best exemplified by the information it provided in respect of its proposals to form Native Title Management Groups into prescribed bodies corporate (page 24 of the assessment report);

(e) that there is a failure to specify progress made on current research projects in the western and northern regions and therefore a difficulty in assessing the regional utility or precise scope of the projects (page 35 of the assessment report);

(f) a failure to clarify the extent of the Applicant's proposed research activity including budgetary aspects (page 35 of the assessment report);

(g) a failure to articulate where it would locate additional offices outside Brisbane (page 37 of the assessment report and Statement of Reasons para 74);

(h) a rule that decisions made at a general meeting will not be binding on the Governing Committee unless supported by more than a simple majority of the Applicant's total membership (page 40 of the assessment report);

(i) an inability of the Assessment Teat to evaluate:

a. to what extent the Applicant's staff will attend Traditional Owner group meeting and/or document proceedings;

b. which staff will be responsible for conducting consultations with any Traditional Owner group abstaining from involvement in decision-making processes to discern their reasons for abstaining;

c. the circumstances in which the Applicant will meet with individual family groups, as opposed to the relevant Native Title Management Group;

(j) a failure to detail the assistance the Applicant is providing to Quandamooka Land Council (page 59 of the assessment report);

(k) that the Applicant claims that, to assist "Kholo" claim claimants with the Native Title and mediation process, "... among the steps it has taken, a "Claimant Support Person" was employed by the Applicant ... no such position appears in the Applicant's staffing structure". (page 63 of the assessment report);

(l) that participation in a regional NTMG appears to be conditional on evidence of bona fides (page 63 of the assessment report);"

15 I shall discuss the issue of falsity, in connexion with natural justice grounds, later in these reasons.

16 Paragraphs (4) and (5) of the affidavit suggest only that any matters falling within (2) and (3) were not put to the applicant for comment. Paragraphs (6) and (7) are of questionable relevance, as appears to have been conceded in argument. They seem to raise another ground not pursued, namely that the Minister and those advising him failed to take information provided by the applicant into account. They are in these terms:

"(6) I refer to sub-paragraph (f) of paragraph 3 herein, and in particular to the allegation that there was a failure to clarify the extent of the Applicant's proposed research activity including budgetary aspects (page 35 of the assessment report). Annexed hereto and marked are true copies of reports and budgets that have been supplied to ATSIC and that provide that clarification:

(a) letter from the Applicant to ATSIC dated 21 September 2000 - "PJF 28"

(b) letter from the Applicant to ATSIC dated 9 July 2000 - "PJF 29"

(c) Form NTRB1 for financial year 1999/2000 - "PJF 30"

(d) Cash flows April 2000 - "PJF 31".

(7) I refer to sub-paragraph (j) of paragraph 3 herein, and in particular to the allegation that there is a failure to detail the assistance the Applicant is providing to Quandamooka Land Council (page 59 of the assessment report). Annexed hereto and marked are true copies of correspondence that has been supplied to ATSIC and that provide that clarification:

(a) letter form the Applicant dated 21 March 200 - "PJF 32"

(b) letter from the Applicant dated 21 June 2000 - "PKF 33"

(c) letter from the Applicant to ATSIC dated 22 August 2000 - "PKF 34"

(d) the letter of 21 June 2000 of Brian Stacey which noted, among other things, that "As to funding, I understand that the current agreement between FAIRA and Quandamooka has been working effectively" "PJF 35"."

17 Paragraphs (8) (9) and (10) appear to address some basis, on the part of the applicant, for a belief that it would be afforded an opportunity to comment:

"(8) At all times prior to the Respondent making the decision under review, the Applicant was led to believe that if the assessment team required further information held by the Applicant prior to making its report, it would have sought that information from the Applicant. Grounds for this belief included the following:

(a) The Applicant sought clarification of the assessment process and in particular the process and methodology of the field visit at a number of times (Affidavits RFS 31, PJF 17, 19, 22, 25 and 26);

(b) The Applicant has, at all times, assured ATSIC and the Respondent of its support for a properly conducted process (Affidavits RFS 31, PJF 17, 22, 25, and 26);

(c) The Applicant had been assured by ATSIC that it would be seeking further information from the Applicant in that on 30 October 2000 Brian Stacey advised the Applicant's acting General Manager (Ms Charmaine Carroll) that if a field visit, then being contemplated, did not proceed, the assessment team "...would still want to ask for their written advice about issues of concern before we briefed the Minister." (Affidavit BRS 3, p 3);

- that said field visit did not proceed; (FRS 50, p 3);

- yet the assessment team did not ask for that "...written advice about issues of concern" before the Respondent was briefed;

(d) As late as 20 November 2000 the Applicant was advising the Respondent that it "...remains prepared to provide whatever information is available and appropriate to supply in support of the application". Annexed hereto and marked with the letters "PJF 36" is a true copy of that letter.

(9) At no time did the Respondent, or anyone representing the Respondent, indicate that any field visit carried out by the assessment team would represent the last opportunity for the Applicant to provide information in relation to its application for representative body status.

(10) I further refer to the Affidavit of Robert Francis See, and in particular, Annexure "RFS 45" thereof which is a letter of 8 December 2000 by Mr See to the Applicant, and in particular to page 2 of that letter in which Mr See indicated that if "...the assessment team decides to seek any further material from FAIRA I will write to you as soon as possible". There was no such communication seeking any further material from the Applicant."

18 Paragraphs 11 and 12 identified some material referred to in the Statement of Reasons and impliedly, the applicant alleges that it was entitled to be alerted to it and provided with an opportunity to comment upon it:

"(11) I refer to paragraph 27 of the Statement of Reasons for the decision under review (see "RFS 51") and in particular to where it is stated that the assessment team reviewed material relevant to the application and held on ATSIC's Central Office and Regional Office files. At no time was the Applicant informed of any of the contents of these files held by either ATSIC's Central Office or ATSIC's Regional Office.

(12) I refer to paragraph 30 of the Statement of Reasons for the decision under review (see "RFS 51") and in particular to where it is stated that the assessment team met with the ATSIC Commissioner for the Queensland Metropolitan Zone and the Chairperson of the South East Queensland Indigenous Regional Council on 20 November 2000, to discuss the applications for recognition in the Area. At no time was the Applicant informed of any of the contents of any of these discussions with either of these two persons."

19 The contents of para (13) of the affidavit were not relied upon as providing a further particular of the relevant ground.

20 Generally speaking, a decision-maker, or those acting for the decision-maker, are not obliged to inform a party of a preliminary conclusion or evaluation on the material on which the decision-maker intends to act: Pilbara at 555 [63] and 557 [73]; Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755, 756-757; Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469, 499; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, 103, 119. The applicant's submissions accept this proposition, but seek to bring the case within qualifications to that general rule. It is submitted that here an obligation to allow the applicant to comment arose because the matters referred to in Mr Foley's affidavit involved considerations personal to the applicant (:Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587; Sinnathamby v Minister, Immigration and Ethnic Affairs (1986) 66 ALR 502, 506); or because adverse conclusions in the assessment report or Statement of Reasons were not an obvious natural response and did not constitute an evaluation of the material, but in effect raised a new matter (:Kioa v West, 573, 588, 634; Somaghi, 108; Commissioner for ACT Review v Alphaone Pty Ltd (1994) 49 FCR 576, 591; Pilbara 557 [72]).

21 With respect to the first of these factors it seems to me necessary to add that it is only in cases where the applicant has not dealt with a matter that an opportunity to comment is to be given. This may occur where the information about the application has come from another source: Kioa v West, 587. In both cases, the rationale for the opportunity is that the decision-maker or delegate's response raised a new matter which, in fairness, the party ought to be given an opportunity to respond to: Pilbara, 557 [72].

22 Submissions for the applicant did not attribute to each of the matters in paras (2) and (3) such a characteristic. They refer to information which the applicant has provided to ATSIC (para 2) or views expressed or facts stated in the report and reasons, which are said to be wrong (para 3). In submissions reliance was placed upon one statement in the Statement of Reasons which, it was contended, showed that discussions had been held by ATSIC with third parties concerning the applicant's application. It was said that the Assessment Team had reviewed material on ATSIC's Central Office and Regional Office files and met with the ATSIC Commissioner for the Queensland Metropolitan Zone and the Chairperson of the South East Queensland Indigenous Regional Council, to discuss the applications for recognition of the area in question. It is then alleged that a failure to inform the applicant "of any of the contents of any of these discussions" amounts to a denial of fairness. What the submission fails to identify, in the Statement of Reasons or in the assessment upon which it was based, is the matter, such as an adverse comment, which is new and which might have come from these sources. The mere fact that conversations were held without more does not establish that some relevant matter adverse to the applicant was discussed and accepted by the reporter or decision-maker. The applicant has not pointed to any statement in the reasons or report from which one could infer that this had occurred.

23 Paragraph (2) of Mr Foley's affidavit lists thirteen matters referred to by the assessment team in its report as "unclear". Again, this does not point to a new matter which the applicant has not addressed. The contention must be that an opportunity should have been given to an applicant to clarify its case or fill in any gaps that the decision-maker sees in it. So far as concerns the Minister and those advising him, the areas identified are in the nature of an evaluation of the information provided. It was not necessary to bring them to the applicant's attention for comment.

24 Paragraph (3) of the affidavit lists twelve matters contained in the assessment report and the Statement of Reasons which are said to be "false". In the context of judicial review the complaint cannot be of factual error. It is not suggested the Minister or the Assessment Team were aware of, or deliberately mis-stated, matters, although concerns as to the treatment the applicant's application was receiving by ATSIC were expressed in the correspondence. Read with paras (4) and (5) it would seem that it is contended that the report, and perhaps the reasons, should have been provided to the applicant so that it could check the accuracy of the information. There is no such requirement of natural justice.

25 An alternative view of two of the matters listed in paragraph (3) is provided by paras (6) and (7), but does not assist the applicant. It is there alleged, in effect, that the true information had been provided by the applicant. It is to be inferred that, nevertheless, the Minister and his advisers failed to take this information into account. Absent an obligation on its part to do so, and none is pointed to, the error is one of fact not law. It does not in any event come within the ground upon which the application is said to be based.

26 Paragraph (8) and following do make reference to a belief, on the part of the applicant, "that if the assessment team required further information held by the Applicant prior to making its report, it would have sought that information from the Applicant". The particulars provided in pars (8) and (9) do not in my view provide a basis for such a belief.

27 The closest the applicant comes to a promise of the kind referred to in Pilbara at 553-554 [55]-[57] is the concluding sentence of the letter to it of 8 December 2000 (set out at [9] above). Accepting for present purposes that a promise of the kind discussed in Pilbara, that a certain procedure will be followed, can give rise to an expectation which natural justice requires to be met, the statement relied upon does not amount to such a promise. The applicant was not assured that, if the Assessment Team or the Minister had any concerns about the information it provided, or any difficulty in it, it would be contacted. The applicant could not have believed this to be the case, given the terms of the correspondence and the urgency which was said to attend the assessment as at 8 December 2000 It received no assurance that its material was necessarily sufficient. To the contrary it was told that it might not be. All that the concluding comments in Mr See's letter disclosed was a possibility that the Assessment Team might contact the applicant. In the event it chose not to do so and in the absence of some new matter about which the applicant had had no knowledge and opportunity to comment it was not in my view obliged to do otherwise.

28 The application will be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 25 January 2002

Counsel for the Applicant:	Mr D O'Gorman
Solicitor for the Applicant:	Scotts Lawyers
Counsel for the Respondent:	Mr P Gray
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 August 2001
Date of Judgment:	25 January 2002