Tucker for Narnoobinya Family Group v Aboriginal & Torres Strait Islander Commission [2004] FCA 134 (24 February 2004)

FEDERAL COURT OF AUSTRALIA

Tucker for Narnoobinya Family Group v Aboriginal & Torres Strait Islander Commission [2004] FCA 134

ABORIGINES – native title – representative body funding – application to native title representative body for financial assistance – refusal of financial assistance – application to Aboriginal and Torres Strait Islander Commission for review of representative body decision – preparation of statutory report and recommendation by reviewer – adoption of reasons and recommendation by ATSIC – judicial review of ATSIC decision – whether improper exercise of power – whether unconsidered adoption of reviewer’s report and recommendation – nature of review process – whether ATSIC reviewer entitled to have regard to representative body policies and procedures – priority considerations in allocation of resources

Native Title Act 1993 (Cth) s 203BB(1), s 203FB, s 203FE(2)
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483; (2001) 108 FCR 589 cited
Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586; (2001) 110 FCR 582 cited
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 cited
Bannister v See (1982) 421 ALR 78 cited
Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 cited

DOROTHY ANN TUCKER AND THELMA VERA TUCKER FOR NARNOOBINYA FAMILY GROUP v ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
W140 of 2003

FRENCH J
24 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W140 OF 2003

BETWEEN:	DOROTHY ANN TUCKER AND THELMA VERA TUCKER FOR NARNOOBINYA FAMILY GROUP APPLICANT
AND:	ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	24 FEBRUARY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W140 OF 2003

BETWEEN:	DOROTHY ANN TUCKER AND THELMA VERA TUCKER FOR NARNOOBINYA FAMILY GROUP APPLICANT
AND:	ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION RESPONDENT

JUDGE:	FRENCH J
DATE:	24 FEBRUARY 2004
PLACE:	PERTH

1 On 4 June 1997, Dorothy Ann Tucker and Thelma Vera Tucker lodged a native title determination application with the National Native Title Tribunal on behalf of the Narnoobinya Family Group. In 1998 that application became a proceeding in this Court. It overlapped a larger application lodged on behalf of the Ngadju People in June 1995. The Goldfields Land and Sea Council (GLSC), which is the native title representative body for the relevant area, although initially providing some limited assistance to the Narnoobinya Family Group, declined to provide any further assistance. The Tuckers sought internal review of that decision which was unsuccessful. They then applied to the Aboriginal and Torres Strait Islander Commission (ATSIC) for external administration review of the decision under s 203FB of the Native Title Act 1993 (Cth). ATSIC engaged a reviewer to provide a report. That report recommended that the decision of the representative body be affirmed. ATSIC, in substance, accepted the report and adopted its recommendation, affirming the decision of the GLSC refusing assistance to the Narnoobinya Family Group.

3 On 30 June 1995, Arthur Dimer and others lodged a native title determination application with the National Native Title Tribunal. The application was known as the Ngadju claim. It covered approximately 104,000 square kilometres of land in the South Eastern Goldfields region. It was brought on behalf of the Ngadju People, being the descendants of an Aboriginal woman, Belang and others. Arthur Dimer is the grandson of Belang and a German pastoralist named Henry Dimer. Dorothy and Thelma Tucker are the daughters of Hettie Annie Tucker and William Henry Tucker and the granddaughters of Henry Dimer and an Aboriginal woman named Topsy Whitehand. The Ngadju claim became a proceeding in the Federal Court in 1998, No WG6020/98.

4 When Dorothy Tucker first became aware of the Ngadju claim and saw a map of the area which it covered she considered that it covered in part land in the Easternmost section of the South Eastern Goldfields from which she understood that her great grandmother, Anna, and her family had come. She described her family group, the sons and daughters of Hettie Ann Tucker and William Henry Tucker, as the Narnoobinya Family Group. She said that she asked Arthur Dimer if that family group could be included in the Ngadju application. Mr Dimer, however, said that the members of the group did not come from the area covered by that application and accordingly neither he nor the other claimants would agree to them being included in it.

5 Ms Tucker said that on the basis of what she had been told by her mother and by her brother, Carl Dimer, she was sure that her ancestors had come from the area which formed the Eastern part of the land covered by the Ngadju application. On 4 June 1997, she and Thelma, on behalf of the Narnoobinya Family Group lodged their own application for a native title determination over that area with the National Native Title Tribunal. In 1998, that application also became a proceeding in this Court numbered WAG6170/98. On 6 June 1997, she was informed by Mr Rynne of the Goldfields Land Council, now the GLSC, that it would provide the Group with financial assistance. Between June 1997 and November 1999, the Group received what Ms Tucker described as ‘very limited financial assistance’ from the GLSC. This enabled her Group to retain solicitors.

6 Mediation meetings were conducted by the National Native Title Tribunal with representatives from the Ngadju claim in April 1998. One of the outcomes of those meetings was that the Tucker family was ‘recognised as being part of the Ngadju group’. It was decided that the Tucker family group members could be included on the Ngadju claim and that they could chose their own representatives. The Tribunal wrote to Dorothy and Thelma Tucker on 13 May 1998 and invited them to nominate two family members to be joined as named applicants and registered claimants in the Ngadju claim. Dorothy and Thelma declined that invitation. On the other hand, descendants of Hettie and Ian Tucker who comprised the claimants in two other applications in the area, the Bugan Family Group claim and the Mulbah Family Group claim, withdrew their respective applications and joined the Ngadju claim. Walter and Phyllis Tucker wrote to Dorothy and Thelma on 21 May 1998 requesting that they be included in the Narnoobinya claim as applicants and registered native title claimants. They were not so included and some fifteen days later they lodged their own native title claim over the same area.

7 In May 1999, the description of the Narnoobinya claim group was narrowed to Thelma Tucker, Dorothy Tucker, John Tucker, Elsie Tucker, Norma Tucker and their biological descendants and the children of George Tucker. This excluded those descendants of Hettie Tucker who had joined the Ngadju claim. Eventually, on 4 August 1999, the application was accepted for registration by the Native Title Registrar pursuant to s 190A of the Native Title Act.

8 In October 1999, the Narnoobinya Family Group decided to investigate the possibility of having Balladonia Station, a pastoral property in the area covered by the Narnoobinya application acquired by the Indigenous Land Corporation (ILC). The ILC wanted anthropological evidence to establish the connection between the Narnoobinya Family Group and the land which was the subject of its application. On 20 October 1999, Dorothy and Thelma Tucker, on behalf of the Group, wrote to the GLSC requesting financial assistance to fund the cost of retaining an anthropologist to carry out the necessary work. They received no formal response. Ms Tucker telephoned Brian Wyatt, the Chief Executive Officer of the GLSC. Subsequently she and her sister agreed to attend a meeting with him in Kalgoorlie on 11 March 2000. They flew to Kalgoorlie and went to the GLSC office. Mr Wyatt was not there. However, they met with legal officers working for the GLSC, Mr Phillip Vincent and Mr B De Villiers. Ms Rita Elliott, a senior project officer, was also present.

9 At the meeting Mr Vincent gave the Tuckers a schedule listing members of the Esperance Noongar claimant group and pointed out to her that one of the ancestors listed in that schedule was Anna Whitehand which appeared to be a reference to Ms Tucker’s great grandmother. The schedule was said to be evidence that Anna had come from Thomas River, outside the area of the Narnoobinya claim. Dorothy Tucker disputed that. Mr Vincent informed her that Mr Wyatt as Chief Executive Officer of the GLSC had decided that there was no merit in the Narnoobinya claim and that the GLSC would not provide any further assistance to the Group to enable it to prosecute that claim.

10 A week after the meeting, the Tucker sisters received a letter dated 16 March 2000 from Mr Wyatt. He confirmed the advice given at the meeting that he had made a decision that the GLSC would no longer provide assistance. The reasons for the decision, as set out in the letter, were in summary as follows:

Attached to the letter was a photocopy of a GLSC pamphlet indicating that if applicants for assistance disagreed with a refusal of assistance by the GLSC they could appeal to its governing committee.

11 On 26 April 2000, the Tucker sisters wrote to the GLSC lodging an appeal against Mr Wyatt’s decision to discontinue assistance to the Group and asked him that it be reviewed by the governing committee. On 22 June 2000, they received a letter advising that the GLSC would convene a sitting of its Facilitation and Assistance Review Panel to consider the termination of assistance to the Narnoobinya claim. The appeal was scheduled for 10am on 30 June 2000 at the GLSC offices in Kalgoorlie. The members of the panel would be a barrister, Ms Ann Sheehan, Ms Nancy Gordon and Mr Jamie Murphy. The Tuckers were advised that they were entitled to provide written and/or oral submissions to the panel at the hearing.

12 The first hearing was conducted by telephone on 26 July 2000 and the Tuckers and their sister, Norma, and brother, John, made oral submissions in support of the continuation of assistance. A further hearing was held at the Kalgoorlie office of the GLSC on 10 August 2000 and attended by Dorothy and Thelma Tucker.

13 On 11 September 2000, the Tuckers were sent a letter from the GLSC advising that the Review Panel recommended that:

The objective of the discussions was that the interests of the Narnoobinya claimants be recognised as part of the Ngadju claim. A copy of the Panel’s reasons was attached.

14 Subsequently the GLSC granted the Narnoobinya Group limited assistance to retain a consultant and a solicitor to act on its behalf in discussions with Mr De Villiers. A draft Memorandum of Understanding (MOU) was drawn up. It provided for the amalgamation of the Narnoobinya and Ngadju claims on the basis of shared interests in the area of overlap and for a united approach to the presentation of the claim in the Federal Court and a joint approach to heritage protection.

15 On 23 January 2002, Mr De Villiers, on behalf of the GLSC, wrote to Dorothy and Thelma Tucker asking that they sign the MOU on behalf of the Narnoobinya claimants. At that time, however, none of the Ngadju claimants had signed the MOU. The Tuckers wanted to meet with the Ngadju claimants before signing it and they wanted an agreement from them that Dr Barry Machin, an anthropologist, be retained to provide consultancy and anthropological advice for the prosecution of the joint claim. This was put to Mr De Villiers. He told Dorothy Tucker that the GLSC would not agree to their conditions. Accordingly, on 6 February 2002, Dorothy Tucker wrote to the GLSC advising that the Narnoobinya Family Group would not sign the MOU.

16 On 17 June 2002, Dorothy Tucker wrote to Mr Wayne Denning of ATSIC. She asked ATSIC to provide funding for the Group’s anthropologist, Dr Machin, to represent them and to do their research. They had applied for funding from ATSIC in Kalgoorlie without success. On 16 July 2002, Mr Denning wrote to Dorothy Tucker addressing her as Ms Dorothy English and said, inter alia:

17 On 28 July 2002, Ms Tucker wrote to Mr Denning formally requesting that ATSIC have the decision by the GLSC reviewed under s 203FB of the Native Title Act. On 3 February 2003, ATSIC appointed a barrister, Mr George Irving, to review the decision of the GLSC. Submissions were made by Ms Tucker and by the GLSC to Mr Irving. On 12 May 2003, he provided ATSIC with his report under s 203FB(3) of the Native Title Act. In the conclusion to that report he expressed the view that the decision of the GLSC Executive was the preferable decision and should be affirmed.

18 On 28 May 2003, Mr Wayne Gibbons the Chief Executive Officer of ATSIC wrote to the Tuckers and said:

19 On 25 June 2003, the Tucker sisters on behalf of the Narnoobinya Family Group filed an application in this Court seeking review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the ATSIC decision.

20 The application as originally filed was subsequently amended and then substituted by a new application. The grounds of the application are as follows:

(B) the GLSC had specifically found that, for the purposes of s203BB of the Act, the members of the applicant should be treated as "persons who may hold native title";

(C) the anthropologist’s report upon which the reviewer relied to form his view was a draft only and was expressed to be subject to the conduct of further investigations which had not been carried out;

(D) the respondent relied on the fact that some original members of the applicant subsequently left the applicant and commenced native title claims of their own when the reasons for them doing so was not fully investigated or explained.

(B) the anthropologist’s report on which the reviewer relied to form his view was a draft only and was expressed to be subject to the conduct of further investigations which had not been carried out;

(C) the reviewer did not fully investigate all of the circumstances surrounding the dealings between the applicant and the larger claimant group but drew inferences adverse to the applicant about those dealings on the basis of documents alone;

(D) the fact that the members of the applicant were already part of a larger claimant group in respect of which assistance had been granted by the GLSC was only one of ten criteria for the grant of assistance and the GLSC’s Policy and Procedure Manual provided only that a higher priority would be given to an application which satisfied "a greater number" of those criteria;

(E) there was no evidence that assistance had been granted to the larger claimant group.

21 Part 11 of the Native Title Act provides for the recognition of Aboriginal/Torres Strait Islander representative bodies. Recognition is an administrative act of the relevant Commonwealth Minister. Recognition is done under s 203AD upon application to the Minister by eligible bodies under s 203AB.

22 The functions of representative bodies are identified in s 203B(1) and include ‘the facilitation and assistance functions referred to in s 203BB’. Those functions are described in s 203BB(1) thus:

23 In performing this function in relation to a matter, a representative body must have regard to the interests of ‘native title holders or persons who may hold native title who are affected by the matter’ (s 203BC(1)). It must perform this function, in relation to a native title determination application made under s 61 of the Act, ‘in a way that promotes an orderly, efficient and cost-effective process for making such applications’ (s 203BC(3)). It must also ‘make all reasonable efforts to minimise the number of applications covering the land or waters’ (s 203BC(3)).

24 Representative bodies also have dispute resolution functions to assist in promoting agreement among their constituents about the making of native title applications (s 203BF(1)(a)) and to mediate among their constituents about the making of such applications (s 203BF(1)(b)).

25 The powers of a representative body includes the power ‘to do all things necessary or convenient to be done in connection with the performance by the representative body of its functions’ (s 203BK(1)). There is provision for grants of money to be made by ATSIC to representative bodies upon their application to enable them to perform their functions or exercise their powers (s 203C). Such grants may be subject to conditions (s 203CA).

26 Relevantly for present purposes the Act provides for the review by ATSIC of representative body decisions refusing assistance:

Such grants may be subject to conditions (s 203FB(3)) and may be for a determined period during which the money must be spent (s 203FE(4)).

28 The Reviewer, Mr Irving, began his reasons for his recommendation by referring to the provisions of s 203FB. He considered the nature of the review contemplated by that section and concluded that it was review on the merits. He was required to determine the correct or preferable decision on the basis of material put before him albeit, in so doing, he was subject to the same statutory constraints as the original decision-maker. He regarded himself as entitled to have regard to any policy which the original decision-maker was required to apply even if not under a statutory duty to regard himself as bound by it. He adverted to the principles of natural justice and his compliance with those principles by the receipt of both oral and written submissions in the matter.

29 Mr Irving considered the powers of a native title representative body under s 203BK and the constraint upon that power that native title representative bodies must act in a way that promotes an orderly, efficient and cost effective process for advancing native title applications (s 203BC(3)(a)). He noted the requirement that where an area of land is covered by more than one native title application, the native title representative body ‘must make all reasonable efforts to minimise the number of applications’ (s 203BC(3)(b)).

30 Mr Irving referred to Section J of the GLSC Policy and Procedure Manual which sets out policies and procedures for assessing applications for assistance under the statutory facilitation and assistance functions. He noted that cl 6 of Section J provides that applications for assistance are to be assessed for ‘legal merit’ by the Manager of the Legal and Native Title Section who in the course of that assessment ‘shall receive and consider a report from the co-ordinating anthropologist’. Legal merit was said to be the ‘threshold test’ for assistance. It required a demonstration that the applicants were part of a cohesive and identifiable group which continued to acknowledge traditional laws and customs and had a continuing connection to the land or waters they wished to claim. Mr Irving was of the view that the threshold test so stated was an appropriate and proper policy consideration and one that he ought to take into account.

31 An application for assistance which passed the threshold test was subject to priority allocation in relation to other applications for assistance. Under Section J of the Policy and Procedure Manual, the Manager of the Legal and Native Title Section of the GLSC was responsible for that assessment and was required to have regard to the relevant anthropologist’s report. Factors affecting the assessment, according to the Policy, included:

Mr Irving expressed the view that these policy considerations were also appropriate and proper and ought to be taken into account in his review. He made reference to cl 7 of Section J which made it clear that assessments undertaken by the Manager of the Legal and Native Title Section were to culminate in a report and recommendations for consideration by the GLSC Executive which must ultimately determine the outcome of all applications for assistance.

32 Mr Irving considered the factual background to the application for review, which has already been outlined. He noted that the decision to discontinue assistance for the Narnoobinya claim made on 16 March 2002 was made by the Director of the GLSC rather than by the Executive as required by cl 7 of Section J of the Policy and Procedure Manual. He observed that although the Review Panel report stated that it had received a copy of Section J of the GLSC Policy and Procedure Manual, it contained no express finding or recommendation as to whether the Narnoobinya applicants were part of a cohesive and identifiable group continuing to acknowledge traditional laws and customs and having a continuing connection to the land.

33 Mr Irving said that the Review Panel report referred to the fact that members of the Ngadju claim group included the applicants’ brother and sister and other members of their extended family. This suggested the Panel was not satisfied that the applicants constituted a cohesive and identifiable group. Its report referred to the fact that the anthropologist, Dr Draper, who had prepared a draft report, did not dispute the Tuckers’ cultural beliefs nor their association with the claim area from the time of pastoralism. However there was nothing in the Review Panel report to suggest that it did not accept Dr Draper’s view that the claim area was Ngadju country and the traditional home of most of the contemporary Ngadju families. It acknowledged his view that the applicants might even belong in the Ngadju claim and that further genealogical research needed to be carried out. Mr Irving thought it reasonable to assume that the Review Panel was not of the opinion that the application for assistance to the GLSC by the Narnoobinya Group satisfied the threshold test for assistance. It did not spell this out in its report, but rather focussed on the potential for resolving the overlapping claims. In Mr Irving’s opinion, the GLSC, by its adoption of the Panel’s recommendation for the appointment of an independent facilitator, impliedly decided to discontinue the assistance that had previously been sought and granted. I interpolate that I regard this aspect of his report as background which explains how the implied decision to decline assistance arose. It did not involve an adoption of the Review Panel’s views.

34 Mr Irving then considered the merits of the assistance decision. He had regard to the GLSC threshold test. He referred to Dr Draper’s finding that the land in question closely corresponded to the area identified by Tindale in 1974 as belonging to Ngadju and that it was amply documented and known as Ngadju country. Dr Draper had been unable to document a single occurrence of the word Narnoobinya other than its use by Dorothy and Thelma Tucker in their native title determination application. They did not dispute the legitimacy of the Ngadju claim. Their complaint was that their family group should have been included in it. Mr Irving then said:

35 He was fortified in his conclusion by the Tuckers’ submission that after the decision of the GLSC to discontinue assistance a limited grant of assistance was made in connection with the negotiation of a MOU between the Narnoobinya and Ngadju claimants. The Tuckers’ refusal to sign the MOU was because they wanted to meet with the Ngadju first and needed Dr Machin to be involved in the claim as advisor and anthropologist.

36 Having regard to his findings about the threshold test, Mr Irving did not regard it as strictly necessary to address the criteria regarding the relative priority for the allocation of assistance that should be attached to the Narnoobinya claim in comparison with the Ngadju claim. Nevertheless he did briefly consider that issue. He expressed the view that priority in the allocation of assistance ought to be given to the Ngadju claim. The number of people to be benefited from its successful outcome would far exceed the number who would benefit from the successful outcome of the Narnoobinya claim. The membership of the Ngadju claim group exceeded 840 people, according to the GLSC submission. The Narnoobinya claim comprised 75 people. It came into existence as a direct consequence of the refusal of Arthur Dimer to include the Tucker family in the Ngadju claim. The subsequent rejection of the offer to be included in the Ngadju claim by the Tuckers remained ‘entirely unexplained’ and justified a conclusion that they had ‘not negotiated in good faith with other people who assert native title interests in the claim area’. Again, Mr Irving referred to the outcome of the negotiations regarding the proposed MOU. There was a clear opportunity for the Narnoobinya claimants to resolve their dispute with the Ngadju claimants after the Norseman mediation meetings. It was difficult not to conclude that the remaining dispute lay at the will of Dorothy and Thelma Tucker.

37 In light of the preparedness of the Ngadju claim group to accept that the Narnoobinya claimants should be part of the group, Mr Irving was of the view that the Tuckers were part of a larger claimant group for which assistance had already been granted.

38 His overall conclusion was that the decision of the GLSC was the preferable decision and should be affirmed.

39 Mr Gibbons, the CEO of ATSIC, attached to his letter of 28 May 2003 to Ms Tucker a statement of his reasons for affirming the decisions of the GLSC of 8 September 2000 and 11 September 2000. His reasons for decision were set out in two and a half pages. Under the heading ‘LEGAL FRAMEWORK’ he referred to s 203FB of the Act. Under the heading ‘DOCUMENTATION/EVIDENCE’ he said he relied on or took into account Mr Irving’s report of 12 May 2003 and a brief dated 26 May 2003. It was stated from the bar table, without objection, that the ‘brief’ was a reference to the papers provided to Mr Irving. Under the heading ‘FINDINGS ON MATERIAL QUESTIONS OF FACT’, he simply stated:

40 The next section in the Statement of Reasons was headed ‘REASONS FOR DECISION’. In that section Mr Gibbons said he had given careful consideration to the review report. The Reviewer had demonstrated to him that the GLSC is ‘obliged by statute’ to impose policies. Of particular relevance was cl 6 of Section J in the Policy and Procedure Manual in assessing the ‘legal merit’ said to be ‘the threshold tests’ for assistance. He restated the threshold test. He noted that when the GLSC Executive discontinued assistance the Narnoobinya claim group was no longer comprised of all the sons and daughters of William Henry Tucker and Hettie Ann Tucker but had been reduced to exclude those who had joined the Ngadju claim group. At par 5.6 of his reasons he said:

It appears from this paragraph that Mr Gibbons accepted the Reviewer’s conclusion that the threshold test was not satisfied.

41 Mr Gibbons’ reasons then turned to the overall priority of the Narnoobinya claim group. He referred to the policy criterion of the GLSC. He noted the Reviewer’s finding that Ms Tucker had not disputed the legitimacy of the Ngadju claim but complained of the non-inclusion of her family group. He referred to the mediation meetings in 1998 and the Reviewer’s conclusion that there was a clear opportunity for the Narnoobinya claimants to resolve their disputes with the Ngadju claimants. He quoted the Reviewer’s conclusion that Ms Tucker was in fact part of a larger claimant group to which assistance had already been granted.

42 It was evident from the statement of reasons that Mr Gibbons accepted the findings and conclusions made by Mr Irving and on the basis of those findings and conclusions affirmed the decision of the GLSC.

43 The research, preparation and conduct of native title applications is notoriously demanding of the resources of representative bodies engaged in those activities. So too, is the conduct of associated functions relating to the negotiation and arbitration of future acts, the making of indigenous land use agreements and other matters related to the operation of the Native Title Act. Like many parties involved in the native title process, native title representative bodies have limited resources and difficult decisions to make about their allocation. A certain proportion of such decisions will inevitably be disputed - see eg Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483; (2001) 108 FCR 589; Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586; (2001) 110 FCR 582.

44 The possibility of disputes arising in relation to the decisions of native title representative bodies is recognised by s 203BI which defines the ‘internal review functions’ of such bodies as requiring the provision of a process by which persons may seek review by their representative body of decisions and actions made or taken in the performance of its functions. The panel process established by the GLSC was no doubt intended to fulfil that function. A mechanism for the external review, by ATSIC, of decisions made by representative bodies in the performance of their facilitation and assistance functions under s 203BB is provided by s 203FB. The first question which arises is – what is the nature of the review process authorised by the Act?

45 The word ‘review’ is defined in the Shorter Oxford English Dictionary relevantly as follows:

The ordinary legal meaning of the word is ambulatory. Taken in isolation, it does not define the mechanisms for examination or revision that may be applied. These can range from rehearing on the merits with new evidence to an examination of a questioned decision on limited grounds of error of law or process based on the materials considered by the primary decision-maker. The latter class of review is more readily applicable to judicial than to administrative action. But as the High Court said in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 261, the word ‘review’ has ‘no settled pre-determined meaning; it takes its meaning from the context in which it appears’. It encompasses judicial review on grounds of error of law, excess of power and breach of the rules of natural justice. It also encompasses administrative reconsideration in the light of changed circumstances – Bannister v See (1982) 42 ALR 78 at 81 (Toohey J). As was said in Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 (at 194):

46 The kind of review contemplated by s 203FB is indicated by the following features:

47 The review process is administrative in character. It involves substantive judgments by a relevantly skilled or knowledgeable person about whether a grant should be made or the refusal of assistance affirmed. That is a decision on the merits of the case. The reviewer is not in any way bound by the factual basis upon which the representative body has made its decision. Nor is he or she limited to the materials which were before or considered by the representative body. On the other hand there is nothing to prevent the reviewer having regard to material considered by the representative body including anthropological reports and other matters.

48 The factual basis of a decision to grant or withhold assistance in relation to a native title determination application does not require certainty that the person seeking assistance is or is not a native title holder, or would or would not succeed in the application. The judgment made in decisions by native title representative bodies and decisions by reviewers will necessarily be based upon material which is provisional or incomplete. The representative body and the reviewer must do the best they can. There are statutory objectives to be observed by representative bodies in making such decisions which are defined in s 203BC(3). They must be made in a way that promotes an orderly, efficient and cost effective process for making native title applications (s 203BC(3)(a)). The representative body making such decisions is also to make all reasonable efforts to minimise the number of applications covering the land or waters, ie overlapping applications. The decision-making process in determining the allocation of financial assistance with respect to native title determination application is multi-dimensional. In any given case there may be a number of possible outcomes consistent with the requirements of the Act.

49 The ATSIC review process provides an appropriate mechanism for the review of such decisions and although the outcome of the process, if the decision is not affirmed, is a grant by ATSIC rather than by the relevant native title representative body, there can be little doubt that in many if not most cases there would be budgetary implications for the representative body in subsequent funding by ATSIC. It is appropriate for ATSIC and its reviewer, in exercising their functions under s 203FB, to adopt the perspective of the representative body and to have regard to the policies and procedures which it has adopted for the determination of financial assistance in the area of its responsibility. Of course they are not bound to do so and if either the reviewer or ATSIC were to regard themselves as bound by such policies and procedures regardless of the merits of the case, then reviewable legal error may have occurred. That is not this case. The reviewer had regard to the policies and procedures of the GLSC and, in particular, their adoption of a two stage assessment of applications for assistance requiring consideration of their legal merit as a threshold question and in the case of applications with legal merit, consideration of criteria affecting priorities among competing claims. He did not regard himself as bound by them but saw them as reflecting a proper approach to the assistance decision.

50 The decision which is the subject of this application is that of ATSIC to affirm the implied decision of the GLSC to refuse financial assistance to the Narnoobinya Family Group. Counsel for the Tuckers accepted that the core proposition underpinning their application was that the decision-maker, that is to say ATSIC through its CEO Mr Gibbons, failed to turn its own mind to the question it had to decide and simply adopted the statements contained in the reviewer’s report and the conclusions reached by the reviewer.

51 A second legal basis upon which the decision was challenged was that it was inappropriate for the reviewer or ATSIC to have regard to priority criteria as these were within the special province of the relevant representative body.

52 As to the first point, it would be wrong for ATSIC in the exercise of the review function conferred upon it by s 203FB, simply to ‘mindlessly’ adopt the reviewer’s report. It must consider the report and be satisfied that the report and its recommendations are appropriate. Having said that, it is open to ATSIC to accept the report and make a decision in accordance with its recommendations. It can adopt the reasons set out in the report. It is not required to produce its own set of independent reasons. Mr Gibbons set out reasons for the decision in his Statement of Reasons. In substance they amounted to the adoption of the reasoning advanced by Mr Irving. Mr Gibbons did not express his reasons with the precision that might be expected of a legal or judicial officer, but he is not required to do that. In my opinion, his approach to Mr Irving’s report was compatible with the proper discharge of the statutory obligation of ATSIC under s 203FB.

53 As to the question of the allocation of priorities, for the reasons I have set out above, it is appropriate for the reviewer and for ATSIC to put themselves notionally in the position of the representative body or at least to have regard to the considerations it would need to bear in mind in allocating resources within its area of responsibility. There is no legal error in taking that approach provided that it has regard to the particular circumstances of the case under review.

54 The substantive particulars of ground (a) of the application, alleging improper exercise of the power conferred by the Act, are set out in par (iii) under that ground. Of those particulars the following comments can be made:

(iii)(a)(A) – this was not pressed. Nor could it be sustained for it implies that the reviewer is limited in his approach by the approach taken by the representative body.

(iii)(a)(B) – this particular also appears to depend upon the unsustainable proposition that the reviewer is limited by the approach taken by the representative body.

(iii)(a)(C) – the fact that the anthropologist’s report, considered by the reviewer, was a draft only and expressed to be subject to the conduct of further investigations goes to the merits of the decision and not to any improper exercise of power. In any event the nature of the financial assistance decision-making process whether at primary level or upon review, will necessarily, in many cases, be based upon material which is incomplete or provisional in character.

(iii)(a)(D) – this raises the question of disproportionate reliance upon the applicant’s membership of a larger claim group. There were other criteria in the GLSC policies and procedures. Again, this is a matter which goes to the merits of the decision and not to any exercise of improper power.

(iii)(b) – this particular appears to import the suggestion that Mr Gibbons, in his reasons, conflated the threshold test of legal merit with the question of priority application. While that construction might be open upon a strict reading of his reasons, it is at worst an infelicity of expression. It is apparent, in my opinion, that he was in substance following and adopted the reasoning used by Mr Irving. There is no improper exercise of power disclosed in this particular.

(iii)(c) – in my opinion this matter simply goes to the merits of the reviewer’s report and recommendations and its adoption by Mr Gibbons. It does not disclose any basis upon which it can be said that the making of the decision was an improper exercise of the power conferred by the Act.

55 For these reasons, the grounds of the application asserting that the making of the decision was an improper exercise of the power conferred by the Act fails.

56 Ground (b) of the application asserts that the decision involved an error of law and repeats the particulars of the preceding ground. For the reasons already expressed, that ground also cannot succeed.

57 It is asserted in par (c) of the grounds of review that there was no evidence or other material to justify making the decision. This relies upon particulars set out in pars (iii)(a)(C) and (D) and (c)(C), (D) and (E) of the preceding particulars. With respect, these matters do not address the no evidence ground in s 5 of the Administrative Decisions (Judicial Review) Act. They are simply an attack upon the merits of the decision in another guise. This ground does not succeed.

58 This ground relies upon the same particulars as ground (a). It fails for the same reason that ground (a) fails.

I certify that the preceding fifty nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Applicant:	Mr JRB Ley (pro bono)

Counsel for the Respondent:	Mr PD Quinlan

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	9 February 2004

Date of Judgment:	24 February 2004

Federal Court of Australia

Tucker for Narnoobinya Family Group v Aboriginal & Torres Strait Islander Commission [2004] FCA 134 (24 February 2004)