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Federal Court of Australia |
Last Updated: 29 March 1999
Kooma Aboriginal Corp for Land v Goolburri Regional Council of the Aboriginal & Torres Strait Islander Commission [1999] FCA 82
ADMINISTRATIVE LAW - judicial review - available relief - where decision by regional council of Aboriginal and Torres Strait Islander Commission to revoke funding for Aboriginal corporation -where failure by Aboriginal corporation to comply with Aboriginal and Torres Strait Islander Commission Funding Procedures and Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) - where subsequent grants of money by regional council of Aboriginal and Torres Strait Islander Commission to Aboriginal corporation withheld or withdrawn for breach of conditions of earlier grant - where these subsequent decisions not subject to application for order of review
KOOMA ABORIGINAL CORPORATION FOR LAND v GOOLBURRI REGIONAL COUNCIL OF THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
QG 156 OF 1998
SPENDER J
5 FEBRUARY 1999
BRISBANE IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: APPLICANT AND: RESPONDENT JUDGE(S):
QUEENSLAND DISTRICT REGISTRY QG 156 OF 1998
KOOMA ABORIGINAL CORPORATION FOR LAND
GOOLBURRI REGIONAL COUNCIL OF THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
SPENDER J DATE OF ORDER: 5 FEBRUARY 1999 WHERE MADE: BRISBANE
THE COURT DECLARES THAT:
The demand of Mr Kay contained in the letter of 18 November 1998 is not a valid exercise of the power concerning the suspension of the release of grant funds conferred under clause 9.3 of the general conditions relating to grants between the Aboriginal and Torres Strait Islander Commission and a grantee.
THE COURT ORDERS THAT:
1. Decision 452 of the Goolburri Regional Council of the Aboriginal and Torres Strait Islander Commission dated 25 September 1998 be set aside.
2. The respondent pay the applicant's costs in the proceedings, including reserved costs, to be taxed if not agreed.
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 | QG 156 OF 1998 |
|
BETWEEN: | KOOMA ABORIGINAL CORPORATION FOR LAND
APPLICANT |
|
AND: | GOOLBURRI REGIONAL COUNCIL OF THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
RESPONDENT |
JUDGE(S):
SPENDER J DATE: 5 FEBRUARY 1999 PLACE: BRISBANE
1 On 19 November 1998, an application for an order of review was filed by the Kooma Aboriginal Corporation For Land against the Goolburri Regional Council of the Aboriginal and Torres Strait Islander Commission (`The Goolburri Regional Council'). The application was to review the decision by the Goolburri Regional Council made on 25 September 1998 that is contained in Decision 452. That was a resolution to rescind Decisions 415 and 426 which granted funds to the Kooma Aboriginal Corporation For Land, relating to Submission 1146 for 1998/99 in the amount of $184,248.00.
2 The decision continued:
"The organisation is currently in major breach and Council cannot forsee (sic) these breaches being cleared within the next three months and wish to make the funds available for reallocation."3 That decision, notwithstanding it was made on 25 September 1998, was communicated to the Kooma Aboriginal Corporation For Land by letter of 6 October 1998 over the hand of Mr Kay, the Regional Manager of the Goolburri Regional Council. The letter is important and I set it out in full.
"Dear Mr Wharton,4 On the following day, 7 October 1998, Mr Wharton, the General Manager of Kooma Aboriginal Corporation For Land, wrote to Mr Kay in the following terms:
I wish to advise that at the recent Goolburri Regional Council meeting held on 23-25 September 1998 a decision was made with regard to Kooma Aboriginal Corporation for Land's funding for 98/99.
In view of the serious nature of the breaches of grant conditions in the 1997/98 financial year, as identified by the Grant Controllers Report (KMPG) (sic) 18th September 1998 the Goolburri Regional Council has decided to defund your organisation.
Please also note that as per the Terms and Conditions of the 1998/99 Letter of Offer, clause 9.3
9.3 Where ATSIC is satisfied that the Grantee has failed to comply with a Grant condition:
a. ATSIC may suspend releases of Grant Funds until it is satisfied that the Grantee has met the Grant Conditions.
b. ATSIC may require the Grantee to take such action in relation to Grant Assets and assets acquired under this grant or other grants made by ATSIC and ATSIC's predecessors as appears reasonable to ATSIC for purposes of security. This action may include the storage of the Grant Assets and the other assets and delivery to ATSIC of the Grant Assets and other assets, or documents relating to them. The Grantee must take such security action as soon as possible after ATSIC has notified it of the requirement.
c. The Grantee must, if required by ATSIC, transfer any Grant Assets and assets acquired under this grant or other grants made by ATSIC or ATSIC's predecessors to ATISC (sic) or to another person or body nominated by ATSIC, and the grantee must do all things and execute all documents reasonably required by ATSIC to effect such transfer.
d. ATSIC may give written notice under section 20 of the Act to repay so much of the Grant Funds as ATSIC specifies in the notice.
Your organisation has received a Letter of Offer for Operational cost funds from the Commission for the 1st quarter 98/99 and you would have reasonable expectations to receive the balance of the year's funding in due course. However the Goolburri Regional Council has decided that this will now not be possible and has withdrawn your allocation for any further grants in 98/99.
In the spirit of natural justice your organisation will be given a reasonable opportunity to respond in writing as to why such action should not proceed. Please respond within 28 days from receipt of this letter."
"I write on behalf of the Kooma Aboriginal Corporation for Land (KACL) and refer to your letter of 5 October 1998.5 It is plain beyond argument that in that letter the Corporation made it plain that it alleged that the Council was in breach of the Aboriginal and Torres Strait Islander Commission's Funding Procedures: Part 2/F/11 and, in particular, paragraph 11.2.3. Those procedures have the force of law by virtue of s 22(2) of the Aboriginal and Torres Strait Islander Commission Act 1989 (`the ATSIC Act').
The decisions made at the Goolburri Regional Council (GRC) meeting held on 23-25 September 1998 to effectively defund KACL are ultra vires and void for the following reasons:
* KACL has clearly been denied natural justice as the decisions have been made by GRC without giving KACL an opportunity to be heard.
* GRC is in breach of ATSIC's Funding Procedures: Part 2/F/11 in particular Paragraph 11.2.3. It states in general terms that if it is proposed to defund a grantee, the decision maker must inform the grantee of what is proposed and the matters giving rise to the proposal. The decision maker must also give the grantee a reasonable opportunity to present a written submission on the matter before a decision is made and then take that material into account when making the decision.
* The decision to defund was made by decision makers who are and were biased as a hypothetical reasonable bystander would entertain a reasonable fear that the GRC was incapable of bringing a fair and unprejudiced mind to the making of the decision.
It is clear from your correspondence that the decisions has (sic) been made without informing KACL of what was proposed and the matters giving rise to the proposal either orally or in writing.
It is also clear that KACL has not been given a reasonable or any opportunity to respond in writing to the proposal as decisions have been made.
As it is clear that GRC's decisions are ultra vires and void and I am instructed, on behalf of KACL, that unless your decisions are rescinded and communicated to KACL to be void by close of business on 16 October 1998 KACL will issue proceedings in the Federal Court of Australia. The restoration of our funding would avoid costly legal proceedings and the subpoenaing of all relevant witnesses to the decision making process. If legal action is necessary we give notice that costs will be sought against GRC.
Finally, KACL advises that it reserves its rights, pending restoration of funding, to lodge a complaint to the Commonwealth Ombudsman regarding this matter."
6 The sections of the Act which are relevant to the present proceedings are:
14. (1) The Commission may:7 Section 22 relevantly provides:
(a) make a grant of money; or
(b) grant an interest in land; or
(c) grant an interest in personal property; or
(d) make a loan of money (whether secured or unsecured);
to:
(e) an individual; or
(f) a body corporate (other than a Regional Council or the TSRA); ...
for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders.
(2) A grant or loan is subject to such terms and conditions as the Commission determines.
..."
"(1) The Commission must formulate written principles (decision-making principles,) not inconsistent with the objects of this Act, about:8 Section 45 provides, in subsection 1:
(a) making grants and loans under section 14 ...:
(2) Subject to section 74, the Commission must perform its functions and exercise its powers under sections 14, 15, 16 and 17 in accordance with applicable provisions of the decision-making principles in force from time to time.
(1) The Commission may, by writing under its seal, delegate any or all of its functions and powers, other than [certain specified powers]."
9 Subsection 3 provides:
(3) If the Commission delegates a function or power to the Chief Executive Officer, he or she may, by writing, sub-delegate the function or power to a member of the staff of the Commission.
10 Section 45A provides for delegation by the Commission to a Regional Council. Subsection 1 provides:
(1) The Commission may, by writing under its seal, delegate to a Regional Council any or all of its powers under section 14, 15 or 16 or any or all of its other powers ..."11 Subsection 9, in relation to delegations generally, provides:
(9) Without limiting the operation of the Freedom of Information Act 1982, the Chief Executive Officer must ensure that copies of suspensions, delegations and directions as in force from time to time are:
(a) given to each Regional Council; and
(b) available for inspection and purchase at each office of the Commission."
12 On 18 November 1998, Mr Kay wrote a letter to the Chairperson of Kooma Aboriginal Corporation For Land. This letter is particularly important, in a practical sense, to the present application. I set out the letter in full.
"With reference to my letter to you dated 6th October 98, where I advised that the Goolburri Regional Council had withdrawn your 98/99 funding of $184,248.13 I should note, in particular, paragraph 3 which says:
The Australian Government Solicitor has since advised me that the Regional Council Decision no. 452 that dealt with the withdrawal of your funding is invalid. This now means that the original funding decision's (sic) 426 and 415 dated 13th August are still valid and the amount of $184,248 remains allocated to your organisation.
However, before I am able to formally offer your organisation these funds. I need your Board to address in detail the serious issues raised by the Grant Controllers (sic) Report (KPMG) dated 18th September 98. I understand that copies of this report were sent to your Board in early October.
Serious Issues to be Addressed:
* Creditors
How does your organisation intend to meet its obligations to the outstanding creditors? I understand there may be some adjustment to the amounts owed to the Australian Taxation Office, however this still leaves a sizeable debt to meet from limited resources.
If you intend to enter into a repayment plan with your creditors I will need a fully costed repayment plan agreed to by all creditors, showing exactly how Kooma intends to met (sic) the cash flow requirements. I suggest you seek the assistance of an accountant in this matter.
* Incorrect Use of Grant funds
Why the amount of $128,661 was used to complete the house at Coongoola, when the purpose of the grant was to operate the radio station for 97/98.
* Future Management of Kooma
What remedial measures does your Board intend to implement to ensure the situation as reported by the grant controller does not re-occur?
Your organisation is currently in breach of ATSIC funding conditions for the unauthorised use of 97/98 grant funds (Broadcasting Operating Grant) to complete the construction of a house at Coongoola. This unauthorised expenditure has then contributed to the current level of unpaid creditors.
As I have mentioned previously in this letter I will not be issuing a Letter of Offer for the amount of $184,246 until the issues as raised above are fully addressed by your Board.
Please respond in writing within 28 days from receipt of this letter."
"However, before I am able to formally offer your organisation these funds. I need your Board to address in detail the serious issues raised by the Grant Controllers (sic) Report (KPMG) dated 18th September 98. I understand that copies of this report were sent to your Board in early October.14 It is important to note that this letter was a recognition that:
"...the original funding decision's (sic) 426 and 415 dated 13th August are still valid and the amount of $184,248 remains allocated to your organisation."15 It is also important to note that Decision 452 and Mr Kay's demand are based on a view that grants for the 1998/99 year may be withdrawn or withheld, not for breach of any condition of those grants, but for breach of a condition of some earlier grant.
16 The decisions 426 and 415 are not concerned with "allocation" of funds if by that is meant something other than a grant of money pursuant to s 14. Decision 415 is in the following terms.
"FUNDING DECISION - KOOMA ABORIGINAL CORPORATION - EMPLOY FINANCE OFFICER
The Goolburri Regional Council, pursuant to section 14 of the Aboriginal and Torres Strait Islander Commission Act 1989, (the Act) and in accordance with Objective of the Regional Plan, hereby makes a grant of money (under Regional Council Delegation 1.1 and section 45A of the Act) as specified in Schedule 1, subject to general program specific conditions plus any special conditions set out in Schedule 2.
Schedule 1 Submission Number: 1146
Activity Description: Broadcasting Operating Costs And Resource Centre Operating Costs (HPR)
Objective of Activity: To provide operating costs for operating of radio station for three quarters of 98/99 and to provide funding for Resource Centre (30,000) for three quarters fo (sic) 98/99
Amount:
Period of Funding for Activity: From 1/7/98 TO 30/6/99"17 Decision 426 is in the following terms:
"FUNDING DECISION - KOOMA ABORIGINAL CORPORATION - EMPLOY FINANCE OFFICERThe Goolburri Regional Council, pursuant to section 14 of the Aboriginal and Torres Strait Islander Commission Act 1989, (the Act) and in accordance with Objective of the Regional Plan, hereby makes a grant of money (under Regional Council Delegation 1.1 and section 45A of the Act) as specified in Schedule 1, subject to general program specific conditions plus any special conditions set out in Schedule 2.
Schedule 1
Submission Number: 1146
Activity Description: Employ Finance Officer
Objective of Activity: To provide a qualified/experienced accounting person to manage the finances of Kooma Aboriginal Corporation
Amount:
Capital
$ HPR Operational $30,162 CDEP Wages $ TOTAL $30,162 Period of Funding for Activity: From 1/7/98 to 30/6/99"
18 The "serious issues raised by the Grant Controller's Report dated 18 September 1998" is, in my view, a misrepresentation or perhaps, kindly, a misunderstanding as to what in fact the report by the Grant Controller, Mr Tuttle of KPMG, reported. It is sufficient to set out the Executive summary. Mr Tuttle said:
"...19 On 21 December, an amended application for an order of review was filed. By that amended application, application was made to review the decision made by the respondent on 25 September 1998, which resolution resolved to rescind Decisions 415 and 426.
My review identified that Kooma is carrying considerable liabilities from group tax and superannuation, debts which were incurred some considerable time ago but which are continuing to incur ongoing penalties and interest. These debts would appear to have been allowed to accumulate without affirmative action being taken by previous management.
Overall, creditors of approximately $100,000 have been identified with little or no prospect of repayment from existing operations which do not generate any income.
In comparison, Kooma's assets comprise minimal studio and office equipment and an encumbered vehicle.
Kooma's core operations, the provision of a local indigenous broadcasting service, appears (sic) to be operating effectively and is well regarded within the community.
The proposal to purchase Tobruk would generate some funds which could be used for repayment to creditors, however, this would leave little or no funding for operational matters. The proposal as outlined does little to generate confidence in management's ability to conduct a viable business and seems more suited to a separate organisation with the aim of holding land solely.
In view of the limited assets, there is (sic) nominal prospects of any formal arrangements that could be entered into to restructure the organisation without an injection of funds. The organisation should attempt to negotiate part payment of debts with all creditors in full satisfaction of amounts owing as an alternative in view of the cost of any formal arrangements.
In the event that this is not achievable, ongoing survival will be dependent on grants to meet creditors, failing which, action by the Registrar or other creditors to wind up the organisation will occur."
20 The applicant is an Aboriginal corporation incorporated pursuant to the provisions of the Aboriginal Councils and Associations Act 1976. It was incorporated on 7 February 1994. There are nine directors of the applicant, each of whom is elected by members of the applicant, whose membership is open to adult Aboriginal persons and spouses who are descendants of the Kooma tribe and who normally and permanently reside in Cunnamulla, Dirranbandi, Bollon, Coongoola and the surrounding districts of south western Queensland.
21 It is asserted by the applicant and not challenged by the respondent that the applicant, as a consequence of the respondent's decision, is unable to meet the broadcasting operation expenditure costs and activities of community radio station 4TOF FM 99.7, the community radio station at Cunnamulla operated by the applicant corporation. It is said that the decision is in breach of natural justice in that the applicant had a legitimate expectation that it would continue to receive operational cost funds from the respondent for the balance of the year's funding in 1998/1999, and the applicant was not afforded a reasonable opportunity by the respondent to present any written submission on the issue of funding before the decision was made.
22 In particular, it is said that the procedures which were required to be observed under s 22(2) of the ATSIC Act in connection with the making of the decision were not observed, including the procedures stipulated in the ATSIC Funding Protocol in Chapter 11 of the respondent's Funding Procedure Manual Part 2 were not observed, and no adequate written reasons were given to the applicant for the decision. It is also said that there was an improper exercise of the power conferred by ss 10 and 14 of the ATSIC Act by the taking into account of irrelevant considerations and failing to take into account relevant considerations.
23 The relevant part of Chapter 11 of the Funding Procedures of the Commission are as follows. Chapter 11 is headed "DEFUNDING PROCESSES". Chapter 11.1 says:
"11.1 Introduction24 In relation to de-funding, clause 11.2 provides:
11.1.1 For the purpose of furthering the social, economic and cultural development of Aboriginal persons or Torres Strait Islanders, Section 14 of the ATSIC Act enables the Commission to:
a. make a grant of money;
b. grant an interest in land;
c. grant an interest in personal property; or
d. make a loan of money (whether secured or unsecured);
to:
i. an individual;
ii. a body corporate (other than a Regional Council or the Torres Strait Regional Authority); or
iii. an unincorporated body.
11.1.2 Grants or loans are subject to ATSIC's Standard and Supplementary Terms and Conditions or any Special Condition determined by the Commission.
11.1.3 Previously, Regional Councils merely made recommendations to ATSIC officers, who then, acting as delegates of the Commission itself, made the decision to fund, or defund, the relevant grantee. Legally, this was because the ATSIC Act formerly provided that only ATSIC officers could act as delegates of the ATSIC Board of Commissioners. From 1 July 1994 Regional Councils are the delegates for funding or defunding Regional Council projects. (Section 45A of the ATSIC Act refers).
11.1.4 Nevertheless, the Commission will have a considerable say over the process of the making of grants and loans and defunding by:
a. the Decision-Making Principles formulated under Section 22 in conjunction with Program Policy and Guidelines Statement which govern the exercise of grant loan and guarantee decisions; and
b. any conditions it puts upon delegations, whether to ATSIC officers or to Regional Councils.
11.1.5 Grant decisions made under Section 14 will be subject to judicial review in the Federal Court. It follows that a person able to make such a challenge will be able to request a statement from the relevant decision maker of his, her or their reasons for the grant decision.
11.1.6 In addition, decisions on grants or loans to individuals will attract full merits review in the Administrative Appeals Tribunal.
11.1.7 Finally, those aggrieved with grant or loan decisions may complain to the Ombudsman, who may then investigate the complaint and recommend redress.
"11.2 Defunding
11.2.1 Defunding may occur in a number of ways. Under clause 9.2 of the ATSIC Standard Terms and Conditions it is stated that ATSIC:
`Where the Commission, or where a Regional Council has approved the Grant, the Regional Council, is satisfied that the Grantee does not have the capacity to manage the Grant, the Commission, or the Regional Council, as the case may be, may cease or suspend releases of Grant Funds'.
11.2.2 This clause is supported by Section 14 of the ATSIC Act which permits ATSIC to impose terms and conditions upon grants it makes. It may also be possible to cease funding mid-grant for serious breach of grant conditions by relying on Section 14 alone. Further, non-compliance with Terms and Conditions may lead to ATSIC not making another grant in favour of an organisation and/or issuing a notice under Section 20 of the ATSIC Act requiring re-payment of the grant or loan. [emphasis added]
11.2.3 If it is proposed to defund, the rules of natural justice would apply to the making of the decision by ATSIC and its delegates (including Regional Councils). This means that in making the decision the ATSIC delegate(s) must:
a. inform the grantee of what is proposed and the matters giving rise to that proposal, give the grantee a reasonable opportunity to present a written submission on the matter before the decision is made and then take that material into account. The amount of time that is reasonable will vary from case to case. Usually ATSIC's dissatisfaction with the grantee's behaviour will have already been communicated to the grantee. If there has been extensive prior correspondence between ATSIC and the grantee on the matter a shorter response time may be appropriate, provided always that the time allowed for response is "reasonable";
b. not be or appear to be biased. A decision maker must not have a personal (for example a financial) interest in the decision to be made. Further, the decision maker must not appear biased. A decision maker will, in law, appear biased, if a hypothetical reasonable bystander would entertain a reasonable fear that the decision maker would be incapable of bringing a fair and unprejudiced mind to the making of the decision. This might occur, if, for example, a member of a Regional Council was a close relative of a successful grant applicant. In such cases the safest course is for the "biased" delegate to be replaced by an "unbiased" delegate or to absent him or herself from the decision making process."25 As to the question of evidence of delegations, there simply is no evidence before me of any delegation pursuant to ss 45 or 45A of the Act. It seems to have been assumed by Mr Kay that he has powers of the Commission, in particular, powers that are said to be contained in various parts of a folder, Funding Procedures Manual Part 5, which contains a schedule of program delegations. No delegation by the Commission to the Chief Executive Officer by writing under seal is before the court, nor is there any evidence of delegations from the Chief Executive Officer to Mr Kay of any delegation by him in writing.
26 In particular, this folder which is relied on by Mr Kay, contains two unexecuted instruments of sub-delegation. The first instrument in the volume is dated 19 October 1998, is unexecuted, but the name Glenn Rees, Acting CEO, appears in the document, but that particular sub-delegation seems to refer to Commercial Officers, Housing Loan Officers, Senior Housing Loan Officers and Senior Project Officers. There is a further instrument of sub-delegation in the volume, again unexecuted, dated 11 September 1998, again with the typing, "Glenn Rees, Acting CEO". This also relates to Commercial Officers, Housing Loan Officers, Senior Housing Loan Officers and Senior Project Officers. Shortly put, there seems to be a laxity at least in the proof of, if not the existence of, delegations of powers. This is not only surprising, but it seems to be a state of affairs which is inconsistent with compliance with the requirements of s 45A(9).
27 Be that as it may, the letter of 18 November 1998 was admitted by Mr Kay in oral evidence before me to amount to a "delay" by him in the provision of funds until the explanation sought in that letter had been provided. So far as the suspension of grant funds is concerned, Decisions 415 and 426 were subject to the "general specific program conditions". In the "General Terms and Conditions relating to Grants" between the Commission and a grantee, cl 9 is headed "Suspension of Payments etc" and clause 9.1, 9.2 and 9.3(a) provide for the circumstances as a condition of the grant under which payments may be suspended, withdrawn, or required to be repaid.
28 Clause 9.1 provides:
"Where ATSIC is satisfied that an approved activity is unable to be performed by the Grantee, the Grant Funds relating to that activity under the approved budget must be repaid to ATSIC upon demand.That has no relevance. Clause 9.2 provides:
"Where ATSIC is satisfied that the Grantee does not have the capacity to manage one or more of the approved activities, ATSIC may cease, suspend or reduce releases of Grant Funds."Again that does not seem to have any application in the present circumstances. There is no assertion that the grantee does not have the capacity to manage either the activity of employing a finance officer or to conduct - to operate a radio station and provide funding for a resource centre.
29 So far as 9.3 is concerned, it is subject to a condition precedent. It commences:
"Where ATSIC is satisfied that the Grantee has failed to comply with a Grant Condition:30 There is here no grant condition with which it is said the corporation has failed to comply. It is not asserted by Mr Vasta, QC, senior counsel for the respondent, that there was a suspension of funds by Mr Kay in reliance on the provision of clause 9.3(a). The attitude of the respondent appears from the written submissions on behalf of the respondent. The respondent accepts that the application challenges the decision 452 of 25 September to revoke two earlier decisions to grant certain funding of $184,248 to the applicant. The submission contends that:
(a) ATSIC may suspend releases of grant funds until it is satisfied that the grantee has met the grant conditions."
"However over 10 weeks ago, the Respondent acknowledged in a letter to the Applicant that:31 There was a submission on behalf of the respondent that there was a difference between "allocation" and "grant", but paragraph 5 of those submissions acknowledges that on 13 August 1998 the respondent decided by Decisions 415 and 426 to make grants totalling $184,248 to the applicant for certain specified purposes. In the light, it said, of that letter (the letter being the letter of 18 November) the application is pointless and futile, raises issues which are wholly academic and should therefore be dismissed.
* the challenged decision was invalid;
* as a result, the original funding decisions were still valid; and
* the amount of $184,248 remained allocated to the Applicant."
32 First of all, I accept the submission by Mr Vasta that "invalid" means "not valid" and "no force without legal force" or "void". In Brooks v Burnsfelt Trustee Company Ltd [1969] HCA 4; (1969) 121 CLR 432 the High Court treated the word "invalid" as meaning "void and unenforceable"
33 I accept the submission for administrative law purposes that there is no practical difference between a void decision and an invalid decision.
34 The importance of this in the present context appears from a number of decisions made subsequent to the filing of this application. By Decision 486 of 1 December 1998, the Goolburri Regional Council endorsed the action of the Regional Manager in regards to the "letter being sent to Kooma Aboriginal Corporation for Land regarding major breach".
35 On 4 November, prior to the commencement of these proceedings, the respondent in Decision 461 noted the appeal by Kooma Aboriginal Corporation for Land for restoration of funding of $184,428. The decision continued:
"However, Council declines to change its decision (No 452) because Kooma has not submitted any new arguments or justification in the matter."36 The major concern, however, is in relation to Decision 497 of 19 January 1999. This is after the matter had been before the Court and before its hearing yesterday. I am told from the bar table and accept that there has been no communication or writing between the Council and the applicant subsequent to the letter of 18 November 1998 and before the passing of this resolution. The resolution records:
"Goolburri Regional Council37 Notwithstanding the acknowledgment by Mr Kay in the letter of 18 November 1998 that the decisions for grant were "still" valid, this resolution resolves "to finalise" defunding action. It also claims that all necessary actions which commenced on 18 November 1998 have been taken. This decision is not presently the subject of an application for an order to review and is part of the difficulty that this case presents, but it seems highly arguable that the very reasons which made the Decision 452 invalid taint Decision 497. Moreover, Decision 497 peremptorily seeks to overcome any orders that might be made in the present litigation and, further, manifests a real intention or purpose on the part of the Council and Mr Kay (or at least, is consistent with such a purpose) that it is their intention to cause the indigenous corporation, that is, the applicant, to cease to exist for want of the provision of necessary funds.
1. Council resolves to finalise defunding action against Kooma Aboriginal Corporation for Land (KACL) in respect to grants previously approved by Council for 1998/99, being for a total of $184,248 in Decisions 415 and 426.
2. Council notes that all necessary actions which commenced on 18 November 1998, have been taken in respect to the Defunding Process including issue of a final letter of intent, and now exercises delegation of RC3 to cease funding of the 1998/99 grants."
38 It is accepted, it is said by the respondent, that Decision 452 is inoperative and void, but it seems to me that the Council has, by various means and stratagems, sought to achieve the same effect as if it had been in place. This seems to be the situation which is made as clear as can be by the terms of Decision 497. The real and practical question in the present application is the claim by the respondent that, notwithstanding its acceptance that Decision 452 is void or unenforceable, it is entitled to avoid providing the funds granted by the Decisions 415 and 426 unless and until it receives an acceptable response to the demand may by Mr Kay in the letter of 18 November 1998.
39 The decision to revoke funding is a very serious one. The applicant corporation, as the respondent well knew, had ongoing operating expenses from July of 1998 that the grant was meant to pay for. As Chapter 11 of the Funding Procedures makes plain, the serious decision to defund requires a punctilious compliance with the rules of natural justice which, certainly in relation to Decision 452, were ignored. The high-handed departure from proper procedures cannot be justified and the applicant was rightly entitled to protest in the strongest terms. So much seems to have been accepted by the respondent, yet it has continued to act as if it is entitled, in effect, to deny to the applicant the funding by Decisions 415 and 426, or at least to suspend the provision of those funds.
40 As I have indicated, there seems to me to be no basis for the stance adopted by Mr Kay in the letter of 18 November. There is absent the necessary requirements in cl 9.3 of the Conditions that apply to the suspension of the provision of the grant funds. In that absence, to delay or suspend the grant funds the subject of those decisions is, in my opinion, unauthorised and unjustified.
41 I accept Mr Vasta's contention that Decisions 415 and 426 are not set in stone; that is to say, it is not correct that funding can never be withdrawn or suspended. However, it is a serious step and has to be done in accordance with proper procedures. In my view, it has not been done in Decision 452, and arguably, although this matter is not presently before the court, in respect of Decision 497. Also, in my opinion, there is no authorisation or justification to suspend the release of grant funds until Mr Kay receives what he says he wants to know concerning KPMG's report. In particular, cl 9.3 of the grant conditions do not authorise the suspension of the release of funds until Mr Kay receives the information that he sought in the letter of 18 November 1998.
42 The respondent has acted unlawfully in respect of Decision 452. That is implicit in the respondent's submissions. However, as I have said, the respondent seems to have sought to achieve the same result as if Decision 452 had been valid.
43 The difficulty that I have, and which is causing me all this trouble, is what to do about the matter. The Federal Court is not a general supervisor of a dynamic relationship between an indigenous corporation and a regional council. The powers under the ADJR Act are for judicial review of a particular decision, or particular decisions, or of conduct. The orders that the Court can make pursuant to the Act are in aid of lawful decision making. It is not the function of the court to direct the correct administration of that dynamic relationship between the applicant and the respondent. The Federal Court is not the proper means by which the activity between the applicant and the respondent ought be regularised, although the court is able, in a rather disjointed way, to deal with particular aspects of decision making, if that should become necessary. It is clearly not either convenient or appropriate for every decision, every issue in what is obviously a very acrimonious and unhappy relationship be the subject of consideration by the Federal Court.
44 The decision made on 19 January 1999 "to finalise de-funding action" and the assertion (which seems to me to be wrong) that "all necessary actions which commenced on 18 November have been taken in respect of the de-funding process" are not presently the subject of an application under the ADJR Act. It seems to me to further evidence the determination on the part of the respondent to put the applicant out of existence by denying it funds necessary for its continuing activities.
45 It is not to be taken from what I have said that all fault in this matter is on the part of the respondent. The applicant, it appears, has been quite obdurate and recalcitrant. I frankly acknowledge that the motivation behind much of Mr Kay's correspondence and activities is a desire that public funds are properly expended and satisfactorily accounted for. I am not suggesting for a moment that it is not a genuine matter of concern on the part of Mr Kay, or the Council, that the consideration of the proper expenditure of public funds is called for. The withdrawal or suspension of grant funds can only be lawfully done in compliance with the conditions imposed for such action. In particular, such decisions can not be made to punish a grantee for alleged contraventions of conditions of earlier grants. However, as I say, it is not competent for the Federal Court to act as, essentially, a supervisor of a relationship between bodies such as the applicant and the respondent. It is unfortunate that real animus existed and seems to be ongoing.
46 It would be preferable if the Court did not have to be involved in all this on a continuing basis; it may have to be. It would seem to me to be prudent that intervention, including intervention at the highest levels of ATSIC if necessary, may be necessary to resolve the wholly unsatisfactory position as it presently exists between the applicant and the respondent. This court will, of course, consider any application for judicial review made to it in the future but, as I say, this is hardly the way to deal with the dynamics of the relationship between the applicant and the respondent.
47 I acknowledge the limited nature of the relief that the court can properly order under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (`the ADJR Act'). Section 16 relevantly provides:
"(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:-48 Having regard to all of the above, what I propose to do by way of orders is as follows:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.
(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Court may, in its discretion, make either or both of the following orders:-
(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;
(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from doing, of which the Court considers necessary to do justice between the parties.
(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Court may, in its discretion, make all or any of the following orders:-
(a) an order directing the making of the decision;
(b) an order declaring the rights of the parties in relation to the making of the decision;
(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.
(4) The Court may at any time, of its own motion or on the application of any party, revoke, vary or suspend the operation of, any order made by it under this section.
* The Court declares that the demand of Mr Kay contained in the letter of 18 November 1998 is not a valid exercise of the power concerning the suspension of the release of grant funds conferred under clause 9.3 of the general conditions relating to grants between the Aboriginal Torres Strait Islander Commission and a grantee.
* The Court orders Decision 452 of the Goolburri Regional Council of the Aboriginal and Torres Strait Islander Commission dated 25 September 1998 be set aside.
49 Apart from costs, it seems to me that there is no order that I should properly make other than those two matters. It means the matter is very much an on-going and unresolved question, but that is a consequence of the limits of the court's powers under the ADJR Act.
50 On the question of costs, it seems to me that the applicant should have the costs, including reserved costs of the application, to be taxed if not agreed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender
Associate:
Dated: 5 February 1999
Counsel for the Applicant:
Mr Peter Kilduff Counsel for the Respondent: Mr A Vasta QC with Mr G J Koppenol Solicitor for the Respondent: Queensland Aboriginal & Torres Strait Islander Legal Services Secretariat Date of Hearing: 4 February 1999 Date of Judgment: 5 February 1999
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