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Court and Tribunal Decisions - Australia
Federal Court of Australia (French J)
24 February 2004
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
Section 203BI of the Native Title Act 1993 (Cth) (‘Native Title Act’) defines the ‘internal review functions’ of native title representative bodies. Such bodies are required to provide a process by which persons may have the representative body review its own decisions and actions. Section 203FB of the Native Title Act states that the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) may externally review decisions made by representative bodies in the course of performing their s 203BB ‘facilitation and assistance’ functions.
The applicants (Dorothy Ann Tucker and Thelma Vera Tucker) were refused financial assistance by Goldfields Land and Sea Council (a native title representative body). This decision was internally reviewed and affirmed under s 203BI of the Native Title Act. The Tuckers then sought external review by ATSIC under s 203FB of the Native Title Act. An ATSIC reviewer, in turn, affirmed the decision to refuse financial assistance.
Appealing to the Federal Court, the applicants argued that the ATSIC reviewer had failed to turn his own mind to the question being reviewed, and that he had simply adopted the statements and conclusions of the representative body’s internal reviewer. It was further argued that it was inappropriate for ATSIC and the reviewer to have regard to the policies of the representative body (in this case, priority criteria), as these were within the ‘special province’ of the representative body.
1. The term ‘review’ does not have a settled meaning. It does not define the mechanisms or processes of review, which may range from the administrative reconsideration of a case in the light of new evidence to the judicial examination of a questioned decision on the narrow grounds of legal error [45]. Bannister v See [1982] FCA 82; (1982) 42 ALR 78 applied; Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 and Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 referred to.
2. The review process set out in s 203FB of the Native Title Act is administrative in character. It requires the ATSIC reviewer to base his or her decision on the merits of the case. The reviewer may have regard to the facts and materials relied upon by the original decision maker, although he or she is not bound to consider only these materials [47].
3. It is appropriate for ATSIC and its reviewer to adopt the position of the representative body which made the initial decision, and to have regard to its policies and procedures while conducting their review. However, an ATSIC reviewer is not limited by these policies and procedures, and a belief on the part of ATSIC or the reviewer that they are bound to consider them, regardless of the merits of the case, may constitute a reviewable legal error [49], [53].
3. In exercising review functions under s 203FB of the Native Title Act, an ATSIC reviewer may accept the earlier report of a representative body’s internal reviewer, provided that he or she has considered the report and is satisfied that both the report and its findings are appropriate. An ATSIC reviewer does not have to produce an independent set of reasons, nor is he or she required to express their reasons with the precision which might be expected of a legal or judicial officer [52].
4. Decisions about the grant of funding will necessarily be based on incomplete or provisional materials, and representative bodies and reviewers do not need to be able to determine native title rights (or lack thereof) with certainty before making such decisions [48], [54].
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44. ... The first question which arises is – what is the nature of the review process authorised by the [Native Title] Act?
45. ... The ordinary legal meaning of the word ‘review’ 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] FCA 82; (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):
The word ‘review’ is not a word of limitation; it is a word of great width. The word may have different meanings depending upon its context.
46. The kind of review contemplated by s 203FB is indicated by the following features:
1. The review is to be carried out by a person who in ATSIC’s opinion ‘has skills or knowledge in relation to matters of substantial relevance to the conduct of the review’ (s 203FB(2)).
2. Its outcome is a report on whether the decision under review should be affirmed or whether ATSIC should make a grant of money under s 203FE.
3. A review may be refused if the person seeking it has not made all reasonable efforts to seek review by the representative body itself.
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 [here]. 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 [GLSC’s internal reviewer]. 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.
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