Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs - [2006] NSWLEC 291

No judgment structure available for this case.

Reported Decision: (2006) 147 LGERA 348

Land and Environment Court

of New South Wales

CITATION: Darkinjung Local Aboriginal Land Council & Anor v Minister for Aboriginal Affairs & Ors [2006] NSWLEC 291

PARTIES:
FIRST APPLICANT
Darkinjung Local Aboriginal Land Council
SECOND APPLICANT
Damein Aidon
FIRST RESPONDENT
Minister for Aboriginal Affairs
SECOND RESPONDENT
New South Wales Aboriginal Land Council
THIRD RESPONDENT
Tim Kelly

FILE NUMBER(S): 41363 of 2005

CORAM: Preston CJ

KEY ISSUES: Administrative Law :- judicial review - appointment by Minister of investigator into affairs of Local Aboriginal Land Council (LALC) - investigator's report to Minister found grounds to appoint an administrator for LALC - approval of NSW Aboriginal Land Council required before Minister may appoint administrator - LALC seeks to restrain appointment of administrator - whether investigator under a duty of procedural fairness - whether term of office of investigator can be extended after expiry - whether Minister obliged to specify to NSWALC the grounds on which Minister proposes to appoint administrator - whether breach of procedural fairness is occurring in Minister's consideration of whether to appoint administrator

LEGISLATION CITED: Aboriginal Land Rights Act 1983 (NSW) s 152 (4), s 219, s 220, s 220 (2), s 222, s 222 (1), s 222 (3), s 223 (1), s 224
Aboriginal Land Rights Regulation Pt 6
Interpretation Act 1987 (NSW) s 36(3), s 48(1)

CASES CITED: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564;
Elliot v Southwark London Borough Council [1976] 2 All ER 381; [1976] 1 WLR 499 ;
Ferguson v Cole (2002) 121 FCR 402;
Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699;
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812;
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352;
Parke Davis Pty Ltd v Sanofi (No 2) (1982) 43 ALR 487;
Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45;
Sanofi v Park Davis Pty Ltd (No. 2) (1982-1983) 152 CLR1;
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363;
Snowdon v Dondas (1996) 188 CLR 48 ;
Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 (6 April 2004)

DATES OF HEARING: 06/12/2005, 07/12/2005, 08/12/2005

DATE OF JUDGMENT:
06/02/2006

LEGAL REPRESENTATIVES: FIRST AND SECOND APPLICANTS
Mr A Robertson SC with Mr M A Izzo (barristers)
SOLICITORS
Norton White
FIRST RESPONDENT
Mr M J Leeming with Ms K Richardson (barristers)
SOLICITORS
Crown Solicitor
SECOND RESPONDENT
Mr N Perram (barrister)
SOLICITORS
Chalk & Fitzgerald
THIRD RESPONDENT
Submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

2 JUNE 2006

41363 of 2005

DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL AND ANOR V MINISTER FOR ABORIGINAL AFFAIRS AND ORS

JUDGMENT

1 HIS HONOUR: The applicants are concerned to avoid the first respondent, the Minister for Aboriginal Affairs (NSW) (“the Minister”), from appointing an administrator for the first applicant, Darkinjung Local Aboriginal Land Council (“DLALC”). To this end, they have brought judicial review proceedings seeking certain declaratory and injunctive relief which would achieve this effect.

2 The grounds upon which the applicant’s rely focus on certain critical steps in the statutory process for appointment of an administrator under the Aboriginal Land Rights Act 1983 (“the Act”).

3 Under s 222 of the Act, the Minister may appoint an administrator to a local aboriginal land council such as DLALC if one or more of six conditions exist: s 222 (1)(a)-(f) of the Act.

4 One of these conditions is the receipt by the Minister of a report by an investigator who has been appointed under Division 1 of Part 11 of the Act that the funds or other property of the Council have not been properly applied or managed: s 222 (1)(d) of the Act.

5 There are, however, other conditions, satisfaction of any one of which can found an exercise of the Minister’s power to appoint an administrator. These include:

“(b) if the Council fails to furnish satisfactory audited financial statements and documents to the New South Wales Aboriginal Land Council in accordance with Division 2 of Part 8, or

(c) if the Council otherwise fails to comply with section 153, 158 or 159, or

(e) if the Council has substantially breached the requirements of this Act or the regulations or the rules of the Council, or

(f) if the Minister is of the opinion that the Council has ceased for 6 months substantially to exercise its functions”: s 222 (1) of the Act.

6 These other conditions can found an exercise of the power independently of satisfaction of the condition of the receipt by the Minister of a report of the investigator of the kind specified in s 222 (1)(d) of the Act.

7 If one or more of the conditions in s 222 (1) are satisfied, the Minister nevertheless must not appoint an administrator under s 223 (1) of the Act without the approval of the second respondent, the New South Wales Aboriginal Land Council (“NSWALC”): s 222 (3) of the Act.

8 The applicants focus on these statutory steps.

9 They first focus on the investigator, the third respondent, Mr Tim Kelly, and his report. They allege that the report of Mr Kelly to the Minister is not a report under s 219 of the Act by an investigator appointed in accordance with Division 1 of Part 11 of the Act. Hence, the applicants assert the condition in s 222 (1)(d) of the Act has not been satisfied and the Minister does not have power under s 223 (1) to appoint an administrator founded on the satisfaction of this condition. Two broad categories of grounds of review are advanced for this contention.

10 First, the applicants allege that the investigator did not conduct a procedurally fair investigation. The applicants allege that the investigator did not give the applicants a reasonable opportunity to be heard, the report on its face reveals apparent bias of the investigator, the investigator did not truly investigate the affairs of the DLALC and hence the report is not a report on the investigations, and the findings and recommendations of the investigator in the report are not based on probative material.

11 These claims are pleaded in declarations A(ii) and (iii), B and BA of the 2nd Further Amended Application Class 4 and paragraphs 24-69 of the Further Amended Points of Claim filed 7 December 2005. Declarations D, E and G of the 2nd Further Amended Application Class 4 are consequential on establishing the claims in declarations A(ii) and (iii), B and BA.

12 Secondly, the applicants allege that, by the time the investigator came to report to the Minister, his term of office had expired. Although the Minister purported to extend the term of office of the investigator under s 220 (2) of the Act, this was done after the term of office had expired. The applicants submit that the power to extend under s 220 (2) of the Act cannot be exercised retrospectively.

13 This claim is pleaded in Declaration C of the 2nd Further Amended Application Class 4 and paragraphs 70-76 of the Further Amended Points of Claim filed 7 December 2005.

14 The applicants had claimed that the Minister denied the applicants procedural fairness by not affording the applicants an opportunity to be heard before appointing Mr Kelly as investigator under s 216 of the Act: see declaration A(i) of the 2nd Further Amended Points of Claim and paragraphs 8-23 of the Further Amended Points of Claim filed 7 December 2005. However, this claim was not pressed. The applicants do not challenge the appointment of Mr Kelly as investigator. Accordingly, it is no longer necessary for the Court to determine this claim.

15 For these two sets of reasons, the applicants allege there is no report by an investigator under s 219 or s 222 (1)(d) of the Act.

16 Of course, the absence of a report of an investigator under ss 219 or 222(1)(d) does not necessarily exhaust the power of the Minister to appoint an administrator under s 223 (1) of the Act because there are five other conditions in s 222 (1), satisfaction of any one or more of which could found the exercise by the Minister of the power to appoint an administrator under s 223 (1) of the Act. However, the applicants allege that because the Minister chose to appoint an investigator to provide a report and hence provide a factual foundation in s 222 (1)(d) of the Act for the exercise of power in s 223 (1), the Court would still grant declaratory relief if the Court were to hold that the applicants had made out their case that the report of the investigator is bad in law in the ways alleged.

17 Next, the applicants focus on the limitation in s 222 (3) of the Act that the Minister cannot exercise the power under s 223 (1) of the Act without the approval of the NSWALC. The applicants allege that although not expressly stated in the subsection, it is nevertheless implied in the subsection that the Minister may not seek the approval of the NSWALC without specifying the grounds upon which he is proposing to exercise the power under s 222 (1) of the Act. The Minister, in seeking the approval of the NSWALC, did not specify the grounds. Hence, the applicants allege, the NSWALC cannot grant its approval under s 222 (3) of the Act.

18 This claim is pleaded in declarations I and IA of the 2nd Further Amended Application Class 4 and paragraphs 89-94 of the Further Amended Points of Claim filed 7 December 2005.

19 Finally, the applicants allege that the Minister has not to date afforded procedural fairness to the applicants in relation to the prospective exercise of his powers under s 223 (1). Although the Minister had invited the DLALC to make representations before he exercised the power under s 223 (1) to appoint an administrator for the DLALC, nevertheless the applicants allege that the Minister has failed to identify the critical issues to be addressed so that the applicants could put information and submissions to the Minister directed to those critical issues.

20 This claim is pleaded in declaration J of the 2nd Further Amended Application Class 4 and paragraphs 95 and 96 of the Further Amended Points of Claim filed 7 December 2005.

21 The applicants seek certain consequential orders dependant on establishing their claims for declaratory relief.

22 It is convenient to deal with the applicants’ judicial review challenge under these three broad headings: the investigator’s report, the power under s 222 (3) and procedural fairness under s 223 (1).

The investigator’s report

Denial of procedural fairness by investigator claim

23 The investigator, Mr Kelly, delivered his report on the investigations of the affairs of the DLALC, initially in electronic form on 16 August and subsequently in hard copy on 17 August 2005 and on 23 August 2005 with further annexures.

24 The report is divided into five sections:

1. Executive summary : This section summarises the purpose of the appointment as investigator, the investigation activity undertaken, the key investigation findings and the recommendations: pp 4-5.

Investigation detail

(a) a chronology of events relevant to the affairs of the DLALC being investigated (pp 6-9);

(b) concerns about inadequate corporate governance of the DLALC and a lack of transparency in decision making at the DLALC and related entities (pp 10-12);

(c) concerns about the conduct of officer holders of the DLALC, including hindering or delaying the investigation (pp13-20);

(d) concerns as to the extent to which the operations of the DLALC are authorised by the members (pp 21);

(e) concerns as to the circumstances surrounding the resignation of two members of the board of Darkinjung Pty Ltd, a trustee company (pp 22-24);

(f) allegations that members and staff of the DLALC have been subject to threats, intimidation and violence by other members, staff and/or officer holders (pp 24-25);

(g) allegations that corruption exists, including fraud, mismanagement or misappropriation, on the part of members, staff and/or office holders of the DLALC, including a discussion of a preliminary assessment of the financial position of the DLALC (pp 25-26);

Aboriginal Land Rights Regulation

(i) other matters of concern raised by office holders, members, staff and/or advisors of the DLALC, including probity issues relating to the appointment of an Aboriginal Land Management Officer to the DLALC, probity issues relating to the appointment of the Chief Executive Officer of the DLALC, and the extent of involvement of and the amount of money paid by the DLALC to management consultants (pp 36-37).

3. Interview and submission summaries : This section provided brief summaries of interviews conducted by the investigation team and submissions received from witnesses during the investigation (pp 38-67).

4. Investigation findings : This section summarised the findings in relation to each of the matters discussed in section 2, Investigation Detail: pp 68-71.

Recommendations

25 The report had three folders containing 54 annexures.

26 The applicants submitted that the report was the result of a procedurally unfair investigation. Four respects of procedural unfairness were identified:

(a) breach of the hearing rule: the applicants were not given a reasonable opportunity to be heard by the investigator before he produced his report to the Minister;

(b) breach of the bias rule: the investigator’s report on its face reveals apparent bias;

(c) breach of the no evidence rule: the findings and recommendations of the investigator’s report were not based on probative material; and

27 The applicants developed their argument that the investigation was procedurally unfair in these respects by reference to twelve topics:

The Trust:

The report summarised the legal advice provided by Mr Basten QC to the NSWALC that it was unlawful for the DLALC to have made payments of its funds to the Trust: pp 32-33. The whole advice was set out in an annexure: annexure 31. The report noted that the DLALC had received legal advice from Mr Tim Robertson SC that the transfer of funds to the Trust contravened the Act: p 33, paras 4-5. A copy of the legal advice of Mr Tim Robertson SC was requested by the investigator but the DLALC refused to provide a copy to the investigator: p 33, para 6.

The DLALC submission referred to yet another legal advice from Mr Alan Robertson SC should have been included said to provide a “positive response” in relation to DLALC’s capacity to establish and then operate a trust-type arrangement: p 14 of annexure 54. The advice is not enclosed. The advice of Mr Alan Robertson SC is also referred to (but not enclosed) in annexure 5 to the report: pp 3-5.

The applicants submit that a description of the differing opinion of Mr Alan Robertson SC should have been included in the text of the report and that on a proper reading of Mr Basten QC’s advice, it did not provide a basis for the conclusion in the report that the transfer of funds to the trust contravened s 152(4) of the Act.

The applicants submit, therefore, that there was a failure to investigate and report, no probative evidence for the findings in the report and a reasonable apprehension of bias.

2. Section 222 (1)(f) : The report stated that the Minister may form the opinion that the DLALC has ceased for six months to substantially exercise its functions, based on legal advice received by the NSWALC from Mr Basten QC: p 71, para 23 of report.

The applicants submit that there was no probative basis for this finding, the investigator failed to investigate and report on the matter, the applicants were not afforded a reasonable opportunity to be heard in relation to the matter and there was a reasonable apprehension of bias.

3. Why the Trust was established : The matters found in the report by the investigator were held to indicate that the Trust was established with a view to removing the DLALC funds outside of the control of the DLALC, outside the reporting requirements of Part 8 of the Act and Part 6 of the Aboriginal Land Rights Regulation , and outside the scrutiny of the NSWALC: p 33, section 2.8.2, para 1 and p 35, para 11.

The applicants submit there was no probative basis for the findings and a reasonable apprehension of bias.

4. Section 222 (1)(d) : The report found that the funds or other property of the DLALC have not been properly applied or managed in accordance with s 222 (1)(d) of the Act: p 4, section 1.3; p 5, para 1; p 25, section 2.7, para 4; p 70, para 16.

The applicants submit that there was no probative basis for the findings, the applicants were not afforded a reasonable opportunity in relation to the finding and there was a reasonable apprehension of bias.

Grindall and Denniss

The applicants submit they were not afforded a reasonable opportunity to be heard on the issues, there was a failure to investigate and report on the issues, and there was a reasonable apprehension of bias.

6. Protected Disclosures Act : The report found that Mr Bradford, the Chairperson of the DLALC, Mr Aidon, the CEO of the DLALC, and other members of the DLALC may have breached the Protected Disclosures Act 1994 in removing Mr Denniss and Mrs Grindall from their positions as office holders of the DLALC and from the membership of the DLALC in reprisal for their complaints about the affairs of the DLALC: p 5, section 1.3, first bullet point on p 5; p 69, para 11; and pp 24-25, paras 7-8.

The applicants submit there was a failure to investigate and report on the issue, no probative basis for the findings and a reasonable apprehension of bias.

7. Chalk & Fitzgerald : The report discussed the argument of the DLALC that the reason the DLALC had to spend significant funds on legal and consulting costs was the conduct of the NSWALC. To address that argument, the investigator interviewed the lawyers for the NSWALC, Chalk & Fitzgerald. The oral and written response of Chalk & Fitzgerald were included in the report and the annexures: pp 61-62, section 3.14 and annexure 52.

The applicants submit they were not afforded a reasonable opportunity to be heard (in relation to the Chalk & Fitzgerald submission), there was a failure to investigate and report on the issue and there was a reasonable apprehension of bias.

Probity issues

(a) the recruitment and selection process of the proposed appointment of a Land Development Officer at the DLALC, funded by the government agencies;

(b) the subsequent appointment of Ms Graf to a project officer position at the DLALC that appeared to not be subject to a transparent selection process; and

(c) the recruitment and selection process surrounding the appointment of the CEO, Mr Aidon: p 71, para 24(b)-(d); and p 36, section 2.9.1 and section 2.9.2.

The report also found that concern had been expressed on the extent of expenditure on consulting costs paid to National Management Consultants: p 71, para 24(e) and p 37, section 2.9.3.

The applicants submit that the applicants were not afforded a reasonable opportunity to be heard in relation to these issues, there was a failure to investigate and report on these issues, and there was a reasonable apprehension of bias.

Money spent on consultants (NMC) and lawyers (G&T)

(a) it is not clear from the information provided by the DLALC that the money spent on consultants, amongst other things, was appropriate and prudent; and

(b) the lack of proper procurement and budgeting regarding procurement of consulting and legal costs suggests financial mismanagement. Due to the significant expenditure on legal and consulting fees, the DLALC has been running at a loss for the last three financial years: p 69, paras 14 and 15 and p 25, section 2.7, paras 2 and 3.

The matters were dealt with by both Mr Bradford and Mr Aidon of the DLALC and their response was included in the annexures to the report: annexure 10, pp 8-11 and annexure 48, pp 3-5. However, there was not a summary of this response in the text of the report.

The applicants submit that there was a failure to investigate and report on these matters and a reasonable apprehension of bias.

10. Greiner & Goddard : Mrs Greiner and Mr Goddard were two independent directors of Darkinjung Pty Ltd (the Trust). The report found that they resigned from the board of the Trust due to concerns over the governance of the Trust. The two directors had sought information from Mr Bradford, the Chairperson of the Trust, relating to the legal status and operations of the Trust including an investment strategy. The information sought was not provided by Mr Bradford. Mr Bradford’s response was to state publicly “when the Gubbas did not get their way, they spat the dummy”. Mr Bradford stated that he would ensure there would be no independent directors appointed to the Trust, that only DLALC members would be appointed: p 69, paras 7-10; pp 22-24, section 2.5; and pp 39-40, section 3.3 and annexure 42.

Certain of these matters were put to Mr Bradford and his response is included in annexure 10, pp 20-21. However, a summary is not included in the text of the report. See also annexure 54, pp 17-18.

The applicants submit that the applicants were not afforded a reasonable opportunity to be heard in relation to these matters, there was a failure to investigate and report on these matters and there was a reasonable apprehension of bias.

Financial matters

Aboriginal Land Rights Regulation.

The applicants submit that the applicants were not afforded a reasonable opportunity to be heard in relation to these matters, there was a reasonable apprehension of bias and a failure to investigate and report on the matters.

Positive material not investigated or reported on

The applicants submit, accordingly, that there was a failure to investigate these eleven matters and report a reasonable apprehension of bias.

28 The Minister’s primary answer to the whole of the applicants’ claim of denial of procedural fairness is that there is no obligation on the investigator to afford procedural fairness to DLALC in his investigation and report to the Minister. The Minister relies on the decision of McClellan CJ in Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 (6 April 2004), for the proposition that there is no obligation to afford procedural fairness in respect of an investigation under Division 1 of Part 11 of the Act: see [117]-[120]. The Minister submits that this decision correctly states the law.

29 Moreover, the Minister submits that, for reasons of judicial comity I should follow that decision unless convinced that it is wrong: Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820; Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352 at 369-370 and Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699 (15 December 2004) at [29].

30 As a secondary submission, that only needs to be considered if the primary submission is rejected, the Minister submitted that there has been no procedural unfairness in the investigation and report in circumstances where the applicants’ conduct has contributed to the alleged respects of procedural unfairness complained about by the applicants. The applicants truncated the process of investigation and report. Persons who might have been able to assist the investigator in investigating certain of the topics of concern, such as the establishment and dealings of the Trust, were prevented by the DLALC in one way or another from doing so. Further, officers of the DLALC, Messrs Bradford and Aidon, refused to participate in further interviews by the investigator. Documents requested by the investigator were not produced by the DLALC. The DLALC has failed to take up invitations of the Minister to respond to the report. Instead, the DLALC commenced these proceedings.

31 The Minister submits that in circumstances where:

(a) the investigator afforded the applicants an opportunity to be heard during the process of investigation, but the applicants declined to avail themselves fully of that opportunity, including by not allowing key officers to be interviewed by the investigator and not providing all information requested by the investigator;

(c) the applicants had an opportunity to assist the investigator, including in the manner referred to in (a) and (b) above, to investigate in the full sense that the applicants now say the investigator should have investigated; and

(d) the applicants, by undertaking the actions referred to in (a), (b) and (c), could have facilitated the investigator to produce a report that could not be considered to reveal on its face any apparent bias,

32 The Minister submits that the process must be viewed in its entirety: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 and Ferguson v Cole (2002) 121 FCR 402 at 425 [72]. When that is done, there is no basis for concluding that the whole process has been or will be unfair.

33 In the further alternative, the Minister made detailed written and oral submissions addressing each of the 12 topics and the four respects in which the applicants submit the report in dealing with the 12 topics was said to be procedurally unfair. The Minister’s submissions rebutted each allegation.

34 This further alternative submission also only needs to be addressed if the Minister’s primary submission that there is no obligation on the investigator to afford procedural fairness to the DLALC in his investigation and report to the Minister, is rejected. Accordingly, I will not set out the detailed rebuttal of the Minister to the 12 topics and four respects in which the applicants submit the report in dealing with the 12 topics was said to be procedurally unfair, until I first deal with the Minister’s primary submission.

35 The NSWALC also made both written and oral submissions. However, these were largely addressed to a claim that the applicants ultimately did not press that the NSWALC had acted in a procedurally unfair way to the DLALC in its prospective exercise of the power under s 222 (3) of the Act to approve the Minister appointing an administrator for the DLALC. As I have set out above, ultimately the only claim made by the DLALC in relation to s 222 (3) is that the Minister was obliged to specify to the NSWALC when seeking its approval the grounds upon which the Minister was proposing to exercise the power under s 222 (1) of the Act to appoint an administrator for the DLALC. I deal with that claim later in these reasons.

36 I will now address the Minister’s primary argument in respect of the whole of the applicants’ claim that the investigation and report were procedurally unfair.

37 In Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 (6 April 2004), McClellan CJ addressed the very question at issue here, namely, whether an investigator appointed in accordance with Division 1 of Part 11 of the Act to investigate the affairs of an Aboriginal Land Council and to report to the Minister is under a duty of procedural fairness to the Aboriginal Land Council being investigated.

38 McClellan CJ reviewed the statutory framework of the Act: at [3]-[13]. McClellan CJ then dealt with the applicant’s claim that the Minister, when deciding whether to appoint an investigator under s 216 of the Act, was under a duty to afford procedural fairness including to the Aboriginal Land Council to be investigated. McClellan CJ held there was no such duty, stating:

Cornall v A B (A Solicitor)

Norwest Holst Ltd v Secretary of State for Trade

Allen Allen & Hemsley v Deputy Federal Commissioner of Taxation

Minosea Pty Ltd v Australia Securities Commission

Re Minister for Immigration & Multicultural Affairs ex parte Miah

39 McClellan CJ then dealt with the claim relating to the failure of the investigator to report within time and the extension of the investigator’s term. I will discuss this aspect of the judgment when I address the applicants’ similar claim in this case later in these reasons for judgment.

40 Later, McClellan CJ dealt with the claim that the investigator did not afford procedural fairness including to the Aboriginal Land Council being investigated, before completing his report: at [109]-[128]. McClellan CJ held again that a duty of procedural fairness did not arise. He distinguished the decision of the Court of Appeal in Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381. The legislative scheme with respect to prospective boundary changes under the Local Government Act 1993, that being the subject of Minister for Local Government v South Sydney City Council, is quite different to the statutory regime in the Aboriginal Land Rights Act under consideration in Trindall: at [116]. McClellan CJ stated:

Aboriginal Land Rights Act

[118] Furthermore, it is significant that the report of the investigation is required by s 219 to go only to the Minister. The investigation is not itself a public process and publication of the report is not required by the statute. Upon receiving the report, the Minister may chose [sic] to do nothing with it and the matter may come to an end. The report may never be published. In my opinion it would be inappropriate to provide an obligation to afford procedural fairness in respect of an investigation – the report of which need not be published and which may have no further consequence for any person or body.

[119] If, however, the Minister determines that the report may be the possible vehicle for the appointment of an administrator, different considerations arise. At that point the Minister (as opposed to the investigator) embarks upon a course which could lead to a decision affecting the rights of the Council or its members. Any decision to appoint an administrator would, in my opinion, attract the obligation to afford the Council procedural fairness.

[120] It is also important that, unlike the position with respect to the Boundaries Commission, where the quality of the report could be affected by a failure to afford procedural fairness at the Commission stage and that position could not later be retrieved, this is not likely in relation to the Aboriginal Land Council. If the Minister discharges the obligation to afford a fair hearing effectively, a fact which must be presumed, an opportunity to rebut any allegation or conclusion will be available. I do not believe the opportunity for effective rebuttal would be lost by completion of the report. Indeed, if it contains material which could justify the appointment of an administrator, the crystallisation of relevant allegations in a report is likely to aid a rebuttal.

[121] Consideration of the complete statutory process requires a recognition that, although the Minister may appoint an investigator to investigate the affairs of the Council, this could be undertaken in aid of many objectives relating to the good administration of its affairs. The report, although reporting on the affairs of the Council, need not express any opinion in relation to whether an administrator should be appointed. Although, in the alternative to a report of the Auditor-General, the investigator’s report is an essential step if the Minister decides to appoint an administrator it is only the decision of the Minister which can affect any relevant rights.

…

Refugee Review Tribunal, Re: Ex parte Aala

Calvin v Carr

Minister for Local Government v South Sydney City Council

‘The better view is that the effect of an appeal will turn on the ability and obligation of the second-tier decision-maker to provide the appellant with the measure of procedural fairness to which he or she is entitled.’

State of South Australia v O’Shea

[125] In the present case, the statute contemplates that the report of the investigation will inform the Minister. The statute affords it no more significant status and the investigator makes no decision to which the statute gives any force or effect.

…

41 I agree with the analysis of McClellan CJ in Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 (6 April 2004) of the statutory provisions of the Act relating to the investigator’s appointment, carrying out of the investigation and report to the Minister, the case law on procedural fairness discussed and its application to these statutory provisions. I agree with McClellan CJ’s conclusion that there is not an obligation on the investigator to afford procedural fairness in respect of an investigation. I adopt the reasons of McClellan CJ at [52], [116]-[121], [123]-[125] and [128].

42 Furthermore, reasons of judicial comity would also support my so concluding unless I was convinced that the decision was wrong. I am not convinced it is wrong, indeed I am of the contrary opinion that it is correct.

43 Having so found, there is no justification for a detailed examination of whether, if there were to have been a duty on the investigator to afford procedural fairness to the DLALC in relation to the investigator’s investigation and report to the Minister, in the circumstances that have transpired there has been a breach of this duty, in any of the four respects claimed by the applicants.

44 It is unreal and artificial to embark upon an analysis of whether there has been a breach of a duty of procedural fairness owed to the DLALC by the investigator where the conclusion is that there is no such duty in the first place. The content of any duty to afford procedural fairness would have to take its colour and context from the statutory provisions in respect of which the duty arises. Any determination of breach of duty obviously depends upon a determination of the content of the duty to afford procedural fairness. Because I am of the view that the statutory provisions do not trigger a duty on the investigator to afford procedural fairness in carrying out his investigation and report to the Minister, I am not in a position to determine what might be the content of any duty to afford procedural fairness. Without determining the content of any duty to afford procedural fairness, it is impossible to determine whether in the circumstances there has been any breach.

45 Accordingly, I reject the applicants’ claim that the report of the investigator is invalid by reason of any denial of procedural fairness to the applicants. This includes the claims based on the hearing rule (that there was no reasonable opportunity to be heard in relation to the twelve topics raised by the applicant), the bias rule (that there was a reasonable apprehension of bias in the way in which the investigator dealt with the 12 topics in the report) the no evidence rule (that the findings and recommendations of the investigator in his report are not based on probative material) and the alleged failure to investigate all matters raised by the applicants.

46 Furthermore, in relation to the claim that the investigator failed to investigate matters raised by the applicants, the statutory duty on the investigator under s 219 does not oblige the investigator to investigate those matters. The scope of the investigation is given by the instrument of appointment under s 216 of the Act. That instrument did not specify these matters. Neither the Act nor the instrument therefore required the investigator to investigate these matters.

47 The concept of investigation also does not require the investigation of the matters. Investigation is simply the act or process of searching or inquiring in order to ascertain facts: Freeman v Health Insurance Commission (2000) 97 FCR 249 at 255 [20]; Day v Commissioner, Australian Federal Police (2000) 101 FCR 66 at 68 [10]. An investigation need not necessarily be long or difficult; a short or easy investigation can still be an investigation: Ex parte Mayor of London (1887) 34 Ch D 452 at 457.

48 It is not for a person affected by the investigation, such as the applicants, to make an exhaustive list of all the matters which the investigation might conceivably regard as falling within the scope of the investigation, then attack the investigation and report on the ground that a particular one or more of them was not specifically investigated: see, by analogy, Elliot v Southwark London Borough Council [1976] 2 All ER 381 at 388; [1976] 1 WLR 499 at 507 and Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.

Expiry of term of office of investigator claim

49 On 3 March 2005, the Minister appointed Mr Kelly as an investigator to investigate the affairs of DLALC for a term of 3 months commencing on 2 March 2005. The instrument of appointment required Mr Kelly to provide the Minister and NSWALC a final report on the findings of the investigation, within 2 weeks of completing the term of appointment.

50 On 27 May 2005, before the term expired, the Minister with the consent of the NSWALC and pursuant to the power under s 220 (2) of the Act, extended the term for a further period of two months commencing on 3 June 2005. The instrument extending the term of appointment again required Mr Kelly to provide to the Minister and NSWALC a final report within 2 weeks of completing the term of appointment.

51 As a consequence, the term of Mr Kelly as an investigator was due to expire on 2 August 2005. The final report was required to be submitted within 2 weeks afterwards, namely by 16 August 2005.

52 On 16 August 2005, Mr Kelly delivered, pursuant to s 219 of the Act, his report on the investigations to the Minister in an electronic form (“soft copy”) with the exception of the annexures.

53 The next day, 17 August 2005, Mr Kelly delivered to the Minister a hard copy of the report, together with three folders containing the annexures to the report. However, apparently 22 pages were missing from the annexures.

54 On 23 August 2005, Mr Kelly delivered to the Minister the remaining pages of the annexures.

55 On 30 August 2005, the Minister, through his Department, sought the consent of the NSWALC to extend the term of office of Mr Kelly as investigator until midnight on 23 August 2006.

56 On 31 August 2005, the NSWALC consented to the Minister extending the term of office of Mr Kelly as investigator until 23 August 2005.

57 On 7 September 2005, the Minister, pursuant to s 220 (2) of the Act and with the consent of the NSWALC, extended the term of office of Mr Kelly as the investigator to investigate the affairs of DLALC until midnight on 23 August 2005.

58 The applicants submit the report of Mr Kelly did not constitute a report under s 219 or s 222(1)(d) of the Act because both the soft copy of the report delivered electronically to the Minister on 16 August 2005 and the hard copy with the annexures delivered subsequently on 17 and 23 August 2006, were delivered after the term of office of Mr Kelly as investigator expired on 2 August 2005.

59 The applicants submit that the instrument of appointment of 3 March 2005 and the instrument extending the term of appointment dated 27 May 2005, could not validly permit the delivery of the final report two weeks after Mr Kelly’s term of office as investigator expired. Any report of an investigator under s 219 has to be delivered during the currency of the term of office of the investigator.

60 This argument depends on the next argument of the applicants that the term of office of Mr Kelly as investigator was not validly extended until midnight on 23 August 2005.

61 The applicants submit that on a proper construction of s 220 (2) of the Act, the power to extend the term of office of an investigator is not available after the expiry of the term of office. They submit that after the term of office expires, there is no longer in existence a term of office which the Minister can extend.

62 Furthermore, they submit that s 36(3) of the Interpretation Act 1987 (NSW) is not applicable. Section 36(3) provides that if in any Act or instrument, a period of time is prescribed or allowed for the doing of any thing and a power is conferred on any person or body to extend the period of time, that power may be exercised after the period of time has expired. The applicants submit that the Act or instrument does not prescribe or allow a period of time for the doing of any thing. Accordingly, they submit, s 36(3) is not applicable and does not enable the power to extend the term after its expiry.

63 The Minister again raises at the outset that the applicants’ argument that s 220 cannot be used retrospectively to extend the term of office of an investigator, has been rejected by McClellan CJ in Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 (6 April 2004) at [84]-[87]. There, McClellan CJ held that the power under s 220 can be exercised to extend the term of office of the investigator even after the term has expired. Such a construction of s 220 facilitates the effective working of the legislation and ensures that the investigation and reporting process can be finalised.

64 Again, the Minister submits that for reasons of judicial comity I should follow the decision of McClellan CJ.

65 In Trindall v Minister for Aboriginal Affairs, although the investigation work had been completed by the investigator, the written report had not been finally completed by the last day of the term of office of the investigator. Accordingly, by the time the report was delivered to the Minister, the investigator’s appointment had expired: at [67]. The report was delivered four days after the term expired: at [70].

66 The Minister, upon appreciating that the investigator’s report had not been received within the time provided for the investigation, exercised the power under s 220 of the Act to extend the term of office of the investigator to after the date on which the report had been received: at [72].

67 The applicants in Trindall challenged the Minister’s exercise of the power under s 220, submitting that because the original term of the investigator had come to an end and the extension was only made afterwards, it was not a valid exercise of power.

68 Trindall is therefore directly on all fours with the facts of the present case.

69 McClellan CJ noted that, at that time, s 220 of the Act had not been judicially considered. However, there had been significant judicial consideration, particularly in the context of patents, of the circumstances in which a power to extend may exist. McClellan CJ discussed the decision of the Full Court of the Federal Court in Parke Davis Pty Ltd v Sanofi (No 2) (1982) 43 ALR 487 at 488-489, 503 and of the High Court on appeal in Sanofi v Parke Davis Pty Ltd (No. 2) (1982-1983) 152 CLR 1 at 7-8.

70 McClellan CJ then stated:

“[83] It follows from this discussion that when a statute gives to a person or body a power to extend it will not always be the case that that power can only be exercised during the currency of the original authority. Where the statute expressly provides that the power to extend may only be exercised during the currency of the authority, the position will be plain. However, when the statute is silent, it is necessary to consider the nature of the power and the purpose for which it is given in order to determine whether or not an extension may be granted after the original term has expired.

[84] In the present case, the purpose for which the power to extend is given is to facilitate the investigation of the affairs of an Aboriginal land council. The appointment of an investigator and the defining of the term of the appointment is a matter entirely within the discretion of the Minister, subject to the matters provided by s 216. Section 217 provides that it is for the Minister to specify the affairs of the Council which are to be investigated, the time within which the investigator’s report is to be prepared and the term of office of the investigator.

[85] There is no purpose in the appointment of an investigator other than for the preparation of a report on his/her investigations. Accordingly, if the term of the investigator has expired before the report can be provided the purpose for which the appointment was originally made is lost. It was presumably against this eventuality that provision was made for the extension of the term of office of an investigator, so that if the work required of that person could not be completed within the term of the original appointment, it could be extended to enable a report to be prepared. If it happened that the report could not be finalised during the term of office originally provided and through some oversight that term was not extended, unless the power provided by s 220 could be later exercised, all of the work in the original investigation would be lost. Where the purpose of the original power and the capacity to extend the term of office are to facilitate the preparation of a report, it would be surprising if the legislature intended the power to extend to be confined in a manner which had such an inappropriate outcome. Unless the legislation requires this conclusion, in my opinion it should be construed to facilitate the investigation and reporting process.

[86] As the discussion in the judgments in Parke Davis Pty Ltd v Sanofi makes plain, the ordinary meaning of the word “extend” or “extension” is not confined so that it can only apply to an existing or current thing or matter. In particular, where non-physical things such as the appointment of an investigator are involved, it is possible to speak of an extension of the term of the investigator even after the original term has expired.

71 I agree with McClellan CJ’s analysis of the statutory provisions relevant to extending the term of office of the investigator, including s 220, and the case law on extensions of terms discussed in his judgment. I agree with McClellan CJ’s conclusion that s 220 is wide enough to permit the Minister to extend the term of office of an investigator appointed under Division 1 of Part 11 even after the term has expired. I adopt the reasons of McClellan CJ at [72]-[87].

72 Furthermore, reasons of judicial comity would support my so concluding unless I was convinced that the decision was wrong. I am not convinced it is wrong, indeed I believe it is correct.

73 Furthermore, the conclusion that the power under s 220 (2) may be exercised after the term of office of the investigator has expired is reinforced by ss 36(3) and 48(1) of the Interpretation Act 1987. Those provisions must apply in their terms unless there is a contrary intention. Any contrary intention must be found in the Act, not in extrinsic circumstances: Snowdon v Dondas (1996) 188 CLR 48 at 74. There is no contrary intention expressed or implied in the Act.

74 Accordingly, I reject the applicant’s claim that the report of the investigator is invalid by reason of the term of office of the investigator having expired before the report was delivered to the Minister.

75 This conclusion means that it is not necessary to determine the applicants’ argument that the instrument of appointment and the instrument extending the term of appointment, insofar as they permitted the investigator to provide the final report within 2 weeks of completing the term of appointment, were outside power. By the extension of the term of office until midnight on 23 August 2005, the final report with all of the annexures was delivered to the Minsiter on that date and hence before the term of office expired.

The power under s 222 (3)

76 The Minister is precluded by s 222(3) of the Act from appointing an administrator without the approval of the NSWALC.

77 The Minister, having received the report of the investigator, Mr Kelly, wrote two letters on or about 18 October 2005.

78 The first letter was to the DLALC. That letter noted that the Minister had received a report from Mr Kelly who the Minister had appointed to investigate the affairs of the DLALC. The Minister enclosed a copy of the report with annexures. The Minister noted that the report at p 5 stated that there are grounds on which an administrator could be appointed to DLALC under s 222 (1) of the Act. The Minister recited in full in the letter each of the six grounds in s 222 (1)(a)-(f) of the Act. The Minister then stated:

Aboriginal Land Rights Act

Your submissions should address the above matters and should be received by my office no later than 7 November 2005”.

79 The second letter sent by the Minister on or about 18 November 2005 was to the NSWALC. The letter stated:

“Today I provided the Darkinjung Local Aboriginal Land Council (DLALC) with a copy of the report by Mr Tim Kelly, the investigator appointed under s.216 to investigate and report on DALC’s affairs.

Aboriginal Land Rights Act

I enclose a copy of my letter to the Chairman of DLALC in which I requested that DLALC provide me with any submissions relevant to the grounds specified in s.222(1) under which I may appoint an administrator to exercise some or all of the functions of the DLALC, as well as any other reason why I may not be entitled to exercise that power in the circumstances. Those submissions are to be provided by 7 November 2005.

As you would know, s.222(3) provides that I may not appoint an administrator without the approval of the New South Wales Aboriginal Land Council (NSWALC).

In the event that I determine to appoint an administrator to DLALC, I would need to know whether NSWALC would approve such an appointment. I therefore take this opportunity to request your views on this matter.”

80 As can be seen from this letter, a copy of the report of the investigator, Mr Kelly, had already been provided to the NSWALC. A copy of the Minister’s letter to the DLALC was enclosed with the letter to the NSWALC.

81 The applicants submit that the Minister’s letter to the NSWALC gives no indication to the NSWALC of any facts or any grounds within s 222 (1) of the Act on which the Minister is considering the appointment of an administrator.

82 The applicants submit that s 222 (3) requires the Minister to do so. Three reasons are advanced:

(a) Section 222 contemplates a relationship between the facts or grounds upon which the Minister is proposing to appoint an administrator and the approval of the NSWALC. If the NSWALC has no idea of the facts or the grounds upon which the Minister is proposing to act then its approval will be unrelated to the Minister’s decision to appoint an administrator.

(b) The Minister must give the applicants an opportunity to be heard in relation to the matters upon which the Minister may act before seeking the approval of the NSWALC under s 222 (3). This is said to follow as a corollary of the proposition that the Minister must give the applicants procedural fairness before making up his mind and from the proposition that the Minister must indicate to the NSWALC the basis upon which he is considering the appointment of an administrator before the approval of the NSWALC can be said to relate to the appointment of an administrator to the DLALC.

83 The Minister submits that all that s 222 (3) requires is that the Minister request the views of the NSWALC on the appointment of an administrator to the DLALC in the event that the Minister so determines. There is no basis in the text or structure of the Act to warrant any additional fettering of the process. Common law procedural fairness does not impose any additional requirement.

84 The Minister submits that he is under no obligation to inform the applicants of any communication between him and the NSWALC, and in particular of any request for the NSWALC’s views on the appointment of an administrator to the DLALC. Merely asking the views of NSWALC does not affect a right or interest of the applicants. Only when and if the Minister takes the further step of appointing an administrator would a right or interest be affected.

85 Finally, the Minister submits, even if a duty of procedural fairness does apply, it has not been breached. Because the decision-making process involves different stages before a final decision by the Minister is made, the requirements of procedural fairness are satisfied in the circumstances because the decision-making process, viewed in its entirety, entails procedural fairness.

86 The NSWALC submits that the applicants’ argument is “unanchored” in the text of s 222 (3). Three textual considerations point against its correctness.

87 First, nowhere is there to be found in s 222 any obligation on the Minister to provide grounds to the NSWALC. Section 222 (3) is emphatic that the Minister must not do something (namely, appoint an administrator) unless approval of the NSWALC is obtained. In contrast, it is silent on the topic of something which, on the applicants’ argument, he must do (namely inform the NSWALC of the grounds).

88 Secondly, the applicants’ argument provides no guidance on what the NSWALC might do with such grounds if the Minister provided them to it. If the NSWALC had some function to perform in relation to the grounds, that might be expected to be spelt out in the Act. It is not.

89 Thirdly, s 224 requires some specification in relation to the terms of appointment of an administrator. It is apparent that the Act requires some specificity in relation to administrators. However, the legislature has been singularly silent on the point put by the applicants.

90 I am of the view that the submissions of the Minister and the NSWALC on s 222 (3) are correct. Section 222 (3) does not require the Minister to state to the NSWALC either the facts or the grounds upon which the Minister is proposing to appoint an administrator. The subsection does not expressly so require. Nor can any such required by implied.

91 In terms, the subsection looks to the result – the appointment of an administrator. It is that result with which the NSWALC must grant its approval.

92 Whilst the Minister’s power to appoint an administrator is expressly confined to the six categories of grounds in s 222 (1), the NSWALC’s discretion to grant approval to the Minister’s appointment of an administrator is unconfined. It is not expressly stated to be limited to those grounds, or indeed any matters. This reveals a legislative intention that the factors that the NSWALC may take into account in the exercise of its discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50.

93 Indeed, the factors the NSWALC might take into account when determining whether to approve of the appointment of an administrator to a Local Aboriginal Land Council could properly differ from and extend beyond the six grounds in s 222 (1). There may be, for example, good reasons associated with ensuring the continued existence of a representative Local Aboriginal Land Council with officers elected by members for the NSWALC not to approve the appointment of an administrator, notwithstanding one or more of the grounds in s 222 (1) might exist.

94 This means that the applicant’s first reason, that s 222 contemplates a relationship between the facts or grounds upon which the Minister is proposing to appoint an administrator and the approval of the NSWACC, should be rejected. There is no such necessary correspondence.

95 Accordingly, the statutory provision does not require the Minister to provide to the NSWALC the facts or grounds upon which the Minister is proposing to appoint an administrator.

96 Procedural fairness also does not require the Minister to so provide the facts or grounds. Whilst it is accepted that the Minister may be under a duty before appointing an administrator to the DLALC to afford procedural fairness to the DLALC, this duty does not require the Minister to give to the NSWALC, when seeking the NSWALC’s approval under s 222 (3) the facts or grounds upon which the Minister is proposing to appoint an administrator. The latter is not a corollary of the former.

97 I also reject the applicant’s argument that the latter is a corollary of the proposition that the Minister is required by s 222 (3) to indicate to the NSWALC the facts and grounds upon which the Minister is proposing to appoint an administrator, for the reason that that proposition is not correct, as explained above.

98 The applicants’ second reason is therefore incorrect.

99 The Minister’s request for the approval of the NSWALC does not affect directly the rights or interests of the applicants. It is the Minister’s action of appointment of the administrator that affects the rights and interests of the applicants. It is that action that attracts the duty to afford procedural fairness to the applicants. The third reason of the applicants is also incorrect.

100 Accordingly, I reject the applicants’ claim in relation to s 222 (3) of the Act.

Procedural fairness under s 223 (1)

101 The applicants submit that a breach of the rules of procedural fairness is occurring in connection with the Minister’s decision whether to appoint, or the conduct engaged in by the Minister for the purpose of appointing, an administrator for the DLALC under s 222 (1), in that the Minister has denied the applicants a reasonable opportunity to be heard.

102 As I have earlier indicated, the Minister wrote to the applicants on or about 18 October 2005. The Minister provided a copy of Mr Kelly’s report with the annexures. The Minister referred to p 5 of that report where the grounds on which an administrator could be appointed were set out.

103 Page 5 stated in part:

“1. The Investigation revealed the following grounds upon which the Minister for Aboriginal Affairs could elect to appoint an Administrator to Darkinjung LALC under the ALRA:

That the funds or other property of the DLALC have not been properly applied or managed in accordance with Section 222 (1) (d) of the ARLA

Section 221 (1) (c): the DLALC has failed to comply with Sections 153 and 158 of the ARLA

Section 222 (1) (e): the Minister may form the opinion that the DLALC has substantially breached the requirements of this Act or the regulations or the rules of the Council

Section 222 (1) (f): the Minister may form the opinion that the DLALC has ceased for 6 months substantially to exercise its functions”.

104 The Minister referred and recited from the grounds for appointment of an administrator in s 222 (1)(a)-(f). The Minister then invited the DLALC to make submissions to the Minister “relevant to the grounds referred to above or any other reason why I may not be entitled to exercise that power in the circumstances”. I have set out the full passage earlier in these reasons.

105 The applicants submit that notwithstanding the apparent affording to the applicants of an opportunity to be heard contained in this letter, the opportunity was insufficient. The Minister failed to identify the critical issues to be addressed so that the applicants could put information and submissions to the Minister directed to those critical issues.

106 The applicants submit that subsequent correspondence between the Minister, at least up to the hearing in December 2005, took the matter no further.

107 The Minister submits that the plenary invitation of the Minister to the applicants to make submissions in relation to the appointment of an administrator for the DLALC was sufficient in the circumstances.

108 The decision-making process must be reviewed in its entirety: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578.

109 The Minister points to the history of correspondence between the Minister and the applicants in relation to affording the applicants an opportunity to be heard both in relation to the investigator’s report and whether the Minister ought to appoint an administrator to the DLALC. The applicants, the Minister submitted, have chosen to litigate, without providing a substantive response to either the investigator’s report or whether the Minister should appoint an administrator to the DLALC.

110 In these circumstances, the Minister submits, it will be particularly difficult for the applicants to demonstrate that the decision-making process, viewed in its entirety, is procedurally unfair.

111 In my view, the Minister has not failed to afford procedural fairness to the applicants to date. The Minister has identified the grounds on which the investigator, Mr Kelly, considered the Minister could elect to appoint an administrator to the DLALC. Those grounds were summarised on p 5 of the investigator’s report and fell with paragraphs (c), (d), (e) and (f) of s 222 (1) of the Act. The Minister invited the DLALC to make submissions relevant to these grounds.

112 The Minister also invited the DLALC to make submissions stating any other reason why the Minister may not be entitled to exercise the power under s 222 (1) to appoint an administrator to DLALC in the circumstances. The Minsiter could not specify any issue as critical in this regard because the purpose of such an invitation was to not restrict the opportunity for the DLALC to be heard.

113 I agree with the Minister’s submission that any assessment of whether procedural fairness has been afforded to date to the DLALC has to be done viewing the process of decision-making in its entirety. When that is done, the applicants have been afforded ample opportunity to be heard. The applicants have chosen, for tactical reasons, to not avail themselves of the opportunity they have been given on numerous occasions to be heard.

114 The applicants’ opportunity to be heard has not been rendered ineffective by any failure or the Minister to identify critical issues.

Conclusion

115 Each of the three applicants’ categories of claim therefore fail. The applicants’ application should be dismissed.

116 The usual order as to costs should be made as between the applicants and the first and second respondents. The third respondent, Mr Kelly, entered a submitting appearance and no costs order should be made in relation to him.

Orders

117 The Court orders that:

2. The applicants should pay the first and second respondents’ costs of the proceedings, as agreed or assessed.

**********

Citations

Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs [2006] NSWLEC 291

Most Recent Citation

Cases Citing This Decision

4

Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd (in liq) [2010] NSWCA 351

Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd & Ors [2010] NSWSC 132

Apache Northwest Pty Ltd v Agostini [2009] WASC 225

Cases Cited

17

Statutory Material Cited

3

Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121

Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699

Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245

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CITATION:	Darkinjung Local Aboriginal Land Council & Anor v Minister for Aboriginal Affairs & Ors [2006] NSWLEC 291
PARTIES:	FIRST APPLICANT Darkinjung Local Aboriginal Land Council SECOND APPLICANT Damein Aidon FIRST RESPONDENT Minister for Aboriginal Affairs SECOND RESPONDENT New South Wales Aboriginal Land Council THIRD RESPONDENT Tim Kelly
FILE NUMBER(S):	41363 of 2005
CORAM:	Preston CJ
KEY ISSUES:	Administrative Law :- judicial review - appointment by Minister of investigator into affairs of Local Aboriginal Land Council (LALC) - investigator's report to Minister found grounds to appoint an administrator for LALC - approval of NSW Aboriginal Land Council required before Minister may appoint administrator - LALC seeks to restrain appointment of administrator - whether investigator under a duty of procedural fairness - whether term of office of investigator can be extended after expiry - whether Minister obliged to specify to NSWALC the grounds on which Minister proposes to appoint administrator - whether breach of procedural fairness is occurring in Minister's consideration of whether to appoint administrator
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 (NSW) s 152 (4), s 219, s 220, s 220 (2), s 222, s 222 (1), s 222 (3), s 223 (1), s 224 Aboriginal Land Rights Regulation Pt 6 Interpretation Act 1987 (NSW) s 36(3), s 48(1)
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Elliot v Southwark London Borough Council [1976] 2 All ER 381; [1976] 1 WLR 499 ; Ferguson v Cole (2002) 121 FCR 402; Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812; Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352; Parke Davis Pty Ltd v Sanofi (No 2) (1982) 43 ALR 487; Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; Sanofi v Park Davis Pty Ltd (No. 2) (1982-1983) 152 CLR1; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Snowdon v Dondas (1996) 188 CLR 48 ; Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121 (6 April 2004)
DATES OF HEARING:	06/12/2005, 07/12/2005, 08/12/2005
DATE OF JUDGMENT:	06/02/2006
LEGAL REPRESENTATIVES:	FIRST AND SECOND APPLICANTS Mr A Robertson SC with Mr M A Izzo (barristers) SOLICITORS Norton White FIRST RESPONDENT Mr M J Leeming with Ms K Richardson (barristers) SOLICITORS Crown Solicitor SECOND RESPONDENT Mr N Perram (barrister) SOLICITORS Chalk & Fitzgerald THIRD RESPONDENT Submitting appearance