Foley and Aboriginal and Torres Strait Islander Commission - [2001] AATA 249

DECISION AND REASONS FOR DECISION [2001] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/7

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CLIFF FOLEY
  Applicant
           And    ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date28 March 2001
PlaceSydney

Decision      The Administrative Appeals Tribunal directs that the matter be dismissed for lack of jurisdiction pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
JURSIDICTION - Whether the "decision" of the Respondent not to make a declaration pursuant to section 121(1) of the Aboriginal and Torres Strait Islander Act 1989 was a reviewable decision – no jurisdiction to review decision.

LEGISLATION
Aboriginal and Torres Strait Islander Commission Act 1989, ss 121 and 196
Aboriginal and Torres Strait Islander Commission Regulations 1992

REASONS FOR DECISION

28 March 2001 Ms G Ettinger - Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Cliff Foley, was the decision of Geoff Clark, Chairperson of the Respondent, Aboriginal and Torres Strait Islander Commission ("the Commission") dated 6 December 2000, which held that:
"The Commission pursuant to Section 121 of the Aboriginal and Torres Strait Islander Commission Act 1989; and Goal 1 of the Corporate Plan:
(a)NOTED the contents of this paper; and
(b)AGREED that a declaration under section 121(1) of the Act NOT be made in respect of Deputy Regional Council Chairperson Williams' absence from her ward for the following reasons:

the personal health factors cited in Councillor Williams' letter requiring her to be close to the Mount Druitt Medical Centre; and
the existence of a precedent for the Board deciding not to make a declaration under Section 121 (1) of the Act in respect of a member of the Gulf and West Queensland Indigenous Regional Council who moved from his ward to be close to medical facilities."

Due to administrative error of the Tribunal with regard to provision of listing notices to the parties, the hearing on jurisdiction of this matter scheduled for 28 February 2001 was rescheduled to 21 March 2001.
At the Hearing on 21 March 2001, the Applicant was self represented and the Respondent Commission was represented via telephone link, by Ms R Littlewood, an officer of its Administrative Law, Legislation and Corporate Law Section.
ISSUE FOR THE TRIBUNAL
The issue before the Tribunal was:

Whether the "decision" of the Commission not to make a declaration pursuant to section 121(1) of the Aboriginal and Torres Strait Islander Act 1989 in respect of Deputy Regional Council Chairperson of the Commission, Christine Williams, is a reviewable decision by the Tribunal.

In reaching a decision as to whether the Tribunal has the jurisdiction to review the decision of the Commission, the Tribunal also had to consider:

Whether the Applicant is a person whose interests are affected by the "decision" and therefore, able to lodge an application for review by the Tribunal.

LEGISLATION

The relevant legislation in this matter was the Aboriginal and Torres Strait Islander Act 1989 ("the ATSIC Act") in particular sections 121 and 196 and the Aboriginal and Torres Strait Islander Commission Regulations 1992.
Section 121 of the ATSIC Act outlines the circumstances which a person is taken to have resigned from a Regional Council:
"121 Persons taken to have resigned from Regional Councils in certain circumstances
(1)Where the Commission is satisfied that a member for a Regional Council ward:
(a) does not live in the ward; and
(b)has not lived in the ward at all during the immediately preceding period of 6 months;
the Commission may, in writing, declare that it is so satisfied.
(1A)Subsection (1) does not apply to a member of a Regional Council who is the Commission Chairperson.
(1B)Subsection (1) does not apply to the Chairperson of a Regional Council if the Commission makes a written determination that it is satisfied that the Chairperson lives within reasonable daily commuting distance of an office of the Commission that serves the region concerned.
(2)Subject to the Administrative Appeals Tribunal Act 1975, where the Commission makes a declaration under subsection (1) about a member of a Regional Council, the member shall for all purposes be taken to have resigned on the date of the declaration.
…"
Section 196 of the ATSIC Act provides for the review of specified decisions of the Commission by the Tribunal:
"196 Review by the Administrative Appeals Tribunal
(1)An application may be made to the Administrative Appeals Tribunal for review of:
…
(f)a decision of the Commission to make a declaration under subsection 121(1); or
…
(2)Where the Commission notifies a person of a decision of a kind referred to in subsection (1), the notice shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision by or on behalf of a person whose interests are affected by the decision.
(3)A failure to comply with subsection (2) in relation to a decision does not affect the validity of the decision.
(4)In this section:
decision made by the Commission does not include a decision made by a delegate of the Commission."

SUBMISSIONS

Mr Foley, who is a Regional Councillor of the Sydney Regional Council of the Commission, submitted that the reason why he was seeking review of the decision of the Commission dated 6 December 2000 was that in reaching its decision the Commission neither obtained advice from, nor consulted the Regional Council. He said that the object of the ATSIC Act was advocating and advancing the interests of Aboriginal people and by failing to consult with the Regional Council the Commission had made a biased decision that did not accord with its requirement for transparency.
Mr Foley further submitted that the Councillor in question, Ms Christine Williams had been in Canberra prior to the decision of the Commission and was able to lobby individual members of the Commission in respect of making a declaration pursuant to section 121 of the ATSIC Act.
As to jurisdiction of the Tribunal; Mr Foley said it was his understanding that the Councillors were always informed that they could apply to the Tribunal for a review of all decisions of the Commission and that the right of review was contained in the Aboriginal and Torres Strait Islander Regulations 1992.
Ms Littlewood submitted that the legal issue of the Tribunal's jurisdiction to hear an appeal was clear, as outlined in her Affidavit dated 29 January 2001. The Tribunal had jurisdiction to review certain specified decisions. She submitted that in this case the Tribunal would have had jurisdiction if a declaration had been made pursuant to section 121(1) of the ATSIC Act. Ms Littlewood submitted however that an agreement not to make a declaration was not a reviewable decision pursuant to section196 of the ATSIC Act. Ms Littlewood also submitted that the Regulations did not provide for any further categories of decisions which could be reviewed by this Tribunal. I noted that section 196(1)(g) of the ATSIC Act provided for decisions "declared by the regulations to be reviewable decision for the purposes of this section" to be reviewed by this Tribunal. However, I further noted the Regulations did not provide for review of decisions other than as stipulated in section 196(1) of the ATSIC Act.
I noted that in her Affidavit dated 29 January 2001, Ms Littlewood submitted that:
"The Tribunal is not empowered to hear any matter unless jurisdiction is conferred upon it by legislation.
The Commission declined to exercise its discretion to make a decision. For this reason the respondent submits that the Tribunal has no jurisdiction to hear this application under paragraph 196(1)(f) of the ATSIC Act."
Mr Foley indicated to the Tribunal that he had not received a copy of the Affidavit of Ms Littlewood dated 29 January 2001, until he was provided a copy at the Hearing. He submitted that it was the prevailing attitude of the Commission to be lacking in their level of communication with members. Mr Foley expressed concerns about the formal, bureaucratic way in which he became aware of the "decision" of the Commission, and that he had not been informed directly by the people concerned.
Ms Littlewood advised that her files recorded that a copy of her Affidavit had been forwarded to Mr Foley on or about 29 January 2001 and I noted that the Tribunal's copy was received on 5 February 2001. A further copy was faxed to Mr Foley on 20 March 2001 by the Tribunal.
Mr Foley left the hearing prior to the conclusion of the hearing, indicating that both the Commission and the Tribunal had failed in its responsibility to Aboriginal people.
CONCLUSIONS
In coming to a decision as to whether the "decision" of the Commission not to make a declaration pursuant to section 121(1) of the ATSIC Act in respect of Ms Christine Williams was a reviewable decision, I considered the submissions of the parties as well as the Affidavit of Ms Littlewood dated 29 January 2001.
I first considered whether Mr Foley was able to apply to the Tribunal for review of the decision of the Commission not to make a declaration pursuant to section 121(1) of the ATSIC Act. I noted that section 196 (2) of the ATSIC Act provides that:
"Where the Commission notifies a person of a decision of a kind referred to in subsection (1), the notice shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision by or on behalf of a person whose interests are affected by the decision."
I noted that Mr Foley was a Regional Councillor of the Sydney Regional Council of the Commission and that Ms Christine Williams was the Deputy Regional Council Chairperson. I further noted that neither party made submissions as to whether the Applicant was a person whose interests were affected by the decision of the Commission dated 6 December 2000. Although he did not make submissions specifically regarding this point, clearly Mr Foley considered that he was affected by the decision not to make a declaration with regard to Ms Williams. This was reflected also in his applying for review to the Tribunal and his insistence that the Tribunal had jurisdiction to review the decision not to make a declaration in relation to Ms Williams.
I find that as a Regional Councillor, Mr Foley's interests would be affected by a decision which concerned or otherwise dealt with the constituency of the Regional Council. I found therefore that he had standing to apply to the Tribunal for review pursuant to section 196 of the ATSIC Act provided there was a reviewable decision, one where the Tribunal had jurisdiction.
I then turned to consider whether the "decision" of the Commission not to make a declaration pursuant to section 121(1) of the Aboriginal and Torres Strait Islander Act 1989 in respect of Ms Christine Williams was a decision reviewable by the Tribunal. I was mindful that despite the Applicant's submissions, the Aboriginal and Torres Strait Islander Regulations 1992, did not provide any further elucidation as to the nature or extent of a reveiwable decision pursuant to section 121(1) of the ATSIC Act.
As relevant, section 196 of the ATSIC Act provides for the right of review to the Tribunal in respect of a decision of the Commission to make a declaration under subsection 121(1). I noted that the operative words of section 196(1)(f) of the ATSIC Act are "make a declaration". The nature of the declaration referred to is set out in section 121(1) of the ATSIC Act, which provides:
"(1)Where the Commission is satisfied that a member for a Regional Council ward:
(a) does not live in the ward; and
(b)has not lived in the ward at all during the immediately preceding period of 6 months;
the Commission may, in writing, declare that it is so satisfied."
In considering the decision of the Commission dated 6 December 2000, I noted that the Commission "AGREED that a declaration under section 121(1) of the Act NOT be made in respect of Deputy Regional Council Chairperson Williams' absence from her ward …".
There is nothing in the decision to suggest that the Commission declared in writing that it was satisfied that Ms Williams did not live in the ward nor had lived in the ward for the preceding six months. In fact, the Commission, expressly agreed that it was not so satisfied for the reasons it nominated, namely, the personal health factors of Ms Williams and the availability of a precedent in which the Commission decided not to make a declaration pursuant to section 121(1) of the ATSIC Act.
I was not persuaded by the submissions of the Applicant that the decision was reviewable by virtue of section 196(1)(f) of the ATSIC Act. The section clearly contemplates that only a declaration made pursuant to section 121(1) is reviewable by the Tribunal. In the instant case, the Commission did not make a declaration but rather agreed not to make a declaration pursuant to section 121(1) of the ATSIC Act for the reasons outlined in its decision dated 6 December 2000. I was also mindful that calling an agreement not to make a declaration a "decision" does not automatically stamp it with the characteristics of a decision. I was not satisfied that a decision not to make a declaration pursuant to section 121(1) of the ATSIC Act was a decision within the terms of the legislation.
As I have found that the agreement by the Commission not to make a declaration pursuant to section 121(1) of the ATSIC Act, was not a reviewable decision for the purposes of section 196 of the ATSIC Act and therefore, outside of the jurisdiction of the Tribunal, I was required to dismiss the application before me for lack of jurisdiction pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975.
DECISION
The Administrative Appeals Tribunal directs that the matter be dismissed for lack of jurisdiction pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 March 2001
`Date of Decision  28 March 2001
Counsel for the Applicant        N/A
Solicitor for the Applicant         Self-Represented
Counsel for the Respondent    N/A
Solicitor for the Respondent    Ms R Littlewood