Jarrett v Registrar Aboriginal Land Rights

[2022] NSWCATAD 355

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jarrett v Registrar Aboriginal Land Rights [2022] NSWCATAD 355

Hearing dates:

30 August 2022

Date of orders:

9 November 2022

Decision date:

09 November 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Griffin, Senior Member

Decision:

The Order of the Tribunal is:

(1) Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, the application made by Dianne Jarrett on 12 August 2022 is dismissed.

Catchwords:

ADMINISTRATIVE LAW – NCAT jurisdiction

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Dianne Jarrett (Applicant)
Office of the Registrar Aboriginal Land Rights Act (Respondent)

Representation:

Solicitors:
Dianne Jarrett (Self Represented)
Matthews Folbigg Lawyers (Respondent)

File Number(s):

2022/00238452

Publication restriction:

Nil

REASONS FOR DECISION

1. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with the hearing and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) Civil and Administrative Tribunal Act 2013.

2. The Applicant lodged an Administrative review application on 12 August 2022. The review application form did not specify a decision for review. The application form stated, I am seeking a review of the decision on the following grounds: statutory disqualification as a board member of a land council.

Background

3. Attached to the application form, is a letter from the Respondent dated 9 August 2022. The letter is addressed to the Applicant and has the heading Inquiry re Board position and eligibility-Bowraville LALC. The letter states, in part:

We refer to your inquiry to this office in July 2022, regarding your previous position on the Board of Bowraville LALC. This office wrote to you on 22 February 2021, advising that the Registrar had declined to exercise her discretion under s66(2) of the Aboriginal Land Rights Act 1983 (‘ALRA’), and that as such you were not eligible to hold office as a Board member on the Bowraville LALC Board at that time. We also advised in that letter that you would be eligible to hold office again on 10 March 2022. We understand that the Bowraville LALC recently had some casual vacancies on the Board, and that you may have inquired, as you are now eligible to hold office again, if you could resume your position on the LALC Board.

It is this Office’s view that, under the provisions of section 66 (1) of the ALRA, once a person is deemed to be ineligible or is disqualified from holding office as a Board member (pursuant to section 66(1) of the ALRA) they relinquish their Board position and are no longer on the Board. The disqualification under section 66(1) effectively brings their term as Board member to an end. The person does not resume their role as Board member once the period of their disqualification expires or runs out (as they might, say, after a period of suspension). However, once a person's disqualification lapses, they are then eligible to be nominated to stand for Board election and be elected to the Board again.

As such, it is this Office’s view that you are now eligible to be nominated and elected to the LALC Board again, if and when the LALC holds a casual vacancy election. However, you do not resume your previous seat on the Board. If you are elected at a future casual vacancy election, this Office will conduct another eligibility check (as part of our usual process) for you and any other newly elected Board member, and provide advice as to current eligibility.

4. A second letter from the Respondent to the Applicant is dated 22 February 2021. It has the heading Statutory Disqualification as a Board Member of a Local Aboriginal Land Council - Request for Discretion under section 66(2). It states, in part:

On 7 September 2020, I wrote to you advising that you were disqualified as a Board member of Bowraville Local Aboriginal Land Council (LALC) until 10 March 2022, due to your previous conviction for: Common Assault, section 61 Crimes Act 1900.

Section 66(1)(c) of the Aboriginal Land Rights Act 1983 states that a person who has been convicted of an offence of the type you were convicted of, in the last five years, is disqualified from holding office as a Board member of a LALC.

In my previous letter, I invited you to apply to me, requesting that I determine if the offences should be ignored under section 66(2) of the ALRA. If the Registrar determines that any relevant offence can be ignored, this means the conviction for the offence does not disqualify you from holding office as a Board member. Section 66(2) sets out two grounds on which I can make such a determination: the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.

I am satisfied that you made such an application asking me to determine if the offences that disqualify you can be ignored. Thank you for your responses to this office on 12 October 2020 and for providing the NSW police statement of facts and the other supporting documents relating to this offence.

On the information available to me, I have determined that the relevant offence does disqualify you from holding office as a Board member of Bowraville LALC. Accordingly, you are currently disqualified from holding office as a Board member of a LALC until 10 March 2022…

I have reviewed the circumstances of this matter, within the limits of the discretion provided under section 66 (2).

1. The time that has passed since the acts giving rise to the conviction is approximately 4 years. This is not a relevant time period for my determination.

2. I am satisfied that your acts giving rise to the offence are not trivial, pursuant to section 66 (2) of the ALRA.

As stated above, I have determined that the relevant offence does disqualify you from holding office as a Board member of Bowraville LALC. Accordingly, you are currently disqualified from holding office as a Board member of a LALC until 10 March 2022.

5. A third document attached to the Administrative review application form is a letter to the Respondent from the Applicant. The document is undated but refers to events from 2019 until at least 8 June 2022. The letter refers to 2 incidents of alleged breach of the Applicant’s privacy by the Chairperson of the Bowraville LALC. It mentions the disqualification as a Board member and concludes by stating, I believe I have been unfairly and unprofessionally treated by the Bowraville Lands Council CEO...Chairperson…and the Registrar.

Timeline of Tribunal process to date

6. The Tribunal held a Directions hearing with the parties on 30 August 2022. It was noted the Applicant has had a recent death in her family kinship group and will be attending to Sorry Business which will include travel and remote locations. She has advised the Tribunal of this at early stage of this event. She has been asked to contact the Registry if she requires more time to comply with the directions for submissions.

7. The Orders made at the Directions hearing on 30 August 2022, were:

1. The Respondent to file with the Tribunal and serve upon the Applicant, Ms Jarrett, short written submissions addressing the question of jurisdiction of the Tribunal to hear and determine this matter. These submissions are to be provided to the Tribunal and the Applicant by 14 September 2022.

2. The Applicant is to file with the Tribunal and serve upon the Respondent written submissions in reply to the question of jurisdiction by 30 September 2022.

3. The matter is to be referred for determination on the papers thereafter.

8. Those Orders were sent by email to the Applicant on 30 August 2022. On 9 September 2022, the Applicant sent an email to the Tribunal in the following terms: I have Sorry Business on the 13th of September. I will be unable until the following week. Thank you.

9. On 14 September 2022, the Tribunal wrote to the Applicant stating, I refer to your email below, it is not clear what you are requesting. I note the Respondent is required to file by 14 September 2022 and you are required to file your reply by 30 September 2022.

10. On 28 October 2022, noting that no submissions had been received from either party as of that date, the Tribunal wrote to the parties stating, in part, It does not appear that any submissions or documents have been filed in this matter in accordance with the Directions of 30 August 2022. Registry has attempted to make inquiries with the parties by telephone and there has been no response. If the parties did provide documents or submissions in accordance with the Directions, they are to notify the Tribunal on or before midday Monday 31 October 2022, otherwise the Tribunal will proceed to determine the matter after 31 October 2022.

11. On the same day, 28 October 2022, the Tribunal received written submissions from the Respondent which were dated 13 September 2022. There has been no reply from the Applicant and no written submissions have been received from her.

Respondent’s submissions

12. The Respondent submits that the Tribunal does not have jurisdiction to hear or determine the application and accordingly the application should be dismissed under section 55 of the CAT Act for lack of jurisdiction.

13. The Respondent submits that it is unclear from the application which decision the Applicant is seeking to be reviewed, whether it is the February decision or the August advice or both. The February 2021 letter notified the Applicant of the Registrar's decision not to exercise her discretion and confirming her disqualification. The August 2022 advice reiterated that decision.

14. The Respondent submits that neither of these ‘decisions’ is reviewable by the Tribunal under the relevant legislation.

Applicant’s submissions

15. There have been no submissions from the Applicant, other than the material quoted above from her application form.

Legislative framework

16. The jurisdiction of the Tribunal is set out in s 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). Section 28 provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

17. Section 30 of the CAT Act relevantly provides:

(1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

Note—

See section 9 of the Administrative Decisions Review Act 1997.

18. Section 9 of the ADR Act provides:

(1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a) in the exercise of functions conferred or imposed by or under the legislation, or

(b) in the exercise of any other functions of the administrator identified by the legislation.

(2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

19. Section 4 of the ADR Act states:

enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:

(a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

20. The Aboriginal Land Rights Act 1983 (NSW) contains 10 references to NCAT, (ss. 69, 135, 181K, 181L, Division 6 Heading, 199A, 199B, 211A, 215 and 215A). They are quite specific in their subject matter, for example, s 181K deals with the referral of misconduct matters to NCAT by the Registrar. None of these provisions provides for a general administrative review jurisdiction.

Consideration and findings

21. The Respondent submits the Tribunal only has jurisdiction if enabling legislation provides for applications to be made to the Tribunal for an administrative review of a decision. In this case, the likely enabling legislation is the ALR Act. However, there are no provisions in the ALR Act that provide for applications to be made to the Tribunal and authorise the Tribunal to administratively review the relevant decisions.

22. The Applicant has not made any submissions on the matter and has not responded to written and telephone requests for her to make submissions. I note that the Applicant needed to attend to Sorry Business however, almost 2 months has elapsed since the last communication from the Applicant on or about 9 September 2022.

23. In these circumstances, I am satisfied it is appropriate for the Tribunal to proceed to decide this matter on the material to hand.

24. The Respondent seeks summary dismissal of the proceedings under s 55(1)(b) of the NCAT Act, which provides:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

…

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

…

25. I have examined the relevant legislation and can find nothing which confers or imposes upon this Tribunal the jurisdiction to administratively review decisions of this nature made by the Respondent. I find the Tribunal does not have jurisdiction to review this matter.

Decision

26. The order of the Tribunal is:

1. Pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013, the application made by Dianne Jarrett on 12 August 2022 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 09 November 2022