Morgan and Registrar of Aboriginal and Torres Strait Islander Corporations
[2022] AATA 2234
•15 June 2022
Morgan and Registrar of Aboriginal and Torres Strait Islander Corporations [2022] AATA 2234 (15 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/2080
Re:Ivan Morgan and others
APPLICANTS
AndRegistrar of Aboriginal and Torres Strait Islander Corporations
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:15 June 2022
Place:Perth
The scope of the review to be undertaken by the Tribunal is limited to whether or not the changes to the Rule Book sought by the applicants should be registered by the Registrar under s 69–30 of the CATSI Act.
..............[SGD]..........................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – scope of review – reviewable decision not to register changes to corporation’s constitution - correct or preferable decision must answer question asked of original decision-maker – applicants seek different course of action, not different decision – tribunal cannot exercise powers vested in original decision-maker under other non-reviewable sections of enabling legislation - Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL applied.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
CASES
Frugtniet V Australian Securities and Investment Commission (2019) 266 CLR 250
Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32
Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427
ASIC v Donald (2002) 69 ALD 187
Federal Commissioner of Taxation v Apted [2021] FCAFC 45
Woodbridge v Comcare [1994] FCA 1249
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL (2021) 284 FCR 1
X
REASONS FOR DECISION
Deputy President Boyle
15 June 2022
THE SUBSTANTIVE APPLICATION
The applicants seek the review of a decision of the respondent (Registrar) to affirm a decision to decline to register a change to the constitution of the Balanggarra Aboriginal Corporation (BAC).
THE ISSUE
The issue for determination in this interlocutory proceeding is the scope of the review to be undertaken by the Tribunal.
LEGISLATIVE FRAMEWORK
The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) sets up a regime for the incorporation and regulation of Aboriginal and Torres Strait Islander corporations (s 6).
Chapter 3 of the CATSI Act deals with the basic features of an Aboriginal and Torres Strait Islander corporation and covers matters such as the corporation's name, constitution and other rules applying to the corporation.
Each corporation registered under the CATSI Act must have a constitution which is lodged with the Registrar before the corporation is registered (ss 21–5 and 29–20(2)).
Section 69–5 of the CATSI Act sets out the steps required for a corporation to change its constitution. Those steps are:
(a)the corporation must pass a special resolution effecting the change;
(b)any further steps required by the corporation’s constitution; and
(c)the corporation lodging certain documents with the Registrar.
The Registrar must make certain decisions in respect of the constitutional change and, if appropriate, must register the change (s 69(1)(d)).
Section 69–20 of the CATSI Act requires the corporation to lodge with the Registrar:
(a)a copy of the special resolution; and
(b)a copy of those parts of the minutes of the meeting at which the special resolution was passed that relate to the passing of the special resolution; and
(c)a directors' statement (see subsection (5)); and
(d)a copy of the constitutional change.
Section 69–30(1) of the CATSI Act requires the Registrar to decide whether to register the constitutional change lodged by the corporation.
Section 700 of the CATSI Act defines a special resolution as one in relation to which the notice required by s 201–35(1)(c) was provided and which was passed by at least 75% of the votes cast by members entitled to vote on the resolution.
Section 201–5 of the CATSI Act requires the directors of a corporation to call and arrange to hold a general meeting on the request of a specified number or percentage of the members. In the case of the BAC that was 10% of the members.
Section 201–25 of the CATSI Act specifies certain people to whom the notice of such a meeting must be given.
BACKGROUND
The BAC constitution is contained in the “Rule Book”[1] which was registered by the Registrar on 30 January 2018. Relevantly, Rule 5.3 (which reflects s 201–5 of the CATSI Act (see para [11] above)) requires the directors of BAC to call a general meeting, if requested by the requisite number of members, within 21 days of being so requested.
[1]T18 p 78–112.
Rule 5.5, which reflects s 201–25 (see para [12] above) sets out the requirements of the notice that must be given. While Rule 5.5 does not specify who must give the notice, s 201-25 of the CATSI Act, which cannot be changed, specifies that the notice must be given by the corporation.
It is not disputed that more than 10% of the members of BAC requested the directors to call and hold a general meeting and that the directors did not do so.
Following the failure of the directors of BAC to call the general meeting, on 20 August 2020, an email was sent on behalf Mr Morgan and others (not directors) to members of BAC attaching a notice of a special general meeting to be held on 22 September 2020, notices of resolutions, and other documents.[2]
[2]T6 p 28.
On 21 September 2020, a director of BAC sent an email addressed to all members of BAC stating that the meeting to be held on 22 September 2020 had not been called by BAC and that BAC had no association with the meeting.[3]
[3]T7 p 40.
On 22 September Mr Morgan and others held a meeting and purported to pass a number of resolutions including a resolution to change the BAC Rule Book (constitution).[4]
[4]T13.
On 14 October 2020 the Registrar received the application on the relevant Office of the Registrar of Indigenous Corporations (ORIC) form from Mr Morgan and others to register changes to the Rule Book.[5]
[5]T12.
On 27 October 2020 a delegate of the Registrar decided not to register the changes to the Rule Book,[6] on the basis that the general meeting at which the proposed changes were passed was not called by BAC in accordance with the Rule Book.
[6]T1 p 8.
On 13 November 2020, pursuant to s 620–5 of the CATSI Act, Mr Morgan asked the Registrar to reconsider the decision to not register the changes to the Rule Book passed at the meeting on 22 September 2020.[7]
[7]T1 p 9.
On 23 December 2020 a delegate of the Registrar affirmed the decision of 27 October 2020 not to register the change to the Rule Book.[8]
[8]T1 p 11.
Pursuant to s 623–1 of the CATSI Act, the applicants seek the review of the decision as affirmed.
THE PARTIES’ SUBMISSIONS
The parties provided written submissions on the scope of the review that can be undertaken by the Tribunal in this matter and made oral submissions at an interlocutory hearing on that subject, heard on 16 December 2021. The applicants were represented by Mr P Vincent and the Registrar was represented by Ms L Groves.
Following the hearing on 16 December 2020, the parties conferred to determine whether agreement could be reached on the scope of the review that the Tribunal can undertake.
On 6 April 2022, the Tribunal was advised that the parties had been unable to reach agreement and that a decision as to the scope of the review needed to be made by the Tribunal.
By written submissions filed on 13 December 2021, the applicants submitted as follows:[9]
[9]A1 paras [3] – [11].
(a)The Registrar concedes, by para 24 of his SFIC filed 18 June 2021, that the members of BAC had requested the directors of BAC to call a general meeting to consider the changes to the Rule Book.
(b)Contrary to that concession, the Registrar had, incorrectly, advised the directors in September 2020 that the request for the meeting had not been made in accordance with the requirements of the CATSI Act.
(c)The decision of the Registrar to refuse to register the Rule Book change is not the correct or preferable decision because:
(i)Having determined that the required processes for a change to the Rule Book had not been followed, it cannot be said that the changes were made. It was, therefore, not within the Registrar’s power to make a purported determination under s 69–30 of the CATSI Act.
(ii)The appropriate course was for the Registrar to exercise the powers available to him under the CATSI Act to “resolve the situation”
(d)The decision sought is that the decision be set aside and that the matter be remitted for reconsideration with a direction that the Respondent exercise the power under ss 439–10(1)(d) of the CATSI Act to call a general meeting of members to give effect to the legitimate request made by the members for the directors to call a general meeting.
(e)The applicants contend that the Tribunal has the power to make such an order, citing Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [14]. The Tribunal has all of the powers and discretions conferred by any relevant enactment on the decision maker who made the original decision. The role of the Tribunal is to make the correct or preferable decision when there is more than one correct decision possible.
(f)The CATSI Act is sui generis. The Registrar’s functions of assisting in resolving internal disputes (s 658–1(f)(i)), general powers under s 658–10 and specific power to call meetings, are all powers now available to the Tribunal.
(g)The Tribunal’s decision-making options under s 43(1) of the Administrative Appeals Tribunal Act 1975 would include the power to make the directions referred to above in para (f).
The Registrar’s written submissions filed 13 December 2021 were to the following effect:[10]
[10]R2 paras [5]–[28].
(a)The applicants are seeking to agitate various internal issues which they are experiencing with the management and control of BAC.
(b)The scope and purpose of the application is limited to a reconsideration of the decision under review, specifically whether a change to the Rule Book should have been registered pursuant to section 69–30 of the CATSI Act.
(c)The Tribunal is empowered to exercise all the powers and discretions conferred upon the original decision-maker “provided it does so for the purpose of reviewing a decision”.[11]
(d)The power of the Tribunal is limited by the opening words of section 43(1) of the AAT Act to a review of the decision which has been referred to it, citing Merkel J in ASIC v Donald [2002] FCA 11741 at [29].
(e)The jurisdiction of the Tribunal is prescribed as described by the Full Court of the Federal Court of Australia in Federal Commissioner of Taxation v Apted [2021] FCAFC 45 at [16] – [17].
(f)Section 617–1 of the CATSI Act sets out what is a ‘reviewable decision’ for the purpose of that act. Section 623–1 of the CATSI Act states that an application may be made to the AAT for the review of a reviewable decision that that has been affirmed, varied or set aside under section 620–1 or 620–5 of that Act.
(g)The reviewable decision was one to refuse to register a Rule Book change for the BAC under s 69–30 of the CATSI Act. That is a reviewable decision pursuant to s 617–1 of the CATSI Act.[12] That decision was affirmed by a delegate of the Registrar pursuant to s 620–5(5)(a) of the CATSI Act.
(h)The issues that the applicants seek to agitate are not relevant to the decision under review. This is illustrated by the relief which the applicants seek, which is a direction that the Registrar calls a meeting of the BAC pursuant to s 439–10 of the CATSI Act.
(i)No application with respect of a decision under s 439–10 of the CATSI Act has been made to the Tribunal. In any event, a decision under s 439–10 is not a decision with which the Tribunal has jurisdiction to review.
[11]Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 [39]–[40]; Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427.
[12]Section 617–1 Item 6.
CONSIDERATION
In a nutshell, the applicants’ case has two or potentially three lines of argument. The first is that the delegate of the Registrar should have registered the change to the Rule Book pursuant to s 69–30 of the CATSI Act.
The second line of argument is that, if the Registrar was of the view that the Rule Book change could not be registered because the requirements of the CATSI Act and the Rule Book had not been met, in particular the general meeting at which the resolution was passed had not been called and held in accordance with the CATSI Act and Rule Book, then the correct or preferable decision was for the delegate, and is now for the Tribunal, to exercise the power under s 439–10(1)(d) of the CATSI Act to call a general meeting of members.
At the hearing, Mr Vincent for the applicants, put it as follows:[13]Yes, I think the key is, in a piece of legislation such as this, as you said, Deputy President, initially, does the registrar - is the registrar's duty in dealing with that question simply a legalistic one, or is it one where he's faced with a panoply of powers which he can use to engage in a positive way with a community that needs assistance? And that's the preferrable decision.
…
I think that is crucial to how the respondent, the registrar, then proceeded, because, given that, he …wasn't looking at an application for a change that was characterised properly as an application for a meeting to the directors. And so, given the nature of the legislation, the registrar should have said, 'Well, here is a corporation (indistinct) members who were just....'
They've mischaracterised something. There's a huge number of people who have signed this blooming thing. They want changes. The directors who were in charge of the corporation at that time are resisting these things… I'm going to step in, and that's what I should do. And in my respectful submission, there's no reason why the tribunal can't stand in the shoes of the registrar, 'Yes, we're not going to take a legalistic approach either. We're going to say what the preferrable approach is.'
11Transcript p 7 [5]–[45].
Mr Vincent argued that, while his clients made an application to the Registrar to register changes to the Rule Book, what they were in fact doing, or should have been taken to be doing, was asking the Registrar to exercise the power under s 439–10(1)(d) of the CATSI Act to call a general meeting of members. He submitted that:[14]
It's really a request for a meeting of the corporation. Now, that was what the registrar was faced with, and he just said, 'No, you can't have a change, 'instead of stepping out and meeting that request.
[the Registrar] should have simply deferred a decision and said, 'Well, I can see, however, that this is an application for a meeting. There's terrible disputation. I'm going to exercise my power to have the meeting, so that if these constitutional amendments are sought, it'll done in a proper way.'
…
If the decision could have had an addition to it, utilising particular powers, I would submit that the decision could still be set aside because it's not the preferable one. It needs to be a decision plus, not just a decision simpliciter about yes or no.
…
…the preferable decision for the registrar at the time, and this would come from the evidence, would be not to make a decision either way. Sorry, to defer a decision and say, "I cannot make a decision until there's a proper meeting so I can consider the validity of the proposed constitutional changes under section 60.30."
[14]Transcript pp 10 [30], 11 [25], 14 [35]–[40].
The potential third line of argument (alternatively, it may be a development of the second line) is that the Registrar could not make any decision on the application as made by the applicants. Mr Vincent explained this aspect of the applicants’ argument as follows:[15]
Our submission is that he couldn't make a decision because it became obvious that the preceding process was not valid. The only decision he could make on the actual application was to say, "Look, I can't make a decision because it's obvious that you haven't had proper process. I'm now going to also, as part of this determination, say I'm going to convene a meeting so that it can be done properly or not done properly."
[15]Transcript p 15 [40].
I do not accept the applicants’ arguments. Dealing firstly with the potential third argument outlined in [32] above, the fact is that the Registrar did make a decision and it is that decision which the Tribunal is to review. Whether the Registrar should have made any decision is not to the point. Rightly or wrongly, the applicants made a formal application on the relevant ORIC form to register Rule Book changes. The Registrar was under a statutory obligation under s 69–30 of the CATSI Act to decide whether to register the changes to the constitution. He made a decision which was then affirmed on review under s 620–5. It is that decision which is reviewable by the Tribunal under s 617–1 of the CATSI Act.
Even if I were to accept that the Registrar should not have made the decision or, as seems to be argued by the applicants (in the alternative) that he did not have the power to make the decision in the circumstances, the fact is that he did make a decision under a section of the CATSI Act which is reviewable by this Tribunal. In that regard I note Hill J’s summary of the relevant law in Woodbridge v Comcare:[16]
Even if the application to the Tribunal were an appeal from the determination …made without authorisation, it would not follow that the Tribunal was incapable of determining the issue of the compensation in that period. In Secretary, Department of Social Security v Alvaro (Full Court, unreported, 27 May 1994) a question arose as to whether the Tribunal had jurisdiction to review a decision which was made beyond power… Von Doussa J, in delivering the judgment of the Full Court comprising in addition Spender and French JJ, referred to the decision of Full Court of this Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307 (which was subsequently applied by another Full Court in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 232) where it had been held that a decision made by an administrator in purported or assumed pursuance of a relevant statutory provision is reviewable under the AAT Act, even if the administrative decision is legally ineffective or void. His Honour held that a narrow interpretation of the word "decision" should be rejected, for to hold otherwise would defeat the purposes of the review procedure established under the Act.
[16][1994] FCA 1249, [59].
An application for registration of Rule Book changes was made by the applicants, a decision was made under s 69–30 of the CATSI Act not to register those changes (affirmed on review) and an application for review of that decision was then made to the Tribunal by the applicants. It is clearly the case, and I do not understand the applicants to argue otherwise, that the Tribunal has jurisdiction to review the decision by operation of s 617–1 of the CATSI Act.
The decision to be reviewed is the decision under s 69–30 not to register the change to the Rule Book. That is the relevant decision which the Tribunal has jurisdiction to review under item 6 in s 617–1 of the CATSI Act. The obligation imposed on the Registrar by s 69–30 is to either register the changes sought, or to decline to register those changes. That is the scope of the decision to be made under s 69–30 of the CATSI Act which is to be reviewed by the Tribunal.
While it may be the case that the Registrar has, as the applicants put it, a “panoply of powers”, those powers are not powers to be exercised in relation to the decision to be made under s 69–30, on an application for registration of changes to a corporation’s constitution.
The decision to be made under s 69–30 of the CATSI Act is one dimensional; either the Registrar registers the changes sought, or he does not. He may, as the applicants claim, have a range of powers under other sections of the CATSI Act, however, they are not powers relating to the decision to be made under s 69–10.
In the alternative to a decision to set aside the reviewable decision and substitute a decision to register the changes, what the applicants seek is not a different decision under s 69–30 of the CATSI Act, but rather a different course of action. That is not something that the Tribunal can do. The Tribunal’s role is to make its own decision on what the correct or preferable decision is on the question that the original decision maker was asked to decide.
In the present case, the question that was asked of the Registrar was whether the Rule Book changes requested by the applicants should be registered. That was the statutory question that the Registrar was asked, and it is the only question that the Tribunal has jurisdiction to answer on review.
The applicants’ argument that the request for registration of changes to the Rule Book should have been treated by the Registrar as a request to convene a meeting under s 439–10(1)(d) of the CATSI Act does not assist the applicants in the present proceedings.
Had the Registrar treated the request for registration of Rule Book changes as a request for the Registrar to convene a meeting under s 439–10(1)(d) and made a decision on that issue, the Tribunal would have no jurisdiction, as a decision under that section is not reviewable by the Tribunal under s 617–1 of the CATSI Act.
It would be clearly inappropriate and beyond the Tribunal’s powers of review of a decision under s 69–30 of the CATSI Act to substitute a decision to exercise a totally separate power under a different section of the CATSI Act, a section in relation to which the Tribunal has no jurisdiction.
A not dissimilar course of action to that proposed by the applicants was considered by the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL.[17] In that case the Tribunal had, in reviewing a decision not to grant a Safe Haven Enterprise Visa (SHEV) under s 501(1) of the Migration Act 1958, purported to grant a SHEV to the non-citizen under s 65(1)(b) of that act. The Full Court at [82] held:
…The Tribunal fell into jurisdictional error by purporting to grant a SHEV to the respondent primarily because its review function was limited to deciding whether or not to refuse the grant of a SHEV under s 501(1) of the Act, that being the power conferred on the decision-maker whose decision the Tribunal reviewed under s 500(1)(b). That latter provision did not confer any power on the Tribunal to review a decision made by the Minister (or a delegate) under s 65(1)(b) of the Act, or to make a primary decision under that provision.
[17](2021) 284 FCR 1
At [85] the Full Court found:
We respectfully adopt the primary judge’s reasoning where his Honour said (at [41]-[44]):
41. ... That subsection, [s 501(1)], confers a discretion to refuse to grant a visa if the Minister is not satisfied that the person passes the character test. The “character test” is defined in s 501(6). Review of decisions under s 501 are permitted by s 500(1)(b) which provides as follows:
500 Review of decisions
(1) Applications may be made to the Administrative Appeals Tribunal for review of:
...
(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or
42. The correct characterisation of the decision under review assumed significance, so both Senior Counsel submitted, because it played a large part in defining the ambit of the powers of the Tribunal when undertaking its review functions.
43. If the characterisation of the decision under review by the Minister be correct, there is considerable force in the argument that upon an application for review, the only decision which could be made in substitution for that of the delegate was a decision that could be made under s 501. Such an approach to the confined nature of the power vested in the Tribunal by s 501 would sit comfortably with the structure of the [Act], which provides for separate means of review in respect to separate kinds of decisions.
At [86] the Full Court found:
The better view is that the jurisdiction which is vested in the Tribunal by s 500(1)(b) of the Act is the jurisdiction to review “decisions ... under section 501”. It is that provision which “marks the boundaries of the AAT review”: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 per Bell, Gageler, Gordon and Edelman JJ (at [51]). When exercising the jurisdiction conferred by s 500(1)(b), the Tribunal was exercising the powers and discretions of the delegate as the original decision-maker, being powers confined by s 501(1). As the primary judge correctly observed, no decision was made by the delegate and no decision was sought to be reviewed by the respondent of any decision made (for example) pursuant to s 65 of the Act. Separate provision for Tribunal review of such decisions, it may be noted, is provided for in Pts 5 and 7 of the Act.
Applying the above principles enunciated by the Full Court to the present case, the jurisdiction conferred by s 617–1 of the CATSI Act limits the Tribunal’s powers and discretions to those exercisable by the Registrar in relation to s 69–30 of the CATSI Act, namely to either register the changes to the Rule Book or not to register them. Powers that the Registrar may have outside that section are not powers that the Tribunal can exercise on a review of the decision made under s 69–30. Using the language of the Full Court, “no decision was made by the delegate and no decision was sought to be reviewed by the respondent of any decision made (for example) pursuant to”[18] s 439–10(1)(d) or any other section of the CATSI Act.
[18]Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 [51].
DECISION AS TO SCOPE
For the reasons set out above, the scope of the review to be undertaken by the Tribunal is limited to whether or not the changes to the Rule Book sought by the applicants should be registered by the Registrar under s 69–30 of the CATSI Act.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.............[SGD]...........................................................
Associate
Dated: 15 June 2022
Date of hearing: 16 December 2021 Counsel for the Applicant: Mr P Vincent Solicitor for the Applicant: Ms S Kilpatrick, Cross Country Native Title Services Solicitor for the Respondent: Ms L Groves, Australian Government Solicitor
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