National Aboriginal and Islanders Legal Services Secretariat Aboriginal Corp v Registrar of Aboriginal Corporations

[1998] FCA 743

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Application for interlocutory injunction in the nature of a stay pending determination under Administrative Decisions (Judicial Review) Act 1977 and application under s 39B Judiciary Act 1903 (Cth) - Aboriginal corporations - prudential supervision - decision to examine documents and to appoint appropriate person - whether serious question to be tried - whether balance of convenience favours grant of interlocutory relief.

Aboriginal Councils and Associations Act 1976 (Cth)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 - Appl
Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 0 Dist
Minosea Pty Ltd v ASC (1994) 14 ACSR 642 - Appl
Boys v Australian Securities Commission (1998) 26 ACSR 464 (FC) - Cons

NATIONAL ABORIGINAL AND ISLANDERS LEGAL SERVICES SECRETARIAT ABORIGINAL CORPORATION AND QUEENSLAND ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION FOR LEGAL SERVICES SECRETARIAT V THE REGISTRAR OF ABORIGINAL CORPORATIONS AND GARRY J HAMILTON
NO QG 46 OF 1998

COOPER J
BRISBANE
29 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 46  of  1998

BETWEEN:

NATIONAL ABORIGINAL AND ISLANDERS LEGAL SERVICES SECRETARIAT ABORIGINAL CORPORATION
FIRST APPLICANT

QUEENSLAND ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION FOR LEGAL SERVICES SECRETARIAT
SECOND APPLICANT

AND:

THE REGISTRAR OF ABORIGINAL CORPORATIONS
FIRST RESPONDENT

GARRY J HAMILTON
SECOND RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

29 JUNE 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The applicants pay the respondents’ costs of and incidental to the application, including reserved costs if any, to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 46 of 1998

BETWEEN:

NATIONAL ABORIGINAL AND ISLANDERS LEGAL SERVICES SECRETARIAT ABORIGINAL CORPORATION
FIRST APPLICANT

QUEENSLAND ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION FOR LEGAL SERVICES SECRETARIAT
SECOND APPLICANT

AND:

THE REGISTRAR OF ABORIGINAL CORPORATIONS
FIRST RESPONDENT

GARRY J HAMILTON
SECOND RESPONDENT

JUDGE:	COOPER J
DATE:	29 JUNE 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

The Background
The first and second applicants are incorporated Aboriginal associations incorporated under Part IV of the Aboriginal Councils and Associations Act 1976 (Cth) (“the Act”). The first respondent is the Registrar of Aboriginal Corporations (“the Registrar”). The second respondent is a person, authorised by the Registrar on 14 May 1998 for the purposes of s 60 of the Act, to examine the documents of each of the applicants.

On 22 May 1998 the applicants filed an application for an order of review and for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Registrar to cause a person authorised by the Registrar to examine the documents of the applicants and to appoint the second respondent as that person.

By notice of motion filed 22 May 1998 the applicants seek the following interlocutory relief :-

“1.That the First and Second Respondents be restrained until the final hearing and determination of the Application for an Order to Review, or earlier order, from conducting an examination of the documents of the Applicants or otherwise examining any officers employed by the Applicants pursuant to sec 60(1) of the Aboriginal Councils and Associations Act 1976 (Cth).

2.For orders suspending the operation of the decision of the First Respondent to cause a person to conduct an examination of the Applicants’ documents purportedly pursuant to sec 60(1) of the Aboriginal Councils and Association Act 1976 (Cth) and that those be a stay of all further proceedings under that decision until the final hearing and determination of the Application for an Order to Review, or earlier order.

....”

The application was argued by both sides on the basis that it was for the applicants to establish that there was a serious question to be tried and that the balance of convenience favoured the granting of interlocutory relief. 

Although wide-ranging grounds are specified in the original application, the grounds on which interlocutory relief is claimed were narrowed to three.  In respect of each it is submitted there is a serious question to be tried on the hearing of the substantive application.  Those grounds are :-

(a)Having regard to the reasons the Registrar identified for the investigation in letters dated 14 May 1998 to each applicant, no reasonable decisionmaker, acting reasonably, could have issued an authority in the terms in which the authority in suit was issued.

(b)The decision was made in the erroneous belief by the Registrar that s 60 of the Act authorised him, or a person authorised by him to investigate documents which went to the constitutional aspects of the applicants, as opposed to the operations or financial affairs of each applicant.

(c)The decision to conduct an examination under s 60 of the Act and to authorise the second respondent to do it, was made by the Registrar for an improper purpose, in that it was not a purpose contemplated or authorised by the Act, but was done to vex the applicants for having called for his resignation and to quieten their criticism of him.

The applicants submit that the balance of convenience favours granting of the interlocutory relief, because to fail to do so would render nugatory their right to substantive relief.  This follows, the applicants submit, because the respondents intend to proceed with the investigation, unless restrained, notwithstanding the existence of the substantive proceedings.  Additionally, the applicants submit that the balance of convenience favours the making of an order restraining investigation pending trial because of the nature of their activities as Aboriginal Associations.  This submission is best illustrated by the grounds alleged in the substantive application giving rise to each applicant’s grievance with the decision in suit.

The first applicant relies on the following grounds :-

“1.The First Applicant has in its possession documents supplied by the United Nations, various legal services throughout Australia, Land Councils and other bodies which have been supplied to it in confidence and in many cases for the purposes of obtaining legal advice.

2.The proposed examination of documents and persons under sec 60 of the Act will place the First Applicant and its officers in a position where confidential documents and documents which may be the subject of legal professional [sic] may be required to be produced to the Second Respondent.

3.In addition, the First Applicant prepares submissions to committees of the Australian Parliament and State Parliaments which are confidential and not for public release and receives documents in confidence from Government Ministers and Departments.

4.Officers of the First Applicant will be required to supply documents and answer questions of the Second Respondent in breach of their duties of confidentiality to the First Applicant and other bodies as aforesaid on pain of being at risk of prosecution under secs 60(5) and 60(6) of the Act.

5.Officers of the First Applicant will be required to answer questions and produce documents which might tend to incriminate them pursuant to sec60(7) of the Act.

6.The First Applicant will, unless the decision is set aside, be required to permit the examination to take place.”

The second applicant lists the grounds as :-

“1.The Second Applicant has in its possession documents supplied by various bodies on a confidential basis and in many cases for the purposes of obtaining legal advice.

2.The proposed examination of documents and persons under sec 60 of the Act will place the Second Applicant and its officers in a position where confidential documents and documents which may be the subject of legal professional privilege may be required to be produced to the Second Respondent.

3.The Second Applicant prepares submissions to committees of the Australian Parliament which are confidential and not for public release and receives documents in confidence from Government Ministers and Departments.

4.Officers of the Second Applicant will be required to supply documents and answer questions of the Second Respondent in breach of their duties of confidentiality to the Second Applicant and other bodies as aforesaid on pain of being a risk of prosecution under secs 60(5) and 60(6) of the Act.

5.Officers of the Second Applicant will be required to answer questions and produce document which might tend to incriminate them pursuant to sec 60(7) of the Act.

6.The Second Applicant has in its possession other documents which are being investigated for the purposes of advising and researching the prospects of proposed litigation against the State of Queensland.

7.The Second Applicant will, unless the decision is set aside, be required to permit the examination to take place.

8.The Second Applicant will be obliged to make available to the Second Respondent documents relating to complaints made to it concerning his conduct, and its investigation of his conduct, in connection with his role as administrator of the Townsville and District Legal Service.”

The applicants also submit that they will be put to cost and expense in complying with any requirements of an investigation under s 60 of the Act and that they should not be put to such expense before their application is finally determined. Undertakings have been offered to maintain the status quo pending final hearing.

On 14 May 1998 the Registrar sent the following letter by facsimile to the first applicant :-

“I refer to your recent correspondence in respect of the proposed rule changes lodged by Mr Fraser Powers [sic] on behalf of the Corporation.

In recent months, I have been made aware of a number of concerns in relation to these rule changes, the membership of the Corporation, and the way in which the recent Annual General Meeting of the Corporation was held.  I am therefore of the view that these concerns need to be addressed prior to considering further the proposed rule changes.

I have decided that the most effective and expedient manner in which to address these concerns is to have an examination conducted, pursuant to Section 60 of the Aboriginal Councils and Associations Act 1976 (the Act). Accordingly, I have appointed Mr Garry Hamilton of Minter Ellison Lawyers, of Brisbane, to conduct this examination. Copies of Section 60 of the Act and authorisation of the examiner are attached for your information.

In order to minimise further delay, the examination will commence on 25 May 1998.  Mr Hamilton will contact you in the week commencing 18 May 1998 to confirm arrangements and hold preliminary discussions.  Once the examination is completed and a report provided to me, I will be in a position to determine what action to take in relation to the proposed changes.

If you wish to discuss this matter please contact Joe Mastrolembo or Greg Jepsen of my Office on telephone toll-free 1800 622 431.”

Attached to the letter was the authorisation of the second respondent, which was in the following terms :-

“AUTHORITY PURSUANT TO SECTION 60 OF THE ABORIGINAL
COUNCILS AND ASSOCIATIONS ACT 1976 (THE ACT)

To Whom it May Concern

Mr Garry Hamilton, of Minter Ellison Lawyers, will be conducting an examination of the accounts and records of the National Aboriginal & Islanders Legal Services Secretariat Aboriginal Corporation.

Pursuant to Section 60 of the Act this person is authorised by me to examine the documents of the Aboriginal & Islanders Legal Services Secretariat Aboriginal Corporation, and to report to me on the results of that examination.

The authorised person is entitled to full and free access to documents.  He may also take copies of, or take extracts from, any document related to the examination.

Noureddine Bouhafs
Registrar
14 May 1998”

Documents to substantially the same effect were facsimiled to the second respondent.

Each applicant requested the Registrar to provide reasons, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), in respect of the decision. Those reasons were supplied on 28 May 1998 (the “Reasons for Decision”).

Insofar as the first respondent is concerned, the Reasons for Decision, in part, said :-

“B      My findings on material questions of fact

(a)NAILSS is an association incorporated under the Act on 4 October 1994.

(b)An application seeking my approval of rule changes pursuant to the Act was filed by NAILSS with me on or about 17 March 1998.

(c)The venue of the recent annual general meeting of NAILSS (‘AGM’) was, at a late stage, changed from the Gold Coast to Alice Springs, thus making it difficult for certain natural members to attend.

(d)NAILSS has requested/demanded payment of membership fees where there is no provision in its rules to do so.

(e)During a telephone conversation between Mr Boughton of the Australian Government Solicitor’s Office and Mr Fraser Power, NAILSS’ Senior Lawyer, on 10 March 1998, Mr Power was informed that the proposed rule changes were not, for a number of reasons, acceptable to myself and would not be approved by me.

(f)Mr Fraser Power attended the AGM but apparently did not disclose the communication referred to in the previous paragraph to the meeting.

(g)NAILSS appears to be treating regional legal services established under the Act as ‘members’.

(h)NAILSS paid travel expenses to particular ‘members’, but not others, specifically several members from Aboriginal & Torres Strait Islanders Corporation (QEA) for Legal Services (‘QEA’).

(i)It appears that voting at the AGM was open to all present including ‘delegates’ of so-called member organisations, non-indigenous persons and non-members.

(j)23 ‘motions on notice’ formally provided to NAILSS by members, Della Gibson and Graham Grose, were apparently disregarded following a motion that they not be addressed despite the fact that such motions on notice raised serious concerns going to the validity of the meeting and the proposed rule changes.

(k)It appears that Mr Ray (Sugar Ray) Robinson, an Atsic Commissioner and Deputy Chair of the Board of Commissioners, spoke at length at the AGM and influenced or attempted to influence the deliberations of the meeting including motions that Mr Finney and Mr Jurotte of QEA be excluded from the meeting and that the proposed rules be adopted.

(l)In 1996 Mr Robinson apparently sought, by Court proceedings, to overturn a decision of QEA’s ATSIC Regional Council to fund QEA for the 1995/96 financial year.  In those proceedings, Mr Geoffrey Atkinson, the Acting State Solicitor for NAILSS was the solicitor on the record.

(m)Despite the last two points, Mr Robinson is not disclosed as a member on the list of members last lodged by NAILSS with me in accordance with the Act.

(n)Certain inaugural members on the original list of members (eg Sam Watson) have had their names deleted from the list of members lodged with me, although to their knowledge, they have neither resigned nor been expelled.

(o)Mr Hamilton, the proposed examiner under Section 60 is a fully qualified lawyer and chartered accountant. Mr Hamilton is a partner of Minter Ellison Lawyers and holds degrees in Commerce, Economics, Law, a Master of Laws and is currently finalising a Doctorate of Laws. Mr Hamilton is admitted as a solicitor in the Supreme Court of Queensland and the High Court of Australia. Mr Hamilton has acted as administrator for three Aboriginal corporations under the Act. Mr Hamilton is a suitable person to conduct a Section 60 examination of NAILSS.

CThe evidence upon which the findings were based

In making my decision I had regard to the following information :

(a)Audio tape recording of NAILSS 1997 AGM which was held in March this year

(b)Rule changes submitted by NAILSS for my approval on or about 17 March 1998

(c)Written advice dated 19 February 1998 from a complainant

(d)Written advice dated 23 February 1998 from a complainant

(e)Written advice dated 18 March 1998 from a complainant

(f)Written advice dated 30 March 1998 from a complainant

(g)A series of notices of the AGM referring to changes in dates and venues

Details concerning the identity of the complainants have been withheld under Section 13A of the ADJR Act and in particular Section 13A(1)(b) on the basis that such information was supplied to the Registrar in confidence.

D        The reasons for the decision

(a)I interpret the request for a Statement of Reasons pursuant to Section 13 of the ADJR Act as a request for reasons for the decision to appoint an examiner to NAILSS under Section 60(1) of the Act. The balance of the matters set out in points numbered 1-31 do not appear to concern any separate decision(s) made by me, and accordingly, this statement is limited to the specific decision referred to above.

(b)Following consideration of all information before me, I determined that an independent examination of the Corporation was needed to establish whether the Corporation had breached provisions of the Act and or Rules in relation to the rule changes, the membership of NAILSS, the manner in which the AGM was held and whether there are any irregularities in the operations and financial affairs of the Corporation.

(c)As a matter of policy, I occasionally institute Section 60 examinations of Aboriginal corporations irrespective of whether complaints have been received, to ensure that such bodies are functioning within the parameters of the Act and their rules. The Registrar has in place a National Examinations Workprogram used to administer section 60 of the Act, and to identify and select corporations for examination. Factors considered in selecting and identifying corporations for examination include:

·Extent of public monies and other income received by the Corporation;

·Nature of representations and allegations of mis-conduct, breaches of the Act and Rules and irregularities with operations of Corporations;

·Significance of the corporation to Aboriginal community, services provided, number of members, current and expected status;

·Corporation’s compliance status.

(d)I considered an independent Section 60 examination appropriate given the matters referred to in B above.

(f)[sic]Mr Hamilton’s legal and accounting qualifications, skills and experience in dealing with Aboriginal corporations (including acting as administrator for three corporations) led me to the conclusion that he was suitable for the conduct of the examination.

(h)[sic]NAILSS is a significantly public funded corporation (1996-97 audited financial statements report income totalling $808,000 in ATSIC grants) which has not previously been subject to examination pursuant to Section 60 of the Act and in light of the matters referred to in B above I considered that such an examination was timely.

Accordingly, I engaged Mr Garry Hamilton of Minter Ellison Lawyers to commence the examination of NAILSS on 25 May 1998.”

Insofar as the second respondent is concerned, the Reasons for Decision, in part, said :-

“B      Findings on material questions of fact

(a)QAILSS is an association incorporated under the Act on 14 May 1998 [sic].

(b)An application seeking my approval of rule changes pursuant to the Act was filed by QAILSS on or about 17 March 1998.

(c)the venue for the recent annual general meeting of QAILSS (‘AGM’) was changed at a late stage from the Gold Coast to Alice Springs, severely disadvantaging certain natural members.

(d)QAILSS has made requests/demands for payment of membership fees from ‘members’ in circumstances where there is no such provision for payment of fees under its rules.

(e)QAILSS has operated for several years in such a way that ‘member organisations’ have operated to control the affairs and dominate meetings to the exclusion of other members.

(f)The AGM at which rule changes were considered, declined to consider concerns expressed by certain members in relation to alleged flaws in the proposed rule changes which were later adopted at that meeting.

(g)It has been alleged that changes to the rules adopted at the AGM are unlawful under the Act.

(h)There appear to have been selective payments of AGM travel expenses for ‘delegates’ of ‘member organisations’.

(i)At the AGM, non-members, non-indigenous persons and ‘delegates’ of organisations were permitted to vote on the rule changes, which on its face appears to be contrary to QAILSS rules.

(j)QAILSS appears to be treating regional legal services established under the Act as ‘members’.

(k)During a telephone conversation between Mr Boughton, of the Australian Government Solicitor’s Office, and Mr Fraser Power, QAILSS’ Senior Lawyer on 10 March 1998, Mr Boughton advised that it was my position that because of the nature of the proposed rule changes, they would not be approved by me.

(l)Despite the notification referred to in the preceding point, the proposed rule changes were voted upon and accepted at the AGM.

(m)Mr Power was present at the AGM but apparently did not indicate to the meeting Mr Boughton’s advice that the proposed rule changes would not be approved by me.

(n)23 ‘motions on notice’ formally provided to QAILSS by a member, Cecil Fisher, were apparently disregarded following a motion that they not be addressed despite the fact that such motions on notice raised serious concerns going to the validity of the meeting and the proposed rule changes.

(o)It appears that Mr Ray (Sugar Ray) Robinson, an ATSIC Commissioner and Deputy Chair of the Board of Commissioners, spoke at length at the AGM and influenced or attempted to influence the deliberations of the meeting including a motion that Mr Finney and Mr Jurotte of Aboriginal & Torres Strait Islanders Corporation (QEA) for Legal Services (‘QEA’) be excluded from the meeting and that the proposed rules be adopted.

(p)In the context of the previous point, it is noted that in 1996 Mr Robinson apparently sought, by Court proceedings, to overturn a decision of QEA’s ATSIC Regional Council to fund QEA for the 1995/1996 financial year.  In those proceedings Mr Geoffrey Atkinson, the Acting State Solicitor for QAILSS was the solicitor on the record.

(q)Mr Hamilton, the proposed examiner under Section 60 is a fully qualified lawyer and chartered accountant. Mr Hamilton is a partner of Minter Ellison Lawyers. Mr Hamilton holds degrees in Commerce, Economics, Law, a Master of Laws and is currently finalising a Doctorate of Laws. Mr Hamilton is admitted as a solicitor in the Supreme Court of Queensland and the High Court of Australia. Mr Hamilton has acted as administrator for three Aboriginal corporations under the Act. Mr Hamilton is a suitable person to conduct a Section 60 examination of QAILSS.

CThe evidence upon which the findings were based

In making my decision I had regard to the following information :

(a)Audio tape records of the 1997 AGM of QAILSS (held in March 1998)

(b)Written advice dated 19 February 1998 from a complainant

(c)Written advice dated 23 February 1998 from a complainant

(d)Written advice dated 18 March 1998 from a complainant

(e)Written advice dated 30 March 1998 from a complainant

(f)Various notices of the AGM and its changes in dates and venue

(g)Rule changes submitted by QAILSS for approval on or about 17 March 1998.

Details concerning the identity of the complainants have been withheld under Section 13A of the ADJR Act and in particular Section 13A(1)(b) on the basis that such information was supplied to the Registrar in confidence.

D        The reasons for the decision

(a)I interpret the request for a Statement of Reasons (‘the request’) pursuant to Section 13 of the ADJR Act as a request for reasons for my decision to appoint an examiner to QAILSS under Section 60(1) of the Act. The balance of the matters set out in points numbered 1-30 do not appear to concern any separate decision(s) made by me, and accordingly, this statement is limited to the specific decision referred to above.

(b)Following consideration of all information before me, I determined that an independent examination of the Corporation was needed to establish whether the Corporation had breached provisions of the Act and or Rules in relation to the rule changes, the membership of the QAILSS, the manner in which the AGM was held and whether there are any irregularities in the operations and financial affairs of the Corporation.

(c)As a matter of policy, I occasionally institute Section 60 examinations of Aboriginal corporations irrespective of whether complaints have been received, to ensure that such bodies are functioning within the parameters of the Act and their rules. The Registrar has in place a National Examinations Workprogram used to administer section 60 of the Act, and to identify and select corporations for examination. Factors considered in selecting and identifying corporations for examination include:

·Extent of public monies and other income received by the Corporation;

·Nature of representations and allegations of mis-conduct, breaches of the Act and Rules and irregularities with operations of Corporations;

·Significance of the corporation to Aboriginal community, services provided, number of members, current and expected status;

·Corporation’s compliance status.

(d)I consider an independent section 60 examination appropriate given the matters referred to in B above.

(f)[sic]Mr Hamilton’s legal and accounting qualifications, skills and experience in dealing with Aboriginal corporations (including acting as administrator for three corporations) led me to the conclusion that he was a suitable person for the conduct of the examination.

(h)[sic]QAILSS is a significantly public funded corporation (1996-7 audited financial statements report income totalling $975,000 in ATSIC grants) which has not previously been subject to examination pursuant to Section 60 of the Act and in light of the matters referred to in B above, I considered such an examination was timely.

Accordingly, I engaged Mr Garry Hamilton of Minter Ellison Lawyers to commence the examination of QAILSS on 25 May 1998.”

The respondents resist the granting of interlocutory relief on the basis that the applicants have shown no serious question to be tried and that, in any event, the balance of convenience is against granting the injunctions sought.

The Statutory Scheme
Section 5 of the Act provides :-

“5(1)   In addition to the functions conferred by other provisions of this Act, the functions of the Registrar are:

(a)to maintain 2 public registers, one being a Register of Aboriginal Councils and the other a Register of Incorporated Aboriginal Associations;

(b)to advise adult Aboriginals on the procedures for the constitution of Aboriginal Council areas and the establishment of Aboriginal Councils and for the incorporation of Aboriginal associations;  and

(c)to arbitrate in disputes as provided for by the Rules of an Aboriginal Council.

(2)      The Registrar has power to do all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of his functions including, but without limiting the generality of the foregoing, power to act as agent for an Aboriginal corporation.”

The requirements of incorporation are contained in s 43, which provides :-

“43(1) The committee of an Aboriginal association may apply to the Registrar, in writing signed by each member of the committee, for the incorporation of the association under this Act.

(2)      An application under subsection (1) shall state:

(a)the proposed name of the Association when incorporated, which shall include the words ‘Aboriginal Corporation’ or the words ‘Torres Strait Islanders Corporation’;

(b)the objects of the association;

(c)whether the members of the association are to be liable to contribute towards the payment of the debts and liabilities of the association and, if so, the extent of that liability;

(d)the place or places where the activities of the association are, or are to be, carried on;  and

(e)the names and addresses of the persons who constitute the committee of the association;

and shall be accompanied by a statement of the Rules by which, in the event of the incorporation of the association, its affairs are to be regulated.

(3)      Subject to this Act and the regulations, the Rules referred to in subsection (2) shall make provision for and in relation to:

(a)      the qualifications of members of the association;

(b)the creation of the executive offices of the association and the procedure for filling those offices;

(c)the procedure for the settling of disputes between the association and its members;

(d)the constitution of the Governing Committee of the association and the powers of that Committee;

(e)the procedure for the conduct of meetings of the Governing Committee of the Association;

(ea)the matters for which the Rules are to provide under section 58A in relation to meetings of the association;

(f)the manner in which the funds of the association are to be managed;

(g)the method of altering the rules of the association, whether by making new rules or by varying or rescinding rules in force;  and

(h)the method of altering the objects of the association;

and may make provision, not contrary to law, for and in relation to any other matter.

(4)      The rules of an association with respect to any matter may be based on Aboriginal custom.”

The role of the Registrar in the incorporation process is contained in s 45, which provides :-

“45(1) Subject to this section, the Registrar, upon receipt of an application under section 43 for the incorporation under this Act of an Aboriginal association shall:

(a)if he is satisfied that it is proper for him so to do, issue to the association a certificate of incorporation;  or

(b)if he is not satisfied, refuse to issue a certificate of incorporation and inform the association, in writing, of his refusal and of the reasons for his refusal.

(2)      Except as otherwise directed by the Minister, the Registrar shall refuse to issue a certificate of incorporation under this Act to an Aboriginal association if the proposed name of the association is an unauthorized name.

(3)      The Registrar must refuse to issue a certificate of incorporation to an Aboriginal association if satisfied that the Rules:

(a)are unreasonable or inequitable;  or

(b)do not make sufficient provision (as required by section 58B) to give the members effective control over the running of the association.

(3A)     The Registrar must refuse to issue a certificate of incorporation to an Aboriginal association unless satisfied that :

(a)if the association is formed wholly for business purposes - upon incorporation, it will have at least 5 members;  or

(b)if it is formed principally for the purpose of owing land or holding a leasehold interest in land - upon incorporation, it will have at least 5 members;  or

(c)in any other case - upon incorporation, it will have at least 25 members.

(4)      Where the Registrar refuses to issue a certificate of incorporation to an Aboriginal association, he shall:

(a)notify the association, in writing, of his refusal;

(b)set out in the notification the reason for his refusal;  and

(c)invite the committee of the association to make such changes in the application for incorporation or in the Rules accompanying the application for incorporation as will remove the grounds for refusal of the application and advise the Registrar, within the time specified in the notification, of any changes so made or, if the changes are not made, of reasons for the changes not being made.

(5)      Where the Registrar is notified, in accordance with subsection (4), of changes made in an application for incorporation or in the Rules accompanying an application for incorporation or of reasons for such changes not being made, he shall reconsider the application under subsection (1).”

Section 47 provides :-

“47(1) The Rules accompanying the application for the incorporation of an association under this Act or, where those Rules have been altered in accordance with subsection 45(4), those Rules as so altered shall, upon the incorporation of the association under this Act, be the Rules of the Incorporated Aboriginal Association, but may be altered in accordance with the method of alteration laid down in those rules.

(2)      The Rules of an Incorporated Aboriginal Association as in force from time to time have the effect of a contract:

(a)between the Association and each member;  and

(b)between the Association and the public officer;  and

(c)between the Association and each member of the Governing Committee;  and

(d)between each member and each other member.”

Eligibility for membership is dealt with by s 49, which limits membership to Aboriginal persons or the spouse of an Aboriginal person except in the limited circumstances provided in s 49A.

Although alterations to the Rules are permitted, they are subject to the procedure laid down by s 54 of the Act, which provides :-

“54(1) Where an Incorporated Aboriginal Association alters its Rules, the public officer of the Association shall, within 6 weeks after the making of the alternation, file with the Registrar a notification of the alteration.

Penalty:  $50

(2)      The Registrar shall consider an alteration filed under sub-section (1) and shall:

(a)if he is satisfied that the Rules of the Incorporated Aboriginal Association as proposed to be altered are not inconsistent with this Act - approve the alteration;  or

(b)if he is not so satisfied - refuse to approve the alteration.

(3)      The Registrar shall notify the public officer of the Incorporated Aboriginal Association, in writing, of his approval, or his refusal of approval, of an alteration filed by the public officer under subsection (1).

(4)      An alteration referred to in subsection (1) does not take effect unless and until approved by the Registrar under subsection (2).”

The Act requires that a Register of Members be maintained and that as soon as practicable after 30 June and before 31 December in each year, an up-to-date list of members be given to the Registrar (s 58).

The Governing Committee of an Incorporated Aboriginal Association is required to keep proper accounts and records of the transactions and affairs of the Association and to do all such things necessary to ensure that all payments out of the monies of the Association are correctly made and properly authorised and that adequate control is maintained over the assets of, or in the custody of, the Association and over the incurring of liabilities by the Association (s 59(1)) unless exempted by the Registrar from so doing (s 59A).

Section 60 of the Act, under which the authorisation in suit was given, provides :-

“60(1) The Registrar may, at any time, cause a person authorised by the Registrar for the purposes of this section to examine the documents of an Incorporated Aboriginal Association and to report to the Registrar on the results of that examination, drawing attention to any irregularity in the operations or financial affairs of the Association disclosed by that examination.

(2)      The authorised person is entitled at all reasonable times to full and free access to the documents of the Association.

(3)      The authorised person may make copies, or take extracts from, any such documents.

(4)      The authorised person may require any person to answer such questions, and produce such documents in the possession of the person, or to which the person has access, as the authorised person considers necessary for the purposes of this section.

(5)      A person who, without reasonable excuse, fails to comply with a requirement under subsection (4) is guilty of an offence punishable, upon conviction, by a fine not exceeding $200.

(6)      A person who, in answer to a requirement under subsection (4), makes a statement knowing it to be false or misleading in a material particular is guilty of an offence punishable, upon conviction, by a fine not exceeding $1,500.

(7)      A person is not excused from answering a question or producing a document when required to do so under subsection (4) on the ground that the answer to the question, or the production of the document, might tend to incriminate the person or make the person liable to a penalty, but the answer, the production of the document, or anything obtained as a direct or indirect consequence of the answer or the production, is not admissible in evidence against the person in any proceedings, other than proceedings for an offence against this section.

(8)      Before exercising powers under this section, the authorised person must produce written authority by the Registrar.  If he or she fails to do so he or she has no powers under this section.

(9)      In this section:

‘document’ means any document relating directly or indirectly to the operations of the Association, the receipt or payment of money by the Association or the acquisition, receipt, custody or disposal of assets by the Association.”

Section 60A provides :-

“60A(1)If the Registrar suspects on reasonable grounds that:

(a)an Incorporated Aboriginal Association has failed to comply with a provision of this Act, the regulations or the Rules;  or

(b)there has been an irregularity in the financial affairs of an Incorporated Aboriginal Association;

the Registrar may, by notice served on the public officer, require the Governing Committee to take the action specified in the notice within the period specified in the notice, for the purpose of complying with the Act, the regulations or the Rules or remedying the irregularity, as the case may be.

(2)      The Registrar is not required to take action under this section before taking any other action under this Act.”

Section 61 provides :-

“61(1) If the Registrar is of the opinion that the Governing Committee of an Incorporated Aboriginal Association is not complying with a provision of this Act, the regulations or the rules of the Association, the Registrar may serve on the members of the Committee a notice in writing calling upon the Committee to show cause, within a reasonable period specified in the notice, why the Registrar should not apply to the Court for an injunction.

(2)      After that period, and having considered any representations made by the Committee, the Registrar may apply to the Court for an injunction.

(3)      The Court may grant an injunction requiring a member, or the members, of the Committee not to contravene, or to cease contravening, a provision of this Act, the regulations or the Rules.”

The Issues on the Application
The applicants submit that the Registrar in his letter of 14 May 1998 was concerned with three matters and that these concerns were connected with his ultimate consideration of the proposed rule changes.  That submission is, so far as it goes, correct.

The applicants further submit that, having regard to the three matters of concern, the Registrar, acting reasonably, was obliged to limit the authority under s 60 to an investigation of those matters. To give, as the Registrar did, an authority which is unlimited as to the object or purpose of the examination, the applicants submit, was an improper exercise of the power under s 60 of the Act.

The letter of 14 May 1998, on any fair construction, identified three matters of concern to the Registrar :-

(a)the concerns of others, of which the Registrar has been made aware, to the rule changes;

(b)the concerns of others, of which he has been made aware, to the membership of the corporation;

(c)the concerns of others, of which he has been made aware, of the way in which the Annual General Meeting of each Association was held;

and stated that “those concerns need to be addressed prior to considering further the proposed rule changes” (emphasis added).

The letter also conveys the Registrar’s belief that the most effective and expedient way in which these concerns should be addressed is by an examination conducted under s 60 of the Act. The letter does not say that any examination under s 60 of the Act would be limited to the three concerns specified in the letter. Rather, a reasonable construction is that the concerns would be addressed in the context of an examination under s 60 of the Act. The letter concludes that when the examination under s 60 is completed and a report produced to the Registrar, he will then be in a position to proceed with the application for approval of the Rule changes. Although not expressly saying so, it may be inferred, with the benefit of the report. The report to which the Registrar refers is not one limited to the three matters of concern.

The letter does no more than give notice to the applicants of a decision of the Registrar to conduct such an examination as s 60 of the Act allows and for that purpose he has authorised the second respondent to conduct the examination and report to the Registrar. The three matters of concern were notified in the letters as matters to be investigated in the context of the s 60 examination.

The authorisation given to the second respondent is to “examine the documents of the [association] and to report to me on the results of that examination.” That authorisation is in the terms of s 60(1) of the Act. In the context in which it was made, the authorisation is limited to an examination of documents falling within the terms of the definition in s 60(9). That the Registrar intended no wider category of documentation to be examined is clear from the fact that he sent to each applicant, with the copy of the written authority, a copy of s 60 of the Act.

In my view, there is nothing in s 60 of the Act which would require that an exercise of the power under s 60 requires that the authority be directed to any particular document or class of documents in respect of any particular concern. Nor, in the present case, in respect to the three matters of concern identified in the letters of 14 May 1998.

There is nothing in s 60 which preconditions the exercise of the power by the Registrar under the section. Nor is there anything limiting or fettering the exercise of the discretion. Accordingly, there are no circumstances which the Registrar is bound to take into account, nor precluded from taking into account, before exercising the power. The exercise of discretion is only confined by any limitation implied by the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40.

The purpose of s 60 is clearly to obtain information to enable the Registrar to carry out his statutory function, including prudential supervision of the operations and financial affairs of incorporated Aboriginal associations. There is nothing which requires that the Registrar have any particular concern before exercising the power under s 60 to inspect documents and obtain a report. Nor is there anything which requires that, where there is a matter of concern, the exercise of the power under s 60 be limited to that concern rather than the concern being the catalyst for a wider investigation into the operations and financial affairs of the Association as disclosed by its documents (as defined).

Whether the three matters of concern can be examined in the context of an examination under s 60 of the Act is a different issue. It is this issue which arises under the second ground advanced in support of the interlocutory injunction and stay.

In my view the first ground as to a serious question to be tried is not made out.

I turn to the second ground which involves the question of whether the concerns of the proposed Rule changes, the membership and the conduct of the Annual General Meetings are matters which are examinable as “operations” or “financial affairs” of the applicants.

The “operations” of an Association as referred to in s 60(1) and the definition in s 60(9) are the methods by which the association goes about the conduct of its affairs and the activities in which it engages in the furtherance of the objects under its Rules. Those operations are not conducted at large. They are conducted in the context of the Rules and the requirements of the Act (r 7 of the applicants’ respective Rules). It is the statement of the Rules of an Aboriginal association approved by the Registrar by which “its affairs are to be regulated” (s 43(1)). In the instant case, many of the statutory requirements have been replicated as specific Rules of the applicants: eg membership s 49(1) r 8(1); Duties of Governing Committee and disclosure of interest s 49C, rule 11; s 49D, r 10; Register and provision of membership lists s 58, r 14; Records and accounts s 59, r 21 and r 22.

By the operation of s 47(2), the Rules have effect as a contract between each member and the association, between the association and the public officer, between the association and each member of the Governing Committee and between each member and each other member. Thus, the power to apply the funds of the association is limited to those circumstances specified in r 20, and, the conduct of general meetings and the voting at all meetings is controlled by the requirements of r 15 and r 16. Importantly, decisions made at general meetings bind the Governing Committee (r 16(3)).

Because the applicants are not authorised or empowered to conduct their operations otherwise than in accordance with the Rules and the Act, both the internal and external aspects of the way each of the applicants conducts its affairs, the conduct of its members, its public officer and the governing committee in respect of those affairs, and its activities in furtherance of its objects, are all aspects of the operations of the Association within the meaning of s 60(1) and s 60(9).

There is, in my view, no serious question to be tried that the membership of the applicants, the conduct of the applicants’ Annual General Meeting and the implementation of rule changes are “constitutional” matters separate and distinct from the operations of the Association and impermissible subjects of examination under s 60 of the Act.

Because the power to apply the funds and assets of the applicants is limited, by the operation of rules 7 and 20 of the Rules and sections 47 and 49 of the Act, to payments correctly made and properly authorised for the purpose of carrying out the objects of the Association, the use of Association funds in respect of the proposed rule changes, payments to or funding of members or particular members and monies outlaid in the conduct of the Annual General Meetings, or any one or more of these issues, may be a matter of relevant inquiry under s 60 of the Act, depending upon what an inspection of examinable documents (as defined) reveals. For example, if it were alleged that the funds were used to procure the change of venue of the Annual General Meeting of the second applicant from the Gold Coast in Queensland to Alice Springs in the Northern Territory, and to fund the travel of members and others who supported the proposed rule change to the new location but that funding was denied to others to enable them to attend the meeting where those members opposed the changes, that may be a matter of relevant inquiry.

The matters of concern identified in the Registrar’s letters of 14 May 1998 and the later Reasons for Decision are matters falling within the description of operations of the Association and, to the extent that they have consequential effect on the funds of each applicant, its financial affairs under s 60 of the Act. Documents relating to those matters are examinable documents for the purposes of s 60.

There is no serious question to be tried that the Registrar acted under an erroneous view of the proper operation of s 60 as to whether documents relating to these matters of concern were examinable documents under the section.

In my view the second ground as to a serious question to be tried is not made out.

The final ground relied upon is the allegation that the Registrar used the power for an improper purpose.  The applicants submit that, although there is no direct evidence of such an abuse, there is a serious question to be tried because of the coincidence in time between the public calling for the dismissal of the Registrar by the Minister for Aboriginal and Torres Strait Islander Affairs, by the first applicants’ Mr Atkinson on 30 March 1998, the Minister’s refusal to do so communicated to Mr Atkinson on 13 May 1998, and the authorisation of the second respondent on 14 May 1998, together with other attendant circumstances.  Those circumstances are the breadth of the authorisation, the failure to give Reasons for Decision until 28 May 1998, and the refusal to disclose the identity of the persons who have made the complaints, the substance of the complaints, or the evidence held by the Registrar in support of the complaints.

On 18 May 1998 Mr Atkinson, as acting solicitor of the second respondent, requested, by an eight page facsimile, reasons for the decision to cause an examination to be made under s 60 of the Act. The request included thirty interrogatories of which number 16 asked :-

“16.     Whether you considered adequately or at all the actual or potential conflict of interest or the public implications likely to arise in any decision by you to cause a section 60 examination to be made against this Organisation in circumstances where our National Organisation associated with this Organisation in the course of its representative duties caused a communication to be sent to the Honourable the Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, regarding the conduct of your Office and that of your legal advisors in 2 Federal Court matters in December 1997 in New South Wales?”

This question does not allege any conduct engaged in for an improper purpose by the Registrar in consequence of the call to the Minister to dismiss the Registrar.  The question is concerned with issues of conflict of interest and public perceptions of bias.  There is nothing in the facsimile of 18 May 1998 which makes the allegation of improper purpose.

On 17 March 1998 a formal request by the applicants for approval of changes to their respective Rules was received by the Registrar’s office. That request relied upon a vote for a rule change by members of each association at the Annual General Meeting of each in Alice Springs on 13 and 14 March 1998. According to the Reasons for Decision dated 28 May 1998, the Registrar at the time of request for approval had written complaints dated 19 and 23 February and 18 and 30 March 1998. Those complaints went to the matters listed in Part B of the Reasons for Decision and concerned, in part, the validity by the vote relied upon by the applicants to justify compliance with the Rules and the Act relating to rule changes. In the proper discharge of his statutory duties the Registrar was obliged to consider the complaints and to assess the merits of them on the material available to him.

There is nothing in the material to suggest that complaints had not been made to the Registrar prior to the Annual General Meeting.  Indeed, there is a memorandum from Mr Fraser Power, a solicitor employed by the applicants, to Mr John Leslie, a co-ordinator with the first applicant, dated 18 February 1998 which confirms, in part, the existence of complaints to the Registrar.  The memorandum records a communication from the office of the Registrar of a complaint that the proposed change of the membership rule would disenfranchise existing members of each association.  This was concern number 2 referred to in the memorandum.  As to this, the memorandum records :-

“In relation to Number 2 above it is true that if the current members of an Aboriginal Legal Service are not the Chairman or another member elected by Service then they are not entitled to membership under the new rules.  Why that should cause Mr Smith and Mr Finney such concern I do not know?

I informed the officer that the reason for our amending the rules is that the current rules which were prepared hurriedly with individual members signing the appropriate forms to enable the associations to be incorporated under the Aboriginal Council and Association Act are totally inadequate and flawed as no consideration was given as to the manner in which NAILSS & QAILLSS would operate - that is solely for the benefit of the Aboriginal Legal Services.  In fact I informed the officer that since their incorporation the rules have operated historically solely for the benefit of the Aboriginal Services and all voting and representation since that time has been from the Aboriginal Legal Services and not strictly in accordance with the current rules in which there are numerous Aboriginal persons who are technically the members but who have never had anything to do with NAILSS & QAILSS nor have they shown any interest.  It is therefore essential that we get new rules as agreed with the Australian Government Solicitor passed at the next AGM so that we can operate properly and effectively as we have been in fact since the incorporation and not in accordance with rules that are totally ineffective.
.....
I informed the Registrar’s office that this ought not be a matter which concerns their office as the rules submitted to the Registrar were those approved at the last Annual General Meeting and since that time they have been reviewed in detail by the Australian Government Solicitor and ourselves who have both agreed to the proposed amendments that comply in every respect with the Act.

In that event I informed them that the proper procedure is for Messrs Smith and Finney to raise their concerns at the Annual General Meeting which will be held shortly and for the members of the Corporation to debate any concerns which they may have and should they require any amendments to the proposed rules then they can put the amendments to the meeting to enable the members to vote on any proposed amendments.

The Registrar’s Office agreed with my suggestion and they do not propose to discuss the matter further with Messrs Smith or Finney.”

Part of the minutes of meeting of the first applicant, exhibited by Mr Power to his affidavit filed 4 June 1998, record that when a request was made that Mr Finney and Mr Ken Jurotte be observers to sit in on the Annual General Meeting, it was moved and passed that Mr Finney and Mr Jurotte not be invited to attend the meeting and inferentially were excluded from it. This material, without more, tends to support a conclusion that the applicants had abandoned their Rules as the instrument which regulated their respective affairs in respect of at least membership requirements and the entitlement to vote at general meetings of each applicant. Further, it would tend to support a conclusion that the applicants were not giving effect to the Rules as a contract between the applicants and their respective members as required by s 47(2) of the Act. If those allegations were made good, then the purported rule changes agreed to by those voting at the Annual General Meetings could not be approved by the Registrar under s 54(1) of the Act as the section, in my view, contemplates that the alterations have been properly made in conformity with the requirements of the existing Rules and the relevant provisions of the Act.

On the material before me, the event which precipitated the letters of 14 May 1998 from the Registrar to the respective applicants was a telephone conversation between Mr Power and Mr Muschialli, an officer employed in the office of the Registrar, the content of which was repeated in two identical letters from Mr Power to the Registrar dated 7 May 1998, which said :-

“I refer to my letter 17th March last a copy of which is enclosed for your information.

I confirm my telephone conversation with Mr Ron Muschialli of your office when I informed him that our corporation is most anxious to have the rules which were approved at the annual general meeting approved as soon as possible as we are presently operating under the old rules which the members agreed were totally inadequate, and we are obliged to call an executive meeting in Perth in the near future and are reluctant to do so until such time as the Registrar has approved the rules.

In the circumstances I would be pleased if you could arrange for this matter to be dealt with expeditiously.”

The letters from the Registrar on 14 May 1998, advising that he has decided to have an inspection of documents under s 60, are referenced back to this correspondence from Mr Power of 7 May 1998.

The decision of the Registrar to exercise the power under s 60 of the Act on the material before me is not a decision taken in isolation without any relevant context other than the calling by the applicants for the dismissal of the Registrar in March 1998 and the failure of the relevant Minister to do so in May 1998. The decision is, on the material, entirely explicable by the dealings between the applicants and the Registrar initiated by the request for the approval of Rule changes made on 17 March 1998.

A mere allegation that the power has been used for an improper purpose is not sufficient to make out a serious question to be tried. Nor is the fact that there has been little opportunity for the applicants to investigate the circumstances of the decision to authorise the second respondent to make the inspection and report under s 60 of the Act. The applicants sought assistance from the decision of a Full Court of this Court (Foster, Woodward and Wilcox JJ) in Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 that the lack of an opportunity to investigate the matter was a relevant factor in the determination of whether there existed a serious question to be tried. That case was one where no reasons under s 13 of the ADJR Act were available. That is not this case. Nevertheless, the observations of the Court (at 163) are relevant :-

“However, applying the ‘serious question’ test, it is clear that the inquiry whether there is a serious question to be tried must be answered with reference to the circumstances of the case.  There may be cases in which the facts are so clearly and comprehensively established at the time of the application for the interim order that the court would conclude that the applicant had no arguable case.  At the opposite extreme there may be cases in which the applicant has had little opportunity to ascertain the facts and to adduce evidence but there is some material to suggest an entitlement to relief.  Upon further investigation that material may turn out to be capable of ready refutation or explanation but, in the meantime, it may be appropriate for the court to intervene.  Everything must depend upon the circumstances of the case, including the extent to which the applicant has had an opportunity to present the facts to the court and the consequences of granting or of refusing relief. ...”

The Reasons for Decision given under s 13 of the ADJR Act in the present case, together with the other correspondence and the context in which the decision was made, deny the temporal connection between the call for the Registrar’s dismissal on 30 March 1998 and the decision of 14 May 1998, without more, sufficient cogency to raise a serious question to be tried that the Registrar wrongfully exercised his discretion to vex and punish the applicants and to stifle criticism of him. The Registrar on 19 May, after receiving the request for reasons, indicated that they would be provided and they were provided on 28 May 1998 well within the time provided under the ADJR Act. His decision not to disclose the identities of the complainants to him is explicable because the approach and information supplied were on a confidential basis, and as such fell within s 13A(1)(b) of the ADJR Act. For the reasons which I expressed as to the first ground, there is nothing sinister in the terms of the authorisation of the second respondent.

The final ground advanced by the applicants as giving rise to a serious question to be heard is not made out.

Conclusion
In my view, on the material put forward by the applicants, no serious question to be tried arises.  In consequence, no question of the balance of convenience arises and the application must be dismissed:  Minosea Pty Ltd v ASC (1994) 14 ACSR 642 at 652.

If I had been persuaded that a serious question to be tried had been made out I would not necessarily have been persuaded that the balance of convenience favoured the granting of the relief sought. The concerns of the applicants are predicated on the basis that the power to inspect will be exercised in such a way as to infringe such legal professional privilege as may exist in respect to particular documents, or so as to require that documents or information reposed in the applicants on a basis of confidence will have to be disclosed in breach of that confidence. There is no basis disclosed as to why any person connected with the applicants has a genuine fear that to answer questions or to produce documents may tend to incriminate them in the commission of a criminal offence. There is nothing in the material which indicates that the power to require answers to questions will be exercised for a purpose, or in circumstances to obtain information, wider than that contemplated and permitted by s 60(4) of the Act. It may be that the inspection raises none of these problems, and if the problems do arise, that is the time to adjudicate on the issue of the nature of the rights given to the second respondent under his authorisation.

One specific matter of concern was the assertion that the Registrar and the second respondent would have access to documents which reflected on their past conduct.  Mr Atkinson was, on 13 May 1998, requested by ATSIC to conduct an inquiry into the establishment and incorporation of the Corporation for Aboriginal and Torres Strait Islanders Legal Services (Townsville Region).  By letter dated 26 May 1998 Mr Atkinson advised the Registrar that his conduct in appointing an administrator, the second respondent, to the Townsville and District Aboriginal and Torres Strait Islander Corporation for Legal Services would be examined as part of the inquiry.  The inquiry is asserted to have been established under the auspices of the Townsville Regional Council of the Aboriginal and Torres Strait Islander Commission (“ATSIC”) and to be conducted under the Aboriginal and Torres Strait Islanders Commission Act 1989 (Cth).  Mr Atkinson has written to both the Registrar and the second respondent and others as, and in the capacity of, the “Inquiry Chair”.

It was submitted on behalf of the applicants that, although they do not question the second respondent’s qualifications to carry out the s 60 examination, and although no allegation of bias is made against him in support of the application for interlocutory relief (a concession properly made: see Boys v Australian Securities Commission (1998) 26 ACSR 464 (FC)) the second respondent would have access to the such inquiry material as had to date been supplied to Mr Atkinson on a confidential basis. The inability to maintain confidences would discourage persons giving relevant information to the inquiry, it was submitted.

Assuming that the inquiry falls within the operations of one of the applicants as opposed to a personal involvement of Mr Atkinson as Chair in respect of operations engaged in by ATSIC, there is nothing to suggest that the inquiry has progressed to a stage where the s 60 examination of documents of the applicants will have any impact in relation to the inquiry or that it cannot be held over until the conclusion of the s 60 examination. Nor is it certain that any issues of confidentiality in respect of Mr Atkinson’s inquiry will necessarily arise in the s 60 examination.

There is a distinction between the right to exercise the authority given to the second respondent and the means by which and manner in which, it is exercised. The application and application for interlocutory relief are concerned with the right to exercise the power under s 60 of the Act. There is, as yet, no occasion to examine the means and manner of its exercise because that has not occurred. The stated concerns of the applicants are premature.

The most significant factor in the balance in the applicants’ favour on a balance of convenience is the possibility that its right to relief, if made out on trial, would be rendered nugatory by an inspection of documents before trial.

Against that consideration must be weighed that the applicants’ immunity from having its documents inspected in interlocutory relief were granted, would only remain for so long as the decision of 14 May 1998 was under review.  A new and valid decision to inspect examinable documents for a proper purpose would always be available to the Registrar and it would not have to await the outcome of the present proceedings.  The advice from the applicants to the Registrar that they presently intend to enter into voluntary liquidation and to transfer their assets to new entities to be incorporated under the Corporations Law, rather than the Act, would prima facie, appear to be a sufficient reason to inspect the documents of the applicants under s 60 before they are wound up and their assets disposed of. The Registrar, by his counsel, has indicated that he wishes to pursue such a course. Such a decision stands apart from the decision of 14 May 1998 and has the capacity of itself to render the applicants’ rights, if any, to final relief nugatory.

Although the balance of convenience is a hypothetical issue in the circumstances of this case, for the above reasons I would have concluded it weighed against the granting of interlocutory relief.

The application for interlocutory relief is dismissed.  Costs should follow the event.

I certify that this and the preceding twenty-eight (28) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate:
Dated:            29 June 1998

Counsel for the Applicant:	P D McMurdo QC with P G Bickford
Solicitor for the Applicant:	National Aboriginal and Islander Legal Services Secretariat
Counsel for the Respondent:	H B Fraser QC with D Kelly
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	23 June 1998
Date of Judgment:	29 June 1998