National Aboriginal and Torres Strait Islander Legal Services Secretariat Limited v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 609

FEDERAL COURT OF AUSTRALIA

National Aboriginal & Torres Strait Islander Legal Services Secretariat Limited v  Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 609

NATIONAL ABORIGINAL & TORRES STRAIT ISLANDER LEGAL SERVICES SECRETARIAT LIMITED v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

N494 OF 2003

SACKVILLE J
6 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N494 OF 2003

BETWEEN:	NATIONAL ABORIGINAL AND TORRES STRAIT ISLANDER LEGAL SERVICES APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	Sackville J
DATE OF ORDER:	6 June 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N494 OF 2003

BETWEEN:	NATIONAL ABORIGINAL AND TORREST STRAIT ISLANDER LEGAL SERVICES APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	Sackville J
DATE:	6 June 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a motion for expedition of an appeal from a decision of Hely J given on 3 April 2003. Hely J rejected a challenge to directions given by the Minister for Immigration and Multicultural and Indigenous Affairs to the Aboriginal and Torres Strait Islander Commission (‘ATSIC’). The first direction was given on 23 December 2002. A second direction was given on 3 February 2003. Both directions purported to be given pursuant to s 12 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). The substance of the directions was that ATSIC was not to make a grant of money to a related body corporate. A related body corporate is to include a body which has common directors with ATSIC itself. The appellant is such a body.

2. The appellant did not seek expedition of the appeal at the time the matter was in the Full Court callover on 30 April 2003.  The application for expedition has been made belatedly, apparently as the result of correspondence from the Minister concerning his plans for the financial year commencing 1 July 2003. The Minister opposes expedition being granted. 

3. The evidence indicates that an Appropriation Bill has been introduced into Parliament which will provide funds for ATSIC. However, the Bill does not provide any amounts that ATSIC could allocate to the appellant for the 2003/2004 financial year. The Appropriation Bill instead provides for a very large amount of money to be allocated to a new body known as Aboriginal and Torres Strait Islander Services (‘ATSIS’), which has been established by an order made under s 65 of the Public Service Act1999 (Cth). If the Appropriation Bill is passed, any decision by ATSIS to distribute (or not distribute) funds to the appellant will not be effected, from a legal perspective, by the directions given by the Minister to ATSIC. The evidence indicates that the Minister intends to apply the same policy to ATSIS, but that is a separate matter and will be effected, if it is to be effected, by different legal mechanisms.

4. As I indicated to Mr Moses, who appeared on behalf of the appellant, I would be sympathetic to an application for expedition if it could be shown that there would be some significant practical disadvantage to the appellant in a hearing not taking place until after 1 July 2003.  In response to my query as to the practical utility of the appeal and its urgency, Mr Moses replied by saying that if the Appropriation Bill in its present form is not passed, and if Parliament saw fit to enact another Appropriation Bill that allocated funds to ATSIC, those funds, in turn, could be allocated to the appellant.  In these circumstances, the legality of the directions would have some practical significance and the proceedings could be regarded as urgent.

5. Putting the matter that way indicates how speculative the questions of practical utility and urgency are.  If the Appropriation Bill, for some reason, is not passed then ATSIC’s position is not thereby improved so far as the availability of funds for allocation to the appellant is concerned.  There are, of course, many other ways in which the Minister and Parliament might choose to deal with the issue. It is pure speculation whether the failure of the Appropriation Bill to pass would lead to legislation of the kind that Mr Moses suggests might be passed.

6. In these circumstances I see no practical utility in providing an urgent hearing in respect of this appeal. I am therefore not prepared to make an order for expedition. If circumstances change, the appellant can renew its application.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            17 June 2003

Counsel for the Applicant:	Mr A Moses
Solicitor for the Applicant:	NAILSS (National Aboriginal & Torres Strait Islanders Legal Services Secretariat)
Counsel for the Respondent:	Ms D Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 June 2003
Date of Judgment:	6 June 2003