New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission

[1995] FCA 584

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )       
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 367 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Applicant

AND:                   ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

First Respondent

CHIEF EXECUTIVE OFFICER OF THE
  ABORIGINAL AND TORRES STRAIT
  ISLANDER COMMISSION

Second Respondent

Coram:        Davies J.
Date:          8 June 1995
Place:         Sydney

REASONS FOR DECISION

This is a motion to strike out a proceeding brought by the New South Wales Aboriginal Land Council against the Aboriginal and Torres Strait Islander Commission ("ATSIC") and its Chief Executive.  The motion to strike out is based on the ground that the Court lacks competency to deal with the matters raised. 

The issue between the parties has arisen from the Aboriginal and Torres Strait Islander Land Fund (the "Land Fund") which was brought into existence by the Land
Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth).  That Act amended the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) so as to provide in s.192W(1) for the establishment of the Land Fund. The Land Fund is to be used for the purchase and management of land in the interests of the indigenous peoples of Australia. Some of the payments from the Land Fund are to go the Indigenous Land Corporation and are to be expended by that Corporation. Other parts of the funds go to ATSIC, to be expended by that body.

At its meeting in March 1995, ATSIC made a decision, no. 1442, which was in these terms, inter alia:

"The Commission pursuant to section 14 of the Aboriginal and Torres Strait Islander Commission Act 1989, and Objectives 5, 6 and 7 of the Corporate plan (a) agreed to set aside $10m for land purchases in the Northern Territory and $2m for other priority national purchases in each of the next two years with the balance of funds to be allocated for land management;"

That policy or decision proposed that, of the funds to be used by ATSIC in each of the next two years for land purchases, $10m should be used for land purchases in the Northern Territory and only $2m elsewhere.  The decision was apparently taken following an understanding which had been reached with the Indigenous Land Corporation.  That Corporation has since made a complementary decision that all funds of the Indigenous Land Corporation, available in the first 3 category A years for land acquisition, shall be confined to locations other than the Northern Territory. 

The applicant, which represents indigenous people in New South Wales, wishes to challenge the decision of ATSIC on the ground that the decision binds ATSIC during the next two years to purchasing property principally in the Northern Territory and therefore that ATSIC may be unable to consider applications for purchase which may be appropriate and desirable to be made in other areas of Australia. 

I do not wish to express any view about the merits of the matter.  I can see how both parties will put their cases and it seems to me to be an issue which ultimately a judge will have to decide. 

Mr Williams, counsel for the Respondents, submitted that the decision of ATSIC was not a decision under an enactment.  I can see arguments for that, but there is no doubt that there is a statutory scheme.  The complaint appears to be that this decision will bind ATSIC in such a way that it will be unable to exercise its functions under the statutory scheme in a proper manner. 

It was also submitted that the Court did not have jurisdiction under section 39B of the Judiciary Act 1903 (Cth). It seems to me that when one is concerned with the expenditure of funds which are fundamentally Commonwealth funds and when those funds have been provided for the benefit of the community (in this case the benefit of a large section of the community, the indigenous peoples of Australia), then the powers given under section 39B are appropriate powers to be exercised and certainly would be exercised if, for example, it was shown that there was any actual and improper bias or any actual and improper fraud.

The present case is a long way from that, but there is an arguable case that there has been an error in what has occurred and that this Court has jurisdiction under section 39B of the Judiciary Act and possibly under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review what has happened. There is a sufficient claim against the second respondent, who is, I would take it, an officer of the Commonwealth and it is proper to join ATSIC as first respondent. The applicant submits that this decision which ATSIC has made is a decision which should be declared void. If it is declared void, then the applicant will seek an injunction restraining the Chief Executive Officer of ATSIC from giving effect to it. I think that that is, in substance, the way the matter will be put.

I do not wish to rule upon matters of jurisdiction at this stage.  I think the matters which Mr Williams raises with respect to jurisdiction ought to be put in greater detail and considered at greater length when the full facts of the case are known.  It may be that
the Court does not have jurisdiction or it may be that the issue is one of that type which is sometimes considered non-justiciable because the decision was made by an elected body which had political responsibilities.  On either of those grounds, Mr Williams may be correct in his submission, but for the moment I think the proper course is to leave the issue open.

The next question arises as to what should be done by way of a holding measure.  The parties are agreed that the matters should be dealt with expeditiously and, so far as it is able to do so, the Court will make arrangements for that to occur.  It seems to me that the proper order to make by way of a holding order is that the respondents should give notice to the applicant of any intention to exercise its land purchasing powers in a way which includes the Land Fund moneys.

Mr Williams relied upon an affidavit which said, inter alia, that land acquisition opportunities often arise through narrow windows of opportunity.  Mr Williams argued therefore, that even a requirement of three days notice might put an intolerable burden on ATSIC.  It seems to me, however, that that is putting the matter too strongly.  Obviously the applicant needs to be informed if ATSIC intends to expend a substantial part of these moneys before the matter can come on for hearing.  It would seem that ordinarily time is not a particular problem.  The decision making process that was endorsed at the time the subject decision was made refers to the following process for land acquisition decisions.  Firstly, applications for a land acquisition are received and assessed by the Regional Office.  Next the Regional Office checks that the proposal is in keeping with eligibility requirements.  The Regional Council then prioritises all applications for land acquisitions.  The Regional Office then collates the applications and forwards them to the State Office.  The State Office establishes a State wide priority list.  Central Office provides the Board of Commissioners of ATSIC with a nationwide list of applications by State with individual State priorities.  The Board of Commissioners prioritises applications on a national basis and makes decisions on the locations.

It is not necessary to describe the entire process to see that it is not a process which would be hindered by a requirement that seven days notice be given of any intention to make an acquisition.

I think therefore, that there should be an order requiring seven days notice to be given.  Liberty to apply should be reserved in case there is any matter of urgency which arises.

I certify that this and the 4 preceding pages
are a true copy of the reasons for judgment herein
of the Honourable Justice Davies.

Associate:

Date:  8 June 1995

Counsel for the applicant:  J. Basten QC
  Dr J.E. Griffiths

Solicitors for the applicant:  Horowitz & Bilinsky

Counsel for the respondents:  N.J. Williams

Solicitor for the respondents:  Australian Government Solicitor

Date of hearing:  8 June 1995

Date of judgment:  8 June 1995