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

The Federal Court of Australia was presented with a case where the New South Wales Aboriginal Land Council (NSWALC) sought to challenge a decision made by the Aboriginal and Torres Strait Islander Commission (ATSIC) and its Chief Executive Officer. The NSWALC contended that ATSIC's decision to allocate the majority of the Aboriginal and Torres Strait Islander Land Fund's resources for land purchases in the Northern Territory, with only a small fraction for other areas, was improper and potentially prejudicial to other regions. ATSIC argued that the Court lacked the competency to adjudicate on this matter, asserting that the decision was not made under an enactment and that the Court did not possess jurisdiction under section 39B of the Judiciary Act 1903 (Cth).

The primary legal issue before the Court was whether it had the jurisdiction to review the decision made by ATSIC. ATSIC claimed that the decision was not a decision under an enactment, and therefore not subject to judicial review. Additionally, they argued that even if the decision was reviewable, the Court lacked the jurisdiction to hear the matter under section 39B of the Judiciary Act or the Administrative Decisions (Judicial Review) Act 1977 (Cth). The NSWALC, on the other hand, argued that the decision was reviewable under the aforementioned acts and that the Court had the necessary jurisdiction to review it.

Davies J determined that there was an arguable case that the Court had jurisdiction to review the decision. The Court found that the decision was made under a statutory scheme and involved the expenditure of Commonwealth funds for the benefit of the indigenous community. The Court was of the opinion that it had the jurisdiction to review the decision if there was evidence of actual and improper bias or fraud, and that such a case was arguable in this instance. The Court decided to leave the jurisdictional issues open for further consideration once the full facts of the case were known. Regarding the holding measure, the Court ordered that ATSIC must provide seven days' notice to the NSWALC of any intention to exercise its land purchasing powers involving the Land Fund moneys, with liberty to apply reserved for any urgent matters.