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Re: RALKON AGRICULTURAL COMPANY PTY LIMITED
And: ABORIGINAL DEVELOPMENT COMMISSION and POINT McLEAY COMMUNITY COUNCIL INC.
(1984) 1 FCR 210
No. SA G50 of 1981
Administrative Law
(1984) ADMN para 96-003

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Administrative law - judicial Review - Grant of leasehold interest - Jurisdiction of decision maker - Whether decisions authorised by enactment - Error of Law - Grant of interest to "Aboriginal Corporation" - Whether applicant an "Aboriginal Corporation" - Quantum and revocability of interest granted - Whether applicant an "aboriginal body" - Alleged Breach of Rules of Natural Justice - Legitimate Expectation - Whether improper exercise of power.

Aboriginal Development Commission Act 1980 ss.3, 4(1), 8, 9, 24, 27, 28, 51

Administrative Decisions (Judicial Review) Act 1977 s.5

Aboriginal Land Fund Commission Act 1974 ss.18, 19, 20, 21

Associations Incorporation Act s.2l(2)

Administrative Law - Judicial review - Grant of leasehold interest - Jurisdiction of decision maker - Whether decisions authorised by enactment - Error of Law - Grant of interest to "Aboriginal Corporation" - Whether applicant an "Aboriginal Corporation" - Quantum and revocability of interest granted - Whether applicant an "Aboriginal body" - Natural justice - Legitimate expectation - Whether improper exercise of power - Aboriginal Development Commission Act 1980 (Cth), ss 3, 4(1), 8, 9, 24, 27, 38, 51 - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5 - Aboriginal Land Fund Act 1974 (Cth), ss 18, 19, 20, 21 - Associations Incorporation Act 1956 (S.A.), s. 21 (2).

HEADNOTE

In 1974 the Community Council, representing Point McLeay Aboriginals, commenced steps to acquire a property known as Bartlett's Farm.

The Council held a ninety-nine-year lease (from the South Australian Aboriginal Lands Trust (the Trust)) over an adjoining property, the Point McLeay farm. The Aboriginal Land Fund Commission (ALFC) decided to fund the purchase, in the contemplation that the two properties would be worked as one unit. One of the conditions of the approval of funds was that a company be formed to operate the project. Another was that title remain in the ALFC pending finalisation of discussions for a lease to the company to be formed. The ALFC decided in 1976 to grant an interest under s. 20 of its Act, whereby it could grant interests to a specified type of body, namely an "Aboriginal Corporation" as defined under the Act. The ALFC purported to grant such an interest to Ralkon in respect of Bartlett's Farm. Ralkon was already farming the land at this time but was not informed of the grant.

The ALFC became concerned about the nature and form of the interest it was both obliged and entitled to grant, and purported to have granted, under s. 20 of the Act. Ralkon became concerned about its security of tenure. The ALFC then stated that it intended to approve a grant of interest under s. 20 of the Act to the "Point McLeay Community who will hold title to the property" with Ralkon managing and operating it. The Point McLeay Community was yet to become an incorporated body under provisions of the Aboriginal Councils and Associations Act 1976 (Cth) . When Ralkon referred the ALFC to a letter whereby the ALFC had acknowledged the approval of a grant of interest to Ralkon, the ALFC responded by effectively acknowledging that to be so, but stating that the grant was contrary to the original intention of the ALFC (which had been for title to remain in the Trust, with suitable leases to Ralkon to be arranged between the Trust and the Community Council) and that the ALFC "will rectify the situation by rescinding the present grant of interest to the Ralkon Company and approving a new grant of interest to the Point McLeay Community Council Incorporated who will ultimately accept responsibility for holding title to the property". The ALFC resolved formally to do so and notified the Community Council and Ralkon.

Subsequently the Aboriginal Development Commission (the ADC), the successor to the ALFC, decided to offer the Council a lease over Bartlett's Farm. This decision was one attacked by Ralkon. The Council at first rejected the offer of a lease, but later accepted it. The lease was registered. Ralkon continued to manage the land even though the Council gave it notice to quit and commenced eviction proceedings in court. Ralkon challenged the ADC's decision to offer a lease to the Council on two general bases namely:
(a) that the ADC did not have jurisdiction or power to make the decision and it involved an error of law; and
(b) the making of the decision was an improper exercise of power and involved a denial of natural justice.

Held: (1) At the time the Aboriginal Land Fund Commission (ALFC) approved a grant of interest to the applicant, it was not an "Aboriginal Corporation" within the meaning of s. 3 of the Aboriginal Land Fund Act 1974 (Cth) and was therefore not eligible to receive an interest in land under the Act.

(2) The interest purported to be granted was a licence within the meaning of the Act and therefore an interest in land under the Act.

(3) Notwithstanding its ineligibility under the Act, the applicant did acquire certain rights as against the ALFC by virtue of its having, at the suggestion and with the approval of the ALFC, occupied the land and incurred expenditure in making improvements, even though it had in law no interest in land nor any expectation that it would receive a lease.

(4) The interest which the applicant did acquire was not a bar to the Aboriginal Development Commission (ADC) granting a lease to the Point McLeay Community Council Inc. (the Council).

(5) The Council would be obliged to have regard to the lesser interest of the applicant if it sought to determine its right to occupy the property; that lesser interest would only be determinable on reasonable notice and subject to such rights to compensation as the applicant had under the Agricultural Holdings Act 1891 (S.A.).

(6) The ALFC was entitled under s. 6 of the Act to determine the applicant's right to occupy the property on reasonable notice; assuming the simultaneous grant of interest to the Council was effective, the applicant's continued occupation was at the will of the Council.

(7) Section 21(2) of the Associations Incorporation Act 1956 did not prevent the Council from accepting the lease on the terms and conditions thereof.

(8) Therefore, the decision of the ADC to offer the lease was authorised by the Aboriginal Development Commission Act 1980, and did not involve an error of law.

(9) That the ADC was not, by virtue of the Administrative Decisions (Judicial Review) Act 1977, required to observe in respect of the applicant the rules of natural justice when considering the grant of a lease of the property.

Cole v. Cunningham (1983) 5 IR 401; 49 ALR 123, adopted.

Capello v. Minister for Immigration and Ethnic Affairs (1980) 49 FLR 40; Piroglu v. Minister for Immigration and Ethnic Affairs (1981) 4 ALD 323, referred to.

(10) The applicant did not have a reasonable expectation that it would be granted a lease.

Cole v. Cunningham (1983) 5 IR 401; 49 ALR 123, followed.

F.A.I. Insurance Ltd v. Winneke (1982) 56 ALJR 388, not followed.

(11) There was no justification in the allegation of bias on the part of the ADC or its officers.

(12) If, contrary to the finding, the applicant was entitled to the benefit of the rules of natural justice, it had been given innumerable opportunities to state its case and it had done so most exhaustively.

(13) The making of the decision was a proper exercise of the power conferred by the Aboriginal Development Commission Act 1980; the Act sets forth clearly and expansively the purpose, functions of objectives of the ADC; it was clearly a matter for the ADC to determine what matters were relevant and what were irrelevant to the exercise of its discretion, provided it acted in accordance with statutory provisions; the ADC had not erred in its consideration, nor was it based on bad faith.

Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363; R. v. Australian Broadcasting Tribunal (1979) 144 CLR 45, applied.

(14) Therefore, the application for review should be dismissed with costs.

HEARING

Adelaide, 1984, February 29. #DATE 29:2:1984

APPLICATION.

Application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 of a decision of the Aboriginal Development Commission to grant a lease to the Point McLeay Community Council.

J. M. Mansfield Q.C. and C. M. O'Donovan, for the applicant.

B. M. Debelle Q.C. and L. M. Erikson, for the first respondent.

B. R. Hayes, for the second respondent.

Cur. adv. vult.

Solicitors for the applicant: Genders & Partners.

Solicitors for the first respondent: Finlaysons.

Solicitors for the second respondent: Norman Waterhouse & Mutton.

P. H. MORRISON

ORDER

The application be dismissed.

Ralkon Agricultural Company Pty. Limited to pay the costs of the Aboriginal Development Commission and Point McLeay Community Council Inc. the same to be taxed if not agreed.

Orders accordingly.

JUDGE1

This is an application pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). The applicant ("Ralkon") seeks an order of review of the decision of the respondent Aboriginal Development Commission ("the A.D.C.") made on or about 23 March 1981 to offer to the respondent Point McLeay Community Council Incorporated ("the Community Council") a lease of a property at or near Point McLeay known as Bartlett's Farm. The applicant also seeks review of a decision of the A.D.C. stated to be made in or about July 1981 to renew the offer and to grant to the Community Council a lease of Bartlett's Farm.

Ralkon is a company incorporated in South Australia under the Companies Act 1962, its principal objects being the pursuit of pastoral, farming and grazing activities. The A.D.C. is a body corporate established under the Aboriginal Development Act 1980. Under that Act the A.D.C. succeeded to the property, assets, debts, liabilities and obligations of the Aboriginal Land Fund Commission ("the A.L.F.C."), a body corporate established under the Aboriginal Land Fund Act 1974. The functions and powers of these bodies will, to the extent relevant, be later considered.
Ralkon challenges the abovementioned decisions to grant a lease of Bartlett's Farm to the Community Council, and seeks a grant to itself of an estate in fee simple or a leasehold interest in the farm. The contest primarily centred upon the decision of 23 March 1981 to offer the lease to the Community Council.
For the purpose of assessing the legitimate expectations of Ralkon in relation to Bartlett's Farm and also the extent to which it can be said to be reasonably aggrieved, it is essential to view the decision in its context and against its historical background. To this end it is necessary to extract from the vast amount of evidence, both documentary and oral, the facts and circumstances which I consider relevant and significant. This necessitates commencing in the year 1974.
During this year the Community Council, which represents some 200 Aboriginals residing at Point McLeay, arranged for an independent consulting body to inspect Bartlett's Farm with a view to its purchase. On 15 January 1975 a meeting of the Community Council recommended that the farm be purchased and that "Canberra" be approached for funds. The Community Council acquired an option to purchase the property. The A.L.F.C. met on 1l1July 1975 and had before it a recommendatiion from one of its officers, Mr. Muddle, to purchase Bartlett's Farm for $280,000 and to provide $20,000 for expenses. There was in addition a recommendation that another statutory body, the Aboriginal Loans Commission, provide $94,000 for the purchase of stock and development of the property. In fact $182,885 was made available in 1976 and 1977 for such expenditure.
These recommendations, which were accepted by the A.L.F.C., noted that the Community Council had since 1 July 1974 held from the South Australian Aboriginal Lands Trust a 99 year lease of an adjoining farm of 1156 hectares called the Point McLeay farm. It was contemplated that the two properties would be worked as one unit.
Certain matters in the recommendation are of relevance. The Community Council expressed its willingness to accept outside assistance from a general management organization which organisation would be obliged to report annually to the Department of Aboriginal Affairs. Under the heading of "Organization" the recommendation made the following comments:

"The project should be kept seperate from the service functions of the community administratiion by incorporating the project into an agricultural company wholly owned by the community.

...

It is proposed that immediate steps be taken by the Point McLeay Community Council to set up a properly constituted company to operate the Point McLeay Farm project.

...

Recommendation: It is recommended that the Commission approve the purchase of Bartlett's Farm on the basis that:

(a) ...

(b) ...

(c)The Commission holding title pending discussions between the Point McLeay Community Council Inc. and the South Australian Lands Trust."

At the meeting of the A.L.F.C. held on 11 July 1975 the recommendation was accepted subject to confirmation of valuation.

This decision was conveyed by Mr. Muddle to the Community Council by letter dated 1 August 1975 the relevant parts of which are as follows:

"PURCHASE OF BARTLETT'S FARM

I am pleased to inform you that the Aboriginal Land Fund Commissioners have approved a grant to enable your council to purchase the property known as 'Bartlett's Farm'.

The grant was approved subject to the following conditions:-

(a) that a properly constituted company be set up to manage the operations of the farming project;

(b) that the position regarding a water licence be clarified as soon as possible;

(c) that application be made to the Aboriginal Loans Commission for financial assistance to operate and develop the project;

(d) that the training of apprentices be funded separately, either from the Special Projects Fund or the Training Fund;

(e) that title deeds be held by the South Australian Aboriginal Lands Trust for releasing to the Point McLeay Community Council Inc;

(f) that the Point McLeay Community Council Inc. comply with the Department's financial rules;

(g) that you accept supervision and guidance from qualified consultants.

To meet the above conditions it will be necessary for the Council to advise this office in writing that the above conditions are acceptable."

On 4 December 1975 Mr. W. Prior wrote on behalf of the Regional Director of the Department of Aboriginal Affairs in Adelaide to the Executive Officer of the A.L.F.C. a letter, the primary significance of which is that the recommendations therein were not accepted or implemented by the A.L.F.C. There was no evidence that it was at the time seen by Ralkon but for sufficient completeness it is, to the extent relevant, as follows:

"Transfer of Title - Bartlett's Farm, Point McLeay

Now that settlement for the Bartlett property is complete, the question arises as to who should hold title to the area. I consider it desirable that this Office should be seen to be consistent in the approach to the question of land title, and the obvious course is to support the convention that title to all Aboriginal lands acquired in this State from public monies continues to be vested in the South Australian Aboriginal Lands Trust.

2. Consequently, I recommend that title to Bartlett's property should be transferred, in accordance with Section 20 (1)(b) of the Act, to the Trust at 25 Bank Street, Adelaide.

3. There are several conditions of transfer that I would suggest if the Commission is to accept my recommendation, and these are -

(a) that the Trust accept permanent title.

(b) that the Trust agree to immediately arrange to lease the entire area to the Ralkon Agricultural Co. Pty. Ltd. (a corporation wholly owned by the Aboriginal people of Point McLeay) for a period of 50 years, the first five of which are to be rent free.

(c) that the lease agreement include all land and fixed improvements etc. which were part of the settlement price."

On the following day a letter prepared by Mr. Prior was circulated amongst the inhabitants of Point McLeay. Ralkon placed considerable reliance on this letter and it is appropriate to include it in its chronological order. It was as follows:

"Dear Ms Rankine,

Re: The Benefits of Being a Shareholder of the Ralkon Agricultural Company Pty. Ltd.

WHO OWNS THE COMPANY?

The owners of the Ralkon Agricultural Company Pty. Ltd. are the people of Point McLeay over the age of l8 years. No-one else can be an owner, but any person at Point McLeay can refuse if he or she does not want to be an owner. That is his (or her) decision. The owners are called SHAREHOLDERS, and their shares are held for them in trust by the Council.

WHAT IS THE COMPANY'S JOB?

The Ralkon Agricultural Company Pty. Ltd. is a company formed to do a certain job.

That job is to make sure that the farm is run properly as a business, and that it makes a profit as soon as possible.

WHAT ABOUT THE SHAREHOLDERS?

Where do the shareholders fit in?

The main job of the shareholders is to elect four Point McLeay people to the Board of Directors each year. Those four people are then Directors of the Company.

The shareholders must be fair and elect the best Board to do the job, because the Board has the biggest responsibility and the members are the people who would be in the most trouble if something went wrong.

Elections are held only once a year at the Annual General Meeting. There will be an Annual General Meeting in July, 1976.

At other times during the year, if a shareholder wants to have a say, he or she can go to one of the Board members and ask that member to put forward his views at the next Board meeting.

To sum up, these are the RIGHTS and RESPONSIBILITIES OF SHAREHOLDERS -

l. To vote for people on the Board of Directors once a year, i.e. every July.

2. To keep an interest in the Company and to support it so that one day it will make a profit which can be shared out.

3. You can become a shareholder by having a share in the Company and paying for it, but this also means that you cannot transfer your share to anyone else without the approval of the Directors.

Also, all shareholders will have EQUAL shares.

WHAT IS IN IT FOR YOU?

There are BENEFITS to being a shareholder.

The main one is that when the Company starts to make a profit in a few years' time, the profits will be paid to the Community Council to provide more money for Point McLeay.

In other words, you actually have some of the money from the profits returned for your benefit, if you are a shareholder.

WHY YOU SHOULD BE A SHAREHOLDER.

It costs money to become a shareholder. The reason for this is that all shareholders (in any company) are expected to contribute something towards making the company run properly.

If the shareholders help, then they are supporting the Company and helping it to run properly. If they don't help, then it might go broke. Also, if the people don't help, them you cannot expect the Government to help.

The Government has put in a lot of money, but the people of Point McLeay also are expected to help with their company. The Government has bought Bartlett's farm, and has paid a lot of money to start the Company, but now it is up to the people to give something in return.

Very soon, you will be asked to pay something, perhaps $5.00 each, to show the Government that you are also prepared to help. When you pay this money, you will be a SHAREHOLDER. (You only pay once, not every year).

Important: The Aboriginal Loans Commission has agreed to LOAN a lot of money to the Company to help it get started. The loan will only be given, however, if all the people become shareholders. There will be no loan if the people don't support the Company.

CONCLUSION; This letter has been written for you, and the other Aboriginal men and women at Point McLeay by the Department of Aboriginal Affairs in Adelaide.

It is an important letter, and you should try to understand it.

If you don't. then you should ask Wayne Prior or John Smith, both from D.A.A., when next they visit Point McLeay.

The success of this Company will be very important to the future of Point McLeay, and everybody should take an interest, and contribute something.

We will tell you later on just when you can make your payment."

Mr. Prior did not give evidence and a fair comment on the letter is that he was doing his best to explain to people, many of whom had little or no commercial experience, the part they, Ralkon and the Community Council were to play in relation to Bartlett's Farm. A number of members of the Point McLeay community did pay for shares but only l00 were allotted exclusively to the Community Council.
During 1976 the A.L.F.C. considered generally the matter of formal leases of the various properties it had purchased but there was no mention or suggestion in its Minutes or agenda papers that a formal lease to Ralkon was contemplated. Rather to the contrary, its view appears to have been that the matter of formal leases should be deferred until the "Councils and Associations Bill" was passed "when the interests granted to Communities should be in the nature of leases but that these communities should be incorporated under the Councils and Associations Act". The word "Communities" has been emphasized because it is apparent that it was the Aboriginal communities to whom it was contemplated leases would ultimately be granted.
It was at the meeting of the A.L.F.C. held on 16-17 September of that year consideration was given to the granting of interests under s.20 of its Act. At this stage it is not necessary to set out the provisions of s.20, though ultimately they will have to be carefully considered. It suffices to note that the A.L.F.C. was empowered to make grants of interests in land to specified Aboriginal bodies. The A.L.F.C. was aware that an interest in land could only be granted to an "Aboriginal Corporation" the qualifications of which body were expressly defined under its Act. Notwithstanding the fact that the entitlement of particular recipients to grants of interest was not considered, the A.L.F.C. purported to approve grants of interest under s.20 to a number of allegedly Aboriginal Corporations, including Ralkon in respect of Bartlett's farm. The efficacy of this grant of interest must ultimately be critically reviewed in these reasons. It also approved at the same meeting a grant of interest to a particular company as an operating company "in the interim until the relevant Aboriginal group is incorporated".
There was no evidence that Ralkon, which was already farming the land, was advised of this grant of interest. The quantum and nature of the interest which as a matter of law was granted, and whether Ralkon was qualified to receive any such grant are all matters for later consideration.
I note as a matter of background and without any view on the merits that it was reported to the A.L.F.C. early in 1977 that difficulties had arisen in relation to Ralkon and that that at its meeting on 27-28 April 1977 it resolved that eviction proceedings be commenced against Mr. I.M. Hillock the resident manager of Bartlett's farm. Mr. Hillock played a significant role in the affairs of Ralkon and the relationship between the various parties at Point McLeay.
During this year and the two subsequent years the A.L.F.C. was understandably greatly concerned, as was the Commonwealth Auditor General, about the nature and form of the interests which it was both obliged and entitled to grant and purported to have granted under s.20. It was also apprehensive because it had no evidence that the recipients of its grants of interest were, within the relevant definition, Aboriginal Corporations. On a number of occasions it had before it, queries relating to the concept of a "grant of interest" as well as the entitlement of recipients. Some of these queries were raised by the Auditor General. Efforts which the A.L.F.C. made to obtain assistance in relation to these queries from the Attorney General's Department or the Commonwealth Crown Solicitor were unproductive. It also appears that on every occasion upon which it gave consideration to the granting of an interest, the proposed recipient was an Aboriginal "community".
The nature and arguably the extent of the interest which the A.L.F.C. contemplated it had earlier granted to Ralkon is made apparent by its letter to Ralkon of 8 March 1979. As far as relevant, this letter was as follows:

"Dear Mr. Koolmatrie,

...

When the Aboriginal Land Fund Commission purchased 'Bartlett's Farm' it proceeded to make a 'Grant of Interest' to Ralkon to enable it to occupy and utilise the land. Under Section 20 of the Aboriginal Land Fund Act 1974 upon making a formal 'Grant of Interest' your company assumed responsibility for the payment of rates, and other charges associated with operating the property i.e. electricity, water etc. The Commission is not responsible for the day to day operations of the property.

With regard to your query on insurance I make the following comments:-

The Aboriginal Land Fund Commission currently holds title to Bartlett's Farm but steps are being taken to prepare a standard agreement which will formalize communities responsibilities in having 'Grants of Interest' and allow the Commission to transfer titles to yours and other groups following incorporation under the Aboriginal Councils and Associations Act. The Commission has been directed to hold titles to land purchased by it for communities until communities incorporate under the Act so as to ensure land is not disposed of. The request for insurance details is required if agreements are drawn up and is necessary to safeguard the Commission in the event of damage to fixed assets or injury to third persons.

I shall keep you informed on future developments regarding the agreement and transfer of title."

It appears that it was at about this time that Ralkon first became concerned as to the adequacy of its title to and its security of tenure of Bartlett's Farm. At a meeting of directors held on 7 September 1979 the following resolution was passed.

"2. It was resolved that the Company request the Minister for Aboriginal Affairs to effect the speedy transfer of the title of Bartlett's Farm from the Aboriginal Land Fund Commission to the Ralkon Agricultural Company inaccordance with his suggestions of 14th June 1979 and confirmed by his letter of 15th June 1979."

Neither the "suggestions" of the Minister nor the letter of 15 June 1979 of the Minister were proved in evidence.

A copy of the minutes of this meeting was forwarded to the A.L.F.C. which at the same time became aware of the desire of Ralkon to grant tenancy rights to owners of shacks on portion of Bartlett's Farm. On these two topics it wrote to the extent relevant to Ralkon on 16 October 1979 in the following terms:

"In regard to the transfer of title to Bartlett's Farm it is likely that the Commission will take steps to effect this transfer pending amendment to Section 78 of the Aboriginal Councils and Associations Act. The Commission will then formally approve a Grant of Interest under Section 29 (1)(a) of its Act to the Pt. McLeay Community, who will hold title to the property, with the Ralkon Agricultural Company continuing to manage and operate the same.

I have noted that your Directors have resolved that the Ralkon Company should undertake responsibility towards settling the dispute over ownership and rental for the shack on Section 489 of the property. Perhaps I should point out to you that as the Commission holds title to the property it is legally responsible towards such matters. It cannot enter into agreements such as sub-leases etc.

The Commissions Legal Advisers are currently examining this matter and hopefully I should be able to provide you with further advice shortly.

The Commission is hopeful that the matters raised may be resolved by mutual co-operation in order to avoid any further misunderstanding of it's responsibilities towards the points raised in your advice.

Please do not hesitate to contact me should you have any queries on the matters I have raised."

Ralkon replied to this communication by letter dated 5 November 1979 as follows:

"As regards the transfer of title of "Bartlett's Farm" I would refer you to yours of 8th March 1979. You informed us then that formal grant of interest under section 20(1)(a) had already been given to this company. No doubt you had inadvertantly overlooked this.

The business of the shacks seems even more confused. However let it be for the meanwhile. Members of our Consultative Committee will be discussing these and other related matters with the Minister in the near future."

By its letter in reply of 21 December 1979 to Ralkon the A.L.F.C. made, in my opinion, its attitude very plain. It contemplated that a superior title to Bartlett's Farm would be vested in the Community Council, with Ralkon "continuing to manage and operate" the property. That letter was as follows:

"I refer to your letter of 5 November 1979 concerning the transfer of title to Bartlett's Farm.

You will recall that in my advice of 16 October 1979 I indicated that it is likely that the Commission will take steps to effect the transfer of the title pending amendment to Section 78 of the Aboriginal Councils and Associations Act. The Commission will then formally approve a Grant of Interest under Section 20(1)(a) of its Act to the Point McLeay Community, who will hold title to the property, with the Ralkon Agricultural Company continuing to manage and operate it.

By taking this course of action the Commission would be acting in accordance with its original intention when the initial application to purchase the property was made on behalf of the Point McLeay Community Council in July 1975. It was at that time also intended that the South Australian Aboriginal Lands Trust would accept title to the property and in doing so would reach agreement with the Point McLeay Community Council to arrange a suitable lease for the operating company (Ralkon Co. Pty. Ltd.) over the property. As this arrangement was not proceeded with the Commission accepted responsibility for holding title to the property and subsequently approved a Grant of Interest under its Act to the Ralkon Company. As mentioned, this course of action was contrary to the Commission's original intention; therefore the Commission will rectify the situation, by recinding the present Grant of Interest to the Ralkon Company and approving a new Grant of Interest to the Point McLeay Community Council Inc. who will ultimately accept responsibility for holding title to the property.

Your Company will of course continue to operate and maintain the land in accordance with the wishes of the Pt McLeay Community Council and Ralkon Directors.

I shall endeavour to keep you informed of any further developments concerning the points raised."

Ralkon indicated its attitude by letter of reply dated 30 December 1979 as follows:

"I refer to your two letters 39/75 of 21st inst.. As to the letter regarding the shack erected on section 489 of Bartlett's - what you say is broadly speaking the same as we had agreed earlier with your representatives. However if we understand you correctly you bow (sic) suggest that this company waive its right to collect any accrued rental from the tenant concerned. This would be in breach of the tenancy agreement you refer to in your letter and in fact is the main point at issue with Mr. Jarmyn. There is no dispute - the ownership of the shack was never in question - there would have been no tenancy agreement otherwise. This Company does not agree to waive its rights.

As to your second letter of the same date. We note that you say that you intend rescinding the 'Grant of Interest' in Bartlett's to the Ralkon Company and approving a new Grant of interest to the Pt McLeay Community Council. I must advise you that this would only be done against the expressed wishes of the Community of Pt McLeay, whose every individual member now hold shares in the Company. In very real terms they now own this Company. The course of action you now outline is seen by them as an attempt to retain the title in the hands of the Department of Aboriginal Affairs and not the people.

The ownership of Bartlett's is a key component in the further development of this Company. Please do not take any further action on this until we have sought advice and held further discussion with our Shareholders.

We shall be in touch again with you in due course."

Thereafter Ralkon actively pursued its efforts to obtain title to Bartlett's Farm. At a joint meeting of the directors of Ralkon and the councillors of the Community Council, with Mr. Hillock present, held on 3 January 1980 the following resolution was passed:

"That the land known as Bartlett's farm be vested in the Pt McLeay Community in the name of the Ralkon Agricultural Company by purchase if necessary."

On 6 January 1980 Mr. Hillock wrote the following letter to the Minister of Aboriginal Affairs. Even though it is long it is helpful to set it out virtually in full because it states clearly Ralkon's attitude, and the alteration to its shareholdings and establishes the extent of the A.L.F.C's awareness at the time shortly thereafter when it purported to rescind the grant of interest to Ralkon.

"Dear Senator Chaney,

I enclose a copy of the changes to the Company's Articles of Association together with explanatory notes on them. These changes were brought into effect at an Extraordinary General Meeting of the Company on 14/11/79 at the office of our accountants, Giles and Giles, in Adelaide. The alterations are in respect of shares, shareholding and election of Directors. The proposed amendments were agreed unanimously. The New Share Register has been set up under the supervision of the Company's accountants, Giles and Giles and the New Shares Script issued to the individual members of the Point McLeay Community.

I am sure that you will find yourself in agreement with the changes. We now have a workable formula for the future and I do not think that something along these same lines would be unacceptable on other reserves.

However, there still remain two essentials for the successful continuity of a viable Company of this nature. Both are intimately connected.

1. The provision of the necessary collateral for capital improvement and intensification, without which the Company is quite unable to optimise labour imputs and utilize the pool of unemployed in Point McLeay.

2. The removal of the stress on the Company's finance, caused by the cost of providing sound professional management, under the Company's terms, for as long as it deems necessary and desirable, without which a limit is placed on its potential for optimising its function in providing useful and gainful employment for the people of Point McLeay.

1. As for the first - necessary collateral - this is logically bound up with Land Title. The as yet unallocated portion of Ralkon - Bartlett's Farm - would seem, as you suggested in June to provide the answer. The legal and political niceties are not insurmountable. Indeed, the rights and privileges inherent in ownership carry concomitant responsibility - the full knowledge that failure exacts an awful penalty - which has demonstrably ensured the unqualified success of our operations to date. The step of giving unencumbered Land Title requires courage - courage no less on one side than the other - but nothing was ever achieved without it and never will be.

As to the practicabilities - your letter of the 23rd October, 1979, indicated that the Land Fund Commission would be writing to us shortly. They have and I enclose it together with a copy of the Chairman's reply. In essence, they have said that the 'Grant of Interest' currently in the name of Ralkon would be rescinded and handed to the Point McLeay Community Council. At a meeting of Shareholders on 3/1/80, which virtually conprised (sic) the whole community, including the members of the Council and its Chairman, it was unanimously agreed to reject any offer of Title and/or 'Grant of Interest' by the Land Fund Commission to the Point McLeay Community Council in respect of Bartlett's Farm. The Aboriginal Lands Trust of South Australia have similarly intimated. It would therefore appear that the only relevanmt entity willing and able to accept is the Ralkon Agricultural Company - which since the issue of Shares is now more truly representative of the Point McLeay Community than the Council itself. Any other course justified by the Land Fund Commission - no matter what else it entailed - would be deemed a useless exercise in semantics by the people.

We have studied the relevant acts - the Aboriginal Land Fund Act 1974 and the Aboriginal Council and Associates Act of 1976. You will recall that in June when you visited Ralkon, the suggestion was that the Title for Bartlett's Farm might be placed at the disposal of the Company for purposes of collateral. The Ralkon Agricultural Company is an Aboriginal Corporation under the Aboriginal Land Fund Act of 1974, but this act does not allow for disposal of land in such a way. However, under the Aboriginal Council and Associations Act 1976 (Cl.78) there is the necessary discretion granted to you. But of course the Ralkon Agricultural Company is not within the definition of an Aboriginal Corporation under this Act. Nevertheless, we are informed by the Land Fund Commission that this clause 78 is to be amended. If it is proposed in this or any other amendment to widen the definition of an Aboriginal Corporation to include a group such as the Ralkon Agricultural Company, then there is no problem.

We would be pleased to hear from you as soon as possible whether or not this is intended and if so under what conditions.

2. As to the second essential - financial provision to the Company for professional management. This would require the allocation of a Direct Grant to the Company for this purpose only, to be used or not at the discretion of the company alone - a small concession but a sound investment.

We await your early reply."

At its meeting held 3-7 March 1980 the A.L.F.C. resolved as follows under the heading "Bartlett's Farm".

"(ii) The Commission formally agrees to rescind the existing grant of interest in the Ralkon Company and approve a new grant of interest to the Point McLeay Aboriginal Community Inc. with appropriate terms and conditions."

This decision was conveyed to the Community Council and to Ralkon in the following letter of 13 May 1980:

"This letter is to inform you that the Commission, at it's 25th meeting, formally agreed to transfer the existint (sic) Grant of Interest vested in the Ralkon Agricultural Company to the Pt. McLeay Community Council Incorporated.

On 21 December 1979 I wrote to the Chairman of the Ralkon Company outlining the Commission's intentions on this matter. I indicated that the Pt. McLeay Community Council was considered to be the appropriate body to ultimately hold title to Bartlett's Farm, and that the Ralkon Company, a Corporation which had been established by the community would no doubt continue to operate and maintain the property in accordance with the wishes of your Council and the Ralkon Directors.

In order that your organisation understands, it's responsibilities over the management aspects of the property I have listed a number of points which should clarify the situation.

(a) Land Titles

The A.L.F.C. will hold title to the property until such time as the Pt. McLeay Community Council becomes incorporated under the Aboriginal Councils and Associations Act, at which time the land title can be transferred to your organisation.

(b) Insurances

As the A.L.F.C. is legally responsible and accountable to the Auditor General your organisation must take out adequate insurances on all fixed assets and be covered for public liability. These insurances are to be in joint names of the Pt. McLeay Community Council Incorporated and the A.L.F.C. Insurances on non-fixed assets such as motor vehicles, machines etc should be arranged by Ralkon in assistance with normal commercial practice.

(c) Your organisation is now responsible for all other on going costs such as insurances, rates and rents etc. The A.L.F.C. is currently finalizing legal matters associated with obtaining freehold title to sections 349 and 460 Soldiers Acquired Lands Perpetual Leases.

(d) This transfer of a Grant of Interest to your organisation now formalises the occupation and use of the property referred to as Bartletts Farm by the Pt. McLeay Community Council Incorporated.

If you have any further queries regarding this matter please raise them at our meeting(s) on l6 May or by calling at any later date."

In my opinion the following comments relative to Ralkon's claim to title to Bartlett's Farm can on the evidence be made concerning the position at this date.

(a) The A.L.F.C. had not investigated the qualifications of any recipient, and in particular of Ralkon, to receive a grant of interest under s.20 of its Act.

(b) The A.L.F.C. had no clear grasp or understanding of the nature of the interest which could be or had been made by it upon grants of interests.

(c) The A.L.F.C. had not at any stage contemplated granting nor given any consideration to granting a leasehold interest in Bartlett's Farm to Ralkon. Ralkon was at all times seen as the operating or management company farming the land. To the extent that grants of leasehold interests were under consideration, these interests were contemplated as being granted to communities and not operating companies.

During the succeeding months Ralkon did not take any
action to challenge the purported rescission of its grant of interest but mounted a considerable campaign in an effort to persuade the A.L.F.C. and after 1 July 1980 the A.D.C. to grant it security of tenure of Bartlett's Farm either on a freehold or long term leasehold basis. It justified this requirement on both commercial and sociological grounds. It was a period of intense activity on the part of all persons or bodies interested directly or indirectly in Bartlett's Farm. Ralkon either itself or through the Chairman of its Consultative Committee put its case for a secure title thoroughly and exhaustively. Numerous letters were written to successive Ministers, to the A.L.F.C. and the A.D.C.
When reporting to the Community Council its subsequent decision of 23 March 1981 to offer a lease to that body, the A.D.C. specifically referred to a letter it had received from Ralkon's consultative committee. This letter bore date 7th July 1980 and was in the following terms:
> "This letter is to bring to your attention matters

relating to both the current and future position of the Ralkon Agricultural Company. Both the Consultative Committee and the Company consider that this farming enterprise which has been conducted since October 1975 has reached the point where it cannot continue to grow without access to capital funds. At the present time, the only method available to the Company of obtaining funds is by way of stock mortgage, however this avenue is limited due to the restriction placed on the borrowing. However, if the Company is to be run on a commercial basis in keeping with the original intention, then we consider it essential that the Company have access to capital in order to expand the commercial operation and run a viable enterprise.

We advise that the Committee wrote to Senator Chaney on the 28th May 1980 putting forward a proposal for the Company to purchase land known as 'Bartletts Farm' which it currently uses. This would enable the Company to provide security for borrowings, so that with proper planning and management, it would expand and fully utilise its assets and realise its full potential. A copy of our letter setting out this proposal is enclosed. Unfortunmately either Senator Chaney did not see this letter, or did not study it closely, as many of the points raised were ignored when we received his reply.

We point out that the Company's advisers have put in considerable time and effort into this project to ensure that such a Company can operate independently at the same time protecting the rights of the people safe-guarding the shareholding to ensure that assets provided by Government funding are not disbursed and that the Company will continue on for the benefit of the Community. It is not our wish to see any of the land alienated or any of the Company's assets put at risk.

We would also point out that we consider the Ralkon Company may well be used as a blueprint for other Aboriginal organisations. If this is so, then it should not be hamstrung by Government regulations and interference but should have the opportunity of being run on a proper commercial basis. The Company must have some degree of independence with the ability to borrow funds but at the same time, safe-guarding the assets as per our proposal.

In view of the Company's present position, there is an urgent need to have this matter resolved as continual delays have cost the Company many opportunities.

We would be pleased if you would bring this matter before your Commission and examine it in detail.

We look forward to your reply.

Yours faithfully,

(signed) W. Nankivell

W.NANKIVELL

CHAIRMAN OF CONSULTATIVE COMMITTEE."

There were also many interviews, with one Minister at least, with the Chairman of the A.D.C. and its members and with officers of the A.D.C. or other departments. Ralkon's case for commercial independence, taken out of context, might in other circumstances be seen as highly persuasive, if not unanswerable. It sought the opportunity to stand on its own feet uninhibited by what it saw as paternalistic handouts and restrictions. The relevant circumstances in the eyes of the A.L.F.C. and the A.D.C. were essentially that Bartlett's Farm had been purchased and initially established by the A.L.F.C. and the Aboriginal Loan Fund in accordance with and subject to the aims, objectives and limitations of their respective charters. Ralkon also pressed its claim as an incident in an Aboriginal Land Rights campaign to which much publicity was given by the media.
The Community Council during this period wavered in its view as to the appropriate recipient of title to Bartletts Farm, first rejecting but then seeking a lease to itself.
Both the A.D.C. and the relevant Minister corresponded with and interviewed representatives of Ralkon and the Community Council, giving, as it appeared in evidence, careful consideration to the problem of attempting to reconcile Ralkon's aspirations with its position as they saw it as the vehicle to farm land for the benefit of the community at Point McLeay. There were indications of exasperation and of impatience on both sides and also between Ralkon and the Community Council which I note but of which I am not obliged to assess the rights and wrongs.
Throughout this time Ralkon farmed Bartlett's Farm in conjunction with the other properties leased to the Community Council. There was criticism of these operations and the part played generally by Mr. Hillock, which matters are only of marginal significance and of relevance only to the extent hereafter mentioned. Although Ralkon was understandably attempting to improve its commercial position, it was at all times aware or should have been aware that the A.D.C's preference was to vest title in the Community Council.
This was the climate which existed at the time when the A.D.C. made the first decision which was challenged. It was conveyed to Ralkon by letter dated 23 March 1981 which was as follows:

"I am writing further to earlier correspondence to inform the Ralkon Agricultural Company that the Commissioners have finally resolved their position in respect of Bartlett's Farm.

The Commissioners, having regard to the facts that

(a) Bartlett's Farm was purchased at the request of the Point McLeay Community Council for the benefit of the entire Point McLeay Community,

(b) Ralkon was established by the Point McLeay Community Council Inc. to manage the Council's farming interests, and

(c) the Council currently holds the grant of interest in the property from the Commission,

have decided to offer the Council a formal lease of the property."

This letter was initially said to contain reasons in accordance with s.l3 of the Act although during the hearing such reasons were expanded.
On the same day the following letter was written by the Chairman of the A.D.C. to the Chairman of the Community Council. Although it is lengthy it is profitable to set out the full text of the letter. Its contents have relevance to the terms and conditions upon which the lease was granted to the Community Council.

"I am writing to convey to you the decision of the Aboriginal Development Commissioners in respect to the property known as Bartlett's Farm and in response to your letter of 21 November 1980, seeking a lease over Bartlett's Farm.

2. In considering the Council's request, the Commissioners noted that the Council had established in October 1975, the Ralkon Agricultural Company Pty Ltd (Ralkon) to manage its farming interests. The Commissioners considered at the same time requests by Ralkon for title to the land as conveyed to the Commission by letter dated 7 July 1980, from Ralkon's consultative committee. The Commissioners also had in mind at the time a report of the unsuccessful attempt by the agricultural consultancy firm of Mr. David Price to inspect the property in December 1980.

3. The outcome of the Commissioners' consideration is that they have decided to offer the Council a 99-year lease to Bartlett's Farm at a nominal rental subject to normal lease conditions and in particular to the following conditions:-

(1) that the Council undertake to use and manage the land in a proper and husbandlike manner, in accordance with any relevant Commonwealth or State statutory requirements, and to the satisfaction of the Commission.

(2) that the Council, to accomplish the first condition set out above, assert its position as major shareholder in Ralkon and bring the company fully under its control so that the company will perform the function for which it was intended, that is, to manage Bartlerr's Farm and other lands on behalf of the Council.

(3) that the Council act without delay to have set aside or have declared null and void the alterations purported to have been made to the company's structure by a general meeting of the company's shareholders on l4 November 1979.

(4) that the Council review, upon assertion of its control of the company, the management of Ralkon to ensure that the company is operated competently and in the opinion of the Council in the best interests of the Point McLeay Community; the Commission, if requested, is ready to assist the Council to secure appropriate advice in this regard.

(5) that the Council have, at the expense of the Commission, the accounts of Ralkon audited for the years 1977/1978, 1978/1979, 1979/1980 within six months (or some other period to be agreed between the Council and the Commission), of the Council accepting the Commission's offer of the lease and take any necessary corrective action arising from the audits.

(6) that the Council undertake for as long as it chooses to use Ralkon to manage its farming interests to have the accounts of that company properly kept, audited and made available to the Commission within six months of the end of each financial year until the Commission notifies the Council otherwise.

(7) that the Council agree, should it choose not to use Ralkon to conduct its farming interests, to have accounts of its farming interests properly kept, audited and made available to the Commission within six months of the end of each financial year until the Commiassion notifies the Council otherwise.

(8) that the Council, should it choose to pursue its farming interests through Ralkon enter into an agreement in writing with that company to regularise and clarify its occupation and use of Bartlett's Farm, the terms of that agreement to be acceptable to the Commission.

(9) that the Council agree to the appointment of an agricultural consultant, such appointee to be agreed between the Council and the Commission, to advise the Council and the Commission in matters relating to the operation of the property.

(l0)that the Council agree, at Commission expense and with a view to preparation of an overall development plan, to have the consultant appointed under (9) above inspect and produce a report on the current state of the Council's farming interests the inspection to take place within l0 days, or as near to l0 days as practicable, of the Council's acceptance of this condition.

4. In arriving at the above decision, the Commissioners also agreed that should the Council accept the Commission's conditions for the offer of the lease, the Commission is ready to provide advice and, if necessary, financial assistance to the Council to further develop its farming interests including Bartlett's Farm. In considering any request for financial assistance, the Commission would of course examine closely management aspects.

5. The Commissioners further agreed that should the Council encounter legal difficulties in meeting the above conditions the Commission would be prepared in the last resort, that is, if legal aid or other funding is not available, to consider meeting the Council's need for legal advice and representation.

6. A copy of this letter has been sent to the Commissioner for Corporate Affairs, South Australia and to the Chairman of the South Australian Aboriginal Land Trust.

7. The Commission has also written to the Chairman of Directors of Ralkon and a copy of that letter is attached for your information.

8. The Commission has instructed solicitors to draw up a document of lease and will forward that document for your perusal on receipt of your acceptance of these conditions. For its part, the Commission undertakes to make every reasonable effort to conclude the lease agreement without delay once it is satisfied that the conditions set out above have been met.

9. If you have any queries on matters raised in the letter, I suggest you ring in the first instance the Commission's Regional Manager in South Australia, Mr. Wayne Prior on 2125499, or Mr. Ray Tynan in the Commission's Central Office on 062-822688.

l0. I earnestly hope these arrangements are acceptable to the Council and look forward to your early reply. The unsatisfactory position in relation to Bartlett's Farm has existed for some years now and the Commission is anxious to finally resolve the matter as quickly as possible.

ll. I have enclosed eight copies of this letter for members of your Council to facilitate your Council's consideration of the Commission's offer."

At its meeting on 30 March 1981 the Community Council rejected the offer of a lease by declaring all previous agreements with the A.D.C. null and void. Thereafter the A.D.C. set about seeking to persuade the Council to accept the lease and its terms and conditions. On 27 April 1981 the Community Council sought vesting of the title in Ralkon. Between that date and 9 July 1981, when by a majority the Council agreed to accept a lease, the Minister visited Point McLeay and a conference was held in Canberra between the Chairman of the Council, the Chairman of Directors of Ralkon and representatives of the A.D.C. Subsequently a lease between the A.D.C. and the Community Council was entered into, lodged for registration in the Lands Titles Office in Adelaide on 25 September 1981 and duly registered. Ralkon continued and continues to farm the land although in August or September 1981 the Community Council gave Ralkon notice to quit Bartlett's Farm. Eviction proceedings were commenced in the Supreme Court but did not proceed to the stage of a final order.
On 24 November 1981 the solicitors for Ralkon wrote to the solicitors for the A.D.C. a letter wherein they acknowledged that Ralkon had made submissions to the A.D.C. requesting the grant of a lease and also sought reasons pursuant to s.13 of the Act for the decision to grant a lease to the Community Council. Unfortunately this request was not pressed, notwithstanding the failure of the A.D.C. to provide adequate reasons until the trial of the action was well under way. This delay occurred notwithstanding Keely J's finding in a preliminary hearing of this matter (see infra) that the A.D.C's letter of 23 March 1981 did not adequately set out the findings, reasons and other matters referred to in paragaph 11(3)(a) of the Act and inferentially sub.s. 13(1) thereof. The consequence was that a substantial amount of evidence was given at trial before the issues were clearly defined.
It is appropriate at this stage to turn to the challenges of Ralkon to the decisions and the grounds upon which it relied to support these challenges. It is apparent that it was ultimately accepted that the decision of July 1981 referred to in Ralkon's notice of application was not a separate decision but an implementation of the earlier decision of 23 March 1981 to offer the lease to the Community Council. It was not disputed that that earlier decision was for the purposes of the Act "a decision to which this Act applies". The status of Ralkon as a "person aggrieved" by the decision, in that its interests were adversely affected, was litigated before Keely J. on an application by Ralkon for an extension of time. He gave a decision affirming Ralkon's status and extended the time for it to make an application under the Act, the reasons for which are reported in (1982) 43 ALR 535. I will have cause to refer subsequently to his reasoning.
Ralkon based its challenge on five of the grounds referred to in s.5(1) of the Act. In my opinion these grounds fall into and can conveniently be considered in two categories. The first category encompasses three grounds which go to the power or jurisdiction of the A.D.C. to make the decision to grant a lease to the Community Council. These grounds are as follows:

(l) The A.D.C. did not have jurisdiction to make the decision.

(2) The decision was not authorised by the enactment in pursuance of which it was purported to be made.

(3) The decision involved an error of law.

The second category covers the remaining two grounds of challenge and goes to the manner in which the A.D.C. made its decision. These grounds are:

(4) That a breach of the rules of natural justice occurred in connection with the making of the decision.

(5) The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

In respect of the first category of grounds, the particulars of each have much in common. Particulars of the challenge to jurisdiction on ground (1) were that

(a) Ralkon had been given a grant of interest in Bartlett's Farm pursuant to s.20 of the Aboriginal Land Fund Act which grant could not be revoked and as a consequence the A.D.C. could not grant a lease to the Community Council.

(b) The A.D.C. should not have granted a lease to the Community Council as it had no power to carry on a farming business.

The particulars supplied in respect of the contention in ground (2) above that the decision was not authorised by the enactment repeated particular (a). The contention that the decision involved an error of law was supported by particulars virtually in like form to (a) and (b) above.

The A.L.F.C. at its meeting held on 16-17 September 1976 purported to grant an interest in Bartlett's Farm to Ralkon pursuant to its powers conferred by s.20 of the Aboriginal Land Fund Act 1974. This Act established the A.L.F.C. with its stated objective, namely "to assist Aboriginal Communities to acquire land outside Aboriginal Reserves". It also established a fund known as the Aboriginal Land Fund, and the A.L.F.C. was empowered to apply the moneys of the Fund in accordance with the following provisions of the Act.

"18. Moneys of the Fund may be applied -

(a) in making grants under section 19; and

(b) in discharging the obligations and liabilities of the Commission arising under this Act.

19. The Commission may make grants of money out of the Fund -

(a) to an Aboriginal Corporation to enable it to acquire an interest in land for the purpose of enabling the members of that corporation to occupy that land; and

(b) to an Aboriginal land trust to enable it to acquire an interest in land for the purpose of enabling Aboriginals to occupy that land.

20. (1) The Commission may, on such terms and conditions, if any, as it thinks fit -

(a) grant to an Aboriginal Corporation an interest in land for the purpose of enabling the members of that corporation to occupy that land; and

(b) grant to an Aboriginal land trust an interest in land for the purpose of enabling Aboriginals to occupy that land.

(2) No payment shall be due to the Commission in respect of any interest granted under sub- section (1).

21. (1) For the purposes of section 20, the Commission may acquire by agreement any interest in land.

(2) The power conferred by sub-section (1) extends to the acquisition of shares in a body corporate for the purposes of acquiring an interest in land held by that body corporate."

It is apparent that the A.L.F.C. was only empowered under s.21(1) to acquire Bartlett's Farm or any other land for the purpose of making a grant of interest therein to an Aboriginal Corporation or an Aboriginal land trust. In accordance with its obligation to make such a grant the A.L.F.C. purported to grant an interest in Bartlett's Farm to Ralkon, the company which it had required be set up to "operate the Point McLeay Farm project". The word "interest" is defined in s.3 of its Act as meaning, in relation to land a "legal or equitable estate or interest (including a licence) in the land". Before attempting to assess the nature and quantum of the estate or interest which the A.L.F.C. purported by its decision to vest in Ralkon, that company's entitlement to receive such a grant must be considered. It was not suggested that it qualified under para.20(1)(b) as an Aboriginal land trust, as defined, but as an Aboriginal Corporation under para. 20(1)(a). Section 3 defines the expression "Aboriginal Corporation" as meaning -

"a body corporate of which all the members for the time being are persons as to whom the Minister is satisfied that they are members of a community of Aboriginals."

Counsel for the A.D.C. contended that Ralkon was not an Aboriginal Corporation in accordance with this definition and thus was not eligible to receive from the A.L.F.C. a grant of interest in Bartlett's Farm. In my opinion this submission must be accepted as correct. At the relevant time, namely September 1976, the members of Ralkon were two residents of Point McLeay each holding one subscribers' share and the Community Council which held 100 shares. The Community Council was a body incorporated under the Associations Incorporations Act 1956 of South Australia. As such it can not be said to be a "member of a community of Aboriginals", nor was there any evidence that the Minister had in any way expressed the relevant satisfaction.
The A.L.F.C. purported to grant an interest under para. 20(1)(a) in Bartlett's Farm to Ralkon on the assumption that Ralkon was eligible. It took no steps to check its status even though the topic of eligibility was considered generally by the meeting which made the decision. The question of the quantum of the interest which the A.L.F.C. contemplated it was granting was much in issue in these proceedings though not the question whether the terms of the resolution were effective to vest any interest at all in Ralkon. On the assumption that some interest as defined was effectively granted I see no justification for construing the grant as vesting in Ralkon any greater interest than was necessary to enable it to perform its allotted role of farming the land. I reject the argument of Ralkon's counsel that it was granted an exclusive right to occupy, whether as lessee or licensee coupled with an equity, for an indefinite period so long as it farmed or alternatively for 50 or 99 years. I can find no support for this contention and no justification for assessing such a substantial term. In my opinion the interest which the A.L.F.C. intended to grant was in the nature of a licence which is by the definition deemed to be an interest in land. I would construe it as a licence to occupy and farm the land determinable upon reasonable notice. It was not necessarily an exclusive right to occupy. However, I have already concluded that Ralkon was not eligible to receive such an interest by way of grant from the A.L.F.C.
I am however prepared to accept an argument that, because of what it did rather than what it was given under s.20, Ralkon did have in March 1980 as against the A.L.F.C. certain rights in relation to Bartlett's Farm which the A.L.F.C. was obliged to recognize. It had at the suggestion and with the approval of the A.L.F.C. entered into occupation of the farm, farmed it for a number of years and expended money in farming and making improvements thereto. In this way it acquired rights which it could raise by way of defences such as proprietary or equitable estoppel even though it had in law no interest in the land and in my judgment no expectation that it would receive a lease. There is for present purposes little significant difference between these rights and the "interest in the land" which the A.L.F.C. in my asessment purported to grant under para. 20(1)(a). Thus I hereafter call Ralkon's bundle of rights for convenience an "interest".
This was the general nature of the interest which the A.L.F.C. took steps to revoke in March 1980. Ralkon contends that it could not be revoked by the A.L.F.C. and in consequence its successor the A.D.C. could not grant a lease to the Community Council. Even if the interest of Ralkon was not revocable, its existence was in my opinion no bar to the granting of a lease for 99 years to the Community Council. That Council would be obliged to have regard to the lesser interest of Ralkon in the land if it sought to determine its right to occupy Bartlett's Farm. This lesser interest would doubtless only be determinable on reasonable notice and subject to such rights to compensation as Ralkon has under the Agricultural Holdings Act l89l of South Australia.
In my opinion the A.L.F.C. was perfectly entitled under s.6 of its Act to revoke, or perhaps more correctly determine, Ralkon's right to occupy Bartlett's Farm on reasonable notice. When objecting to this action Ralkon took no point on the subject of lack of notice. The right of the owner or holder of a superior interest to determine upon proper notice Ralkon's licence to occupy was inherent in the nature of its interest. Thereafter, on the assumption that the simultaneous grant of interest to the Community Council was effective, Ralkon's continued occupation of Bartlett's Farm was at the will of the Community Council which itself would have the right to determine Ralkon's occupation on proper notice and terms.
Counsel for Ralkon also relied in support of his contention that the A.D.C. had no jurisdiction to grant a lease to the Community Council on the fact that the Community Council had no power to carry on a farming business. This argument relied on the restrictions of sub-s. 21(2) of the Associations Incorporation Act under which the Community Council was incorporated. It is as follows:

"Nothing in this section shall be deemed to empower any incorporated association to carry on trading or secure pecuniary profit, whether directly or indirectly, to its members."

It is worthy of note though not of any necessary significance that this restriction does not appear to have inhibited the Community Council from taking leases from the South Australian Aboriginal Lands Trust of other farming land at Point McLeay and allowing farm operations to be conducted thereon by Ralkon.
The rules of the Community Council were not tendered and there was no evidence on their contents, any special restrictions therein or as to who are its members. Doubtless compliance with the restrictions in sub-s. 2l(2) above may inhibit the Community Council in the use that it makes of the leased land, but they do not deny it the right to accept the lease and the terms and conditions thereof. It was said that this was a "farming lease" and granted for a purpose which the Community Council could not fulfil. However the lease expressly contemplates that the Community Council may underlease or part with possession of the land, albeit only with the written consent of the A.D.C. and subject to compliance with onerous obligations if Ralkon was to be the sub-lessee. It is my opinion that sub-s. 2l(2) does not prevent the Community Council from accepting the lease on the terms and conditions thereof. If the Community Council experiences difficulties in complying with the terms and conditions of the lease, it is not to be assumed that the A.D.C. will unreasonably or peremptorily exercise its right to forfeit. If it did, the provisions of the Landlord and Tenant Act 1936 South Australia providing certain relief against forfeiture may be available to Ralkon.
It follows that I reject the two grounds upon which it is contended that the A.D.C. had no jurisdiction to grant the lease to the Community Council. In my opinion the decision of the A.D.C. to offer the lease was authorised by its Act and it did not involve the error of law alleged.
Before dealing with the other grounds of challenge it is necessary to consider the role of the A.D.C. and in some detail the statutory provisions under which it operates and pursuant to which it granted the lease in question.
The Aboriginal Development Commission Act 1980 was assented to on 16 May 1980, its purpose being defined by s.3 as follows:

"3. The purpose of this Act is to further the economic and social development of people of the Aboriginal race of Australia and people who are descendants of indigenous inhabitants of the Torres Strait Islands and, in particular, (as a recognition of the past dispossession and dispersal of such people) to establish a Capital Account with the object of promoting their development, self-management and self-sufficiency."

By s.s. 5 and 6 it repealed the Aboriginal Loans Commission Act 1974 and the Aboriginal Land Fund Act 1974. It established a Commission under the name of the Aboriginal Development Commission which is a respondent to these proceedings. Section 8 of the Act sets out the functions of the Commission as follows:

"8. The functions of the Commission are, subject to and in accordance with this Act, to further the economic and social development of Aboriginals and, in particular, but without limiting the generality of the foregoing-

(a) to assist communities and groups of Aboriginals to acquire land;

(b) to assist Aboriginals to engage in business enterprises;

(c) to assist Aboriginals to obtain finance for housing and for other personal needs, and to provide such finance;

(d) to assist in the training of Aboriginals in relation to matters related to the functions of the Commission;

(e) to administer and control the Capital Account;

(f) to give advice and make recommendations to the Minister with respect to the furtherance of the economic and social development of Aboriginals; and

(g) such other functions in connection with the furtherance of the economic and social development of Aboriginals as the Minister determines by notice in writing given to the Commission."

Under s.9 it has power to do all things necessary or convenient to be done for or in connection with the performance of these functions. Pursuant to s.5l all rights and liabilities of the Aboriginal Loans Commission and the A.L.F.C. were transferred to the A.D.C. which was also substituted in all existing contracts and arrangements in place of one or other of the other Commissions. The A.D.C. was given wide powers in respect of the application of moneys to enable Aboriginals to engage in business enterprises in provision of housing and personal loans and for other purposes. Its powers in respect of grants of interest were provided by s.27, namely

"27. (1) The Commission may acquire by agreement any interests in land or personal property and may, on such terms and conditions as it determines, grant any interests so acquired, or any interests derived from interests so acquired, to Aboriginal land trusts for the object of enabling Aboriginals to occupy land or to Aboriginal corporations for the object of enabling members of those corporations to occupy land.

(2) No payment shall be due to the Commission in respect of a grant made under sub-section (1)."

The Commission was also given power to make grants of property specifically for the purposes of business enterprises in the following terms:

"28. For the purposes of section 24, the Commission may acquire by agreement any real or personal property, and may grant, sell lease or otherwise make available property so acquired to an Aboriginal or Aboriginals, or to an Aboriginal body, on such terms and conditions (if any) as are determined by the Commission."

A business enterprise, which is the purpose referred to in s.24 is defined as including "an enterprise relating to primary production".

Ralkon contended it was qualified to receive the lease granted to the Community Council and relied on the provisions of s.28 in that it was an Aboriginal body. It did not contend that it was an Aboriginal land trust or an Aboriginal corporation and thus eligible under s.27. The expression "Aboriginal body" has the meaning prescrib@ed by sub.s. 4(1) of this Act unless the contrary intention appears, namely

"'Aboriginal body' means a body corporate -

(a) that is controlled, whether directly or indirectly, by Aboriginals; and

(b) the principal objects of which are conducive to the advancement of Aboriginals,

but does not include..."

Keely J. was of opinion, with which I agree, that the principal objects of Ralkon were not "conducive to the advancement of Aboriginals". At that time paragraph 2 of its memorandum of association stated the company's objects as follows:

"(a) To carry on in all respects the business of pastoralist farmer grazier husbander at such place or places and in such manner as the company shall think fit.

(b) To do all things necessary and expedient for the proper full and effectual carrying out of all of the objects of the company."

Keely J's conclusion on page 543 of his reported reasons was that Ralkon was not an Aboriginal body as defined and not as such a person aggrieved. I agree with this conclusion and adopt his reasoning. The ground upon which he primarily was prepared to find that Ralkon was a person aggrieved was that Ralkon had a right or interest in the occupation of Bartlett's Farm which was adversely affected by the Community Council having the right to eject it and having in September 1981 sought to eject it. In attaching primary significance to Ralkon's occupation of the land his reasoning is consistent with my view that it had a determinable right to occupy for farming purposes.
The balance of the grounds upon which review is sought relate to the manner in which the A.D.C. made the decision. The first of these grounds was that a breach of the rules of natural justice occurred in the making of the decision. The particular matters complained of were that the A.D.C. failed to invite Ralkon to make submissions in respect of the proposal to lease the farm to the Community Council, that it failed properly to consider Ralkon's application for title, and that the A.D.C. or its officers were biased towards perceived groups at Point McLeay or against Ralkon. The second matter, namely the alleged inadequacy of its consideration of Ralkon's claim was not pursued as it was accepted that it did not come within the rules of natural justice. It was also agreed between the parties that there was no need to differentiate in respect of things said or done by the Minister at the time, the A.D.C., the A.L.F.C or any officers of these bodies as each thing said or done could be accepted as being said or done by or on behalf of the A.D.C.
In support of his contention that there had been a breach of the rules of natural justice, counsel for Ralkon contended that consequent upon the enactment of the Judicial Review Act his client was entitled to the benefit of these rules even if it was unable to establish a "legitimate expectation". In my opinion this submission is unacceptable and is contrary to many decisions of this Court given when exercising jurisdiction under that Act. I refer in particular to the Full Court decision in Cole and Ors v Cunningham (1983) 49 ALR 123. That was an application for review under the Act alleging breach of the rules of natural justice. Both the trial judge and the Full Court considered the question whether the applicant could establish a "legitimate expectation". Only if he could establish this expectation would the decision maker be bound by the rules in that matter. Decisions in Capello v Minister for Immigration & Ethnic Affairs (1978-80) 2 ALD 1014 and Piroglu v Minister for Immigration and Ethnic Affairs (1980-82) 4 ALD 323 are likewise to the effect that para. 5(1)(a) of the Act does not of itself import an obligation to observe the rules of natural justice. This obligation must be found at common law or in the A.D.C. Act. I reject the submission that the A.D.C. is required by that Act to observe in respect of Ralkon the rules of natural justice when considering the grant of a lease of Bartlett's Farm.
Ralkon in the alternative contended that the facts and circumstances of this matter gave rise on its part to a legitimate expectation. Cole v Cunningham supra is authority for the proposition that it is not necessary for the applicant to establish enforceable legal rights as the basis of the expectation. A legitimate expectation can be equated to a reasonable expectation. The submission of counsel for Ralkon was that his client had a reasonable expectation that it would receive a lease or at least that it would be invited to make submissions before a lease was granted to the Community Council. He placed much reliance upon the reasoning of the High Court in F.A.I. Insurances Ltd. v Winneke & Others (1982) 41 ALR l which concerned a refusal to renew a licence. I do not gain much assistance from that case and refer to and adopt as appropriate what was said in Cole v Cunningham supra at p.132, namely

"Even if one were to draw on the licence cases, the present case was to be likened to those involving the grant of a new licence where relief is seldom given and not to those involving the renewal of licences, which are in a different category."

In my opinion the facts and circumstances of this matter do not support Ralkon's claim that it had a reasonable expectation that it would be granted a lease. It doubtless hoped that its submissions based on commercial considerations would persuade the A.D.C. to grant it a lease or a freehold title but there was no justification for a reasonable expectation that this would happen. Ralkon could not point to any unequivocal intimation to it by the A.L.F.C. or the A.D.C. upon which to found this expectation and there were many contrary intimations indicating that the lease would go to the Community Council. This was the original intention of the A.L.F.C. and any subsequent apparent departure therefrom by it, the Minister for the time being or the A.D.C. was in the course of exploring ways and means of attempting to meet Ralkon's commercial aspirations.
I would add at this stage that I firmly reject the contention that the A.D.C. or its officers were activated in the relevant sense by bias. I emphasize the relevant sense because I see no ground which justifies criticism of their actions. The concept of bias is usually considered in the context of a quasi-judicial decision maker or adjudicator and not when a department of government or statutory body is implementing a policy which inevitably favours one course of action in preference to another. It was contended that the A.D.C. did not approach the matter with a mind open to persuasion. This could be relevant as a breach of the rules of natural justice if it had before it two competing claimants, each eligible to receive and each with a reasonable expectation of receiving a lease. This is not the position in this matter. It follows that I reject each of the l3 grounds upon which counsel contended I should find bias on the part of the A.D.C.
If contrary to my opinion Ralkon was entitled to the benefit of the rules of natural justice I would still have refused its application on this ground for a review. I am of the opinion that it was given innumerable opportunities to state its case to the A.D.C. and it did in fact do so most exhaustively. A perusal of the correspondence set out in the earlier part of these reasons leaves no doubt on this score. There was no element of unfairness in the manner in which Ralkon was treated by the A.D.C. and no evidence to support a contention that Ralkon was "ambushed" by the A.D.C. at the time when it made the decision. For the reasons I have given on the topic of Ralkon's legitimate expectation and its eligibility to be granted a lease, it can not be said that it had, in law or in fact, a competing claim to a lease.
The final ground upon which a review was sought was that the making of the decision was an improper exercise of the power conferred by the enactment, see para. 5(1)(e) of the Act. Ralkon in its pleadings relied upon 6 of the 9 matters which sub-s. 5(2) includes under papa.5(1)(e).
The first two complaints relate to an allegation that the A.D.C. took into account irrelevant considerations and failed to take into account relevant considerations. The evidence does not indicate whether the A.D.C. made its decision under s.27 or s.28 of the Aboriginal Development Commission Act. However neither section expressly imposes any restriction on the matters which the A.D.C. is obliged to take into account or to disregard except that a grant under s.28 must be for the purpose of s.24. This purpose is to enable Aboriginals to enter into business enterprises, namely pastoral activities.
In my opinion the applicant's contentions on these grounds must be rejected. It is not necessary for me to canvass in detail the 10 allegedly irrelevant matters which it was said the A.D.C. considered nor the same number of relevant matters which it was alleged the A.D.C. failed to consider. Many of these matters such as the ability of the Community Council to farm the land and the alleged existence of a pre-existing interest in Ralkon have already been considered and many lacked a sufficient foundation in fact. As Deane J. said in Sean Investments Pty. Ltd. v MacKellar (1981-1982) 38 ALR 363 at p.375 a party affected by a decision is not "entitled to make an exhaustive list of all the matters which a decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one was not specifically taken into account". Nor is it for the Court to prescribe what matters should not be taken into account except to the extent that the consideration of any such matters is inconsistent with the scope and purpose of the Act.
As the High Court said in The Queen v Australian Broadcasting Tribunal (1979) 144 CLR45 at p.50:

"The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute."

In this present matter the scope and purpose of the A.D.C. Act are made very clear. The purpose is as stated in s.3 supra and the functions of the A.D.C. are set out in s.8 supra and expanded by s.9. These provisions are expansively stated in general terms and give clear indication of the objectives which the A.D.C. is bound to pursue in the exercise of its specific powers. It is clearly a matter for the A.D.C. to determine what matters are relevant and what are irrelevant to the exercise of its discretion, provided it acts in accordance with statutory provisions.
In his final address counsel for Ralkon emphasized matters arising out of the expanded reasons. He challenged the approach to decision making of the A.D.C. primarily on the ground that it took into account as the crucial consideration its policy that the lease of the farm should be granted to the Community Council. It was said that in so doing it failed to take into account the fact that Ralkon was equally representative of the Point McLeay community and equally capable ensuring all members had access to the land. I reject this contention, not only because it is obvious that the A.D.C. was fully aware of the competing claims of Ralkon but also because the fact that it may or may not have attached sufficient weight to such claims is nothing to the point. So long as it kept in mind its functions and objectives under the A.D.C. Act, the selection of the appropriate recipient was a matter for the A.D.C.
Counsel also challenged the fact that the A.D.C. gave consideration to a preliminary report of the Commonwealth Ombudsman and also to changes in shareholdings in Ralkon which deprived the Community Council of control of that company. I am not prepared to find that these were irrelevant considerations.
It was also contended that the terms of the lease granted to the Community Council effectively terminated Ralkon's right to farm, which was a matter of crucial significance, and was a relevant consideration ignored by the A.D.C. This contention is based on clause 3(1)(a) of the lease granted to the Community Council. The clause provided that the A.D.C. as lessor would not consent to an underlease or parting with possession of the leased land to Ralkon nor permit Ralkon to occupy or farm the land

"Unless and Until

(a) all the issued shares in Ralkon are held by the lessee or by persons in trust for the lessee. A person shall be deemed not to hold shares in Ralkon upon trust for the lessee unless he has executed a written, unqualified and irrevocable declaration that he holds such shares upon trust for the lessee."

Notwithstanding my opinion that this matter is neither of crucial significance nor a relevant consideration in a decision to grant a lease to the Community Council, it is possible to demonstrate that by imposing these terms the A.D.C. was doing no more than reiterating its past policy, namely that Ralkon was occupying and farming for the benefit of and as the tool of the Community Council. If the shareholders of Ralkon and Ralkon itself are prepared to accept this state of affairs, the remedy is in their hands. If Ralkon and the Community Council wish Ralkon to continue to farm, the A.D.C. requires that it farm for the benefit of the Community Council and through it all members of the community and not only those who are shareholders. It can not be said that this is in the circumstances an irrelevant or unreasonable consideration or one which is taken otherwise than in accordance with its statutory objectives. The A.D.C. is expressly given power under both s.27 and s.28 to impose terms and conditions when making a grant of an interest.
Much the same may be said of other contentions concerning relevant or irrelevant considerations. In many instances the facts are insufficient to support the contentions, but even assuming the basic facts are present, I am not satisfied that in any matter the A.D.C. has transgressed by going beyond its charter.
There were additional subsidiary matters referred to in the expanded statement of reasons to which significance was attached by Ralkon on the ground either that there was a lack of sufficient evidence to support or that they were irrelevant.The first subsidiary matter to which the A.D.C. had regard was that it considered it desirable that an Aboriginal should be appointed to manage Ralkon. This consideration accords, in my opinion, with the objectives which the A.D.C. is bound to pursue, and it can not be said it was an irrelevant consideration. The extent to which weight should be given to such a consideration when deciding whether to grant the Community Council a lease is a matter exclusively for the A.D.C.
Ralkon then contended that the A.D.C. should not have considered a report dated 13 January 1981 from Mr. David Price arising out of an inspection of Bartlett's Farm. It was not contended that this was an irrelevant consideration, but that there was no evidence to support some of the findings in the report. However there was nothing in this report which was particularly critical of Ralkon and in the light of the fact that a subsequent and more critical report by Mr. Price's firm was accepted by the directors of Ralkon as substantially correct denies validity to the present complaint. Counsel for Ralkon contended that his client should have had the opportunity to put representations on this report to the A.D.C. The chairman of directors of Ralkon however acknowledged that the subsequent critical report contained nothing which had not already been brought by them to the notice of the A.D.C.
The final matter alleged to be irrelevant was that the A.D.C. took into account, in its words, the following:

"(3) That Mr. Ian Hillock was running the farming operations without regard to the views of the Council, that he was using his influence on certain members of the community to support him and that these activities were causing serious diversions, resulting in two factions. The Commission believed that it was likely that disharmony in the community would continue until Mr. Hillock was replaced as manager."

There is no doubt that there had been disharmony within the community for quite some considerable time, and the A.D.C. held the view, which received support from the evidence, that the presence of Mr. Hillock at least contributed to the disharmony. The A.D.C. was of the opinion that disharmony would continue until Mr. Hillock was replaced as manager, and it can not be said that this view was unreasonable or without foundation.
It is again not for me to determine the rights and wrongs of these problems at Point McLeay. Suffice to say that the A.D.C. held a view which on the evidence I find was not unreasonably held that in considering the position of Ralkon, it could take into account its opinion that relations between Ralkon as the farming company and the Community Council would improve if Mr. Hillock was not manager of the farming operations. Whether on balance this is the correct view and how much weight it was proper to attach is not for me to say. What I can say is that this was not an irrelevant matter for the A.D.C. to take into account and there was sufficient factual basis for its assertion.
As to relevant matters which were disregarded, counsel contended that s.24 of the A.D.C. Act had not been taken into account by the A.D.C. It was said that if it had done so, it would not have imposed conditions in the lease which almost certainly would result in Ralkon being ejected from the Farm and which imposed considerable financial constraints on its operations. It was also contended that the A.D.C. disregarded Ralkon's desire for self-management and self-sufficiency and the fact that it had spent money on the property. Without determining whether these matters were disregarded, though in the light of the detailed submissions made by Ralkon to the A.D.C., I would consider they had not been, in all the circumstances I can not find that they were relevant to the decision to grant to the Community Council a lease.

The final ground was that, in terms of para.5(2)(g) of the Act, the decision was unreasonable and thus an improper exercise of power. Twenty one particulars were given of this contention, and almost all relate to matters previously debated and determined by me. It was in the end said that the decision was based on bad faith and much criticism was made of the evidence of Mr. Tynan the acting general manager of the A.D.C. I reject this criticism as well as the allegation of bad faith as there is no foundation for either contention. Reliance was also placed on the conditions of the lease and the length of the term, but these factors do not support the contention. The submission that the decision was unreasonable has not been made out.
It follows that on all grounds I dismiss Ralkon's claim for a review. This decision is ultimately inevitable in my opinion notwithstanding the fact that counsel for Ralkon canvassed most thoroughly every possible contention that could be presented in its favour. There was much argument before me as to what remedy I could grant if I had upheld the application, primarily because the Community Council has an indefeasible title as registered lessee. I am not required to decide this issue but would state that in my opinion it would be possible to overcome this obstacle by exercising the powers under par.16(1)(d) of the Act to give directions, operating in personam, to the Community Council and the A.D.C. In my opinion Ralkon should pay the costs of the respondents, the same to be taxed if not agreed and I so order.

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Citations

Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission & Anor [1984] FCA 33 ((1984) 1 FCR 210)

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[1984] FCA 33

29 FEBRUARY 1984