Oak Valley (Maralinga) Inc v Aboriginal & Torres Strait Islander Commission
[1999] FCA 1751
•21 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Oak Valley (Maralinga) Inc v Aboriginal & Torres Strait Islander Commission [1999] FCA 1751
ADMINISTRATIVE LAW – alleged insufficiency of reasons – application pursuant to s 13 of the Administrative Decisions Judicial Review Act 1977 (Cth) – whether documents supplied pursuant to the Freedom of Information Act 1982 (Cth) and pursuant to discovery can satisfy a decision-maker’s obligations – effect of secrecy provisions in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13, 13A and 14
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 14, 22, 45A, 90, 92 and 94Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 considered
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 followed
Hatfield v Health Insurance Commission (1987) 77 ALR 103 cited
Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 cited
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 cited
Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498 cited
Soldatow v Australia Council (1991) 28 FCR 1 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
ARM Constructions Pty Ltdv Deputy Commissioner of Taxation (1986) 65 ALR 343 appliedOAK VALLEY (MARALINGA) INCORPORATED v ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION
SG 132 OF 1998
O’LOUGHLIN J
21 DECEMBER 1999
ADELAIDE (Heard in Darwin)
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 132 OF 1998
BETWEEN:
OAK VALLEY (MARALINGA) INCORPORATED
ApplicantAND:
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
RespondentJUDGE:
O’LOUGHLIN J
DATE OF ORDER:
21 DECEMBER 1999
WHERE MADE:
ADELAIDE (Heard in Darwin)
THE COURT ORDERS THAT:
1.The applicant bring in short minutes in terms consistent with these reasons within twenty-eight days of this date.
2.Leave be reserved to the parties to speak to the minutes.
3.The respondent pay the applicant’s taxed costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SG 132 OF 1998
BETWEEN:
OAK VALLEY (MARALINGA) INCORPORATED
ApplicantAND:
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
Respondent
JUDGE:
O’LOUGHLIN J
DATE:
21 DECEMBER 1999
PLACE:
ADELAIDE (Heard in Darwin)
REASONS FOR JUDGMENT
The community of Oak Valley is situated within the Maralinga lands in the far west of South Australia. It is the only community within those lands and it comprises about one hundred persons. Its communal affairs are controlled by the applicant, Oak Valley (Maralinga) Incorporated (“Oak Valley”). The applicant is an incorporated association which is empowered by its constitution (inter alia) to negotiate and act on behalf of the traditional owners of the Maralinga lands in relation to a variety of activities; its objects, as set out in par 3.4 of its constitution are:
“1.To preserve and propagate the traditional culture and language of the traditional owners living on the lands.
2.To assist Maralinga Tjarutja in the discharge of its rights and obligations under the Maralinga Tjarutja Land Rights Act.
3.To create and maintain a community of Aboriginal people who recognise that the value of the community interest is greater than the interests of one or few members. [sic]
4.To arrange for the provision of education, training, employment, housing, health, water, stores, vehicles and other services for members of the community.”
Oak Valley is in dispute with the respondent, the Aboriginal and Torres Straight Islander Commission (“ATSIC”) about the level of funding that was allocated by ATSIC’s Regional Council to it for the 1998-1999 financial year. Dissatisfied with the information that has been given to it, Oak Valley has instituted proceedings against ATSIC pursuant to the provisions of s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).
Section 13 of the ADJR Act, so far as it is material to these proceedings, provides as follows:
“13.(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
(2)Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.
…
(7)If the Court, upon application for an order under this sub-section made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.”
It was not disputed that Oak Valley is a party who is entitled to make an application under subs 13(1) of the ADJR Act. Nor is it disputed that ATSIC purported to comply with the request as required by subs 13(2). It is the sufficiency of ATSIC’s answer that has caused these proceedings to be instituted.
A consideration of the funding arrangements that apply to ATSIC and to a body such as Oak Valley can commence, conveniently, with section 14 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (“the ATSIC Act”). Pursuant to that provision, ATSIC may make a grant of money to a body corporate (“an Aboriginal Corporation”) for the purpose of furthering the social, economic and cultural development of Aboriginal persons or Torres Strait Islanders, subject to such terms and conditions as ATSIC determines. Oak Valley is an Aboriginal Corporation for the purposes of the ATSIC Act. The powers of Oak Valley, as provided for in par 4(j) of its constitution, include the power to receive and expend grants (whether in money or in kind) from State or Commonwealth Governments or instrumentalities or from other institutions, organisations and individuals. But, as a matter of fact, Oak Valley is funded substantially through annual grants by ATSIC.
Pursuant to s 45A of the ATSIC Act, ATSIC may, by writing under its seal, delegate to a Regional Council its powers under section 14 of the ATSIC Act. Those delegated powers include not only the power to determine whether or not to make a grant to an Aboriginal Corporation – but also the power to determine the amount of the grant and the terms and conditions upon which the grant is made.
The Wangka Wilurara Regional Council is ATSIC’s delegate for the area which includes the Maralinga lands and the Oak Valley community.
By virtue of s 92 of the ATSIC Act, a Regional council is a body corporate and pursuant to s 94 of that Act, its functions include the power:
“(a)To formulate, and revise from time to time, a regional plan for improving the economic, social and cultural status of Aboriginal and Torres Strait Islander residents of the region;
(b)To assist, advise and co-operate with the Commission, the TSRA, other Commonwealth bodies and State, Territory and local government bodies in the implementation of the regional plan;
(c)To make proposals, in accordance with section 97, for Commission expenditure in relation to the region;
(d)To represent Aboriginal and Torres Strait Islander residents of the region and to act as an advocate of their interests.”
The Wangka Wilurara Regional Council (“the Regional Council”) was, therefore, the body that received Oak Valley’s application for grants of funds and, using its delegated powers, it was the body that decided, in ATSIC’s name, to approve lesser sums than those sought by Oak Valley.
There are three areas of dispute. Oak Valley sought funding in respect of:
§ its Municipal Services;
§ an amount for Community Infrastructure (CI) capital expenditure; and
§ amounts for its Community Development Education Program’s (CDEP) operational costs and capital expenditure
Oak Valley was not allocated the amounts that it sought in respect of these three subject matters. It had, at the same time, also applied for other funds for other projects; presumably, it was granted the amounts that it sought or it was, at least, satisfied by the size of the grants that were made for those other projects. In any event, its present complaints are limited to the three subject matters that I have identified.
The details of the amounts sought, the amounts granted and the amounts granted to Oak Valley for the three areas of dispute in the preceding financial year were as follows:
1998-1999 1998-1999 1997-1998
Amount Amount Amount
Applied for Granted Granted
Municipal Services $210,560.00 $130,000.00 $170,317.00 C I capital expenditure $ 65,000.00 $ 5,500.00 $ 50,000.00 CDEP operational costs $181,950.00 $120,195 $116,687.00 CDEP capital expenditure $122,500 NIL $ 54,183.00
In early 1998 Oak Valley forwarded to the Regional Council its application for grants under s 14 of the ATSIC Act for the 1998/9 financial year. By letter dated 11 June 1998, the Regional Council advised Oak Valley that it had approved a grant under s 14 of the ATSIC Act in the sum of $130,000 for the activity of Municipal Services. By a separate letter, also dated 11 June 1998, the Regional Council advised Oak Valley that it had approved a grant under the same section of $5,500 for capital expenditure. Finally, by letter dated 15 June 1998, the Regional Council advised Oak Valley that it had approved a grant under s 14 of $120,195 for CDEP operational costs; no expenditure was approved for CDEP capital costs.
On 31 July 1998 Oak Valley requested ATSIC to provide a statement of reasons why the three grants for Oak Valley for 1998/99 had been significantly reduced. At first, ATSIC responded by letter dated 7 August 1998, advising Oak Valley that it could attend ATSIC’s Ceduna Regional Office and examine the relevant Regional Council minutes for the meeting at which grants for 1998/99 were considered. Then, on 19 August 1998, ATSIC provided a Statement of Reasons to Oak Valley (“the Statement of Reasons”). Finally, since the institution of these proceedings, ATSIC has also provided Oak Valley with documents as a consequence of requests made by or on behalf of Oak Valley pursuant to the Freedom of Information Act1982 (“the FOI Act”) and also by way of informal discovery.
The proceedings in this matter were commenced on 13 November 1998 when Oak Valley filed an application and supporting affidavit in the name of Archie Barton. Dr Barton is the Administrator of Maralinga Tjarutja; that body is the statutory land holding corporation of the Maralinga lands pursuant to s 4 of the Maralinga Tjarutja Land Rights Act 1984 (SA). Dr Barton is also the public officer of Oak Valley, a position that he has held since 22 July 1998. In its application, Oak Valley sought an order that ATSIC supply it with further and better particulars of the findings on material questions of fact, referring to the evidence or other material on which the findings were based and the reasons for the decisions of the Regional Council concerning the three disputed grants that were made to Oak Valley.
A first directions hearing was held on 15 December 1998. On that day each party was ordered to file and serve a statement of the facts, issues and contentions and a further order was made that the parties give and take informal discovery.
The parties each filed and served its statement of facts, issues and contentions and, at the next directions hearing on 11 March 1999, an order was made that ATSIC file and serve copies of the documents that it had relied on and that were referred to in nominated paragraphs of its statement. On the same date, the parties sought and obtained leave to file and serve amended statements of facts issues and contentions; those amended statements were, in due course, filed by each party and it will be to the contents of those statements to which reference will be made.
The documents, copies of which were filed and served pursuant to the order of the Court dated 11 March 1999 were as follows:
1.Documents supplied to Oak Valley pursuant to the provisions of the FOI Act
1.1Extracts from the Regional Council’s meetings (being pages 76 to 79 inclusive) that identified information that had been provided to the Regional Council with respect to compensatory funds that had been paid out as a result of the Royal Commission into British nuclear tests in Australia.
1.2A copy of a Deed of Trust, known as the “Maralinga Piling Trust.”
1.3Briefings provided to the Regional Council by its Ceduna office comprising
1.3.1Briefings on Municipal Services, Community Infrastructure capital and CDEP operational costs;
1.3.2A submission and recommendation for grants in respect of Municipal Services, Community Infrastructure capital and CDEP operational costs;
1.3.3Extracts from the relevant Regional Council meeting minutes highlighting verbal summaries that had been given by relevant project officers with respect to Oak Valley.
1.4Risk appraisals of Oak Valley by the Ceduna office Risk Assessment Team.
1.5A briefing paper presented in early 1997 to the Regional Council on the proposal for the establishment of a centralised accounting service. The paper said in part:
“…it has become evident that a centralised accounting service can be developed and operated across the region at a cost that is extremely competitive in comparison to the amount of funds currently being expended on accounting and related services.”
1.6A letter dated 18 January 1999 from ATSIC to Messrs Johnston Withers and Associates Pty Ltd, the solicitors for Oak Valley. This letter was written in reply to a request under the FOI Act. In noting that it was forwarding documents in response to that request, ATSIC wrote, inter alia, that:
“The level of funding provided reflected the Regional Council’s view of what it considered an appropriate allocation from available funds to each community to achieve the objectives of the activity that they were receiving funding for. As previous indicated, the information on which an assessment of each organisation’s need is made is not able to be provided by this office because of s 90 of the ATSIC Act.”
The provisions of s 90 of the ATSIC Act are discussed later in these reasons.
2.Documents supplied to Oak Valley by ATSIC as part of the discovery process.
2.1A letter dated 29 June 1998 from the Regional Council to Dr Barton. This letter sets out, inter alia, details of the total regional allocations for Municipal Services, Community Infrastructure capital and CDEP operational costs and capital expenditure. However, these figures are of little use as there are no details of the size of the area for which the Regional Council is responsible, the number of Aboriginal Corporations or communities within its area or the number of persons in those communities.
2.2A copy of Recommendation 10 of the Spicer Review. That review, compiled by Mr Ian Spicer in December 1997, is entitled “Independent Review of the Community Development Employment Projects (CDEP) Scheme”. The first of several matters that comprised that recommendation was the proposal that recurrent and capital funding be collapsed into a single CDEP operational costs allocation which would be allocated by Regional Councils.
3.Statement of Reasons
ATSIC’s statement, as required by subs 13(2) of the ADJR Act is dated 19 August 1998 and was signed by Mr Alan Dodd, the chairperson of the Regional Council. The statement was forwarded under cover of a letter, also dated 19 August, which was signed by Mr Allan Whitehouse, the acting Regional Manager of ATSIC’s Ceduna Regional Office.
The requirements of s 13 of the ADJR Act
The principles that govern the interpretation of s 13 are now well established; it is the application of those principles to the given facts of a particular case that often cause difficulties: see generally Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196 (a case dealing with the Administrative Appeals Tribunal Act 1975 (Cth) but raising the same issue); Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500; ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197; and Ansett Transport Industries (Operations) Ltd v Taylor (1987) 18 FCR 498. Citing those and other cases, Davies J explained in Soldatow v Australia Council (1991) 28 FCR 1 at 2:
“The reasons need not be lengthy unless the subject matter requires but they should be sufficient to enable it to be determined whether the decision was made for a proper purpose, whether the decision involved an error of law, whether the decision-maker acted only on relevant considerations and whether the decision-makers left any such consideration out of account.”
All that is necessary is that the findings of fact, the reference to the evidence or other material and the reasons for decision be adequate so that a reader, viewing the matter objectively, can gain a fair and reasonable understanding about how the Regional Council went about its task.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the High Court considered the proper role of a reviewing court in terms of the ADJR Act. Referring to the decision of the Full Court of the Federal Court (which was the subject of the appeal) Brennan CJ, Toohey, McHugh and Gummow JJ in their joint judgment said at 271:
“When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
Counsel for Oak Valley submitted that, as these remarks were directed to the role of a Court on a judicial review, they are distinguishable. Whilst it is true that the nature of the present proceedings is more akin to an application for information, I still consider that the remarks of the High Court are highly pertinent. After all, in both Wu’s case and this case, what is under investigation is the sufficiency or insufficiency of an administrator’s decision-making process. In neither case should the reasons be scrutinised in an over zealous fashion. In neither case should the Court be concerned merely with looseness in the language nor with unhappy phrasing.
Reasons under the ATSIC Act
In addition to the requirement in s 13 of the ADJR Act that a decision-maker is to give reasons for its decision, ATSIC is also governed by the special provisions of the ATSIC Act. Section 22 of that Act requires ATSIC, inter alia, to formulate principles about making grants and loans under s 14 and other sections; it also requires ATSIC to perform its functions and exercise its powers under those sections of its Act in accordance with “applicable provisions of the decision-making principles in force from time to time”: subs 13(2). Those principles (“the statement of principles”) have been promulgated and they include the following:
“2.3 Where a decision is made under section 14, 15, 16 or 17:
a.the decision maker must provide clear written reasons for the decision;
b.the reasons for a funding decision must be communicated to the applicant using appropriate and effective methods of communication in a reasonable time-frame;
c.the applicant must be informed that it will be provided on request with a copy of the part of the Board of Commissioners or Regional Council minutes which record the deliberation(s) concerning a funding decision affecting the applicant.
2.4Where the Commission has made a policy decision concerning the global allocation of funds available for grant, loan or guarantee under sections 14, 15 or 16 of the Act, it may nevertheless consider on its merits any application for a grant, loan or guarantee under these provisions which may fall outside the allocation, provided that the application is made in accordance with applicable procedural requirements.
…
2.5In making decisions under sections 14, 15 and 16 the Commission will:
a.apply Commission policy as set out in Program Statements and the Program Policy and Guidelines Statements;
b.follow the funding procedures relevant to the category of funding set out in the Commission’s Funding Procedures Manual, including Grant Procedures, Home Ownership Procedures, Business Funding Scheme Procedures and Guarantee Procedures,
as amended from time to time.”
In addition to relying on its rights under s 13 of the ADJR act, Oak Valley submits that it is entitled to test the reasons that have been given in respect of the decisions that are under review against ATSIC’s stated principles.
Findings on material questions of fact
In the statement of its reasons pursuant to s 13 of the ADJR Act, the Regional Council wrote that its findings on material questions of fact were as follows:
“3.1On 3rd and 4th March 1998 the Council made the following grants to the grantee:
§$120,195. This was for CDEP Operational Costs for the purpose of providing the necessary wages and operating costs to facilitate the operation of the CDEP scheme;
§$130,000. This was for Municipal Services for the purpose of increasing the number of Aboriginal and Torres Strait Islander people with access to adequate and appropriate essential municipal services; and
§$5,500. This was for Community Infrastructure Capital for the purpose of increasing the number of Aboriginal and Torres Strait Islander people with access to appropriate infrastructure.
3.2Each of the three grants referred to in paragraph 3.1 was reduced in comparison to the funding offered to the grantee for the same grants in the previous financial year.
3.3The reduction in funding to the grantee was consistent with the approach adopted by the Council which rationalised all funding across the region for the purpose of maximising the available funding.
3.4On 31 July, 1998 the Administrator of the grantee requested a statement of reasons for the Council’s decision to reduce funding to the organisation pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977.”
The complaint of the applicant is that these statements are not findings of fact that were made as part of the decision-making process; rather the statements in subpars 3.1 to 3.3 are the conclusions that were reached by the respondent as a consequence of the findings of fact that it made during the course of its deliberations and which findings it has failed to be identified. I agree that this complaint correctly identifies the contents of subpars 3.1 and 3.2. I do not accept the submission that was made on ATSIC’s behalf that these contents represent meaningful findings of facts. They are, indeed, mere conclusions. Subparagraph 3.3 is different. It appears to be an explanation for the conclusions that were reached. However, I am uncertain of the meaning that is to be given to the use of the word “rationalised” and to the phrase “maximising the available funding”. One possible interpretation is that the Regional Council is saying that all applicants for grants suffered reductions because the amount available for funding was insufficient to meet all demands. If that is the correct interpretation the Regional Council could have used plain English to say so. In terms of ATSIC’s statement of principles it could not be said that the contents of subpar 3.3 amount to an “appropriate and effective” method of communication. As to the contents of subpar 3.4, Oak Valley complains that this is not a finding of fact forming part of the decision-making process; it is, so it is submitted, a statement of fact which fact occurred subsequent to the conclusion of the decision-making process. That submission is plainly correct.
Evidence or other material
In purporting to identify the evidence or other material on which its findings were based, ATSIC listed the following information in its statement of reasons:
“4.1 a briefing provided to the Council by the Ceduna Regional Office;
4.2the Council’s Regional Plan and associated policies;
4.3the Risk Assessment Team comments;
4.4Commission priorities in accordance with ATSIC (the Commission) Corporate Plan;
4.5ATSIC (the Commission) Decision-Making Principles;
4.6The fact that funding was available to the grantee from other sources;
4.7The needs of all Aboriginal and Torres Straight Islander people of the region in order to ensure that the greatest benefit could be derived from the funds available to the Council;
4.8The geographic location of the community and its stage of development including the work being undertaken at the community through the ATSIC/ARMY Community Assistance Program; and
4.9The number of people residing permanently at the community.”
The applicant argues that in many of the references, the information is not to the evidence – it is only the identification of relevant sources which presumably contain the evidence. Whilst it may be sufficient to make a short reference to a specific document, such as ATSIC’s Decision-Making Principles (4.5) or the Council’s Regional Plan (4.2), it is not sufficient to refer to the briefing that was provided to the Council by the Ceduna Regional Office without identifying, with appropriate particularity, what part of the briefing was relevant to the decision-maker’s findings. Reference is made in par 4.6 to other funding without identifying it and par 4.7 refers to the needs of people in the region without stating those needs.
The Risk Assessment Team in making its investigations into Oak Valley’s application considered:
§ the impact on a community if an applicant (such as Oak Valley) fails to deliver the services in respect of which it seeks funding;
§ the monetary loss that may occur, based on the total proposed grant funding; and
§ the impact on the Government, the Minister and ATSIC if an applicant fails to deliver services.
In the case of Oak Valley, the Risk Assessment Team classified what it described as the “overall consequence rating” as “High” giving its comments in justification for that rating. Those comments might, in the eyes of some, appear to be of material importance, but it is not possible to assess whether they played any – and, if so, what – part in the deliberations of the Regional Council. On the one hand, the Risk Assessment Team’s comments are said to be part of the evidence or other material on which the findings were based, yet it is not known what, if any, importance was attached to this adverse assessment.
The reasons for the decision
The reasons for the decision to reduce the size of Oak Valley’s grants were set out in the statement of reasons. Four factors were identified; they were:
“· the funding allocated to the grantee in the 1998/99 financial year was deemed sufficient for the community to achieve the objectives for the activities in which they were receiving funding;
·the grantee has access to other funding sources to support the development of the community;
·funding to all organisations was being reduced for the purpose of obtaining sufficient funds to enable a centralised accounting service to be developed and implemented throughout the region in order to benefit all organisations; and
·under the process of funding rationalisation throughout the region, allocation of funds was based on the immediate needs of each organisation for the 1998/99 financial year. The level of funding provided to the grantee acknowledged these needs and reflected the Council’s view of what is considered to be an appropriate allocation for the community to achieve the objectives for the activities that they were receiving funding for.”
The first of the reasons seems to amount to a statement: “You have asked for too much: what we have decided to give you is sufficient for your purposes”. If that is the correct interpretation of the language that is used, it has earlier failed to identify the findings of fact that lead to that conclusion and it has also failed to identify the evidence or other material that justified any such findings. Furthermore, if what I have set out is the correct interpretation, it fails to explain how the decision-maker made allowance for the alleged access to other funds. Did the decision-maker take into account an amount (and if so, what amount) in calculating the funding allocation? The answer to this question is not apparent. The grantee is left to wonder whether the Regional Council first decided what was sufficient for Oak Valley’s needs and then reduced that figure further because of the alleged availability of other funds. If that should be the correct interpretation the first reason for the decision might have been expressed in terms such as:
“After taking into account the funding that is available to the grantee from other sources, the funding allocated to the grantee in the 1998/99 financial year was, when added to funding from other sources deemed sufficient for the community to achieve the objectives for the activities in which they were receiving funding. Particulars of that other funding are … .”
Even then, that reason would need the backing of appropriate findings of fact with references to the evidence or other material on which its findings were based.
The third factor, the reduction brought about by the proposal for a centralised accounting system, is the expression of a tangible factor that was said to be taken into consideration by the Regional Council in reducing the amount sought by Oak Valley. It suffers, however, by not identifying the extent of the reduction that was attributable to that cause. The fourth factor is, I find, difficult to understand. What does “funding rationalisation” mean? Does it mean that less money is available or that there are more applicants for money or that money will not be so freely distributed? I do not know. The “immediate needs” which are “acknowledged” by the level of funding are not identified. One possible interpretation of the language that has been used is that it is no more than a repeat of the first factor: “You have asked for too much: what we have decided to give you is sufficient for your purposes”. Because of these uncertainties, I find that the reasons that have been given for the decision are inadequate. They do not comply with the requirements of s 13 of the ADJR Act or the requirements that are laid down in the statement of principles.
The Regional Council’s Minutes
Extracts from the minutes of the relevant Regional Council meeting – the meeting of 2-6 March 1998 – were tendered in evidence. These minutes purport to record the Council’s reasons for making the relevant grants. As will become apparent, they are not compatible with the s 13 reasons. The reasons that were stated in the minutes for allocating only $130,000 to Oak Valley for Municipal services were as follows:
“Reasons for not providing full amount of funds applied for (if applicable)
§Introduction of Centralised Accounting Service
§Rationalisation of 1998/99 funding allocations
§Sufficient funds to operate the program.”
There is no reference to funds being available from other sources even though that is expressed to be one of the reasons in the s 13 statement of reasons.
The reason that was disclosed in the minutes for not providing the full amount of the funds that Oak Valley applied for in respect of Community Infrastructure capital was said to be:
“Priority needs were assessed and funding allocated accordingly.”
This reason makes no reference to the sufficiency of the grant, to funds being available from other sources or to the centralised accounting services – the first three of the reasons that are to be found in the s 13 reasons. I am unable to say whether “priority needs” equates to “the process of funding rationalisation”, the fourth of the s 13 reasons.
Finally, the reasons in the minutes for denying the full amount that was claimed for the CDEP operational costs and capital were stated to be as follows:
“Reasons for not providing full amount of funds applied for:
§Introduction of Centralised Accounting Service;
§Rationalisation of 1998/99 Funding Allocation;
§Sufficient funds to operate the program;
§Awaiting review outcomes.”
These reasons include a reference to the centralised accounting service and the alleged sufficiency of funds; the reference to “Rationalization” may equate to the fourth of the s 13 reasons. There is, however, no reference to funds being available from other sources. On the other hand, the reason that is disclosed in the minutes: “Awaiting review outcome” does not appear in the s 13 reasons.
No explanation has been offered for these inconsistencies.
Funding from other sources
In its application for a grant, Oak Valley responded to a question:
“Details of any other funding anticipated to assist in the delivery of this service”
by inserting the following enigmatic statement:
“DHHS, DOSAA, FACS, IBIP etc”.”
I was told from the Bar table, and I understand that it is accepted by both parties, that this entry is intended to explain that Oak Valley was expecting to obtain some form of unspecified funding from one or more or all of the Commonwealth Department of Health and Human Services, the South Australian Department of State Aboriginal Affairs, the South Australian Department of Family and Community Services and the Commonwealth Indigenous Business Incentive Program. I do not know whether Oak Valley received any sums from any of those bodies.
In disclosing its expectations about other sources of fundings, Oak Valley made no reference to the Maralinga (Piling) Trust. A copy of this trust was tendered by counsel for ATSIC during the course of the hearing and, so it would seem, an amount in excess of $11m has been placed in a trust fund in the nature of a compensatory sum for the devastation that was caused to the Maralinga lands as a result of atom bomb testing in the 1950’s. I was told, once again from the Bar table, that some of the members of the Oak Valley community are beneficiaries of that trust. No other information is before the Court. In particular there is nothing in the papers to suggest to what extent, if at all, the existence of this trust fund played any part in the deliberations of the Regional Council. Indeed there is a passage in the minutes of the relevant Council meeting to the effect that the Chairperson stated “that the compensation money can not be taken into consideration when allocating WWRC funds to Maralinga/Oak Valley”. Whilst the tender of the Deed of Trust on behalf of ATSIC was intended, in some unexplained way, to assist in validating the conduct of the decision-maker, its value is confused by this passage in the minutes.
If the information that I have summarised was the only information that was before the Regional Council, it is apparent that there was inadequate information to justify a finding that Oak Valley had access to other funding sources. Having “access” to funds is not, of course, of any value unless that access translates into a receipt of funds. In fairness to the Regional Council perhaps its use of the word “access” meant that Oak Valley would be a recipient of funds from other sources. Should that be the case, it would be incumbent on the Regional Council to identify all sources and the amounts on the receipts that it took into consideration in reaching its decision.
The FOI Act and Discovery
It is common ground that Oak Valley has acquired a wealth of information based, in part, on its request for information under the FOI Act and, in part, as a result of the giving of discovery by ATSIC. As a consequence of the supply of this material (“the material”), ATSIC submits that it has given to Oak Valley everything that Oak Valley is entitled to receive under s 13 of the ADJR Act. Within the material there is, according to the submissions that were advanced on behalf of ATSIC:
§ the findings on material questions of fact;
§ the evidence or other material on which those findings were based; and
§ the reasons for each of the three decisions.
The applicant challenges that proposition as a matter of law and as a matter of fact. In doing so, it relies on observations that were made in a joint judgment of the Full Court (comprising Bowen CJ, Lockhart and Shepherd JJ) in Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 265. After identifying the purpose of a s 13 statement, the Full Court then said:
“Discovery and inspection are essentially different.”
The Full Court identified the purpose of s 13 in these terms:
“The purpose of s 13 statements is, however to ensure that a person who is entitled to apply to the court under s 5 for an order of review may be furnished with a statement of the findings and reasons for the decision so that he may be in a position to consider his challenge or perhaps prospective challenge to the decision. The section provides machinery to inform citizens of matters fundamental to decisions of an administrative character which affect them so that they may be better informed and therefore better equipped to determine their future course of action.”(at 265)
In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73, Gummow J explained the force of s 13 this way:
“Section 13 of the ADJR Act is a remedial provision in that the duty for which it provides stands in high contrast to the apparently very limited obligations at common law of a decision maker to furnish reasons: Public Service Board of NSW v Osmond (1986) 63 ALR 559; 60 ALRJ 209 at 215 and 217. Brennan J recently observed (Miller v TCN Channel Nine Pty Ltd (1986) 67 ALR 321 at 361) that the ADJR Act removes what would otherwise have been procedural obstacles to discovery of the grounds on which discretions have been exercised. The policy which s 13 implements is (as Lockhart J explained in Dalton v DCT (NSW) (1985) 60 ALR 783; 7 FCR 382 at 391-2, to provide any citizen having sufficient interest in the matter with material to assist him in determining whether there is any error in the process of reasoning of the decision maker and, accordingly, to chart his future course of action, by, for example, seeking an order for review under the provisions of the ADJR Act. Section 13 is not to be construed grudgingly or with a penchant for technicality.” (at 79)
Woodward J gave practical value to s 13 when he said that it requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say in effect:
“Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”
(Ansett Transport Industries (Operations) Pty Ltd v Wraith (see above) at 507.
Davies J expressed the requirement of s 13 in more formal terms when he said:
“It is necessary that the statement be sufficiently explicit to enable the recipient to determine whether “the making of the decision was an improper exercise of the power conferred by the enactment”, “the decision involved an error law”, the decision-maker took into account an irrelevant consideration or failed to take into account a relevant consideration and like matters referred to in ss 5 and 6 of the Act.”
(Hatfield v Health Insurance Commission (1987) 77 ALR 103 at 105-106)
As the Full Court explained in Federal Commissioner of Taxation v Nestle Australia Ltd discovery and inspection are processes of the courts by which a party may obtain from the opposite party documents relating to issues between them for the purpose of preparing for the trial of the action. The purpose of a s 13 statement is entirely different. It gives a party who feels aggrieved by a decision an opportunity to assess whether he or she might be entitled to mount a challenge against the decision. If a challenge is made, discovery and inspection, if appropriate, may then follow. But to rely on the often weighty and time consuming exercise of discovery and inspection is to defeat the primary purpose of s 13. It exists to enable the aggrieved party to make an expeditious review of the basic conduct of the decision-maker. For example, has some relevant material been overlooked or has the decision-maker had regard to some irrelevant material? I am satisfied that the submission on behalf of ATSIC must be rejected. The supply of information under the FOI Act or as part of the discovery process is not a substitute for that which is required by s 13 of the ADJR Act.
There is, in my opinion, one qualification that can be made to these remarks. It might be, in a particular case, that the extent of the discovery is relatively minimal, so that inspection throws up in sharp relief the nature of findings that were made, the evidence that was relied on and the reasons for the decision. Although this would, in the opinion that I have reached, still constitute a failure to comply with the provisions of s 13, the Court might not feel that it is obligated to make any orders against the decision-maker. Under subs 13(7) there is a discretionary power reserved to the Court. It may – but it does not have to – order the decision-maker to furnish the requisite material. There might be a situation where the discovery and inspection process would clearly, concisely, and easily disclose all that is required under s 13. In such a circumstance it might be open to the Court not to make an order under subs 13(7). That, however, is not the case here. The documents that were supplied number in excess of a hundred pages. It would defeat the purpose of s 13 if an aggrieved party was required to wade through such a large volume of paper in the hope that the information to which he or she is entitled might be found.
Counsel for the applicant also complained that the s 13 reasons did not address each of the three decisions separately. I do not think that it is necessary to examine this argument in view of the fact that, for other reasons, I am satisfied that there has been a failure to comply with the provisions of s 13. However, I would not want it thought that I am of the view that there should have been three separate exercises – one for each decision. The answer to this particular argument will vary from case to case, depending on the relevant facts and the reasons for the decision. It might be, in a particular case, that a uniform reasoning process brought about all three decisions. It is not possible to express a view in this particular case because of the inadequate information in the s 13 reasons.
The deficiencies in this case bear a striking resemblance to those in ARM Constructions Pty Ltdv Deputy Commissioner of Taxation (1986) 65 ALR 343. In that case, Burchett J said at 204:
“In the present case, the statement of reasons has been unnecessarily obfuscated by a restatement of the decisions themselves under the heading which purports to refer to the findings on material questions of fact. The findings on questions of fact are only found incorporated in the reasons for the decision. There is no reference at all to the evidence or other material on which any finding was based, but only a purported list of all the documents which were before the decision-maker.”
Section 90 of the ATSIC Act
This section, which appears under the heading “Secrecy”, applies to numerous persons including a Regional Councillor; it was not suggested therefore that the secrecy provisions did not apply to the deliberations of a Regional Council. Subsection 90(2) provides that:
“(2)Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act, or of a prosecution for an offence against this Act:
(a)make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first-mentioned person in the performance of duties in connection with an application for, or the giving of, a loan, grant or guarantee under this Act; or
(b)produce to any person a document relating to the affairs of another person furnished in connection with an application for, or the giving of, a loan, grant or guarantee under this Act.”
For the purposes of these reasons, that prohibition can be summarised by saying that with limited exceptions, the Regional Council cannot divulge to Oak Valley any information concerning the affairs of another applicant for a grant where that information was acquired by the Regional Council in connection with an application for the giving of a grant to another applicant. One exception to that general prohibition that is of significance is to be found in s 99 of the ATSIC Act. That is the section that requires Regional Councils to make annual reports; subs 99(1A) specifically requires such an annual report to disclose the names of all bodies that received grants through the Regional Council; it also requires the Regional Council to disclose the amount and the purpose of each grant. However, it does not authorise disclosure of the amount or amounts that were sought by the applicants. Thus Oak Valley is able to find out how much each competing applicant may have received but, subject to a consideration of its counsel’s further submissions, it is not entitled to know whether the amounts obtained were the amounts that were sought or some reduced amounts.
Counsel for the applicant argued that the obligations that are contained in s 22 of the ATSIC Act, in combination with the content of the statement of principles that have been made pursuant to that section, are to be taken into account when considering the secrecy provisions that are found in s 90. He pointed to the presence of the words in subs 90(2) “except for the purposes of this Act” as having an important application in this case. The argument that was advanced was centred upon the premise that par 2.3 of the statement of principles required the decision-maker to provide clear written reasons for the decision. Thus to give reasons as required by subs 13(7) of the ADJR Act, was to do no more than comply with the provisions of the ATSIC Act. If, therefore, the giving of such reasons reasonably required the decision-maker to disclose to the requisitioning party information about the affairs of another applicant for funds, the argument concluded with the proposition that such a disclosure would be permissible because it would be made “for the purposes of [the ATSIC] Act.”
The purpose of s 13 is to enable persons whose property or whose interests are affected by an administrative decision to be fully informed of the basis on which the decision was made and the reasons for it: Ansett Transport Industries (Operations) Ltd v Taylor (above) at 502 per Lockhart J. However, as his Honour later pointed out in his reasons at 504, the provisions of par 13A(1)(b) of the ADJR Act and the constraints that are contained within that section relieve the decision-maker from including in the statement of reasons certain information. The information that is not to be disclosed is information:
“(i) that was supplied in confidence;
(ii)the publication of which would reveal a trade secret;
(iii)that was furnished in compliance with a duty imposed by an enactment; or
(iv)the furnishing of which in accordance with the request would be in contravention of an enactment, being an enactment that expressly imposes on the person to whom the request is made a duty not to divulge or communicate to any person, or to any person other than a person included in a prescribed class of persons, or except in prescribed circumstances, information of that kind.”
In my opinion, the decision-maker in the present case had to consider the constraints that are contained in s 90 of the ATSIC Act in much the same manner as the decision-maker in Ansett v Taylor had to consider the constraints in s 13A of the ADJR Act. To furnish information about the affairs of a competing applicant for funds would, in terms of subpar 13A(1)(b)(iv) of the ADJR Act amount to a contravention of s 90 of the ATSIC Act. I do not see s 22 of the ATSIC Act as a provision that qualifies the effect of s 90; in my opinion the two provisions are intended to work in harmony: s 22 requires the supply of full and detailed reasons but s 90 prohibits the supply of certain information about the affairs of third parties. To that extent the general and broad propositions that are found in s 22 are qualified.
Conclusion
In my opinion, ATSIC’s Regional Council failed to satisfy the requirements of s 13 of the ADJR Act. Its response did not set out the findings on material questions of fact; its references to the evidence or other material on which those findings were based were inadequate; and the reasons for the three decisions were inadequately stated. Far from empowering Oak Valley to make decisions about the future conduct of this matter, the applicant was left in a state of flux by an inadequate response to a legitimate request.
In dealing with the issue of findings on material questions of fact, I direct ATSIC to inform Oak Valley of the findings that were made in respect of each material fact that the Regional Council took into account in making each of the three decisions. In relation to the assertion in the statement of reasons that:
“funding was available to the grantee from other sources”
I further direct ATSIC to state whether such an assertion was taken into account at the time when the decision-making process took place, and if so; the particulars of:
(i)what funding was given to the grantee?
(ii)from what source?
(iii)in what amount?
(iv)for what purpose?
In referring to the evidence or other material on which the findings on material questions of facts were based, ATSIC is to identify with full and detailed particularity the following matters:
§ the material details of the briefing provided at the meeting of the Regional Council by the Ceduna Regional Office;
§ the material details of the Risk Assessment Team’s comments;
§ the Commission’s priorities;
§ the information that was given to the Regional Council in respect of the availability of money to Oak Valley from other sources, the date upon which such information was given and whether such information was oral or in writing;
Finally, in giving its reasons for its decisions, the respondent must identify the basis upon which the funding that was allocated to Oak Valley was deemed sufficient for the purposes of achieving the objectives of each grant; it must also specify the means by which each of the three figures was ascertained.
There will be an order that the applicant bring in short minutes in terms consistent with these reasons. There will be liberty to both parties to speak to the minutes. The respondent is to pay the applicant’s taxed costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate:
Dated:
Counsel for the Applicant: Mr A Collett Solicitor for the Applicant: Messrs Johnston Withers Counsel for the Respondent: Mr P Walsh Solicitor for the Respondent: The Australian Government Solicitor Date of Hearing: 22 October and 4 November 1999 Date of Judgment: 21 December 1999
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