Robinson, Robert Raymond Lloyd v South East Queensland Indigenous Regional Council of the Aboriginal

[1996] FCA 867

CATCHWORDS

STANDING - judicial review - standing of individual Commissioner of ATSIC, with special responsibility for law and justice issues, to seek judicial review of a decision of the respondent, a delegate of ATSIC, to provide ATSIC funds to an Aboriginal legal service - whether applicant “a person aggrieved” within s 5(1) the Administrative Decisions (Judicial Review) Act 1977 (Cth) - relevance of absence of any authority conferred on applicant by Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) or ATSIC to challenge the respondent’s decision in his own name.

STANDING - whether an individual’s office as an elected representative to the controlling organisation of a body is sufficient to confer standing to sue with respect to the body’s activities - necessity for an elected representative to show that a special interest of his own has been affected by a decision or activity of the elected body - the representative’s membership of such a body by itself is insufficient to confer standing on him to challenge the actions of the body (or its delegate).

STANDING - individual member of an elected body bringing judicial proceedings in own name - whether rule in Foss v Harbottle applies to deny individual member standing - necessity to consider public nature of the wrong complained of and the fact that it would not be open to members of the body to lawfully make or authorise a decision flawed for non-compliance with statutory requirements.

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)­ - s 6, 27, 44
Aboriginal Councils and Associations Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 5(1)

Cases Considered

Aboriginal Legal Service Ltd v Senator John Herron, Minister for Aboriginal Affairs (Full Court of the Federal Court, unreported, 18 September 1996)
Ariansen v Bromfield [1957] SR (NSW) 24
Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493
Australian Institute of Marine & Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73
Coe v Gordon [1983] 1 NSWLR 419

Cormack v Cope (1974) 131 CLR 432
Davis v The Commonwealth (1986) 68 ALR 18
Doyle v Chief of General Staff (1982) 42 ALR 283
Durayappah v W J Fernando [1967] 2 AC 337
Foss v Harbottle (1843) 2 Hare 461; 67 ER 189
Lopez v City of Brighton [1982] VR 369 (decided in 1977)
Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476
McDonald v Thorley [1976] Qd R 208
Ogle v Strickland (1987) 13 FCR 306
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] 1 Ch 204
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552
Sutton v Warringah Shire Council (1985) 4 NSWLR 124
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64
United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79

ROBERT RAYMOND LLOYD ROBINSON v SOUTH EAST QUEENSLAND INDIGENOUS REGIONAL COUNCIL OF THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
QG 97 OF 1996

DRUMMOND J
MELBOURNE (HEARD IN BRISBANE)
2 OCTOBER 1996

IN THE FEDERAL COURT OF AUSTRALIA                 No QG 97 of 1996
QUEENSLAND DISTRICT REGISTRY  
GENERAL DIVISION  

BETWEEN:ROBERT RAYMOND LLOYD ROBINSON

Applicant

AND:SOUTH EAST QUEENSLAND INDIGENOUS REGIONAL COUNCIL OF THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:  Drummond J
DATE OF ORDER:  2 October 1996
WHERE MADE:  Melbourne (Heard in Brisbane)

THE COURT DECLARES THAT:

1. The applicant is not “a person aggrieved” within s 5(1) the Administrative Decisions (Judicial Review) Act 1977 (Cth).

THE COURT ORDERS THAT:

2.  Both parties have liberty to apply.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 No QG 97 of 1996
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:ROBERT RAYMOND LLOYD ROBINSON

Applicant

AND:SOUTH EAST QUEENSLAND INDIGENOUS REGIONAL COUNCIL OF THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

Respondent

CORAM:Drummond J

DATE:2 October 1996

PLACE:Melbourne (Heard in Brisbane)

REASONS FOR JUDGMENT

The respondent challenges the competency of the applicant’s application for an order to review the respondent’s decision No 412 made on 22 July 1996 to provide recurrent funding to the Aboriginal and Torres Strait Islander Corporation (QEA) for Legal Services (the Brisbane Aboriginal Legal Service) for the three month period 1 July 1996 to 30 September 1996. This challenge was based on the simple proposition that the applicant was not “a person aggrieved” within s 5(1) the Administrative Decisions (Judicial Review) Act 1977 (Cth) in that he was not a person “likely to gain some advantage [from the overturning of the decision] other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of
grievance or a debt for costs, if his action fails”:  Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493, per Gibbs J at 530.

However, the resolution of the respondent’s challenge to the applicant’s standing is not, I think, as simple an exercise as this formulation by the respondent of the basis for its challenge suggests.  Moreover, as argument proceeded, it became apparent that counsel were ranging over a spectrum of material which would have had to be revisited if the challenge failed and the Court had to consider whether to grant the discretionary relief sought, a consideration which suggests that it may have been more appropriate to deal with the challenge to the applicant’s standing to bring the proceedings at the hearing of the application, rather than as a preliminary issue.  Cf Doyle v Chief of General Staff (1982) 42 ALR 283 at 287-288.

The applicant’s grounds for contending that he is “a person aggrieved” by the decision, as set out in his amended application, are as follows:

"1.The Applicant is a Commissioner of the Aboriginal and Torres Strait Islander Commission holding such office by virtue of election of appointment under the Aboriginal and Torres Strait Islander Act 1989 (Cth).

2.The Applicant holds responsibility for the approval and administration of funding allocated to the Aboriginal and Torres Strait Islander Commission from Consolidated Revenue so far as such finding is applied or is intended to be applied towards the provision of grants applicable to the provision of Legal representation and advice services for Aboriginal and Torres Strait Islander persons across Australia.

3.The Applicant is aware that the said Aboriginal and Torres Strait
Islander Corporation (QEA) for Legal Services has failed on more than one occasion to comply or to comply adequately with the terms and conditions laid down or approved by the Aboriginal and Torres Strait Islander Commission for grants relevant for such corporation to provide Legal representation and advice services to Aboriginal and Torres Strait Islander persons in the region under the jurisdiction of the Respondent.

4.The Applicant is aware that independent audits of the said Aboriginal Corporation reveal that the prospects of the said Aboriginal Corporation continuing to breach or of committing further breaches of the terms and conditions of grants of funding from the Aboriginal and Torres Strait Islander Commission are substantial or significant.

5.The Applicant is aware that sums of money allocated to the said Aboriginal Corporation from the Respondent previously and from the Aboriginal and Torres Strait Islander Commission remain unable to be accounted for or to be properly accounted for by the said corporation.

6.Notwithstanding the contrary recommendation of the Regional Manager of the Aboriginal and Torres Strait Islander Commission for the region under the jurisdiction of the Respondent, the Respondent has made a decision or has engaged in conduct for the purpose of making a decision to allow or implement the release of further or additional or other funding from the Aboriginal and Torres Strait Islander Commission to the said Aboriginal Corporation.

7.That a recommendation by a special auditor or auditor or consultant engaged to advise the Aboriginal and Torres Strait Islander Commission upon which the Respondent has or may purport to rely is not a valid or proper or reasonable recommendation in all the circumstances.

8.That the Respondent has failed to provide a Statement of Reasons to the Applicant for its actions, conduct or decisions and the Applicant is aggrieved by such failure in accordance with the Applicant’s request for same by letter in writing sent to the Respondent by facsimile transmission."

It is necessary, in order to deal with the challenge to the applicant’s standing, to say something about the structure and functions of the Aboriginal and
Torres Strait Islander Commission (ATSIC) and the places of the respondent and the applicant in that structure.

ATSIC is established as a body corporate by s 6 the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). Although a body corporate, it “consists of” 17 members appointed by the Minister, all of whom must be zone representatives elected pursuant to Division 7 of Part 3 of the Act: s 27. ATSIC acts by a majority of its constituent Commissioners (or of a statutory quorum of those Commissioners): s 44. Its functions are those set out in s 7, which include the formulation and implementation of programs for Aboriginal persons. The preamble to the Act identifies one of its objects as being to give effect to the desire of the people of Australia that policies be developed by the Australian Government that will overcome disadvantages of Aboriginal persons to facilitate the enjoyment of their culture; the preamble asserts that it is appropriate to further this objective in a manner consistent with the aims of self-management and self-sufficiency for Aboriginal persons; the preamble records that it is also appropriate to establish structures to represent Aboriginal persons to ensure their maximum participation in the formulation and implementation of programs and to provide them with an effective voice within the Australian Government. Section 3 identifies the objects of the Act in similar terms. To these ends ATSIC is given a large measure of autonomy. For example, it is not subject, in its day-to-day activities, to ministerial direction, although, by s 12, it is required to perform its functions and exercise its powers in accordance with general directions that may be given to it by the Minister in writing and, by s 74, it is required to comply with written directions of the Minister
concerning the administration of its finances. ATSIC is funded from consolidated revenue: s 57. These funds must be applied for the purposes set out in s 66, which include the making of payments which ATSIC is authorised or required to make under the Act or any other law. Such payments include allocations ATSIC makes from its own budget allocation to the Regional Councils: see s 63(4).

ATSIC is empowered to make grants of moneys to individuals, corporations and unincorporated bodies for the purpose of furthering the social, economic or cultural development of Aboriginal persons:  s 14.  While s 14 prohibits ATSIC from making a grant to a Regional Council, it is empowered, by s 45A, to delegate to such a Council its grants power under s 14.  ATSIC has unfettered power to revoke such a delegation, as well as power to suspend temporarily such a delegation, if the delegate contravenes any direction given to it by ATSIC and relating to the delegation:  s 45A(3) and (5).  ATSIC is required by s 22 to formulate written principles with respect to the making of such grants and, subject only to its duty to comply with written directions from the Minister given pursuant to s 74, it must exercise its power to make grants under s 14 in accordance with these written principles.  ATSIC also has ongoing responsibility to oversee the administration by a grantee of grants funds:  in this activity, it has the assistance of the Office of Evaluation and Audit established within ATSIC pursuant to s 75.  The Office’s functions include the evaluation or audit, on request by ATSIC or by the Minister, of the activities of any grantee that relate to the grant (s 76(1)(e)-(g)); the obligation to report on such evaluations and audits to ATSIC and to the Minister at least every three months (s 76(1)(n)) and to tell the Minister and ATSIC about particular
problems that have arisen or which may arise in relation to the activities of a grantee (s 76(1)(o)).  ATSIC is empowered by s 20 to give notice to a grantee that the Commission is satisfied that the grantee has failed to fulfil a term or condition of the grant, the issue of which notice imposes an obligation on the grantee to pay to the Commission an amount equal to the amount of the grant or such lesser amount specified by ATSIC in the notice.

The respondent is a Regional Council established as a body corporate under s 92 the ATSIC Act for one of the 36 regions into which Australia is divided, for the purposes of that Act, pursuant to s 91.  Each Regional Council “consists of” the prescribed number of members elected by the Aboriginals and Torres Strait Islanders on the Commonwealth Electoral Roll and resident in a ward of that Region, in accordance with Division 4 of Part 3 of the Act:  s 115.  A Regional Council acts by majority vote of the members present, provided there is at least the statutory quorum:  s 128(5), (8).  Each Regional Council is funded by ATSIC on the basis of the annual budget it lodges with ATSIC pursuant to s 97.

For the purposes of the Act, the 36 regions are grouped into 17 zones, including the Torres Strait zone: s 130. The members of the Regional Councils of the regions included in each zone elect one of their number to represent that zone: s 131. It is these 17 zone representatives that the Minister is required, by s 27, to appoint as the members who comprise ATSIC. Members of ATSIC and Regional Councils must all be Aboriginal persons or Torres Strait Islanders: ss 31, 101 and 102. ATSIC is essentially the peak body consisting of representatives of the
Aboriginal and Torres Strait Islander peoples of Australia elected by those peoples; it has political, administrative and advisory functions and is charged with advancing the welfare of those peoples.

The respondent Council is in the Queensland (Metropolitan) Zone, which is centred in the Brisbane Metropolitan area.  The applicant is not a member of the respondent.  The applicant is a member of the Goolburri Regional Council, which is in the Queensland South Zone.  The applicant is also a member of ATSIC and was elected by his fellow Commissioners, pursuant to s 32, as its Deputy Chairperson.  The zone representative for the Queensland (Metropolitan) Zone, Ms Tomasina Mam, is also a member of ATSIC.

The applicant has no personal authority under the ATSIC Act to make decisions with respect to grants of ATSIC funds or to call to account those involved in the disbursement or use of ATSIC grants funds.  It is ATSIC, acting by a majority of its constituent Commissioners, that has that authority.  By s 45, the Commission is empowered to delegate many of its functions and powers to the Chief Executive Officer or to a member of its staff; but there is no power to delegate any of its functions or powers to an individual Commissioner.

ATSIC has, however, conferred on the applicant special responsibilities.  By decision No 1160 made in early 1994 and expressed to have been made pursuant to s 10 of the Act, ATSIC established a number of “Commission Portfolio Policy Committees”.  These Committees are established
either under s 13 or s 10 of the Act.  Neither they nor any of their members have any delegated authority to act for ATSIC:  their main function is to provide advice to ATSIC on the matters within their various areas of responsibility.  The submission that was accepted by ATSIC in establishing these committees stated that they were “intended to ensure that Commission decision-making is facilitated by the involvement of Commissioners” through these committees.  One was the Social and Cultural Portfolio Policy Committee.  The applicant is the chairman of that Committee and the committee member with specific responsibility for “law and justice”, which include issues relating to the provision, by means of ATSIC funding, of legal services to Aboriginals and Torres Strait Islanders.  By the decision establishing these Portfolio Policy Committees, ATSIC also approved the roles each was to play, as set out in the submission the subject of ATSIC’s decision.  The submission contains the following:

"Under the ATSIC Act, the decision making body is the Commission as a whole.

The Act does not provide for the delegation of decision making to the Chairperson, or to members of the Commission individually or in committees.

This reflects the concept of collective responsibility for the Commission.

Portfolio Policy Committees will however enhance the operations of the Commission in its decision making role.

Such Committees will ensure that submissions to the Commission have been through a preliminary process of consideration.  Members of the Committees will be able to identify issues and options and contribute to the substance of submissions.

They will be able to lead discussion and participate in a more informed way at meetings of the Commission where decisions will be made.

Members of Committees with specific portfolio responsibilities will become the spokespersons for the Commission on Commission policy in these areas, in consultation with the Chairperson.  In this way there will be a sharing of responsibility by members of the Commission."

The submission, in dealing with the concept of Commission Portfolio Policy Committees, also contains the following:

"¼

c)spokespersons within each Portfolio Committee assume responsibility for specific areas, where appropriate, parallelling sub-program elements;

¼

Under these arrangements subject spokespersons would be responsible for bringing forward to the Commission at each meeting submissions in relation to their area of responsibility."

A further decision No 1197 of ATSIC made in April 1994 pursuant to s 13 decided that certain arrangements were to apply in relation to Commission Portfolio Committees.  In the submission paper on which this decision was made, the purpose/role of Commission Portfolio Committees was described in this way:

"In accordance with the ATSIC Act, the decision making body within ATSIC is the Board of Commissioners as a whole.  The Act does not provide for the delegation of decision making powers to the Chairperson, or to members of the Commission individually or in Committees.  CPC’s, therefore, have an advisory role, not a decision making role.

A major function of CPC’s is to ensure that submissions to the Commission relating to their particular area of responsibility, have been through a process of preliminary consideration.  It is during this process that CPC members should form an opinion on the topics raised in the paper so that they can pass their ideas and views on to
the full Commission meeting.  It is important that Commission staff retain the capacity to provide impartial objective advice and recommend actions to the Commission, and not be subject to pressure from Commissioners or Portfolio Committees to ‘load’ their advice or recommendations to favour one view or another ¼  The Commission, in taking decisions on issues, should have access to all views in forming its judgement.

¼

Spokespersons for CPC’s will also become Commission policy representatives for their particular program area, thereby ensuring a sharing of responsibility among Commissioners.  In any forums outside the Commission, it is the duty of spokespersons to reflect and support Commission policy."

By decision No 1461 made in March 1995, ATSIC decided to maintain Commission Portfolio Committees and to enhance the role and responsibility of Commission Policy Spokespersons for particular policy areas.  ATSIC affirmed that the role of Commission Portfolio Committees was primarily to provide preliminary input to policy formulation and the direction of future Board [ie Commission] submissions.  The submission paper, on the basis of which this decision was made, repeats the point that, under the ATSIC Act, decisions by Commissioners are to be taken corporately and that Commissioners therefore have no decisional powers other than collectively, as a Commission.

The applicant describes his involvement in the work of the policy committee of which he is chairman.  He says that his area of special responsibility, “law and justice”, gives him responsibility for supervising the funding given to organisations providing legal services to Aboriginal and Torres Strait Islander peoples.  He says that, prior to March 1995, the process by which ATSIC funded
such legal assistance services involved the making of grants by ATSIC on the recommendation of the Social and Cultural Portfolio Policy Committee and on his own recommendation, as “the Commissioner in charge of the Law and Justice area”.  Since March 1995, and in particular since ATSIC delegated its grants power under s 14 to Regional Councils, the applicant says he has continued “to consult and be consulted by regional councils ¼ in relation to the exercising of the Regional Councils delegated powers to advance moneys to various Aboriginal legal services” as well as continuing to provide, through his portfolio committee, “policy direction” in his committee’s various areas of responsibility to ATSIC.  What the applicant says about his contact with Regional Councils may explain why he was invited by the respondent to attend its meeting in the course of which the contentious decision was made.  The applicant’s description of his activities as a portfolio committee chairman and spokesman for “law and justice” is consistent with the advisory nature of the responsibility conferred on both his committee and himself in relation to the area of “law and justice” by the various decisions of ATSIC I have referred to.  Neither he nor his committee has any executive authority to act in relation to those matters:  that is the responsibility of ATSIC itself.

The decision which the applicant seeks to challenge in these proceedings is a decision made by the respondent to provide ATSIC funds to the Brisbane Aboriginal Legal Service (BALS).  The respondent made this decision under the power conferred by s 14 on ATSIC to make grants of money to bodies corporate for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders, a power which ATSIC has delegated
to the respondent, pursuant to s 45A.

Pursuant to the Aboriginal Councils and Associations Act 1976 (Cth), a number of bodies have been incorporated for the purpose of providing legal services to Aboriginals and Torres Strait Islanders.  BALS is one such body; it provides legal services for Aboriginals and Torres Strait Islanders in the Caboolture, Pine Rivers, Brisbane City, Logan City, Redlands and Beaudesert areas.  Another such organisation set up under that Act is the Queensland Aboriginal and Islander Legal Services Secretariat (QAILSS); this was set up to provide support for all member legal agencies, of which BALS was one, that are members of the Secretariat.  The applicant is an immediate past president of QAILSS.

The recent history of the administration by BALS of grants funds provided to it by ATSIC has been controversial. It appears that in the past, numerous allegations have been made against BALS in respect of maladministration of the public moneys under its control. From 10 August 1995 until 9 July 1996, BALS was under the control of an administrator appointed by the Registrar of Aboriginal Corporations, with the prior approval of the Minister, pursuant to s 71 the Aboriginal Councils and Associations Act 1976.  On 10 April 1996, the Minister directed, pursuant to s 12 the ATSIC Act, that ATSIC not make a grant to any body without first submitting that body’s most recent financial records, together with any information held by ATSIC relating to breaches of grant conditions, to a Special Auditor appointed by the Minister; the Minister, by a further direction, prohibited ATSIC from making a grant to any body if the Special Auditor notified ATSIC and the
Minister that it was not a fit and proper body to receive public money.  What is referred to in the evidence as a “Compliance Audit” of BALS was completed in early June 1996.  This audit was conducted pursuant to a ministerial direction given under ss 76(1)(b)(i) and (1)(f), not by the Special Auditor under the ministerial direction of 10 April 1996.  The audit referred to deficiencies in BALS’ financial reporting and record keeping and to there being payments, including cash payments, unsupported by proper documentation; but it did not contain any assertion that there was evidence of misappropriation or misuse of ATSIC grant funds.  The administrator appointed on 10 August 1995, in commenting on this audit on 5 June 1996, agreed that prior to his appointment the quality of BALS’ financial record keeping had been poor, but he said he did not believe there was any evidence that ATSIC moneys had been misspent or misused “in the last twelve months”.  An Australian Federal Police investigation into the Service was terminated by that organisation in late May 1996 following what appears to be a third investigation, referred to by the AFP as “an independent audit of” BALS, in circumstances in which it is apparent that the police did not intend to take any action against any one connected with the Service.  Notwithstanding all this, the Special Auditor appointed under the ministerial direction of 10 April 1996 reported to the Minister on 9 July 1996, on the basis of his own investigation, that he did not consider BALS to be a fit and proper body to receive public money.  The applicant refers to this report and to his concern that funding to “unfit Aboriginal legal service bodies had the real potential to justify the government to reduce funding to ATSIC for the purpose of providing legal services to Aboriginal and Torres Strait Islander peoples”.  Notwithstanding the Special Auditor’s report,
the Registrar of Aboriginal Corporations cancelled the appointment of the administrator of BALS he had made in 1995 and returned control of BALS to its newly elected governing committee from the same date on which the Special Auditor made his report, 9 July 1996.  (I note that, although it does not I think bear on the matters for my determination, the ministerial direction appointing the Special Auditor was ruled invalid by the Full Court on 18 September 1996:  see Aboriginal Legal Service Ltd v Senator John Herron, Minister for Aboriginal Affairs, Black CJ, Tamberlin and Sackville JJ, unreported).  That is as much as the evidence before me reveals about the relevant activities of BALS.

In the course of decision No 1724 of 20 June 1996 dealing with developments within Aboriginal and Torres Strait Islander Legal Services, ATSIC made a number of decisions, including a decision that “in the event that the proposed Regional Council grant [ie by the respondent] to [BALS] does not proceed, the Regional Council be requested to consider an application from QAILSS for the provision of an interim service, utilising existing [BALS] staff where appropriate, pending suitable long term alternative arrangements.”  It is fair to infer that at the meeting at which this decision was made, the Commissioners of ATSIC then present, or at least the majority who carried this decision, were of the view that it was appropriate, in the then existing circumstances, to leave it to the respondent, as its delegate, to decide whether BALS should receive a further grant from ATSIC funds.  The applicant was present at the meeting of ATSIC that made this decision.  The evidence does not indicate whether the decision was contentious.

The respondent proceeded to make the grant to BALS:  by decision No 408 of 20 June 1996, it approved the grant to BALS of $1.5M of ATSIC funds “for the purpose of recurrent/operating expenses from the Law & Justice Component for the 1996/1997 financial year”.

On 2 July, ie, shortly before the Registrar of Aboriginal Corporations revoked the appointment of the administrator of BALS and transferred control back to the newly elected governing committee, the applicant wrote to the respondent, expressing himself as writing in his capacity as the ATSIC Commissioner responsible for law and justice, to indicate his concern at the decision which he understood the Council had made to commit ATSIC to continue funding the service “where there appears to remain unresolved questions regarding a substantial loss or failure to properly account for previous public expenditures provided by ATSIC” to BALS.  He referred to public and high level political concern at possible loss of public moneys and “strongly” recommended that the respondent move to rescind its decision to further fund BALS.  He expressed concern at the perception of a want of accountability with respect to public moneys held by government, the public, members of the Brisbane Aboriginal and Torres Strait Islander community and the media, particularly in relation to BALS.  He also expressed concern at the impact of the respondent’s decision to further fund BALS on “the ability of ATSIC to remain both accountable and credible in the eyes of all Australians”.  His letter includes the following:

"As a Commissioner, I have yet to be properly satisfied that the organisation in question has done everything legally necessary to
recover any and all public moneys that were lost or not properly accounted for or were improperly expended on non-appropriate purchases in previous funding periods.

As a Commissioner, I would be bound to seek an open and full inquiry into the decision made by your Regional Council (if true) and to recommend to the Minister and the Board of ATSIC that serious consideration be given to requiring each Regional Councillor who is recorded as a party to such a decision in your Regional Council minutes to enter into a written personal guarantee in favour of ATSIC and/or the Federal Minister to the effect that each such Regional Councillor will be personally liable to contribute towards any loss suffered by ATSIC and/or the taxpayers in the event that there is in the future any further failure of the organisation granted such continued funding to properly account for or which has again ‘lost’ public funds."

The applicant concluded by calling on the respondent for an assurance either that no such decision to provide further funding to BALS has or will be made by the respondent or, alternatively, a decision immediately to revoke any such decision for further funding that may have been made.  The applicant commenced the present proceedings on 11 July 1996.

Subsequently, by decision No 410 of 22 July 1996, the respondent, at a meeting which the applicant attended by its invitation although not a member, resolved on the casting vote of the respondent’s chairman, Mr Mam, to rescind its decision No 408 of 20 June that BALS be given ATSIC funds to enable it to operate for the new financial year.  However, in the course of that same afternoon, when the applicant was not present, the respondent made decision No 412, the decision that the applicant now seeks to challenge in these proceedings, approving the grant to BALS of the sum of $340,452 “for on-going recurrent funding ¼ for the period 1 July, 1996 to 30 September, 1996”.  On 28 June 1996, the Minister had given a
further direction to ATSIC that it perform its functions and exercise its powers on the basis that the Minister’s direction of 10 April 1996 did not apply to the making of any grant made before 1 October 1996, provided it was a grant made for a period of no more than three months.  It may be that decision No 412 was intended by the respondent to give effect to this direction, in the exercise by it of ATSIC’s power to make grants which ATSIC had delegated to it.

The minutes of the respondent’s meeting of 22 July 1996 record a vote of 7 to 5 in favour of decision No 412.  However, one of the grounds on which the applicant wishes to challenge the decision is that it is invalid because, contrary to what is minuted, it was passed by a 7 to 6 majority only, with one of the majority being disqualified from participating in the decision by s 119 the ATSIC Act because of what is alleged to be that member’s pecuniary interests in the matter; it is said it can be inferred that the respondent’s chairman was in the minority in opposing the respondent’s decision No 412 and, if the disqualified councillor had not voted, the decision would have gone the other way on its chairman’s casting vote.  Other grounds relied on include the failure of the respondent to observe procedures it was required by law to follow in making the decision, that the making of the decision involved “an improper exercise of the power conferred by the enactment” under which the decision was made and that there was an absence of material justifying the making of the decision.

By his originating application filed on 11 July 1996, the applicant sought review of “the decision or conduct for the purpose of making a decision of the
Respondent to release moneys or to provide further or additional or other funding to [BALS] ¼”  This may have been intended to challenge the respondent’s decision of 20 June 1996, revoked on the morning of 22 July 1996.  The only decision the applicant now seeks to challenge is the one made subsequent to the initiation of his action, ie, that made by the respondent on the afternoon of 22 July 1996 to fund BALS for the quarter commencing 1 July 1996.  The respondent is content to proceed on the basis that it is this latter decision of 22 July which is the relevant one, so far as the issue of the applicant’s standing to sue is concerned.

The applicant is maintaining his challenge to the respondent’s decision to provide one quarter’s funding to BALS, notwithstanding the results of the audit into the activities of BALS, the dropping of the AFP investigation into BALS, the removal of the Service’s administrator and the return of its control to an elected governing committee.  He is maintaining his challenge, although, so far as the evidence before me indicates, ATSIC was, as at 20 June 1996, aware that the respondent was considering making a grant of funding to BALS.  There is no evidence before me as to what response, if any, ATSIC has made to the respondent’s decision of 20 June 1996 to grant a year’s funding to BALS or to the respondent’s subsequent decision, following its revocation of that resolution, to grant a quarter’s funding to BALS, ie, the decision which the applicant challenges.  The evidence is silent as to whether ATSIC itself has made any decision of its own with respect to that decision of the respondent.  The evidence is also silent as to whether the applicant has raised his concerns about the financial probity of BALS and the implications he fears that has for ongoing funding for Aboriginal legal services
generally, at any meeting of ATSIC.  The applicant presented his answer to the challenge to his standing essentially on the basis that ATSIC’s own attitude to the decision he is seeking to overturn is irrelevant to the issue of his locus standi.

The decision in question was made by a body set up to represent Aboriginal interests in a particular geographical area and the applicant is a member of the Aboriginal community in Australia.  But I think, on the law as it presently stands, that that is insufficient to give him standing to challenge the decision in proceedings brought by him under the ADJR Act (or otherwise):  see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 63, per Wilson J; Coe v Gordon [1983] 1 NSWLR 419 at 427 and Davis v The Commonwealth (1986) 68 ALR 18 at 23-24, per Gibbs CJ.

But the applicant is a Commissioner of ATSIC, the peak body which is responsible for the allocation to and oversight of the expenditure of funds by bodies set up under the ATSIC Act to promote Aboriginal welfare.  Advisory responsibilities were conferred on him by the decision of ATSIC, which include responsibility to oversee the work of his Committee in giving advice to ATSIC with respect to law and justice issues, which include the provision of legal assistance to Aboriginals.  He was also given responsibility by ATSIC for acting publicly as ATSIC’s spokesman on such matters.  He was invited by the respondent to attend the meeting during a phase of which the contentious decision was made.

It might be thought that these factors would be enough to show that
the applicant has an interest in the decision which goes well beyond a mere intellectual or emotional concern or an interest possessed by ordinary concerned members of the public, all of which are insufficient to give a litigant locus standi.  In Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79, Ellicott J, in the context of considering the meaning to be given to the words “a person who is aggrieved” in s 5(1) the ADJR Act, said:

"The words ‘a person who is aggrieved’ should not, in my view, be given a narrow construction.  They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision.  It is unnecessary and undesirable to discuss the full import of the phrase.  I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended.  This does not mean that any member of the public can seek an order of review.  I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public.  In many cases, that grievance will be shown because the decision directly affects his or her existing or future legal rights.  In some cases, however, the effect may be less direct.  It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties."

This passage has frequently been cited with approval by various Full Courts of this Court, including in United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79 at 86 and Ogle v Strickland (1987) 13 FCR 306 at 314. In the United States Tobacco Co case, the Full Court said, at 86:

"The words ‘interests’ and ‘interested’ are not used in ss 3 and 5 of the ADJR Act, respectively, as if they were mere terms of common parlance. The term ‘interest’ has long been an expression used in the law with respect to parties so as to require an involvement with a case
greater than the concern of a person who is a mere intermeddler or busybody.  Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one.  The broadest of technical terms has been selected.  The necessary interest need not be a legal, proprietary, financial or other tangible interest.  Neither need it be peculiar to the particular person."

See also Onus v Alcoa of Australia Ltd, supra, at 35-36; Australian Institute of Marine & Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 at 81 and Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558, where it was said: “The rule [as to standing] is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest”.

But the applicant can elevate his interest in challenging the respondent’s decision above that possessed by any concerned member of the public only because, firstly, he is a Commissioner of ATSIC; secondly, because ATSIC has statutory responsibility for making grants decisions with respect to bodies providing legal services to members of the Aboriginal community, as well as statutory responsibility for overseeing the proper administration of such grants by bodies such as the respondent whom it invests with authority to make those grants; thirdly, because the respondent’s decision which the applicant challenges was a decision of that kind, and, finally, because he has been given by ATSIC a special responsibility in relation to giving advice to ATSIC on matters concerning the functioning of organisations funded by ATSIC which provide legal services to members of the Aboriginal community and to present to the public ATSIC’s policies on such matters.  These considerations, which do show that the applicant has a
much more immediate interest in the propriety of the respondent’s decision of 22 July than concerned members of the public, are nevertheless insufficient, in my opinion, to give him standing to challenge that decision.

As I have said, he does not have any authority conferred by the ATSIC Act or by ATSIC itself to challenge the respondent’s decision in his own name.  It was the absence of such authority that was critical, in Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476, to the President of the Anti-Discrimination Board, set up under a New South Wales statute, being denied standing to make a challenge under the ADJR Act to the decision of a Tribunal set up under Commonwealth law on his complaint to that Tribunal about conduct he alleged involved racial vilification.  The President of the Anti-Discrimination Board had, by virtue of his office, a close concern with and a range of responsibilities to take action in relation to conduct involving racial vilification, just as the applicant has, by reason of his office as a Commissioner of ATSIC and his membership of ATSIC’s Social and Cultural Policy Committee, a close concern with and a range of responsibilities in relation to the financial and other conduct of legal assistance bodies funded by ATSIC.  But in denying the President standing to seek review under the ADJR Act of the Tribunal’s decision on his complaint, Davies J said, at 479-480:

“¼ by lodging a submission with the Australian Broadcasting Tribunal, Mr Mark not only did not perform any function conferred upon him or the Anti-Discrimination Board by the Anti-Discrimination Act, but acted in breach of the statutory duty imposed upon him by s 94 of the Anti-Discrimination Act [to receive racial vilification complaints and to refer complaints that could not be conciliated to the Equal Opportunity
Tribunal of New South Wales].

In the circumstances, it seems to me that Mr Mark’s office as President of the Anti-Discrimination Board conferred upon him no relevant interest entitling him to challenge in this Court the subsequent decision of the Australian Broadcasting Tribunal.

Mr Mark, as President of the Anti-Discrimination Board, has no function in relation to the way in which the Australian Broadcasting Tribunal interprets and enforces its own standards ¼

Mr Mark and through him the Anti-Discrimination Board sought to achieve inter alia a direction under s 99(2) of the Broadcasting Act that Mr Casey no longer should participate in broadcasts on Station 2KY.  The Anti-Discrimination Act did not authorise the making of such a direction.  This emphasises the point that Mr Mark’s official position gave him no interest in the proceedings of the Australian Broadcasting Tribunal."

Since he can claim standing to make such a challenge only on the basis of his office in ATSIC, the absence of any authority effective at law to entitle the applicant to challenge the respondent’s decision in his own name is one reason why he lacks locus standi here.

The applicant contends, in additional written submissions I gave leave to be delivered, that ATSIC is a body controlled by elected representatives of the Aboriginal and Torres Strait Islander peoples and performs a political and public function.  I accept this.  The applicant also contends that the cases show that individuals elected to the controlling organ of such a body each have standing to sue with respect to the organisation’s functions.  I do not accept that there is any such rule.

In Sutton v Warringah Shire Council (1985) 4 NSWLR 124, a councillor
was held to have standing to challenge a decision of Council passed by a majority of councillors providing for extensive delegation of the Council’s functions to the Shire Clerk.  As Young J observed, at 126, the decision infringed on the plaintiff’s functions as an elected councillor:  she was deprived by it of the opportunity to consider and vote upon matters that would otherwise have come before Council for determination.  This provided the first ground upon which Young J held the plaintiff had standing to challenge the decision.  I respectfully agree with his Honour in so far as he held, at 130 and 131, that when what is sought to be done directly affects the way in which an elected councillor can participate as a member of Council in carrying out the Council’s statutory function of the general control and administration of the local authority area for which it is responsible, an individual councillor has standing to challenge the decision.  This holding is supported by authority, including Ariansen v Bromfield [1957] SR (NSW) 24 at 28 and 29, and the cases there cited. It is a conclusion which can readily be accommodated within the rule that standing depends upon the particular plaintiff showing a special interest in the subject matter of the litigation beyond that of an ordinary member of the public. But beyond having a sufficient interest to challenge decisions that impede him in the performance of his own functions as a member of an elected council, I do not think a member of such a body has standing to challenge the decisions or proceedings of that body in a court, even if those decisions or proceedings are otherwise justiciable. I do not accept that Cormack v Cope (1974) 131 CLR 432 establishes that an elected parliamentary representative has standing to bring proceedings to challenge the validity of what takes place in the parliament. There, proceedings were brought by two members of
the Senate to challenge the validity of a proclamation calling a joint sitting after an election following a double dissolution and to obtain a declaration that the joint sitting was not empowered to deal with certain business intended to be brought before it.  Barwick CJ, with whom McTiernan J agreed, held that the plaintiff senators had an interest to maintain the suit to have the proclamation declared void (459).  But the other four members of the Court expressly refrained from determining the issue of standing:  see 464, 467, 469 and 474.

I respectfully disagree with Young J, in so far as he held, obiter, at 131, that because the plaintiff, as an elected councillor, could be said to be a representative of the people of the whole shire or of the ratepayers or, more narrowly, of the people of her division, she sufficiently represented a class right to have standing to challenge a decision of Council as to the mode of administration of the whole Shire.  His Honour said that it was recognised in Onus v Alcoa of Australia Ltd, supra, that if a group of people, such as the Aboriginals in that case, are representatives or custodians of some class right, then that itself puts those people in a special position where they have locus to sue and that it follows that, “despite restrictions that might be imposed on individual plaintiffs, when the plaintiff can truly say that she is a representative of a class of people then she may have locus standi”.  It is true that the plaintiffs in Onus v Alcoa of Australia Ltd, supra, could be said to be representatives of a class right or class interest.  But that was because the Court accepted that the plaintiffs were members of one particular Aboriginal clan group which had a close connection with the relics the subject matter of the litigation
that went beyond an emotional or intellectual interest and beyond an interest held by Aboriginals generally:  each plaintiff had exactly the same special interest in the subject matter of the litigation as each member of the clan group he represented.  See 149 CLR, at 37, 42, 57, 62 and 75.  Onus v Alcoa of Australia Ltd, supra, in my opinion, provides no support for the proposition that a plaintiff, who has himself no special interest in the question at issue, can derive standing by being the elected representative of other persons, none of whom has an interest sufficient to give any of those persons standing with respect to that question.

An elected representative, be he a member of Parliament, a local councillor or an ATSIC Commissioner, is elected to represent in the Parliament, the Council or the Commission the interests of those members of the public who make up his constituency.  None of those members of the public, in the absence of being able to show a special interest in a matter touching on the activities of the elected body, has standing to raise that matter in the Court.  I do not think that a person can derive standing from being the elected representative of an aggregation of members of the public, none of whom individually has standing to sue.  The present state of the law, in my opinion, is that subject to a situation in which an elected representative can show a special interest of his own that has been affected by a decision or an activity of the elected body (or its delegate), the representative’s membership of such a body is by itself insufficient to confer standing on him to challenge the actions of the body (or its delegate).  That was the opinion of the Court in Lopez v City of Brighton [1982] VR 369 (decided in 1977) where it was held that a councillor had, by reason of her office as elected representative, no more interest
than any other member of the public in the shire in an arguably unlawful majority decision of the council to sell certain council lands held for public trust purposes and thus lacked standing to challenge the decision.   I think Lopez v City of Brighton, supra, accurately represents the present state of the law, notwithstanding the dicta to the contrary effect in Sutton v Warringah Shire Council, supra.

This conclusion is consistent with the fact that, under the ADJR Act, only “a person aggrieved” can seek relief.  This expression focuses on a claim to an interest in the decision that the person seeking such relief must himself have, rather than on a claim to an interest in the decision that others, including an organisation of which that person is a member, may have in the decision.  Cf Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 269, per Gummow J.

Further justification for the conclusion I have reached might be thought to exist where, as is usually the case, bodies made up of elected representatives are constituted under statute which provides for them to act by majority decision of those representatives.  It is, I think, inconsistent with the scheme under which such an elected body is established and operates, involving the enfranchisement of members of the public for the purpose of electing their representatives to an assembly, which assembly acts by a majority decision of those representatives, to accept that a representative in the minority in relation to a particular issue dealt with by the assembly can, in reliance only on his office as a member of that assembly, take an issue out of the political forum into the courts.  However, this particular consideration
is probably only relevant if the Court gets to the stage of deciding whether to exercise its discretion to grant relief, since justiciability in proceedings under the ADJR Act is governed by whether the decision in question is one to which that Act applies, a concept defined in s 3(1).

The respondent submitted that the rule in Foss v Harbottle operates to deny standing to the applicant.  As appears from Ford’s Principles of Corporations Law, para 11.240, that rule is regarded as having two limbs:  the first provides that, subject to certain exceptions, the company is the proper plaintiff to bring an action in respect of a wrong done to it and an individual member has no standing to bring proceedings complaining of a wrong done to the company.  This is but a reflection of “the elementary principle that A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C.  C is the proper plaintiff because C is the party injured and, therefore, the person in whom the cause of action is vested”:  Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] 1 Ch 204 at 210. The second limb provides, in essence, that a member cannot bring an action to complain of an irregularity in the operation of the company if the irregularity could be rectified by an ordinary resolution of members in general meeting. This limb has been applied to an incorporated City Council to deny standing to the minority of councillors to challenge internal acts done irregularly by the Council, but which the majority of the councillors could do regularly and which were within the power of the Council to do by a majority: see McDonald v Thorley [1976] Qd R 208. However, I do not think that either limb of the rule can be relied on to deny the applicant standing here: the decision challenged is a decision
by a delegate of ATSIC to make public moneys available to another organisation; it is alleged, among other things, that the decision involved an improper exercise of the statutory power under which the respondent acted and that procedures required by law to be observed in respect of the decision were not observed.  I do not think that such a decision, if flawed in these ways, can be said to be a decision that involves nothing more than a wrong to ATSIC.  If public moneys are applied otherwise than in accordance with relevant statutory requirements, there is, in addition to any wrong that might thereby be done to ATSIC, a wrong to the public.  Any  member of the public with a sufficient interest is, in my opinion, entitled to apply to the Court to correct such a wrong.  Nor is it open to anyone, a majority of the Commissioners of ATSIC or even the unanimous body of those Commissioners or anyone else, to lawfully make or authorise a decision with respect to public moneys if, as the applicant alleges, it is flawed for non-compliance with statutory requirements.

The respondent also relied on Durayappah v W J Fernando [1967] 2 AC 337. There, the person who had previously been Mayor of a Municipal Council challenged the exercise by the Minister of the latter’s statutory power to dissolve the Council by way of proceedings for various prerogative writs. The Privy Council, in a decision which, as to certain of its aspects, has not escaped criticism, held that the Minister’s decision was voidable but not a nullity because of his failure to give procedural fairness to the Council before dissolving it; but the former Mayor was denied standing to challenge the decision, the Privy Council saying, at 355:

"The appellant sets up the case that as mayor he is entitled to complain but as such he plainly is not.  If the council is dissolved, the office of mayor is dissolved with it and he has no independent right of complaint, because he holds no office that is independent of the council.  If the mayor were to be heard individually he could only deal with complaints against the council with which ex hypothesi the council itself did not wish to deal."

The case, in so far as it turned on this point, appears to be an example of the elementary principle that, where B does a legal wrong to A, A is the proper plaintiff and no one else, including a member of A, has standing to complain of the wrong.

There is no suggestion that the applicant is motivated, in bringing these proceedings, by anything other than the concerns set out in his letter to the respondent of 2 July last and in his affidavit evidence.  It can be accepted that they involve important issues.  But it is, for the reasons given, not open to the applicant to ventilate these concerns in the Court.  The forum that is open to him is that provided by meetings of the Commissioners who comprise ATSIC.  ATSIC has a range of measures it can take, including the institution of proceedings under the ADJR Act, if it considers it should interfere with the respondent’s decision in question.

There will be a declaration that the applicant is not “a person aggrieved” within the meaning of that term in s 5 the ADJR Act by the respondent’s decision.

I certify that this and the preceding 29 pages are a true copy of the reasons
for judgment herein of the Honourable Justice Drummond.

Associate:               
Date:  2 October 1996

Counsel for the applicant:  Mr T P  Sullivan

Solicitor for the applicant:  R G  Finlaysons & Associates

Counsel for the respondent:  Mr R G  Macguire

Solicitor for the respondent:  Australian Government Solicitor

Date of Hearing:  17 September 1996