Sullivan on behalf of the Sullivan Edwards Native Title Claim Group v Secretary, Department of the Prime Minister and Cabinet
[2015] FCA 306
•2 April 2015
FEDERAL COURT OF AUSTRALIA
Sullivan on behalf of the Sullivan Edwards Native Title Claim Group v Secretary, Department of the Prime Minister and Cabinet [2015] FCA 306
Citation: Sullivan on behalf of the Sullivan Edwards Native Title Claim Group v Secretary, Department of the Prime Minister and Cabinet [2015] FCA 306 Parties: MERVYN SULLIVAN & ANOR ON BEHALF OF THE SULLIVAN EDWARDS NATIVE TITLE CLAIM GROUP v SECRETARY OF THE DEPARTMENT OF THE PRIME MINISTER AND CABINET File number(s): WAD 10 of 2014 Judge(s): SIOPIS J Date of judgment: 2 April 2015 Catchwords: NATIVE TITLE – application for review of the decision of a representative body to refuse assistance to an applicant in a native title determination claim – legal tasks for which assistance was sought already completed – whether the Native Title Act 1993 (Cth) permitted the Court to grant the relief sought – whether the making of the declarations sought would have any practical utility. Legislation: Native Title Act 1993 (Cth) ss 203B(1), 203BB, 203BB(5), 203FB, 203FB(2)(b), 203FBA, 203FBA(2), 203FBA(2)(b), 203FBA(3), 203FBA(3)(b), 203FBA(7)(b), 203FE(1), 203FE(1)(b), 203FE(2), 203FE(3) Cases cited: Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247
Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201Date of hearing: 31 July 2014 and 12 September 2014 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 82 Counsel for the Applicant: Mr R Hooker Solicitor for the Applicant: Cross Country Native Title Services Pty Ltd Counsel for the Respondent: Ms N Kidson Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 10 of 2014
BETWEEN: MERVYN SULLIVAN & ANOR ON BEHALF OF THE SULLIVAN EDWARDS NATIVE TITLE CLAIM GROUP
ApplicantAND: SECRETARY OF THE DEPARTMENT OF THE PRIME MINISTER AND CABINET
Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
2 APRIL 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant’s application filed on 20 January 2014 is dismissed.
2.By 4.00 pm on 17 April 2015, the applicant is to file and serve submissions in relation to costs.
3.By 4.00 pm on 1 May 2015, the respondent is to file and serve submissions in response to the applicant’s submissions on costs.
4.By 4.00 pm on 8 May 2015, the applicant is to file and serve any submissions in reply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 10 of 2014
BETWEEN: MERVYN SULLIVAN & ANOR ON BEHALF OF THE SULLIVAN EDWARDS NATIVE TITLE CLAIM GROUP
ApplicantAND: SECRETARY OF THE DEPARTMENT OF THE PRIME MINISTER AND CABINET
Respondent
JUDGE:
SIOPIS J
DATE:
2 APRIL 2015
PLACE:
PERTH
REASONS FOR JUDGMENT
On 7 December 2011, the applicant on behalf of the Sullivan Edwards Native Title Claim Group, filed an application for the determination of native title over an area in the Central Desert region of Western Australia. The area the subject of the applicant’s claim substantially overlapped the area covered by a pre-existing application for a determination of native title which had been filed about three years earlier on 15 December 2008 on behalf of the Yilka claim group. The Sullivan Edwards claimants had not been included in the Yilka claim group. Mr Mervyn Sullivan, one of the persons comprising the applicant, gave evidence that the applicant’s native title claim was only lodged as a “last resort” because of the failure of the applicant for the Yilka claim to include the Sullivan Edwards claimants as members of the Yilka claim group.
On 1 March 2012, the Court ordered that the Sullivan Edwards and Yilka native title determination applications be heard together.
The native title representative body for the Central Desert region is the Central Desert Native Title Services (the representative body). That representative body represents the applicant in the Yilka native title claim. On 21 March 2013, the applicant, acting by a firm of solicitors, Cross Country Native Title Services Pty Ltd (Cross Country), applied to the representative body for funding assistance to permit the applicant to carry out a number of specific tasks in relation to the prosecution of the Sullivan Edwards native title claim. The representative body refused the application. An internal review affirmed the decision of the representative body, as did a review by the Secretary of the Department of the Prime Minister and Cabinet (the department). By this application for judicial review the applicant seeks a review of the decision of the Secretary.
BACKGROUND
Relevantly, the Native Title Act 1993 (Cth) provides for two means whereby an applicant in a native title determination can obtain assistance for the bringing of the native title claim. One of those means is by obtaining assistance from the representative body for the region in which the land over which the native title is claimed, is located. The other means is by applying for funding from the Secretary of the department.
As to the first means, s 203B(1) of the Native Title Act confers a number of functions upon a representative body in relation to the determination of native title. That section of the Native Title Act provides as follows:
General
(1)A representative body has the following functions:
(a)the facilitation and assistance functions referred to in section 203BB;
(b)the certification functions referred to in section 203BE;
(c)the dispute resolution functions referred to in section 203BF;
(d)the notification functions referred to in section 203BG;
(e)the agreement making function referred to in section 203BH;
(f)the internal review functions referred to in section 203BI;
(g)the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.
(Original emphasis.)
The functions relevant in this case are the facilitation and assistance functions. The facilitation and assistance functions of a representative body are described in s 203BB of the Native Title Act.
Section 203BB of the Native Title Act relevantly provides as follows:
General
(1)The facilitation and assistance functions of a representative body are:
(a)to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and
(b)to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:
(i)native title applications;
(ii)future acts;
(iii)indigenous land use agreements or other agreements in relation to native title;
(iv)rights of access conferred under this Act or otherwise;
(v)any other matters relating to native title or to the operation of this Act.
Facilitation and assistance functions only exercisable on request
(2)A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.
“Briefing out” matters that relate to the same land or waters
…
(5)Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.
The Native Title Act also provides for the review of decisions of a representative body in respect of the performance of its facilitation and assistance functions. This aspect of the legislation is important in this case. I will refer to that legislation in detail later.
As to the second means of obtaining financial assistance in relation to the bringing of a native title claim, s 203FE(1) of the Native Title Act provides that an applicant for a native title claim can apply to the Secretary of the department for funding. That section provides as follows:
Funding to perform functions of a representative body
(1)The Secretary of the Department may make funding available to a person or body, by way of a grant or in any other way the Secretary considers appropriate, for the purpose of enabling the person or body to perform, in respect of a specified area:
(a)all the functions of a representative body; or
(b)specified functions of a representative body;
either generally or in relation to one or more specified matters.
Subsections 203FE(2) and s 203FE(3) of the Native Title Act are also relevant. They provide:
Funding following certain decisions under section 203FB
(2)The Secretary of the Department may make funding available to a person or body, by way of a grant or in any other way the Secretary considers appropriate, for the purpose of enabling the person or body to perform specified facilitation and assistance functions of a representative body in relation to a matter to which a decision under paragraph 203FBA(7)(b) or 203FBB(2)(b) relates.
Conditions of funding
(3)Funds provided to a person or body under this section, whether provided by grant or otherwise, may be so provided on whatever conditions the Secretary considers appropriate. However, the Secretary of the Department must impose conditions relating to:
(a)the purposes for which the money may be spent; and
(b)the period within which the money is to be spent; and
(c)the acquittal of money spent; and
(d)the giving of information relating to expenditure of the money; and
(e)the appointment of a person, in cases where the Secretary considers that money from funds provided has not been spent in accordance with the conditions of the funding, with the power to prevent expenditure of further money from funds provided otherwise than in accordance with the conditions of the funding; and
(f)the person’s or body’s continuing satisfactory performance of its functions referred to in subsection (1) or (2), as the case requires; and
(g)the giving of information relating to the performance of the functions referred to in subsection (1) or (2), as the case requires, including the production and publication of financial statements.
In the second half of 2012 and early 2013, the applicant was successful in obtaining assistance from each of the representative body and the Secretary of the department (which until September 2013 was the Department of Families, Housing, Community Services and Indigenous Affairs) in respect of specific aspects of the prosecution of the applicant’s claim. During that period, the representative body agreed to fund an expert witness to attend a conference of experts. Also, the Secretary of the department funded an independent lawyer to assist the applicant to prepare a statement of claim. Further, in early 2013, the department engaged and funded a lawyer, Mr Philip Hunter of HWL Ebsworth, to assess the Sullivan Edwards case for membership of the Yilka claim on the totality of the evidence including expert evidence. Neither the funding from the representative body nor from the Secretary of the department, extended to providing funding for the applicant to retain legal representatives to act generally for the applicant in the prosecution of its claim until judgment.
On 15 January 2013, programming orders in the Yilka and Sullivan Edwards native title proceedings were made. Those orders included an order for the filing of lay evidence in support of the applicant’s claim, and directions in relation to expert evidence.
On 21 March 2013, the applicant, by a letter written by Mr Ambrose Cummins of solicitors Cross Country, to the representative body, referred to the need for the applicant to obtain assistance to allow the applicant by the solicitors to prepare witness statements and other documents for Court, to engage an anthropologist, and to be legally represented at an overlap mediation with the Yilka claim group. The letter sought assistance by way of the provision of funding to carry out certain specified work within a specified period. The letter stated:
Scope of legal work for which funding is sought
This application is for funding to allow Cross Country Native Title Services to carry out the following work between now and the middle of May 2013:
ŸApplication for variations to the court’s orders to allow time for the preparation of witness statements and other priority tasks;
ŸWitness proofing and preparation and filing of substances of evidence / witness statements;
ŸPreparation and filing of other key documents (if any) required by the court in this timeframe;
ŸOverlapping claim mediation, including attending the on-country mediation session proposed by the court for 16 and 17 April 2013 (although note that it may be sensible to seek a postponement of this meeting until the Sullivan witness statements have been prepared);
ŸThe engagement of consultant anthropologist Daniel Vachon to carry out targeted work.
In the event that the mediation does not result in the resolution of the overlap between Yilka and the Sullivan claim by around the middle of May, it may be necessary to apply for additional assistance for the Sullivan claim.
The letter attached a draft budget for discussion and stated that the solicitors anticipated carrying out the work over a period of six to seven weeks commencing at the beginning of April 2013.
The letter also stated that the work and timeframe proposed would avoid the need for the applicant to apply for major changes to the programming orders, including a lengthy adjournment of the hearing.
On 19 April 2013, the representative body made a decision to refuse the applicant’s request for the assistance referred to in the letter of 21 March 2013.
On 22 April 2013, the applicant sought an internal review of that decision. That review, dated 8 July 2013, did not alter the decision.
In August 2013, Mr Phillip Hunter, the lawyer funded by the Secretary, completed his work, which included attending a Federal Court mediation with the Yilka application in relation to the overlap.
Also, in August 2013, the solicitors, Cross Country, agreed to represent the applicant in the native title determination proceeding; and on 15 August 2013, Cross Country filed a notice of acting in the proceeding on behalf of the applicant. Also, around that time, Dr Daniel Vachon agreed to provide the applicant with an anthropological report, and Mr Phillip Vincent agreed to act as a barrister for the applicant. Each of the solicitors, Dr Vachon and Mr Vincent agreed to act on the basis that if funding was not obtained by the applicant, each would not press for the payment of the fees that they would otherwise have charged the applicant.
With the assistance of the Cross Country solicitors, the applicant obtained a variation to the Court’s directions, prepared and filed its witness statements, and Dr Vachon prepared an anthropological report.
By a letter dated 20 August 2013, to a delegate of the Secretary of the department, the applicant, through Cross Country, applied for funding, pursuant to s 203FE(1)(b) of the Native Title Act, for Cross Country to assist the applicant in respect of the remainder of the overlap trial.
However, importantly, the letter went on to say that if the funding application, under s 203FE(1)(b) to the department was declined, the applicant sought a review, pursuant to s 203FB of the representative body’s decision of 19 April 2013.
Section 203FB provided, and provides, as follows:
Persons may apply for review
(1)An Aboriginal person or Torres Strait Islander affected by a decision of a representative body not to assist him or her in the performance of its facilitation and assistance functions under section 203BB may apply to the Secretary of the Department for review of the decision.
…
Appointment of person to conduct the review
(2)As soon as practicable after receiving the application, the Secretary must:
(a)review the representative body’s decision; or
(b)appoint to conduct the review a person who, in the Secretary’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of the review.
By a letter dated 6 September 2013, the Secretary’s delegate declined the applicant’s application for funding under s 203FE(1)(b) of the Native Title Act, made in the letter of 20 August 2013.
On 24 September 2013, a delegate of the Secretary, acting under s 203FB(2)(b) of the Native Title Act, appointed Mr Scott Singleton of King & Wood Mallesons, to conduct an external review of the representative body’s decision of 19 April 2013.
Section 203FBA of the Native Title Act applies when the Secretary invokes s 203FB(2)(b) in relation to a review of the representative body’s decision. That section states:
This section applies to external review
(1)This section applies if the Secretary of the Department appoints a person under paragraph 203FB(2)(b) to conduct the review.
Review of decision
(2)Subject to subsection (4), the person appointed must review the representative body’s decision and report to the Secretary whether:
(a)the decision should be affirmed; or
(b)the Secretary should make funding available under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the representative body’s decision relates.
Matters to be taken into account when conducting review
(3)In reviewing the representative body’s decision, the person appointed must have regard to:
(a)whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and
(b)whether, to provide the assistance sought, the representative body would need to allocate or re-allocate resources in a way that interferes with the efficient performance of its functions; and
(c)whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and
(d)if the assistance sought was in relation to an application under section 61:
(i)whether the provision of that assistance would promote an orderly, efficient and cost effective process for making such applications; and
(ii)in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and
(e) any other matter relevant to the merits of the decision.
Failure to use internal review procedures
(4)The person appointed must refuse to review the representative body’s decision if satisfied that the applicant did not, before applying for the review, make all reasonable efforts to seek a review by the representative body of its decision.
Report to be given within 60 days
(5)The person appointed must give the report referred to in subsection (2) to the Secretary within 60 days after the day on which he or she was appointed, or within such other period as the Secretary allows (whether or not the 60 days have expired).
Inviting submissions
(6)Before reviewing the representative body’s decision, the person appointed must invite the representative body to make a submission in relation to the decision. The invitation must specify a period of not less than 14 days within which submissions must be made.
Action to be taken by the Secretary
(7)The Secretary must, within one month after the end of the period referred to in subsection (5):
(a)affirm the representative body’s decision; or
(b)make funding available under section 203FE as mentioned in paragraph (2)(b) of this section.
Notice of decision on review
(8)The Secretary must give the applicant and the representative body written notice of the Secretary’s decision under subsection (7). The notice must include the reasons for that decision.
On 16 October 2013, Mr Singleton provided his review report to the Secretary. Mr Singleton recommended that the representative body’s decision to refuse assistance of 19 April 2013 be affirmed.
On 19 November 2013, the applicant, through Cross Country, made a submission to the Secretary that the Secretary should not affirm the representative body’s decision of 19 April 2013.
On 20 December 2013, a delegate of the Secretary decided to affirm the representative body’s decision of 19 April 2013.
APPLICATION FOR JUDICIAL REVIEW
On 20 January 2014, the applicant filed this application for judicial review of the respondent’s decision. The applicants amended their application for judicial review which was said to be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under s 39B(1A)(c) of the Judiciary Act 1903 (Cth). The applicant sought orders as follows:
(a)setting aside the decision of the respondent dated 20 December 2013;
(b)directing that the respondent undertake or cause to undertake a review of the representative body’s 19 April 2013 decision according to law further or alternatively
(c)directing the respondent to make funding available to the applicant under s 203FE of the Native Title Act to meet the reasonable costs of prosecuting the applicant’s native title application from 1 August 2013 to the completion of the trial further or alternatively
(d)declarations of error both of law and jurisdictional error committed “in making or for the purposes of” the respondent’s decision dated 20 December 2013.
The applicant relied on a number of grounds of review all directed at identifying error in, or in relation to the making of, the respondent’s decision.
The application was first heard on 31 July 2014.
By the date of that hearing, the applicant had received the benefit of legal representation in the native title proceeding from Cross Country and Mr Vincent since August 2013. By then, the legal representatives had on behalf of the applicant defended an application by the Yilka applicant to strike out the Sullivan Edwards native title claim, prepared and filed witness statements in support of the Sullivan Edwards claim, in the form of affidavits from six Aboriginal witnesses, briefed an anthropologist, Dr Vachon, to prepare two expert reports in relation to the Sullivan Edwards claim and had subsequently filed those reports, prepared pleadings, appeared at various interlocutory proceedings and case management conferences, appeared at hearings in September 2013, December 2013 and March 2014 at which evidence was led, and had adduced evidence at two of those hearings from the Sullivan Edwards applicant’s lay and expert witnesses, and prepared and filed closing written submissions; and was in the process of making oral closing submissions on behalf of the applicant before McKerracher J in, as it transpired, an adjoining courtroom on 31 July 2014.
Accordingly, it was common cause that all of the work in respect of which the applicant had, in its letter of 21 March 2013, said that it needed assistance to perform, had already been performed; and, therefore, the applicant no longer required assistance from the representative body in order for that work to be carried out.
At the hearing, I asked counsel for the applicant to address me on the question of whether the application for judicial review should be dismissed as futile because:
(a)as the applicant no longer needed the assistance sought to perform the tasks identified in the 21 March 2013 letter, no utility would be served in setting aside the respondent’s decision and requiring the respondent to review the decision according to law; and
(b)the Court could not, on a proper construction of the Native Title Act, grant relief requiring the Secretary to approve funding for the legal representation of the applicant in the native title claim since August 2013 until the end of the proceeding, as was sought in the proposed order (c) in the proposed relief.
Having heard counsel for the applicant on that question, I made an order dismissing the proceeding on the grounds that there would be no practical utility in conducting a judicial review of the impugned decision when the applicant no longer required assistance to perform the tasks to which the application of 21 March 2013 related, and there was no basis to make an order directing the respondent to grant funding for the legal representation of the applicant from August 2013 to the end of the proceeding.
I said that I would give my reasons later. However, in the course of preparing the reasons, I observed that among the alternative orders the applicant sought in the amended originating application, were declarations of “errors of law and jurisdictional error” in relation to the making of the Secretary’s decision. The proposed order had been stated in very general terms, that is, without identifying the alleged errors in terms.
I considered that it might be possible that the applicant had in mind, but had not articulated, a specific declaration which may have been attended by a sufficient practical utility to warrant the making of the declarations if the allegations were otherwise made out.
Accordingly, I relisted the application on 1 August 2014 and, on that day, I revoked the orders I made on 31 July 2014 before they were entered, and gave leave to the applicant to amend the originating application so as to identify specifically the declarations the applicant sought, and gave directions for the filing of any further affidavits and submissions as to whether there was sufficient practical utility to cause the Court, in the exercise of its discretion, to make the declarations sought, if the allegations were otherwise made out.
Pursuant to the directions, the applicant filed an affidavit of Mr Mervyn Sullivan, dated 8 August 2014, and two affidavits from Mr Ambrose Cummins, a principal of the solicitors Cross Country, dated 12 August 2014 and 8 September 2014 respectively. Those affidavits were read at the resumed hearing.
An amended originating application was filed by the applicant pursuant to the leave given on 1 August 2014. The amendment added a claim for a declaration that the respondent’s decision of 20 December 2013 was invalid, and then did no more than to ask the Court to make declarations that the same errors which the applicant had relied upon in support of the applicant’s claims for the orders set out in subpara (a), (b) and (c) of the originating application, had been made.
In his affidavit of 8 August 2014, Mr Mervyn Sullivan, in support, said that:
34.We are seeking funding to meet the reasonable costs of taking the steps we have had to take and still need to take in relation to the proceedings in the Federal Court. This includes reimbursement of our travel and accommodation expenses for giving evidence and attending Court as well as funding to pay for our legal representation in the proceedings through until the end of the trial. We are also seeking funding to pay Dr Vachon his fees and expenses for giving evidence.
35.We think it is fair that funding should be provided for our lawyers to represent us because we couldn’t have run our claim in Court by ourselves - we have needed assistance from our lawyers, and still need further assistance at least until the Judge has given his final decision about the Sullivan Edwards native title claim.
In his affidavit of 12 August 2014, Mr Cummins deposed as to the nature and extent of the work which Cross Country and counsel had undertaken on behalf of the applicant in relation to the applicant’s native title claim. Mr Cummins went on to say that on 31 July 2014, the parties had made closing submissions before McKerracher J in respect of the matters other than extinguishment; and that on that day, McKerracher J made orders relating to the filing of further evidence and submissions in relation to the question of extinguishment.
Mr Cummins also deposed that on 11 August 2014, Cross Country, on the instructions of the applicant, made a further application for assistance for the further future conduct of the native title claim to the representative body. The letter stated that:
On behalf of the Sullivan Edwards Applicant we seek funding from Central Desert pursuant to s 203BB(5) of the Native Title Act to carry out the function specified at s 203BB(1)(b)(i), namely representing the Sullivan Edwards Applicant for the balance of the native title determination proceedings before McKerracher J.
The letter also went on to state that the request for funding for “the balance of the determination proceedings” was made without prejudice to the contentions made before the Court in this application. This is a reference to the applicant’s contention, referred to below, that the Secretary on reviewing the representative body’s decision of 19 April 2013 to refuse funding, is empowered to grant funding for the performance of the tasks in the prosecution of the Sullivan Edwards native title claim, other than those the subject of the applicant’s application of 21 March 2013.
In his affidavit of 8 September 2014, Mr Cummins deposed that on the applicant’s instructions, he had also, on 27 August 2014, applied for funding to the Secretary under s 203FE(1). The letter stated that the funding was applied for “in view of [the applicant’s] need for legal representation and assistance to comply with the orders of McKerracher J of 31 July 2014 and other matters that may arise in the proceedings or otherwise in respect of the Sullivan Edwards Native Title Claim”. This letter also said that the application was made without prejudice to the contention made by the applicant in this judicial review application which is referred to in the preceding paragraph.
At the resumed hearing before the Court, the applicant contended that there would be utility in making the declarations sought for three reasons.
First, contended the applicant, if a declaration of invalidity was made it would permit the respondent to award funding to the applicant pursuant to either s 203FE(1) or s 203FE(2) in respect of all of the legal work which had been performed in prosecuting the Sullivan Edwards native title claim since August 2013, and the work that would be performed until the end of the legal proceedings.
Secondly, the declaration of errors made by the respondent in relation to the review of the representative body’s decision of April 2013, would increase the likelihood that the applicant’s applications for funding made in August 2014, would be dealt with according to law and that the representative body and the respondent would not make the same errors or related errors as they had made in relation to the applicant’s application of 21 March 2013.
Thirdly, the applicant contended that, in any event, there was a public interest in holding administrative decision-makers to account by declaring the unlawfulness of administrative decision-making.
I deal with the first of the applicant’s contentions.
Power of the respondent to provide funding following the review
The applicant contended that if a declaration of invalidity in respect of the respondent’s decision of 20 December 2013, was made it would then be open to the respondent pursuant to s 203FBA(7), read with s 203FBA(2)(b), to award funding for all the tasks which have already been performed and tasks yet to be performed, in relation to the applicant’s native title determination claim, notwithstanding that no assistance was sought in respect of the performance of those tasks in the applicant’s application for assistance of 21 March 2013.
The applicant contended that it did not matter that the application of 21 March 2013 to the representative body had only asked for assistance to perform a number of specified tasks in the prosecution of the applicant’s native title claim.
The applicant contended that on a proper understanding of the operation of s 203FBA(7), when read with s 203FBA(2), the extent of the assistance which could be provided by the Secretary of the department, acting under the powers conferred by those two sections, was not constrained by the nature and terms of the assistance sought from the representative body by the applicant in the applicant’s 21 March 2013 application.
The applicant argued that pursuant to s 203FBA(7)(b) and s 203FBA(2)(b) of the Native Title Act, following a review of a representative body’s decision, the Secretary had power to make funding available to a person for the purpose of performing “specified facilitation and assistance functions of a representative body in relation to the matter to which the representative body’s decision relates”. The applicant said that the reference to performing “specified facilitation and assistance functions of a representative body” was to be read at a general level as referring to legal representation in a native title proceeding. Further, the applicant contended that the words “the matter” in the phrase “the matter to which the representative body’s decision relates”, was a reference to “matter” in the jurisdictional sense, being the substantive native title determination claim brought by the applicant.
The applicant went on to say that because the applicant’s original application of 21 March 2013 was for assistance in relation to tasks which fell within the characterisation of a representative body’s facilitation and assistance functions, namely, providing legal representation in respect of a native title determination claim, the power referred to in s 203FBA(2)(b) permitted the Secretary, following the review of the representative body’s decision, to award funding under either of s 203FE(1) or s 203FE(2), in respect of any activity which fell within the rubric of providing legal representation in respect of the applicant’s native title claim.
Therefore, said the applicant, if the respondent were not to affirm the representative body’s decision under review, it was open to the Secretary to make funding available under s 203FE of the Native Title Act in respect of any task which had been performed, or was yet to be performed, in relation to the applicant’s native title determination, which fell within the rubric of legal representation, whether or not the applicant’s application to the representative body under review, had sought assistance for the performance of the specific task or tasks.
The applicant’s contentions are not accepted.
In my view, on a proper construction of the Native Title Act, the power of the Secretary under s 203FBA(7)(b) and s 203FBA(2)(b), following a review of the representative body’s decision, is confined to granting funding in respect of the nature and extent of the assistance which was sought in the original application, and which was refused by the decision of the representative body under review. I say so for the following reasons.
First, in my view, the extent of the power of the Secretary under s 203FBA(7)(b) and s 203FBA(2)(b) to make funding available under s 203FE, is informed by the nature of the report to be given by the external reviewer of the representative body’s decision, which is referred to in s 203FBA(2)(b).
It is apparent, in my view, from the provisions of s 203FBA(3), that the external reviewer is to review the decision of the representative body refusing assistance, by reference to the nature and extent of “the assistance sought” from the representative body by the applicant. This is apparent from the terms of subparas (3)(a) to (3)(d) - each of which refers specifically to “the assistance sought”. Thus, for example, s 203FBA(3)(b) requires the external reviewer to have regard to how “the assistance sought” might impact on the allocation or re-allocation of the resources of the representative body. It is clear, in my view, that the assessment called for in s 203FBA(3)(b) would have to be undertaken by reference to the specific tasks identified, and the budget provided, in the application for assistance which was before the representative body. Plainly, the funding required to provide assistance for a specific task or tasks, and the attendant impact upon resources of the representative body, would vary very considerably from the funding required, and attendant impact on resources, for the representation of the applicant for the whole of a native title determination proceeding.
It follows that any report under s 203FBA(2) which an external reviewer would provide to the Secretary on whether to provide funding, would need to be informed, and constrained, by the specific nature of the tasks in respect of which assistance was sought in the application to the representative body; and in respect of which, the review was undertaken.
In my view, the review process under s 203FBA is not simply a procedural archway through which an applicant for assistance must pass, before empowering the Secretary to make funding available to a native title applicant under s 203FE, which is at large and unrelated to the nature and extent of the assistance sought and refused by the decision of the representative body under review. Rather, in my view, the power of the Secretary to make funding available following a review is to be found in s 203FE(2), and not in s 203FE(1), and is confined to providing funding in relation to the nature and extent of the assistance sought in the original application, made by the representative body, subject, of course, to the assistance still being required for the tasks to be performed.
Secondly, the applicant’s argument is incongruous with the existence of s 203FE(1) which provides for an applicant in a native title proceeding to apply directly to the Secretary for funding in relation to the conduct of a native title proceeding.
There would be no need for the additional power provided by s 203FE(2) of the Native Title Act if the legislature did not intend to distinguish between the nature of the funding which may be available under s 203FE(1), by means of a direct application to the Secretary - that is, without first applying to a representative body; and s 203FE(2) which contemplates the making of funding available following a review of a decision of a representative body to refuse an application for funding.
Accordingly, in my view, this argument advanced by the applicant, does not demonstrate that the Secretary could, on a declaration of invalidity being made, make the funding available in respect of the legal representation contended for by the applicant, namely, the work carried out since 1 August 2013 and to be carried out until the end of the proceeding.
Further, it is apparent that s 203FE(2) (as well as s 203FE(3)) contemplates that the funding is to be provided to enable a person to perform specified work. Accordingly, in relation to the 21 March 2013 application, there would be no utility in making the declaration of invalidity sought, because the specific proposed work the subject of that application has long since been performed, and the applicant no longer requires assistance to enable that work to be performed (Perder Investments Pty Ltd v Elmer (1991) 31 FCR 201 at 204).
Utility in respect of deciding the August 2014 funding applications
The second of the applicant’s contentions is founded on the fact that in August 2014, the applicant made an application for assistance to each of the representative body under s 203BB(5), and to the Secretary pursuant to s 203FE(1), so that the applicant may have legal representation in the native title determination claim up to judgment and in respect of the making of orders consequent upon the judgment.
The applicant contended that the making of declarations sought as to the errors of law or jurisdictional errors made by the respondent in carrying out the review of the representative body’s decision, would have utility in that the making of such declarations would increase the likelihood that the August 2014 applications for funding to the representative body and the Secretary would be dealt with according to law.
I do not accept the applicant’s contention that the declaration of any errors which may have been made by the respondent in, or in relation to, the carrying out of the review function under s 203FB, would be of utility in relation to the consideration by the representative body of the August 2014 application for assistance.
First, the two functions are separate, carried out by a different body and a different person, and are the subject of different statutory regimes. Thus, the representative body makes a decision under s 203BB(5) of the Native Title Act. On the other hand, the review decision was made under the statutory regime established by s 203FB and s 203FBA.
Secondly, and in any event, the errors which the applicant alleges were made in the review process are very fact specific to the circumstances which prevailed at the time the application was made and the review was carried out. Thus, for example, there are allegations about the failure of the external reviewer and the respondent to have regard to certain preliminary reports as to the prospects of success which were prepared well before the evidence in the Sullivan Edwards native title claim was adduced.
By contrast, the August 2014 application for assistance to the representative body was made in very different circumstances. The trial has already taken place, the Sullivan Edwards witnesses have given their evidence, submissions on connection have been made. The assistance which is sought in the August 2014 application is confined to questions of evidence, and further submissions, in relation to extinguishment.
It follows, that it is a matter of pure speculation whether any declaration of error made by, or in relation to, the carrying out of the respondent’s review function, would be of utility to a representative body carrying out a function in respect of an application for assistance in respect of assistance at a very different stage in the progress of the litigation.
The same reasoning applies, mutatis mutandis, to the 27 August 2014 application for funding made to the Secretary under s 203FE(1) of the Native Title Act, which does not import the same restrictions and considerations as does a decision under s 203FE(2).
It follows, that the applicant has not demonstrated that there would be any utility in making the declarations sought insofar as they may have an effect upon the manner in which the applicant’s August 2014 applications for funding are determined.
Public interest
The applicant also contended that the Court should, in the exercise of its discretion, make the declarations sought because an important public interest was served by holding administrative decision-makers to fundamental legal standards.
The applicant relied upon a number of observations in Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 (Bateman’s Bay), in relation to the standing of a person, other than the Attorney-General, to commence a proceeding to enforce compliance by a statutory body with the law. In that case, the respondents operated a contributory funeral benefits business. They claimed that the appellants, who were threatening to establish a competing contributory funeral benefits business, did not have the lawful authority to do so. The respondents claimed a declaration to that effect and an injunction enjoining the appellants from starting the proposed business. The High Court held that the respondents had a sufficient interest to bring the claims because their financial interests would be affected.
In my view, this case does not assist the applicant. Whilst it is true, as the applicant contended, that the High Court in Bateman’s Bay recognised that an individual with a sufficient interest, and not only the Attorney-General, had standing to bring a proceeding seeking to ensure that a statutory body acted within its power, the decision did not purport to affect the position on whether a court should in the exercise of its discretion, decline to make a declaration on the basis that there would be no practical utility in doing so.
In this case, it is not in issue that the applicant has sufficient standing to commence this application for judicial review. However, for the reasons previously given, even if the applicant was to succeed in demonstrating the errors alleged, the making of declarations to that effect would serve no practical utility. It is for that reason, the Court, in its discretion, would decline to make the declarations sought.
The same reasoning as set out in [52] to [80] above, applies in relation to the other orders for relief sought in paras (a), (b) and (c) of the applicant’s claim for relief.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding eighty‑two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 2 April 2015
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