New South Wales Aboriginal Land Council & Anor v Aboriginal & Torres Strait Island Commission & Anor [1995] FCA 672

CATCHWORDS

ADMINISTRATIVE LAW - Decision by statutory corporation to allocate 10/12 of funds available for land acquisition in 2 years for acquisition of land in Northern Territory - whether decision or conduct leading to the making of a decision within the Administrative Decisions (Judicial Review) Act 1977 ss5,6

FEDERAL COURT - Jurisdiction - whether application for relief against Chief Executive Officer of the Aboriginal and Torres Strait Islander Commission ("ATSIC") colourable - whether jurisdiction conferred upon the Court by Judiciary Act 1903 s39B

FEDERAL COURT - Associated Jurisdiction - whether accrued jurisdiction attached where application made (bona fide) for relief under the Administrative Decisions (Judicial Review) Act in circumstances where ultimately held that there was no decision or conduct reviewable under that Act

ADMINISTRATIVE LAW - whether ATSIC decision to allocate funds unreasonable - whether ATSIC failed to take account of relevant considerations and took into account irrelevant considerations.

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth); ss7(1), 10, 14, 45, 46

Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth); s191U

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); s50(1)(a)

Judiciary Act 1903 (Cth); s39B

Administrative Decisions (Judicial Review) Act 1977 (Cth); ss3, 5, 6, 7,

Federal Court of Australia Act 1976; ss19, 21

Constitution of Australia; ss71, 75, 76, 777

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; followed

Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580; distinguished

Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605; applied

R v Cook; Ex parte Twigg (1980) 147 CLR 15; followed

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212; distinguished

Post Office Agents Association Limited v Australian Postal Commission (1988) 84 ALR 563; applied

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615; distinguished

Fencott v Muller (1983) 152 CLR 570; referred to

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; distinguished

Carlton and United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543; applied

Glass v State of New South Wales (1994) 52 FCR 336; distinguished

Equal Opportunities Commission v Secretary of State for Employment [1995] 1 AC 1; discussed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24; applied

Douglas v Tickner (1994) 49 FCR 507; referred to

NEW SOUTH WALES ABORIGINAL LAND COUNCIL & ANOR v ABORIGINAL AND TORRES STRAIT ISLAND COMMISSION & ANOR

No NG 367 of 1995

FOUNDATION OF ABORIGINAL & ISLAND RESEARCH ACTION ABORIGINAL CORPORATION v ABORIGINAL AND TORRES STRAIT ISLAND COMMISSION & ANOR

No QG 95 of 1995

CORAM: HILL J

PLACE: SYDNEY

DATED: 30 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 367 of 1995

)

GENERAL DIVISION )

BETWEEN: NEW SOUTH WALES ABORIGINAL LAND COUNCIL

First Applicant

TASMANIAN ABORIGINAL CENTRE INC.

Second Applicant

AND: ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

First Respondent

CHIEF EXECUTIVE OFFICER OF THE ABORIGINAL AND TORRES STRAIT ISLAND COMMISSION

Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA )

)

QUEENSLAND DISTRICT REGISTRY ) No QG 95 of 1995

)

GENERAL DIVISION )

BETWEEN: FOUNDATION OF ABORIGINAL & ISLAND RESEARCH ACTION ABORIGINAL CORPORATION

Applicant

AND: ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

First Respondent

CHIEF EXECUTIVE OFFICER OF THE ABORIGINAL AND TORRES STRAIT ISLAND COMMISSION

Second Respondent

CORAM: HILL J

PLACE: SYDNEY

DATED: 30 AUGUST 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

(1) The decision of ATSIC of 29 March 1995 to set aside $10 million for land purchases in the Northern Territory and $2 million for other priority national purchases in each of the years 1995/6 and 1996/7 be set aside from the date it was made.

(2) ATSIC be restrained from making grants of money or the purchase of interests in land in accordance with order (1).

(3) ATSIC to pay the costs of the applicants in each matter, numbers NG 367 of 1995 and QG 95 of 1995.

(4) No order is made against the second respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 367 of 1995

)

GENERAL DIVISION )

BETWEEN: NEW SOUTH WALES ABORIGINAL LAND COUNCIL

First Applicant

TASMANIAN ABORIGINAL CENTRE INC.

Second Applicant

AND: ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

First Respondent

CHIEF EXECUTIVE OFFICER OF THE ABORIGINAL AND TORRES STRAIT ISLAND COMMISSION

Second Respondent

IN THE FEDERAL COURT OF AUSTRALIA )

)

QUEENSLAND DISTRICT REGISTRY ) No QG 95 of 1995

)

GENERAL DIVISION )

BETWEEN: FOUNDATION OF ABORIGINAL & ISLAND RESEARCH ACTION ABORIGINAL CORPORATION

Applicant

AND: ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION

First Respondent

CHIEF EXECUTIVE OFFICER OF THE ABORIGINAL AND TORRES STRAIT ISLAND COMMISSION

Second Respondent

CORAM: HILL J

PLACE: SYDNEY

DATED: 30 AUGUST 1995

REASONS FOR JUDGMENT

The Aboriginal and Torres Strait Islander Commission ("ATSIC"), the first respondent, was established by the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act"). Among the functions conferred upon it was the function of formulating and implementing programs

for Aboriginal persons and Torres Strait Islanders: s7(1)(a) of the ATSIC Act. In furtherance of this function, there was conferred upon it all powers necessary or convenient to be done for and in connection with the performance of those functions: s10 of the ATSIC Act. Under s14 it was empowered to make monetary grants to individuals or bodies corporate for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders.

By virtue of the powers conferred upon it, ATSIC has thus the power to make grants to persons or corporations to assist in the acquisition of land throughout Australia, so long as that grant is for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders. Since it commenced operations on 5 March 1990, it has allocated some $70,881,050 for land acquisition purposes. The lands acquired and the allocations throughout the Commonwealth were as follows:

New South Wales $ 4,527,506 ( 6.4%)

Queensland $22,784,306 (32.5%)

Western Australia $13,469,107 (19.2%)

Northern Territory $ 9,849,150 (14.1%)

Victoria $ 4,770,808 ( 6.8%)

South Australia $11,185,349 (16.0%)

Tasmania $ 3,494,824 ( 5.0%)

On 29 March 1995 the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth) ("the Land Fund Act") was assented to. The Land Fund Act was part of the Government's response to the Mabo decision. It was intended to fund, on a more secure basis, the acquisition of land by Aboriginal persons and Torres Strait Islanders. Relevantly for present purposes the Land Fund Act established an Indigenous Land Corporation for the specific purpose of assisting Aboriginal persons and Torres Strait Islanders to acquire land and to manage indigenous held land, so as to provide economic, environmental, social or cultural benefits for these persons. The Indigenous Land Corporation was given the function, inter alia, of making grants of money for the acquisition of relevant interests in land. For this purpose it was obliged to prepare a national indigenous land strategy and revise this from time to time. The national strategy was in addition to and separate from regional indigenous land strategies, also required to be formulated. The formulation of the national land strategy was contemplated to be carried out in conjunction with ATSIC.

The Land Fund Act also established a Land Fund which was to be funded by annual Government grants and income from the investment of moneys granted. The moneys in the fund could only be paid out to two individual claimees, ATSIC and the Indigenous Land Corporation. This situation was to continue for a period in essence of two fiscal years plus one
month. Thus during this time, funds paid to the Land Fund would go in part to ATSIC and in part to the Indigenous Land Corporation, both of which had power to make grants to facilitate the acquisition of land for Aboriginal people. After the expiration of this initial period, moneys in the Land Fund could be paid out only to the Indigenous Land Corporation.

The Indigenous Land Corporation had imposed upon it, by the Land Fund Act, a restriction which was not imposed upon ATSIC. That restriction is contained in s191U, introduced into the ATSIC Act by the Land Fund Act. That section prohibited bodies corporate acquiring interests in land using funds granted by the Indigenous Land Corporation from making an application of the kind referred to in s50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Northern Territory Act").

The Northern Territory Act established a system of investigation by Aboriginal Land Commissioners into claims, in respect of two classes of land: unalienated Crown land and alienated Crown land in which all estates and interests not held by the Crown are held by or on behalf of Aboriginals. A successful claim resulted ultimately in a grant of an inalienable fee simple title.

However, the Northern Territory Act only authorised Aboriginal Land Commissioners to investigate and report, under s50(1)(a) of the Northern Territory Act, in respect of applications made ten years after the commencement of s50(2A) of that Act, in June 1987. The consequence, therefore, of this "sunset clause" was that between June 1995 and June 1997 an opportunity would exist in the Northern Territory for Aboriginal persons to acquire land of which they were the traditional Aboriginal owners, but which had been alienated and following the processes of the Northern Territory Act, secure in due course a grant of the land under the Northern Territory Act of a kind regulated by that Act.

The background of this limitation on the power of the Indigenous Land Corporation is made clear from a speech given by the Prime Minister to the Second Reading of the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994. It may be noted that that Bill failed to pass, having regard to various political factors, and the present Act was passed through Parliament only in 1995. Although there were differences between the 1994 Bill and the 1995 Bill which ultimately became law, the differences are not relevantly material. The comments made by the Prime Minister in 1994 are quite revealing. It was contemplated in 1994 that the Land Fund to be established would be funded by an initial allocation in the budget for the 1994/5 year of $200 million and that $1.1 billion would be committed over the first ten years. Of the initial allocation, $25 million was to go to the Indigenous Land Corporation for land acquisition purposes. It seems that the Northern Territory Government was concerned that, pending June 1997, there should not be a sudden increase in acquisition by Aboriginal people of alienated land in the Territory over which they had a claim, leading to an increased number of grants of inalienable title under the Northern Territory Act. Mr Keating's speech indicated that the Chief Minister had expressed reservations that the Land Fund Act, if enacted, would thus "lead to an inappropriate increase in land held under inalienable title". This, Mr Keating assured the House, would not result because:

"We have included in the legislation a clause prohibiting claims under the Land Rights Act being made in relation to land acquired by the Indigenous Land Corporation."

The Second Reading Speech to the Bill that ultimately became the Land Fund Act was given on 28 February 1995. That followed, it would seem, extensive debates and proposals for change in the Senate. However, the policy that the Indigenous Land Corporation could not use funds out of the Land Fund to assist purchase of alienated land in the Territory so as to take advantage of the time remaining until the expiration of the "sunset clause" in June 1997, was not altered. As the Explanatory Memorandum accompanying the 1995 Bill makes clear, ATSIC was to receive in the 1994/5 year (effectively a one month period) $21 million being of a similar order to funds which it currently spent on acquisition and management. The Indigenous Land Corporation in that year was to receive $25 million. In 1995/96 and 1996/97 the Indigenous Land Corporation was to receive $24 million from the land fund and ATSIC was to receive $21 million. From the 1997/98 year ATSIC was to cease to receive moneys for land acquisition from the Land Fund. Referring to the matter of the purchase of land in the Northern Territory, the Explanatory Memorandum to the Bill which became the Land Fund Act commented:

"The Indigenous Land Corporation will be able to purchase land in all States and Territories. In the case of the Northern Territory however, such land will not be able to be claimed under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976. The effect of this is to ensure that there is not a significant increase in the number of pastoral properties converted to inalienable title under that Act as a result of the establishment of the Land Fund; this provision will not preclude the conversion of acquired pastoral leases to native title under s47 of the Native Title Act 1993."

The reference to the Native Title Act is of no present relevance.

On 29 March 1995 the Board of Commissioners of ATSIC met to consider the policy it should adopt for the management and operations of its land acquisition and maintenance programs for the years 1995/96 and 1996/97. The meeting was held in anticipation that the Indigenous Land Corporation would be operational by June 1995. Before the Board was a document headed "Policy Options for Management of the Land Acquisition and Maintenance Program (LAMP) During 1995/96 to 1996/96". The author of that document presented four options.

The paper outlined certain underlying assumptions and principles used in developing the options which were set out. Assumption 2 was in the following terms:

"That there be special treatment for the Northern Territory for land acquisitions from ASTIC's LAMP, in line with discussions with Government and the restrictions of the Bill.

This is the underlying rationale for the ASTIC and ILC parallel programs. The continuance of LAMP for the next two financial years is predicated upon the section 191U of the Land Fund Bill which does not allow land purchased by the ILC in the Northern Territory (NT) to be claimed under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (hereinafter referred to as the NT Land Rights Act). Land successfully claimed under the NT Land Rights Act is converted to inalienable freehold title. NT land purchased by ASTIC LAMP funds during the next two years will enable NT traditional owners to convert to inalienable freehold title if they wish to."

The four options presented were as follows:

Option 1 That the bulk of the ASTIC funds be used for Northern Territory land purchases with the balance being allocated for land management maintenance.

Option 2 That of the money for land acquisitions a small part to deal with "emergency land acquisitions" in places other than the Northern Territory be provided and the balance be used to purchase Northern Territory land.

Option 3 That there be no special treatment for the Northern Territory and that the Commission concentrate on land management obligations rather than land acquisition.

Option 4 The continuation of the status quo; that is to say, that the Commission respond to applications made to it for funds without giving special preference to the Northern Territory.

Ultimately it was the second of these options which was decided upon. The formal record of the decision signed by the Chairperson was relevantly in the following terms:

"Agreed to set aside $10m for land purchases in the Northern Territory and $2m for other priority national purchases in each of the next two years with the balance of funds to be allocated for land management;".

The document referred to s14 of the ATSIC Act as the source of power of the decision.

It is this Commission decision which the applicants in the present proceedings seek to challenge. In proceedings NG367 of 1995 there are two applicants, being respectively, the New South Wales Aboriginal Land Council and the Tasmanian Aboriginal Centre Inc. In matter QG 95 of 1995, which was commenced in the Queensland Registry of the Court, the applicant is the Foundation of Aboriginal & Islander Research Action Aboriginal Corporation. The standing of each applicant is not in issue, but is accepted.

The challenge to the Commission decision was by way of an application for judicial review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") or, alternatively, upon s39B of the Judiciary Act 1903. To the extent necessary, the applicants rely also upon the so-called associated or pendent jurisdiction of the Court.

Each of the two applications characterised the Commission's decision as being either a "decision" or "conduct for the purpose of making a decision", purportedly made under the ATSIC Act. I should say at the outset that it was agreed that the source of power in the Commission to do what it did could not be found under s14 of the ATSIC Act. In a subsequent letter, the Chairperson of ATSIC sought to rely upon the general power of the Commission under s10(1) of the ATSIC Act. It is not suggested that the Commission's decision
was invalid by virtue of relying upon the wrong section, if otherwise valid.

The second respondent is the Chief Executive Officer of ATSIC, of whom it is said that there has been delegated to her power to approve grants on behalf of ATSIC. I shall come back to the delegation of power to the second respondent later in these reasons.

The respondents filed an objection to the competency of the Court dealing with the matter, on the basis that what was sought to be reviewed was neither a decision nor conduct, in the sense those words are used in the ADJR Act. Jurisdiction, under s39B of the Judiciary Act, was also challenged on the basis that ATSIC was not an officer of the Commonwealth and that the second respondent was not a proper party in any event to the proceedings.

The respondents declined to provide a statement of reasons, pursuant to s13 of the ADJR Act, having regard to the view they took as to the inapplicability of that Act. However, there was before the Court a letter from the Chairperson of ATSIC (the letter is addressed to Mr Ross, Chairperson of the Indigenous Land Corporation in the Australian Capital Territory) which the parties agree sets out the material that would have been in a s13 statement had there
been a requirement for ATSIC to supply one. Among other things, that letter says as follows:

"In considering how it should spend the funds it has for land acquisition and management, the ATSIC Board took into account the legislation which establishes the ILC and the Land Fund and the level [sic] funds that would be available for land acquisition and management through the Land Fund over the next two years.

ATSIC also took into account the fact that land acquired in the Northern Territory with funds from ATSIC may, until 30 June 1997, be claimed under the Land Rights (Northern Territory) Act 1976 and, if a claim is successful, will be converted to inalienable freehold title. Conversely, any land purchased with funds from the ILC may not be claimed under the provisions of the Land Rights Act. In these circumstances, the Commission believes it is in the best interests of Aboriginal people that it apply ATSIC funds to the Northern Territory while encouraging the ILC to purchase land elsewhere in Australia, where conversion to inalienable freehold title is not available.

Your Board members will no doubt appreciate that during the first three years of the ILC operations (ie to June 1997) funds will be available from both ATSIC and ILC for the acquisition and management of land. Over these three years (1994/95 - 1996/97) a total of some $136 million (less ILC Operational costs) will be provided for these purposes. The $600,000 ATSIC will spend in the Northern Territory in 1994/95 and the $20 million it proposes to set aside over the next two years for land purchases in the Northern Territory represents less than 15% of available funds for land."

To further complicate the issues for decision, ATSIC, on 9 August 1995, determined to amend the decision-
making principles applied by it, inter alia, to the making of grants for loans by setting out criteria to be employed in assessing proposals for financial assistance which include the following paragraphs:

"(a)the provision of financial assistance must take into account the Commission's program funding policies in force from time to time as stipulated in the Program Statements and Program Policy and Guideline Statements;

...

(d) where the Board of Commissioners has made a decision concerning the global allocation of funds available for grant, loan, guarantee or share acquisition under sections 14 to 17 of the Act, it may nevertheless consider on its merits any application for a grant, loan, guarantee or share acquisition under these provisions which may fall outside the allocation, provided that the application is made in accordance with applicable procedural requirements."

It was submitted that the amendments made the present proceedings moot so that, even if the Court had jurisdiction and was satisfied that there was a decision or conduct which otherwise was reviewable, it should decline to make any order and dismiss the application.

The issues arising for decision can therefore be summarised shortly as follows.

(1) Does the Court have jurisdiction under the ADJR Act?

(2) If not, does the Court have jurisdiction under s39B of the Judiciary Act?

(3) Does the pendent jurisdiction of the Court assist the applicants with jurisdiction?

(4) Assuming the Court has jurisdiction and without regard to the Commission's decision of 9 August 1995, was the Commission's decision erroneous so that it should be set aside under the ADJR Act or otherwise?

(5) Assuming all other questions are answered in favour of the applicants, should the Court, as a matter of discretion or otherwise, dismiss the application having regard to the Commission's decision of 9 August 1995?

JURISDICTION UNDER THE ADJR ACT

Jurisdiction is conferred by the ADJR Act upon the Court "to hear and determine applications made to the Court under this Act". Applications may be brought for the review of decisions to which the Act applies: s5(1); for the review of certain conduct for the purpose of making a decision to which the Act applies: s6; and in respect of failure to make decisions of a person who has a duty to make a decision to which the Act applies: s7.

It is the applicants' submission that what is sought to be challenged in the present case is either a decision or
conduct relevantly reviewable. The respondents submit to the contrary.

Authoritative guidance is to be found in the judgment of the then Chief Justice, Sir Anthony Mason, with whose judgment Brennan and Deane JJ relevantly agreed, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. That judgment was the subject of much analysis before me and, although the case is well known and regularly cited and followed, it is incumbent upon me to enter upon a discussion of it.

It will be recalled that the Australian Broadcasting Authority was holding an inquiry into whether it was advisable in the public interest to suspend or revoke any of the licences held by certain companies which were subsidiaries of Bond Media Limited. In the course of its inquiry, the Tribunal found Mr Bond to have been guilty of improper conduct in various respects and concluded that he would not be found to be a fit and proper person to hold a licence. It thereupon decided that by reason of Mr Bond's control of various licensees those licensees were no longer fit and proper persons to hold licences. The Full Federal Court, on an application under the ADJR Act, allowed the application and purported to set aside the "holdings" in relation to Mr Bond and the licensees. The decision of the Full Court of this Court was ultimately set aside. It should be noted that the Tribunal at the time had not then made a determination to actually revoke any licence. It had merely made findings on the fitness to hold a licence of Mr Bond and of the licensees.

As the judgment of Mason CJ points out (at 328) underlying the arguments presented to the High Court, was a question as to the limits of the jurisdiction of this Court to:

"...review conclusions, including findings of fact, which constitute elements in the chain of reasoning leading to the ultimate administrative decision or order which is the subject of the application for review."

It was not in dispute in the High Court that the Tribunal's decision that the respective licensees were not fit and proper persons to hold their licences was a decision of an administrative character subject to review under the ADJR Act. This was so because the Broadcasting Act (1942) (Cth) made a finding of the fitness of a licensee to hold a licence a criteria for holding a licence. What was relevantly in issue was whether the "decision" that Mr Bond would not be found to be a fit and proper person to hold a licence was a reviewable decision or alternatively reviewable as conduct. After considering various policy matters, the Chief Justice said (at 337):

"... a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination."

After a consideration of the terms of s3, his Honour continued (at 337):

"If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct', a concept which appears to be essentially procedural in character."

His Honour then illustrated conduct of a procedural character by reference to the example of a refusal of an application for an adjournment.

Accordingly the decision that Mr Bond was not a fit and proper person was not itself a determination for which the Act provided. It was, as his Honour put it (at 339):

"no more than a step in the Tribunal's reasoning on the way to finding that the licensees were no longer fit and proper persons to hold their licences".

The decision that the licensees were not fit and proper persons was in a different category, because although an intermediate determination towards the decision whether ultimately to revoke or suspend the licences, it was:

"a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision".

His Honour then turned to consider the meaning of "conduct". He made the point that the distinction between reviewable decisions and conduct engaged in for the purpose of making a decision, was an elusive one. He said (at 341-2):

"In its setting in s6 the word `conduct' points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. ... It would be strange indeed if `conduct' were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

Accordingly, there is a clear distinction between a `decision' and `conduct' engaged in for the purpose of making a decision.
A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous."

His Honour's conclusions (at 343) was that:

"... substantive decisions, findings of fact or inferences from findings of fact generally are not capable of review as `conduct' unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion ...".

With respect to the submissions put on behalf of the applicants, I do not think that the Commission's actions on 29 March 1995 agreeing to set aside a sum of money, can properly be characterised as a "decision" within the meaning of the ADJR Act. What was involved was not itself a decision, the power to make which was conferred upon ATSIC by any Act. Nor was it a decision which was substantive, final and operative, as those words may be understood in the context in which they are used by Mason CJ. The relevant decision under an enactment which would be capable of review under the ADJR Act would be a decision, in due course, determining to grant or not to grant moneys etc to an applicant. That is the
decision which is substantive, final and operative. A decision to allocate so much of the funds of ATSIC as are not allocated to maintenance (in the present case $12 million each year) in a particular way, is undoubtedly an antecedent step in the process which will ultimately lead to a decision which is reviewable, but is not of itself a reviewable decision.

It might be noted here that the Commission's decision was not binding upon it as would have been the case had the Commission acted under s22 of the ATSIC Act to incorporate it within its decision-making principles. Section 22 provides that written principles formulated in accordance with the section bind the Commission in performing its functions and exercising its powers. A formulation of such decision-making principles may have involved a "decision" under the ADJR Act, having regard to the provisions of s3(3) of the ADJR Act, which is in the following terms:

"Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

On no view can it be said that the ASTIC Act makes any provision for the making of a recommendation as to the allocation of funds.

That requires me then to consider whether the action of the Commission on 29 May 1995 is reviewable "conduct".

It is clear from the language of the opening words of s6(1) that reviewable conduct must be conduct which is engaged in, or proposed to be engaged in, "for the purpose of making a decision to which this Act applies".

Literally the word "conduct" means "way of acting", see The Macquarie Dictionary, first meaning. However, if the word were given so wide a meaning, every step leading up to the making of a decision would relevantly be conduct which is reviewable. Such a view of the meaning of the word "conduct" would be inconsistent with the majority view of the High Court in Bond.

Section 3(5) of the ADJR Act may be thought to suggest that the word "conduct" should not be given a narrow meaning. It does not feature in the judgment of Mason CJ in Bond. Section 3(5) provides:

"A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation."

Clearly, the formulation of a policy for allocation of funds preparatory to the making of grants can be seen to be the doing of an Act or thing preparatory to the making of grants out of the allocated funds. As such, within a literal reading of s3(5), it could then be classified as "conduct", but so too could a factual finding made in the course of the Broadcasting Tribunal's deliberations. The literal meaning of the words bring one into collision with what is said in Bond which is binding upon me.

Some assistance, as to the meaning of the word "conduct", may be gained by recourse to the grounds stipulated in s6 of the ADJR Act upon which conduct may be reviewed. Grounds (a) and (b) clearly bear out the Chief Justice's view that conduct is to be seen as procedural. The rules of natural justice referred to in (a) are concerned, mainly at least, with the affording of procedural fairness. Paragraph (b) specifically refers to procedures not being observed, although required to be observed. Paragraphs (c), (d) and (e) are concerned not with the character of the conduct engaged in or proposed to be engaged in, but with the authority of the decision-maker in respect of the ultimate decision. Those paragraphs presumably are intended to operate in advance of a decision being made and so as to provide an opportunity to challenge jurisdiction or authority. Paragraph (f) is, in part at least, of the same kind as paragraphs (c), (d) and (e) in that it permits a challenge to be made in advance of a decision, where an error of law is likely to be committed. However, the paragraph speaks also of an error of law in the course of the conduct itself. Mason CJ in Bond (at 343) illustrates the operation of this paragraph by reference to an error of law being made in an inquiry held for the purpose of making a decision. His Honour does not suggest that the paragraph should be limited to such a case. However, as his Honour points out, a review of conduct in the course of such an inquiry might involve a challenge to a substantive as well as procedural error of law. Otherwise paragraph (f) would seem to add little to the right to challenge the ultimate decision.

Paragraph (g) finds no place in the discussion by his Honour. It contemplates review on the basis that there may be fraud in the course of conduct. No doubt in the case of a Tribunal it would encompass a case where prior to a decision being made a bribe was taken by the Tribunal which was likely to affect the decision. Where the decision-maker is not a Tribunal, it equally seems to encompass the class of case where the decision-making process was likely to be vitiated by fraud. An example might be a case where a decision-maker was entitled to make grants but prior to deciding between competing applicants accepted a bribe from one of them. In either case the decision-making procedural process has been infected with error.

Paragraphs (h) and (j) again permit attacks to be made in advance of a decision being made and do not assist at all in defining what the legislature contemplated as conduct.

Two things must be borne in mind when considering Bond. The first is that the case was concerned with a Tribunal rather than the review of a decision of a decision-maker in some other context. The remarks made must be understood in this context. Where a question arises as to conduct of a Tribunal leading to the decision of that Tribunal, it is, perhaps, easier to differentiate between the substantive decision, on the one hand, and the procedural process pursuant to which that decision is reached, on the other, than it might be in other cases. Second, Bond was concerned with a challenge to what was a finding of fact. The finding was not one which the Tribunal was required by legislation to make. It was merely a step in the process of the Tribunal making an intermediate finding of fact required by the Statute to be made as to the fitness of licensees. That is not necessarily the same as the formation of a policy to guide grants to be made.

Where the decision-maker is not a Tribunal it will ordinarily be easy to determine what the decision is which is capable of review under the ADJR Act. In the present case, as I have said, it would be the decision to make a grant or to refuse to make a grant to a particular applicant. The conduct in which the decision-maker engages for the purpose of making that decision may be referred to as the decision-making process, just as the Tribunal's hearing was the decision-making process of the Tribunal in Bond.

In my view, and consistently with what the Chief Justice said in Bond, the conduct which then is reviewable is the procedure which the decision-maker engages in for the purpose of making the relevant decision. This has two implications for the present case. The first is that it is necessary, before there can be review of conduct under s6(1) of the ADJR Act, that there be able to be identified decisions of the relevant kind, not yet made, in circumstances where the Tribunal has embarked upon, or proposes to embark upon, the decision-making process leading up to the making of these decisions. The second matter is that the review must be concerned with the procedure adopted by the decision-maker as the decision-making process leading up to the making of the relevant decision, the making of a decision in the course of the process not being, conformably with Bond, relevant conduct.

In the present case there is evidence that ATSIC circulated a notice in the form of an information leaflet entitled "How to apply for a grant - a brief guide to grant applications and ATSIC's decision-making process". It advised that persons seeking grants should send or deliver completed grant applications to the ATSIC regional office by 31 January 1995, in respect of grants which would ultimately be made in about July 1995. It may incidentally be noticed that it referred to allowing organisations to compete equally for available funds, a statement that sits ill with the decision it made to set aside ten twelfths of the funds available for acquiring land for acquisitions in the Northern Territory.

There is evidence also of applications having been made by persons or organisations in Tasmania for grants, which applications presently remain unfulfilled. Having regard to this evidence and also evidence of the grants made by ATSIC in previous years, it may be inferred that there were a number of applications made to ATSIC for funds for land acquisition awaiting determination as at June 1995. The decisions ultimately to be made on these applications will all be decisions to which the ADJR Act applies. The decision-making process which ATSIC pursues, in deciding whether or not to make these grants, will be the conduct subject to review under s6.

However, I am bound by Bond. The decision to allocate funds in a particular way preparatory to the actual allocation of the funds to applicants is part of the decision-making process engaged in by ATSIC for the purpose of making the ultimate decisions on applications. If that were enough
it would constitute reviewable conduct. If not, then it must be decided whether it is, in the relevant sense, "procedural".

It was submitted on behalf of ATSIC that to hold the Commission's decision here in question to be "conduct", would be contrary to the decision of Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580.

In that case his Honour was concerned with an "in principle approval" given by the Minister for Resources to Gunns Limited for the export of a certain number of tonnes of woodchips until the end of 1999 in circumstances where the legislation in question authorised the issue of annual export licences. It was held that the giving of the "in principle approval" constituted neither a decision nor conduct for the purpose of making a decision, within the meaning of the ADJR Act.

I would, as a matter of comity, follow the decision of Sackville J in Tasmanian Conservation Trust, unless of the opinion that it was clearly wrong: Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605 at 627 per Lindgren J, and cases referred to on that page. I should say that I am not of the view that his Honour was clearly wrong. To the contrary, I am of the view that his Honour was clearly right to conclude that the grant of "in principle approval" in respect to periods for which applications had not yet been made, could not constitute conduct engaged in for the purpose of making a decision. The reason why his Honour is right is that the Minister had not yet embarked upon any decision-making process, for there had not as yet even been any application in respect of the subsequent years. Thus, there was no identifiable decision to which the conduct could relate. It seems to me quite clear that an act could only constitute conduct engaged in for the purpose of making a decision, if there can be identified a decision to be made.

That was not the basis upon which Sackville J put the matter, however. Rather his Honour founded himself upon the distinction between substantive decision and procedure made in Bond, to which reference has already been made. His Honour was of the view that the "in principle approval" was not a procedural step in the sense described by the Chief Justice. Rather it was an outcome of the deliberative process which did not amount to a final and operative decision.

The Tasmanian case is clearly distinguishable from the present in that by June 1995 ATSIC had embarked upon its decision-making process in respect of applications then awaiting determination. The Commission came to a conclusion in the course of that process as to the manner in which it would allocate funds in making grants in accordance with those applications. However, it is difficult to classify that conclusion as a mere matter of procedure. It must follow that I am bound to hold that there is no relevant conduct to review and, accordingly, that the Court does not have jurisdiction under the ADJR Act.

SECTION 39B OF THE JUDICIARY ACT

Section 39B of the Judiciary Act confers original jurisdiction on this Court in respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. The Chief Executive Officer of the Aboriginal and Torres Strait Islander Commission, the second respondent, is clearly an officer of the Commonwealth and no submission was made to the contrary. Likewise, ATSIC is not an officer of the Commonwealth and no submission was put that it was.

Thus if jurisdiction is to be attracted under s39B, it must be because relief in the nature of mandamus, prohibition or injunction is sought against the second respondent.

The present applications seek relief of a kind that is said to be in a nature of a writ of prohibition directed towards the second respondent, that she cease to take or desist from taking any steps to give effect to the decision under review, as well as an injunction restraining the second respondent from granting funds or making grants in accordance with the decision. Having regard to the claim for injunctive relief, it is not necessary to consider whether the relief sought was truly in the nature of prohibition.

It was submitted, and I accept, that s39B(1) does not confer jurisdiction upon this Court in a case where the jurisdictional element (in this case the claim for injunctive or prohibitory relief) is merely colourable. This qualification flows from what was said by Gibb J in R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 26 and see too Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212.

It was submitted that in the present case the relief sought against the second respondent was claimed merely for the purpose of obtaining jurisdiction and was, in the relevant sense, colourable. In dealing with this submission it is necessary to say something more of the ATSIC decision-making procedures leading to the making or refusing of grants of money and the role of the second respondent in that process.

The position of Chief Executive Officer of ATSIC is a statutory one to which the holder is appointed by the Minister. Section 46(3) of the ATSIC Act confers upon the Chief Executive Officer the day to day administration of ATSIC. Section 46(4) refers to powers conferred upon the Chief Executive Officer under the Act, exercisable by the Chief Executive Officer "in managing the administration of the Commission". No relevant power is specifically conferred on the Chief Executive Officer by the ATSIC Act. Section 46 would not support a power in the Chief Executive Officer to make grants.

Section 45 of the ATSIC Act, however, permits the Commission to delegate any or all of its functions and powers, other than certain specified functions and powers not presently relevant. That delegation may be to the Chief Executive Officer or members of the staff of the Commission. The meeting of 29 March 1995, in addition to making the decision complained of, endorsed a document referred to as "the land acquisition decision-making process". That document provides that the Board of Commissioners will, after applications are assessed by regional councils, "prioritise applications on a national basis and make[s] decisions on allocations". It contemplates thereafter that an appropriate delegate will actually approve an application. There are delegations made at various levels of authority, including a delegation to the Chief Executive Officer without monetary limit. However, before a delegate can exercise the power in respect of grants for the acquisition of traditional land, the application must be considered by the Board of Commissioners and endorsed by that Board. Although the Chief Executive Officer's delegation is unlimited as to amount, the delegation to her appears to be rather administrative in character, in that the power conferred upon the Chief Executive Officer is merely to approve the making of a grant where it has been first endorsed by the Commission.

These comments are subject to one qualification. By a decision made at its meeting of 1-3 May 1995, the Board of Commissioners of ATSIC resolved to delegate to the Chief Executive Officer the power to approve any land acquisition proposals from a list of priority projects referred to in the minute of that meeting for the period to 30 June 1995. Pursuant to that meeting, an instrument of delegation was executed under the common seal of ATSIC in favour of the second respondent in which the then extant instrument of delegation to the Chief Executive Officer dated 6 April 1995 was amended by adding the words "to approve any individual land acquisition proposals" with the additional words being also added that "this instrument shall cease to have effect on 30 June 1995". It does not seem that any later delegation authorised the second respondent to approve individual land acquisition proposals.

It is thus put that at least as from 30 June 1995 the Chief Executive Officer had no substantive decision-making role in granting applications so that relief, whether in the nature of prohibition or injunction, would be pointless against the second respondent. So it was said that the only reason for the second respondent to be joined as a party was to obtain jurisdiction under s39B. The claim to jurisdiction under s39B was therefore colourable.

With respect, I agree with the submissions put by the respondents that in the circumstances no relevant relief could be granted against the second respondent and that the presence of the second respondent in the proceedings was merely for the purpose of obtaining jurisdiction under s39B. Being colourable, the jurisdiction of the Court under s39B is not attracted.

THE COURT'S ACCRUED JURISDICTION

It was submitted that if I were to find that the Commission's decision was not a decision or conduct reviewable under the ADJR Act, nevertheless the case was one brought under that Act and accordingly the Court could decide in its accrued jurisdiction to set aside the Commission's decision, if erroneous in law.

The argument is based upon the judgment of Davies J in Post Office Agents Association Limited v Australian Postal Commission (1988) 84 ALR 563. In that case an application had been brought for review under the ADJR Act and also pursuant to s39B of the Judiciary Act. His Honour held that the Court had no jurisdiction under the ADJR Act, because the decision in question was not one made under an enactment. Section 39B had no application because the terms of that section were not attracted. However, his Honour was of the view that the Court nevertheless had jurisdiction to consider the matter. His Honour said (at 565):

"The jurisdiction of the Court under the ADJR Act has been invoked. The application is brought thereunder as a matter of substance, not as a matter of artificiality or subterfuge. The Court has jurisdiction to deal with the claim and jurisdiction to deal with all other claims not otherwise within its jurisdiction arising out of the subject matter of the dispute: see Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465 and Fencott v Muller (1983) 152 CLR 570; 46 ALR 41."

His Honour accordingly dismissed the objection to competency. In the result, however, it mattered not, for his Honour did not find any grounds for setting aside the decision there in question.

Reference was made also to the decision of Gummow J in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, but that case is quite distinguishable in that jurisdiction was properly attracted and so, having once been attracted, carried with it the accrued jurisdiction of the Court to deal with a matter which was associated.

In establishing the Federal Court of Australia, the Commonwealth Parliament acted pursuant to s71 of the Constitution. Section 19 of the Federal Court of Australia Act 1976 left the jurisdiction of the Court, however, to be defined by reference to such specific Acts of the Parliament as would confer jurisdiction upon the Court. Having regard to the provisions of s77(1) of the Constitution authorising Parliament to make laws defining the jurisdiction of any federal court, the jurisdiction is conferred in respect of "matters", the matters being of the kind mentioned in ss75 and 76 of the Constitution. Thus the ambit of jurisdiction conferred in any case upon the Court depends on what constitutes the "matter" with respect to which the jurisdiction is defined: Fencott v Muller at 602. Once jurisdiction is conferred, the ambit of a matter arising under a federal law may extend beyond claims which arise under that law, so long as those claims are not at least distinct from and unrelated to the non-federal claim: cf Moorgate Tobacco Co Ltd v Phillip Morris Ltd (1980) 145 CLR 457 at 482.

It is now well established that it is of no account that the federal claim, which initially attracts the Court's jurisdiction, is ultimately dismissed. So, for example, if a claim is brought under the Trade Practices Act 1974 (Cth) for relief which the Court is empowered to grant under Part VI , the Court will have power to hear and determine non-federal aspects of a single controversy of which the federal issue forms an integral part under what Mason, Brennan and Deane JJ referred to in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 294 as "accrued jurisdiction", even if the trade practices claim is ultimately dismissed; cf Burgundy Royale.

It is different if no federal jurisdiction at all is attracted, no accrued jurisdiction could arise. So much is stated pithily in a passage from the joint of Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in Carlton and United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 where their Honours said, speaking of the Court's judgment in Stack:

"It clearly appears from this judgment, and is indeed obvious, that there can be no accrued jurisdiction unless there are federal issues which that Court has jurisdiction to entertain."

The real question here is whether an application to the Court, in form an application made pursuant to the ADJR Act, in a case where ultimately the Court determines that jurisdiction is not attracted, should be treated as a case involving federal jurisdiction so as to permit consideration of an attracted claim or whether it should be treated as involving a case where no federal jurisdiction exists so that no accrued jurisdiction arises.

The reference to Stack in the passage from Carlton and United Breweries does not assist. There, there was clearly a claim for relief pursuant to jurisdiction conferred upon the Court under s86 of the Trade Practices Act.

Counsel for ATSIC relied on a decision of Sheppard J in Glass v State of New South Wales (1994) 52 FCR 336. There, proceedings were brought under jurisdiction claimed to arise from the Racial Discrimination Act (1975) (Cth). His Honour, however, held that that Act did not confer jurisdiction upon the Court, as claimed by the applicants. It followed that no question of accrued jurisdiction would arise and no basis could be found for the exercise by the Court of its accrued or attached jurisdiction.

That case is quite understandable, but distinguishable from the present case. There, was not even the colour of a conferring of jurisdiction in Glass, so that no question of attached jurisdiction could arise.

The conferral of jurisdiction in s8 of the ADJR Act is in the following terms:

"The Court has jurisdiction to hear and determine applications made to the Court under this Act."

Such applications are authorised in the terms of sections 5, 6 and 7 of the ADJR Act. They are applications to review decisions, applications to review conduct or applications in respect of failures to make decisions. Where a challenge to the jurisdiction of the Court is made, as it was here, the Court has jurisdiction to determine the issue of whether it really has jurisdiction. So much is clear. But in doing so it does not assume jurisdiction under the ADJR Act.

The question may be said to be one of construction of s8 of the ADJR Act. When that section refers to "applications", does it refer to applications which are ultimately found to be for the review of relevant decisions or conduct, or do the words apply to applications in form purporting to be made under ss5, 6 and 7, irrespective of whether they are ultimately found to fall within those sections?

The matter is clearly arguable and I am presently inclined to the view that jurisdiction is only conferred upon the Court once there is conduct or a decision under an enactment capable of review. If there is not, then it seems to me that the Court's jurisdiction conferred by s8 of the ADJR Act ought not to be attracted. A fortiori, no jurisdiction would arise under the accrued jurisdiction. The case of Burgundy Royale is clearly distinguishable. There, application was made under the Trade Practices Act for relief against the Northern Territory. The Territory was not a person bound by the Act, so that no cause of action was available against it. The issue then arose as to whether common law claims made against a number of respondents could be dealt with under the accrued jurisdiction of the Court. It was held that the Court did have accrued jurisdiction in that case. This was because jurisdiction was, in any event, attracted under s86 of the Trade Practices Act, notwithstanding that the person against whom relief was sought was not bound by the Trade Practices Act. In other words, the question of whether the Territory was bound by the Act was not one that went to jurisdiction.

To adopt this view would, however, involve my differing from the view of Davies J in Australian Postal Commission. It can not be said that in concluding as he did his Honour was clearly wrong and despite my own views I would, as a matter of comity, follow his Honour's course of accepting jurisdiction to entertain a claim at common law.

THE MERITS

As a reading of the report of the Kerr Committee (The Commonwealth Administrative Review Committee Report 1971) and the later report of the Ellicott Committee (Prerogative Writ Procedures Committee Report 1973) makes clear, the enactment of the ADJR Act was less to provide a change in substantive administrative law than to alleviate the procedural difficulties inherent in obtaining judicial review through prerogative writs.

The situation in the United Kingdom, and there is no reason to doubt that it was not the same in Australia in 1977 was that there were two routes whereby relief could be sought in public law matters, namely by way of application for one of the common law prerogative writs of certiorari, prohibition or mandamus or by way of a civil action for a declaration, see Equal Opportunities Commission v Secretary of State for Employment [1995] 1 AC 1 at 34. The procedures surrounding prerogative writs was technical and might perhaps be thought to have hindered the development of judicial review. However, it was early established that a court could grant a declaration as to public rights in civil proceedings, so long as the applicant had locus standi. Examples of such cases are to be found in the judgment of Lord Browne-Wilkinson in Equal Opportunities Commission v Secretary of State for Employment (supra at 35). The development in the United Kingdom which hastened a development of the law of judicial review in that country was not substantive but procedural. In 1977 Order 53 was introduced into the Rules of Court, specifically authorising an application for a declaration in judicial review proceedings. That Rule was later given statutory confirmation by s31 of the Supreme Court Act 1981 (UK).

This development was not directly paralleled in Australia probably because, so far as Commonwealth law is concerned, the enactment of the ADJR legislation was thought to make it unnecessary. This Court has always had power by
virtue of s21 of the Federal Court of Australia Act in relation to a matter in which it has original jurisdiction, to make binding declarations of right irrespective of whether any consequential relief is claimed. There is no reason to believe that the Court lacks jurisdiction to grant a declaration in a public law matter in an appropriate case, in favour of a person who has standing.

No argument was put that this Court would not, in proceedings for a declaration, have jurisdiction to review a decision of ATSIC, assuming otherwise the Court had jurisdiction, if it could be shown that in making the decision ATSIC erred in law. Nor is there any doubt that an error of law would emerge if a decision was made which took into account irrelevant factors or failed to take into account relevant factors. Likewise a decision could be impugned if it was so unreasonable that no decision-maker could make it, because in such a case it must have been infected with error. Where, as in the present case, it is suggested that the decision-maker has failed to take into account relevant factors or has taken into account irrelevant factors, it will be necessary to determine from the statute pursuant to which the decision was made, what factors are relevant to be taken into account. Where the statute does not deal with the matter directly, those factors must be found by consideration of the subject matter, scope and purpose of the legislation to
determine what is necessarily implied: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39-40.

In the present case it is unnecessary to embark upon a detailed analysis of the ATSIC legislation. Its scope and purpose are self-evident. ATSIC exists to redress the imbalance of the past colonisation of the continent. To this end it is funded to assist Aboriginal persons and Torres Strait Islanders acquire land. ATSIC does not exist for the purpose of furthering the interests of Aboriginal persons in a particular place. A decision by it, for example, that it would favour residents of a particular State or Territory over residents of another State or Territory would clearly be invalid. The residence of beneficiaries is not of itself a relevant factor. Where public moneys are made available for distribution to a particular group in society, in the present case persons of Aboriginal or Torres Strait Islander descent, it is necessarily implied that all persons within the class of beneficiary will be open to consideration for that benefit, although the benefit is to be ultimately allocated having regard to the merits of competing applicants.

The applicants put their case in a variety of different ways. It is unnecessary for me to outline them here. However, in whatever way the application is made, the argument is simplicity itself. First, it is submitted that the decision of the Commission to set aside in each of two years $10 million of the $12 million to be allocated in that year for land acquisition to persons seeking to acquire land in the Northern Territory was a decision so unreasonable in the administrative law sense that it amounted to an error in law. The making of such a decision operated to preclude consideration of applications received from persons outside the Northern Territory. It meant that in the two year period virtually the entire allocation of funds was to go to the purpose of acquisition of land in the Territory.

The second ground relied upon was the failure on the part of ATSIC to take into account in determining the allocation of its funds Government policy as enunciated by the Prime Minister. That policy was, as has already been seen, that funds made available during the period of approximately two years were not to be used in such a way as to involve an inappropriate increase in claims for land in the Territory before the "sunset" period of the Northern Territory legislation. That point was put also in the alternative, namely that the Commission erred in taking into account what the Commission referred to as "discussions with the Government" that special treatment should be given to land acquisition in the Northern Territory because there were no discussions to that effect.

In my view the applicants should succeed on each of the submissions made.

It is true, as counsel for ATSIC submitted, that ATSIC has a discretion as to the allocation of funds for grants. It is also true, as is submitted, that this Court will not, in the guise of judicial review, substitute itself for the decision-maker upon which Parliament has conferred a discretion. The power to make grants is a power conferred upon ATSIC. It is not a power conferred upon this Court.

But where, as here, it can be seen that the power has been exercised in a way which is so unreasonable, having regard to the scope and purpose of the ATSIC legislation, that it could not reasonably have been so exercised, the Court does have power to intervene.

It might be said that the need for ATSIC to consider all applicants for grants on their merits and not to favour applicants in one particular State or Territory over applicants in another State or Territory on the basis of residence, is clearly recognised in ATSIC literature. Two examples will suffice. The Schedule of Program Delegations of 23 June 1994 issued by the Board of Commissioners, advises persons to whom delegations are made, of the need for "equitable ... delivery of the Commission's programs". So, too, the option paper before the Board of Commissioners at the time of making the present decision, itself recognised that the practice of ATSTIC, at least in the past, had been to respond to proposals put to it by claimants rather than, inferentially, determining a policy that would favour residents of a particular place.

The need to consider applications on their merits and to treat claimants in particular States or Territories equally, does not require the conclusion that it would be irrelevant for ATSIC to take into account in considering competing applications, the fact that acquisitions by Aboriginal persons in the Northern Territory within the two year period before the "sunset clause" made such applications impossible, could result in the grant of an inalienable fee simple title and that applications made after that time would not.

However, the fact that it would not be irrelevant to take this matter into account does not mean that ATSIC could commit virtually all of the funds available to it for land acquisitions to that end. There is a question of degree. The decision is more difficult to sustain when it is noted that ATSIC requested the Indigenous Land Corporation to take ATSIC's actions into account when distributing funds, so that funds might be distributed by that corporation to persons outside the Northern Territory.

Put in another way, what was sought to be done by ATSIC was to get around, with the anticipated assistance of the Indigenous Land Corporation, the policy which the Prime Minister had enunciated in the speech to which I referred earlier and which had led to the enactment of s191U of the ATSIC Act.

Far from taking into account the Government policy as enunciated by the Prime Minister that there not be an inappropriate increase in acquisitions of land in the Northern Territory, ATSIC did the opposite. It embarked upon a course which would ensure that this policy would, at least to the extent of some of the $10 million allocated, be frustrated. It hoped for the connivance in this end of the Indigenous Land Corporation. That Corporation has not yet made any grant nor, so far as the evidence before me emerges, has it reacted to the suggestion that it play its part in the connivance. It would be inappropriate for the Indigenous Land Corporation to assist in frustrating the evident policy behind s191U.

ATSIC also erred in taking into account what it took to have been the outcome of discussions with the Government and as being the underlying rationale for parallel programs, namely that there should be special treatment for the Northern Territory through grants by ATSIC in the two years before the "sunset" period. There is no evidence before me of any discussions which would lead to the conclusion to which the author of the option paper, upon which the decision was based, came. This is not surprising. For there to have been such discussions and agreement with the Prime Minister, what the Prime Minister said in Parliament would have to have been deliberately misleading. I would not lightly infer that the Prime Minister intended to mislead the House in this way. The fact that no evidence was called by ATSIC is also relevant to my conclusion.

It seems abundantly clear that ATSIC saw its task to be to set aside the maximum funds it could (after providing for land maintenance) and allowing only for $2 million for special acquisitions so as to give effect to a belief that this was Government policy when it was clearly expressed not to be so. In my view, in the circumstances, the Commission erred either by taking into account an irrelevant consideration (the supposed discussions which I infer did not reach the suggested conclusion) or by failing to take into account a relevant consideration (the real Government policy) as well as by coming to a decision that in all the circumstances was so unreasonable that no reasonable decision-maker could come to it.

THE SUBSEQUENT ATSIC AMENDMENT TO THE DECISION-MAKING PRINCIPLES

As already noted, by force of s22 of the ATSIC Act, decision-making principles formulated in accordance with that section once made and until amended, bind the Commission in performing its functions and exercising its powers to make grants. The amendment of 9 August 1995 thereafter bound ATSIC in making grants of funds available.

The submission on behalf of ATSIC was that after the making of that amendment to the decision-making principles, whatever the validity of the ATSIC decision complained of may have been, allocations now had to be made on the merits without regard to the earlier decision. So it was said that the present application should be treated as futile and dismissed: cf Douglas v Tickner (1994) 49 FCR 507 at 513 ff as to the effect of such a submission under the ADJR Act.

There is no doubt that I would dismiss the application if of the view that it would be futile to give relief. The Court's powers to grant relief by prerogative writ or declaration are discretionary. Whether the present case is one of futility or not depends upon the construction of the amendment to the decision-making principles.

Two things may be noted in respect of the 9 August amendment. The first is that paragraph 4.1(a) specifically made reference to there being taking into account the Commission's program funding policies, as stipulated in the Program Statements and Program Policy and Guideline Statements. While this stipulation probably did not directly relate to the decision to allocate funds for Northern Territory acquisitions, it would lead a reader to recall what had happened. More significant, however, are the terms of paragraph 4.1(d). It is not as if the Commission was saying to those to whom the amendments were addressed that its global allocation of funds made in May 1995 should be disregarded. Far from that. It did purport to remind those allocating funds that the merits could be considered, but in the context of the word "nevertheless". It did not unfetter the discretion which had already been fettered. It was mere window dressing embarked upon for the purposes of the present proceedings. In my view, it should not therefore lead to the conclusion that the proceedings had become otiose.

I would, accordingly, declare that the decision of ATSIC to set aside $10 million for land purchases in the Northern Territory and $2 million for other priority national purchases in each of the years 1995/96 and 1996/97 was an improper exercise of the power conferred upon ATSIC and should be set aside from the date it was made. I would restrain ATSIC from making grants of money or the purchase of interests in land in accordance with that decision. I would make no order against the Second Respondent. ATSIC should pay the costs of the applicants in each matter.

I certify that this and the

preceding forty-eight (48) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date: 30 August 1995

Counsel and Solicitors J Basten QC with J Griffiths

for Applicants: instructed by Horowitz & Bilinsky

Counsel and Solicitors J Hilton SC with L Katz

for Respondents: instructed by the Australian Government Solicitor

Dates of Hearing: 21 and 22 August 1995

Date Judgment Delivered: 30 August 1995

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