FEDERAL COURT OF AUSTRALIA
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113
ADMINISTRATIVE LAW – decision by the Minister not to recognise an Aboriginal corporation as a representative body in respect of a particular area – whether the rules of natural justice apply to the decision – whether decision related to an application for, or a renewal or termination of, a right, interest or privilege - whether the rules of natural justice were breached by the failure of the Minister or his delegate to afford the corporation an opportunity to address the adverse conclusions and observations in the delegate’s report to the Minister – whether there was a legitimate expectation that the Minister’s delegate would act fairly in following the procedures laid down for the making of the decision – whether the content of the rules of natural justice is affected by cultural sensitivities
Native Title Act 1993 (Cth) ss 202(1), 202(2), 202(4), 203A(1), 203AA(1), 203AA(3), 203AA(4), 203AB, 203AD and 203AI
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a) and 6(1)(a)
Annetts v McCann (1990) 170 CLR 596 – referred to
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – referred to
Kioa v West (1985) 159 CLR 550 – applied
Salemi v McKellar [No 2] (1977) 137 CLR 396 - cited
R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 1 WLR 1052 – referred to
McInnes v Onslow-Fane [1978] 1 WLR 1520 - discussed
FAI Insurances Ltd v Winneke (1982) 151 CLR 342 - considered
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 – referred to
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 - considered
Century Metals and Mining NL v Yeomans (1989) 17 ALD 644 - considered
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 – referred to
Attorney-General (NSW) v Quin (1990) 170 CLR 1 – referred to
R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 - applied
Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 – referred to
Ridge v Baldwin [1963] 1 QB 539 - cited
Furnell v Whangarei High Schools Board [1973] AC 660 - cited
Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 All ER 865 - cited
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 - cited
Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 – followed
Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 - followed
F Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 – referred to
El-Sayed v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 767 – followed
Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 – followed
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 – followed
Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 – cited
Mocan v Refugee Review Tribunal (1996) 42 ALD 241 – cited
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 – cited
Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 – cited
McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 – cited
Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 - cited
PILBARA ABORIGINAL LAND COUNCIL ABORIGINAL CORPORATION INC v THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
VG 430 of 2000
JUDGE: MERKEL J
PLACE MELBOURNE
DATE: 11 AUGUST 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 430 OF 2000 |
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BETWEEN: |
PILBARA ABORIGINAL LAND COUNCIL ABORIGINAL CORPORATION INC APPLICANT
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AND: |
THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
Introduction
1 On or about 17 March 2000 the respondent (“the Minister”) made a decision to refuse an application by the applicant (“the Pilbara Land Council”), made pursuant to s 203AB of the Native Title Act 1993 (Cth) (“the NTA”), for recognition as the representative body under the NTA for an area in the State of Western Australia known as the Pilbara invitation area.
2 The Pilbara Land Council applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) to quash or set aside the decision. It claims that a breach of the rules of natural justice occurred in connection with the making of the decision (s 5(1)(a)) alternatively, that the Minister engaged in conduct for the purpose of making the decision that involved a breach of the rules of natural justice (s 6(1)(a)). The breach of the rules of natural justice is said to have occurred as a result of the failure of the Minister or the Aboriginal and Torres Strait Islander Commission (“ATSIC”), which advised the Minister in relation to the decision, to give the Pilbara Land Council an opportunity to comment upon adverse material that was placed before the Minister in connection with the making of his decision.
3 The final hearing commenced on 27 June 2000. It became apparent that, under the NTA, the Minister was likely to make a decision on 30 June 2000 to recognise a representative body, other than the Pilbara Land Council, as the representative body for the Pilbara invitation area. Accordingly, unless a final order was made by the Court in respect of the matter prior to 30 June 2000 it was unlikely that the Court could grant effective relief to the Pilbara Land Council, even if it was entitled to quash or set aside the decision of the Minister not to recognise it as the representative body for the Pilbara invitation area.
4 Initially, the Pilbara Land Council relied upon a number of grounds to challenge the Minister’s decision but ultimately it only pressed its claim that the decision, or the conduct leading to it, involved a breach of the rules of natural justice.
5 On 29 June 2000 I dismissed the application and announced that I would give reasons for my decision in due course.
Background
6 The Pilbara Land Council was incorporated on 16 November 1982 under the Aboriginal Councils and Associations Act 1976 (Cth). On 1 March 1996 the then Minister, acting under s 202(1) of the NTA, determined that the Pilbara Land Council be a representative Aboriginal/Torres Strait Islander body (“a representative body”) for an area aligned with the boundaries of the Port Hedland Town Council and the East Pilbara Shire to the extent of the Ngarda Ngulli Yarndu Regional ATSIC boundary (“the original Pilbara area”). The original Pilbara area is within the Pilbara invitation area.
7 At the time the Minister was empowered to determine that one or more bodies be a representative body in relation to an area (ss 202(1) and 202(2)). Section 202(4) of the NTA provided for a representative body to perform certain functions in its area in relation to native title matters arising under the NTA in respect of that area.
8 The Native Title Amendment Act 1998 (Cth) (“the 1998 amending Act”) established a new regime under the NTA for representative bodies. During the transition period (30 October 1998 to 30 June 2000) representative bodies were required to perform their existing functions, as well as certain additional functions. The functions for that period, which were set out in s 202(4) (as amended by the 1998 amending Act), were as follows:
“(a) facilitate the researching, preparation or making of applications, by individuals or groups from among Aboriginal peoples or Torres Strait Islanders, for determinations of native title or for compensation for acts affecting native title;
(b) assist in the resolution of disagreements among such individuals or groups about the making of such applications;
(c) assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to:
(i) the doing of acts affecting native title; or
(ii) the provision of compensation in relation to such acts; or
(iii) indigenous land use agreements or other agreements in relation to native title; or
(iv) rights of access conferred under this Act or otherwise; or
(v) any other matter relevant to the operation of this Act.
(d) certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;
(e) certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;
(f) become a party to indigenous land use agreements.”
9 At the conclusion of the transition period, the earlier representative body regime under the NTA was repealed and, as from 1 July 2000, the new representative body regime established under the 1998 amending Act commenced. Under the new regime only one representative body is to perform the functions set out in s 202(4) for each of the newly defined areas throughout Australia (s 203AD(4)). Thus, if a representative body was not recognised in respect of the new area it ceased to have any statutory role or functions under the NTA in respect of its area after 1 July 2000.
10 To prepare for the new regime, Division 2 of Part 11 of the NTA provided for the recognition, prior to the end of the transition period, of a representative body for each of the newly defined areas. During the transition period “eligible bodies” were to be invited by the Minister to apply for recognition as representative bodies under the new regime (s 203A(1)). Under s 203AA(3), if there were existing representative bodies in relation to an invitation area, invitations must, initially, only be made to each of those bodies although, in the result, only one representative body could be recognised for each area.
11 Under s 203AA(1), the Commonwealth Minister was required to issue invitations under s 203A to each of the eligible bodies as soon as practicable after the commencement of the transition period. If the existing representative bodies were unsuccessful in being recognised for the new invitation area, or did not apply for recognition, the Minister may invite other bodies, during the transition period, to apply for recognition in respect of that invitation area (s 203AA(4)).
12 Four representative bodies, including the Pilbara Land Council, received invitations as eligible bodies entitled to apply under s 203A(1) to be the recognised representative body in respect of the Pilbara invitation area. The invitation was sent to the Council on 14 May 1999. Each of the four bodies applied to the Minister under s 203AB for recognition as the representative body for the Pilbara invitation area. The Pilbara Land Council submitted its application under s 203AB on 13 August 1999.
13 Eligible bodies had to satisfy the Minister as to the matters set out in s 203AD(1), which provides that the Minister may only recognise a representative body for an invitation area if he is satisfied that:
“(a) the body will satisfactorily represent persons who hold or may hold native title in the area; and
(b) the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area; and
(c) if the body is already a representative body – the body satisfactorily performs its existing functions; and
(d) the body would be able to perform satisfactorily the functions of a representative body.”
14 Section 203AI provides for further matters to which the Minister must have regard in making a decision about recognition of the representative body. Those matters relate to whether the body’s organisational structures and administrative processes will operate in a fair manner. Under s 203AI(2), without limiting the matters to which the Minister may have regard in assessing the fairness of the body’s organisational structures and administrative processes, the Minister was required to have regard to the following criteria:
“(a) the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and
(b) the level of consultation with them involved in its processes; and
(c) its procedures for making decisions and for reviewing its decisions; and
(d) its rules or requirements relating to the conduct of its executive officers; and
(e) the nature of its management structures and management processes; and
(f) its procedures for reporting back to persons who hold or who may hold native title in the area, and the Aboriginal peoples or Torres Strait Islanders living in the area.”
15 In the event that the Minister decided to recognise an eligible body as the representative body for an invitation area, the recognition was to take effect from a date that commences after the transition period, that is, after 30 June 2000. If the Minister decided not to recognise an eligible body that had applied for recognition as the representative body for an area, the Minister was required to notify the body, in writing, of the decision and the reasons for the decision (s 203AD(5)).
16 It is implicit, if not explicit, in the scheme established under s 203AD, but particularly s 203AD(5), that if an eligible body that applied for recognition was not to be recognised the Minister would make a decision to that effect. Accordingly, the Minister’s decision not to recognise the Pilbara Land Council is a decision under the NTA to which the ADJR Act applies: see ss 3, 5 and 6 of the ADJR Act.
17 In order to appreciate the natural justice issues arising in the present matter it is necessary to outline the decision making process that led to the Minister’s decision to refuse the application of the Pilbara Land Council to be recognised as the representative body for the Pilbara invitation area.
18 A document entitled “Procedures Relating to Applications for Recognition as a Native Title Representative Body” was attached to the invitation to the Pilbara Land Council to apply for recognition as the representative body for the Pilbara invitation area. The document, which had been prepared by ATSIC, advised that although the decision on the application was to be made by the Minister, a process had been put in place for ATSIC to assess all applications and to advise the Minister in respect of those applications. The document outlined the processes that would be followed by ATSIC in assessing the applications. Those processes included the establishment of assessment teams to discuss the application with the applicant body.
19 ATSIC’s management of the application and the assessment process was explained as follows:
“How will ATSIC manage the Application and Assessment Process?
Each applicant body will be asked to nominate an officer to be the contact point for ATSIC officers on matters concerning the application.
ATSIC’s Representative Bodies Section will also nominate a Case Officer to manage communications between ATSIC, the Minister and the representative body. These communications include:
· Contacting the representative body about progress in preparing its application;
· Answering questions the representative body may have about these procedures and, in particular, the information to be provided in the application;
· Advising the applicant body of the timeframes for providing any further information after the application has been lodged;
· Ensuring that all communications initiated by any of the parties is promptly received by the other;
· Advising the applicant body of all arrangements concerning the assessment of the application, including the timeframe for visits by the national assessment team;
· Advising the applicant body about any relevant information received through the assessment process that may be potentially adverse to the applicant body’s case and allowing an opportunity for the applicant body to respond to this information;
· Advising the Minister on the application.”
20 On 21 July 1999 ATSIC wrote to the Pilbara Land Council setting out the steps it proposed to take in relation to the assessment of the Council’s application for recognition as the representative body for the Pilbara invitation area. ATSIC stated that its assessment team, after examining and assessing the application, would make a field visit to the Council to discuss the application and examine and assess the material held by the Council, including material relating to its financial viability. The letter also stated that following the assessment process a “decision brief on each application”, which attaches copies of the assessment team report, would be prepared for the Minister.
21 The ATSIC assessment team encountered difficulties in obtaining all the information it required from the Pilbara Land Council. The field visit, at which the assessment team raised its concerns in relation to the Council’s application, was held on 13 and 14 October 1999. The minutes prepared by the ATSIC assessment team set out, in some detail, the matters raised and discussed in the course of the field visit. The Pilbara Land Council prepared its own minutes, but in a summary form.
22 There was no dispute as to the accuracy of the minutes of the ATSIC assessment team. Senior counsel for the Pilbara Land Council accepted that the information that was adverse to the Council’s application, and the other matters of concern to the assessment team concerning the Council’s application, were fairly raised with and put to the representatives of the Council who attended the meeting.
23 In the course of its assessment process the assessment team had read a report (prepared for ATSIC in relation to its funding decisions) entitled “Limited Review of Pilbara Aboriginal Land Council Aboriginal Corporation” (“the Critchley Report”). The Critchley Report identified a number of areas of concern regarding the internal management and operations of the Council. The matters in the report which concerned the assessment team were discussed in the course of the field meeting. The substance of the report, without references to individual staff members, was subsequently provided to the Pilbara Land Council.
24 One factual issue was in dispute in relation to the field meeting. The minutes of the Pilbara Land Council suggest that the assessment team had agreed that the Council was to have the opportunity to present additional information if the assessment team made adverse findings in the report it was to provide to the Minister. The minutes prepared by ATSIC contain no such assurance and the evidence of the team leader was that it was her practice only to give such assurances in relation to adverse information emanating from third parties. In my view the probability is that, apart from the Council’s response to matters raised by the assessment team at the meeting, the assessment team only gave an assurance that it would afford the Council the opportunity to deal with any adverse information emanating from third parties. There are a number of reasons for that conclusion. The broader assurance suggested in the Council’s minutes was inconsistent with the procedures that had been published to all representative bodies. It is likely that the assessment team, and in particular its leader, was conscious of the requirement that the procedures that were to be followed be substantially the same in respect of all applicant bodies. The significant departure from those procedures suggested in the minutes of the Council was, therefore, unlikely. Further, the minutes of the Council were in summary form, did not purport to record precisely what was said at the meeting and there were no special circumstances that would have warranted such a significant departure from the published procedures for the Pilbara Land Council. Furthermore, as the meeting had become quite emotional in relation to the concerns expressed by the assessment team it was less, rather than more, likely that the assessment team would undertake the burden of giving the Council the special opportunity to comment upon any adverse views expressed by the team in its report. Finally, this issue was left to be resolved by reference to the competing minutes without viva voce evidence as to what was actually said. In those circumstances I have concluded that, to the extent the Council relied on its minutes, it has not discharged the burden on it to persuade me as to their accuracy on this issue.
25 On 23 December 1999 the assessment team produced its report concerning the Pilbara Land Council and submitted it to ATSIC. The report contained a number of adverse observations and opinions concerning the Council. For example the report stated, inter alia:
“…from an operational perspective, the Applicant does not have the ability to satisfactorily comply with the NTA after the transition period [and]…the Applicant may not continue to be financially viable…”
26 On 1 March 2000 ATSIC provided the Minister with a brief in relation to the Council’s application including the report of the assessment team.
27 On 17 March 2000 the Minister made his decision not to recognise the Council as the representative body for the Pilbara invitation area. In the Minister’s Statement of Reasons prepared on 23 May 2000 it is plain that the decision was based substantially, if not entirely, upon the report of the assessment team.
28 The Minister’s conclusion was that the Council failed to satisfy the necessary statutory criteria for recognition as the representative body for the invitation area.
29 It is unnecessary to detail the various adverse observations and opinions concerning the Council that were expressed in the report as senior counsel for the Council accepted that the assessment team had raised the matters the subject of its report with the Council and had afforded the Council the opportunity of dealing with those matters. The complaint of the Pilbara Land Council was that the assessment team and the Minister did not afford it the opportunity to deal with the adverse observations and opinions of the assessment team which were set out in its report to the Minister and were so obviously critical to the outcome of the Council’s application for recognition. Senior counsel for the Council contended that the omission or failure of the assessment team, and the Minister, to afford the Council the opportunity to deal with those observations or opinions constituted a breach of the rules of natural justice and, as a consequence, vitiated the Minister’s decision. Ultimately, it was not contended that, save for those adverse observations and opinions, the Minister had wrongly acted upon or had regard to any other adverse “information” in relation to the Council.
The Issues
30 The contentions of the Pilbara Land Council raised two fundamental issues. The first was whether the rules of natural justice applied to a decision of the Minister not to recognise the Council as the representative body for the Pilbara invitation area. The second related to whether, assuming the rules applied to the decision, the failure of the assessment team and the Minister to afford the Council an opportunity to deal with the adverse observations and opinions in the report of the assessment team constituted a breach of those rules.
31 In the course of announcing my decision I stated that I had concluded that the rules of natural justice applied to the decision but that the applicant had not established that the rules had been breached. I set out below my reasons for arriving at those conclusions.
Do the rules of natural justice apply?
32 In Annetts v McCann (1990) 170 CLR 596 at 598 Mason CJ, Deane and McHugh JJ stated:
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment …”
33 See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576-577 per Mason CJ, Dawson, Toohey and Gaudron JJ.
34 Whether the decision of the Minister under the NTA not to recognise the Pilbara Land Council as a representative body for the Pilbara invitation area affected a right, interest or legitimate expectation of the Council requires consideration of the statutory framework within which the decision was made: see Kioa v West (1985) 159 CLR 550 at 584-585 per Mason J; Salemi v McKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ, at 419 per Gibbs J and at 460 per Aickin J. As was said by Brennan J in Kioa (at 619):
“The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted.
If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matter to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at p 505. When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised.”
35 The primary contention of the Minister was that his decision did not affect any right, interest or legitimate expectation of the Pilbara Land Council. In substance, it was submitted that the decision not to recognise the Council’s application to be a representative body under the new regime in respect of the Pilbara invitation area was a decision not to grant a new right or privilege created under the changed statutory regime. On that basis, it was submitted that the Council had no existing right or interest that was affected by the decision nor did it have a legitimate expectation that its application would be approved.
36 The Council contended that the decision that it not be recognised as a representative body under the NTA was a decision to terminate or refuse to renew its right to carry out the statutory functions and activities of a representative body under the statutory regime. On that basis, it was submitted that the Council had a right or interest affected by the decision and a legitimate expectation that it would not be refused recognition under the new regime without being afforded an opportunity to be heard.
37 The distinction between cases involving the application for, or the renewal or non-renewal of, a right or privilege such as a licence was discussed in de Smith’s Judicial Review of Administrative Action (4th ed, 1980) at 223-224:
“Non-renewal of an existing licence is usually a more serious matter than refusal to grant a licence in the first place. Unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It may therefore be right to imply a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence.”
38 This passage was cited with approval by Scarman LJ in R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 1 WLR 1052 at 1058. His Lordship added at 1058:
“The author is there dealing with non-renewal, but everything that he says about non-renewal applies with even greater force to revocation.”
39 The distinction between application, renewal and revocation cases was subsequently discussed by Megarry VC in McInnes v Onslow-Fane [1978] 1 WLR 1520 at 1528-1529. Megarry VC drew a distinction between “forfeiture cases” where an existing benefit such as a licence is terminated or revoked, “application cases” where the grant of some new right or privilege is sought, and an intermediate group of “expectation cases” which differ from the application cases only in that applicant has some legitimate expectation from what has already occurred that his or her application, such as for a licence renewal, will be granted. The Vice-Chancellor, at 1529, discussed in some detail the critical distinctions between forfeiture, application and expectation cases:
“It seems plain that there is a substantial distinction between the forfeiture cases and the application cases. In the forfeiture cases, there is a threat to take something away for some reason: and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges … are plainly apt. In the application cases, on the other hand, nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges. Instead, there is the far wider and less defined question of the suitability of the application for membership or a licence. The distinction is well-recognised, for in general it is clear that the courts will require natural justice to be observed for expulsion from a social club, but not on an application for admission to it. The intermediate category, that of the expectation cases, may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for membership or licence for which he was previously thought suitable.”
40 In FAI Insurances Ltd v Winneke (1982) 151 CLR 342 the High Court (Gibbs CJ, Stephen, Mason, Aickin, Wilson and Brennan JJ with Murphy J dissenting) concluded that an application for renewal of an approval, granted under statute entitling a company to carry on the business of workers’ compensation insurance in Victoria, was an expectation case attracting the rules of natural justice. The rules of natural justice were held to apply as an applicant for renewal of a licence generally has a legitimate expectation that his or her licence will be renewed: per Mason J at 361-362, per Aickin J at 376-377, per Wilson J at 394-395. Aickin J said (at 377):
“Underlying that view is the fact that, where the circumstances make it reasonable to expect a renewal, the holder may have built up a business and expended money on business assets on the basis of that expectation.”
41 Referring to the judgment of Megarry VC in McInnes, Mason J observed that the application of the rules of natural justice to cases involving the revocation of a right or privilege, such as a licence, are clearly established (at 360):
“It is now authoritatively established that the exercise of a power revoking a licence will attract the rules of natural justice, certainly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity.”
42 In relation to application cases, Mason J noted that there has been greater judicial reluctance to insist upon the application of the rules of natural justice in such cases, as exemplified by the remarks of Megarry VC in McInnes. His Honour (at 361), explaining this reluctance, stated:
“Generally speaking, in such a case the issues are not clearly defined; they often involve policy issues; and, though they raise the general suitability of the applicant to hold a licence, they do not often generate allegations of past misconduct.”
43 In such application cases, there may be an insufficient interest for natural justice to apply. Mason J, however, left open the possibility that natural justice may apply in relation to the first grant of a licence in certain circumstances. Presumably, such circumstances would include those where a sufficient interest or legitimate expectation (in the sense discussed in Annetts) is affected by the making of the decision. This possibility was also not excluded by the other justices in FAI Insurances. Aickin J, at 377, said that it required:
“… most unusual circumstances to warrant the view that upon an initial application for a licence which is not one which the relevant authority must issue as of course upon the compliance with specified procedures, there is a duty to provide a hearing.”
44 The reason for the general non-application of natural justice in application cases was explained by Aickin J in the following terms (at 377):
“Such licences rest in the discretion of the licensing authority and are not often the subject of clearly prescribed criteria upon satisfaction of which the grant of a licence must follow as of right. An example of the latter situation may be the issue of a licence to drive a motor vehicle. In a case where the criteria are not prescribed in detail and where matters of policy may be involved, the situation is unlikely to warrant the drawing of the inference that there is some entitlement to a licence or some entitlement to a hearing before a licence is refused. The number of activities which require a licence is no doubt large and frequently their issue may depend upon matters of general public policy not necessarily related to the conduct or character of the particular applicant. No doubt there are many where the latter consideration is relevant in the case of the grant of an initial licence.”
45 The observations in FAI Insurances regarding the circumstances in which natural justice may apply to renewal, revocation and application cases suggest that in most renewal cases there is a legitimate expectation that the right or privilege will be granted again. However, when regard is had to the more recent extensions of the circumstances that attract the rules of natural justice, it may now be more appropriate to state that in the renewal cases the rules apply where there is a legitimate expectation that the renewal would not be refused without the party affected being afforded an opportunity to be heard on that issue. However, as McHugh J observed in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 681-682:
“A legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege. A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice …”
46 Where a right or privilege is revoked, this may result in the loss of a right to carry on a financially profitable activity, cause economic loss or reflect poorly on the applicant’s conduct, character or professional reputation. A sufficient right or interest of the applicant is thus affected for the rules of natural justice to apply to the revocation of a right or privilege. Where the reputation of the applicant is affected, the principle established in Ainsworth at 577-578 is that a person’s personal, business or commercial reputation is an interest that will be protected by affording the person affected procedural fairness.
47 As the above discussion demonstrates, where a person applies for a fresh right or privilege, in certain circumstances that person’s financial and/or professional interests may be affected so as to amount to a sufficient interest for the rules of natural justice to be attracted to the making of the decision. Generally speaking, it will be relevant to consider whether the decision to grant such a right or privilege is based upon prescribed criteria, involves policy considerations or relates to the character or past conduct of the applicant.
48 The above observations are supported by a number of decisions of the Court. Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 raised the question of whether the applicant for a licence to trade in X-rated videos was entitled to be afforded natural justice by the administrative authority dealing with the application. The statutory scheme imposed a duty on the Commissioner for Australian Capital Territory Revenue to grant a licence to an applicant, subject to such conditions as the Commissioner thought fit, and if the Commissioner was satisfied on reasonable grounds in the circumstances that the applicant was a fit and proper person. The grant of a licence was mandatory, subject only to satisfaction of the fitness and propriety of the applicant. The Court (Northrop, Miles and French JJ) observed (at 588) that there was no authority for the proposition that the rules of natural justice can never apply to the initial grant of a licence. Their Honours (at 589) noted that Mason J in FAI Insurances linked the dilution of the requirement of natural justice in relation to the initial grant of a licence to the fact that in such cases, the issues are not generally clearly defined, may involve policy questions and generally do not generate allegations of past misconduct, but held that those considerations were not present in that case:
“But the policy of the statute, reflected in its mandatory language, is in favour of the grant of a licence. And that is consistent with the characterisation of the Act as a revenue raising law. The considerations referred to by Mason J, which would lead to rejection of the application of procedural fairness to the discretionary grant of a licence, do not apply in this case.”
49 Century Metals and Mining NL v Yeomans (1989) 17 ALD 644 is another decision of this Court in which the application of the rules of natural justice to the initial grant of a licence was discussed. While this case concerned a tender proposal submitted by the applicants, French J held that the considerations relevant to whether natural justice had to be observed by the liquidator responsible for disposing the property the subject of the tender were analogous to the licence cases. His Honour held that the fact that the decision of the liquidator related to a once and for all disposition of a property right is not sufficient to exclude the rules of natural justice in relation to tender proposals. Drawing an analogy with the readier application of the rules to the renewal or revocation of a licence or privilege, his Honour (at 648) observed that the underlying rationale for the application of the rules in this case were the same, being “the impact on the economic wellbeing or reputation of the party who may be affected”.
50 The decision in the present case does not fit comfortably within the application, renewal or revocation cases. Under the NTA (as amended) the right of the Council to recognition as, and therefore the right to carry out the statutory functions of, a representative body in respect of the original Pilbara area, was to be revoked and at an end as from the end of the transition period, being 30 June 2000. However, that result was brought about under the 1998 amending legislation rather than by the decision of the Minister which the Council is seeking to impugn. Thus, it is not apt to describe the Minister’s decision as a revocation case.
51 For much the same reason it is not apt to describe the decision as a renewal case as under the NTA (as amended) there was to be a termination, rather than a renewal, of the rights of representative bodies in respect of their respective areas. However, it is also not apt to describe the decision as an application case as the refusal to recognise an existing representative body terminates the right of that body to continue to carry out its functions under the NTA which was the body’s raison d’être.
52 Ultimately, I have formed the view that the fact that the decision does not fit into any of the existing categories does not give rise to any difficulty in the present case as there are a number of special features about the Minister’s decision that result in it attracting the rules of natural justice. They are:
· the Pilbara Land Council, as an existing representative body in respect of the original Pilbara area, was given a specific statutory entitlement to apply for recognition as a representative body in respect of the Pilbara invitation area: see ss 203AA(3) and 203 AB(3);
· prior to the end of the transition period the Minister was required to decide whether to recognise the Council as the representative body for the new invitation area and, if he decided not to do so, he had to state the reasons for his decision: see s 203AD(5);
· the NTA laid down prescribed criteria in relation to recognition (see ss 203AD(1) and 203AI), many of which related to the capacity of a representative body to discharge its statutory functions and, therefore, required consideration of the body’s past conduct;
· the detail of the prescribed criteria in relation to recognition left little scope for general policy or discretionary considerations;
· the consequences of non recognition were severe – it brought to an end the entitlement of the Pilbara Land Council to carry out statutory functions under the NTA together with the associated funding entitlements in that regard. The Council’s ability to function for the purposes for which it was established was thus also brought to an end. Further, the decision was likely to impact adversely on the economic well being, repute and standing of the Council.
53 The above factors, cumulatively, lead inexorably to the conclusion that the rules of natural justice were to be observed in respect of the Minister’s decision.
54 One further factor is also relevant. The Minister delegated to ATSIC the task of consulting with, and affording a hearing to, applicant bodies and of advising him in respect of the applications for recognition by those bodies. In the document entitled “Procedures Relating to Applications for Recognition as a Native Title Representative Body”, ATSIC stipulated the procedures that were to be followed by it in its management of the application and assessment process. The procedures included an assurance that the application would be discussed with the Council during a field visit, and a further assurance that the Council would be advised about any relevant material received from third parties through the assessment process that may be potentially adverse to its case and afforded an opportunity to respond to that material. Counsel for the applicant submitted that those assurances also gave rise to a legitimate expectation on the part of the Pilbara Land Council that its application would not be dealt with by the Minister without affording it an opportunity to be heard in respect of ATSIC’s report.
55 As observed by McHugh J in Haoucher at 679, the term “legitimate expectation” was first used in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 at 170 to indicate an interest less than a right which may nevertheless warrant the protection of the rules of natural justice. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20, Mason CJ provided a non-exhaustive list of the kinds of factors which a court will take into account in determining whether or not an expectation is legitimate. Thus, a legitimate expectation may be created by the giving of assurances, the existence of regular practice, the consequences of the denial of a benefit to which the expectation relates, or the satisfaction of statutory conditions.
56 Where an assurance or undertaking has been given by a decision-maker that a certain procedure will be followed, a legitimate expectation arises that the decision-maker will act fairly by following this procedure. The decision-maker is thus, in general, bound by the undertaking unless this conflicts with his or her statutory duty: R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299. The primary justification for this principle was explained by Lord Fraser in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at 638 as follows:
“…when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and implement its promise…”
57 The legitimate expectation that a certain procedure would be followed extends, however, only to affording the Pilbara Land Council an opportunity to discuss its application with the assessment team as stated by ATSIC and the opportunity to respond to any potentially adverse information or material from outside sources. As explained above, it is not contended that ATSIC failed to meet those assurances. Accordingly, there was no failure on the part of ATSIC in respect of the legitimate expectations arising from its assurances.
58 Plainly, ATSIC did not afford the Council an opportunity to address the adverse observations and opinions of the assessment team which were set out in the ATSIC report to the Minister. The issue, therefore, is whether that omission breached the rules of natural justice, rather than disappointed a legitimate expectation arising from ATSIC’s assurances.
Have the rules of natural justice been breached?
59 The rules of natural justice have been described variously as “fair play in action” (Ridge v Baldwin [1963] 1 QB 539 at 578 per Harman LJ), “fairness writ large and judicially” (Furnell v Whangarei High Schools Board [1973] AC 660 at 679 per Lord Morris of Borth-y-gest) and, perhaps most colourfully, as “a fair crack of the whip” (Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 All ER 865 at 874 per Lord Russell of Killowen).
60 The authorities establish that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312 per Gibbs CJ. In general, this means that the decision-maker must adopt what in the circumstances of the case is a fair and reasonable procedure, having regard to the matters he or she is bound to take into account under the statute, and also to the matters adverse to the interests of the person in question which the decision-maker proposes to take into account.
61 In Kioa at 584-585, Mason J explained the varying content of the rules of natural justice as follows:
“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at pp 503-504, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting …
In this respect, the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …”
62 Where natural justice applies to the making of a decision, the party liable to be directly affected by the decision must be given an opportunity to be heard. It is the form this hearing takes which differs according to the circumstances of each case. In the present case, the Pilbara Land Council was afforded an opportunity to be heard in respect of all matters which were adverse to its application save for the adverse observations and opinions of the ATSIC assessment team in its report to the Minister. The Council submitted that the rules of natural justice required the Minister or ATSIC to inform it of those adverse observations and conclusions to enable it to respond to them. As the Minister had effectively delegated the assessment task to ATSIC the submission was, necessarily, that ATSIC had not informed the Council of its adverse observations and conclusions notwithstanding that ATSIC had afforded the Council an opportunity to deal with the matters that gave rise to those observations and conclusions.
63 In general, a decision-maker, or his or her delegate, is not under an obligation to inform a party of his or her preliminary or evaluative conclusions on the material upon which the decision-maker proposes to act. In Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, a Full Court of the Federal Court held that the failure of a delegate of the Minister to inform the appellant in that case that she was regarded as having sought entry into Australia by subterfuge did not amount to a denial of natural justice. Fox J (at 505-506) stated:
“The appellant also relies upon the fact that the Department considered her to have entered the country by a ‘subterfuge’ in arriving as a transit passenger. She claims the Department denied her natural justice in not informing her that this would be regarded as a circumstance disentitling her to favourable consideration. This was an evaluation or a description of some of the facts made known by the appellant herself, and is not a valid ground of challenge.
Reliance was placed on the decision of the High Court in Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 as authority for the proposition that the delegate of the respondent was under an obligation to put to her his views before reaching a final decision. …
In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him.”
64 In the same case Neaves J said (at 513):
“It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her.”
65 In Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 counsel for the applicant submitted that the applicant should have been afforded an opportunity to comment on the decision-maker’s preliminary conclusions, which were adverse to his application for permanent residence status. French J said (at 756-757):
“Where deportation is considered, the prospective deportee can support his case by appropriate information and material but cannot complain if it is not accepted. If some factor personal to him based on information from another source is likely to have an effect on the outcome, he should be given an opportunity of dealing with it: Kioa, at CLR 587 per Mason J and 628 per Brennan J. The duty so expressed does not require the decision-maker to expose his or her conclusions for comment before taking the decision in question. Within the bounds of rationality the views formed upon material advanced by a prospective deportee are a matter for the decision-maker.”
66 As was noted by French J at 757, the principle reflects the general proposition set out in the judgment of Lord Diplock in F Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 368:
“The rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
67 Similarly, in El-Sayed v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 767 it was submitted by counsel for the applicant that the decision-makers had to put their preliminary conclusion that they were going to reject certain evidence to the applicant before making their final decision. Davies J said at 773-774:
“But that approach misunderstands the principles of natural justice. Those principles, when applicable, require that a fair opportunity be given to affected persons to put forward their case. That opportunity was given to Mr El-Sayed. [The decision-makers] each had the duty of making a decision on the material before him, not the duty of discussing each element of his reasoning process with Mr El-Sayed and his advisers.”
68 While this principle has been applied primarily in relation to deportation cases, it is a general principle applying to decisions to which natural justice applies. In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469, the proceedings arose from estimates and determinations made by the Minister for Aviation under the Airlines Equipment Act 1958 (Cth) which detrimentally affected the interests of Ansett and Australian Airlines. One of the submissions of counsel for the applicant was that the Minister had breached the rules of natural justice by failing to inform the airlines of the preliminary view he had formed in relation to the basis upon which he proposed to make his decision. Lockhart J (at 499) held that the Minister was not obliged to inform an airline of his draft or preliminary views prior to the making of his decision, referring to Sinnathamby as authority for this proposition. Relevantly, his Honour noted that if it were a general requirement under the Act to give airlines an opportunity to comment on the Minister’s preliminary or draft views, this would unnecessarily delay and impede the determination process. Lockhart J did leave open the possibility that in an appropriate case, the Minister may be obliged to inform one of the airlines of a preliminary view he has formed or of a particular basis upon which he proposes to make his decision. His Honour, however, did not expand on the circumstances in which this may be required.
69 See also Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 103 per Keely J and at 119 per Gummow J; Alphaone at 590-591.
70 While the general rule is that a decision-maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision maker and the material on which they are based may be a fine one. The overriding principle is that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa at 587 per Mason J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its “essential features”: see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601; Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548.
71 However, where the decision-maker intends only to rely on material provided by the applicant in making his or her decision, there is no analogous requirement to bring matters to the applicant’s attention. As Fox J stated in Sinnathamby at 506:
“As a general rule, when some consideration personal to the applicant is to be taken into account against him or her the rules of natural justice require that the applicant be given a chance to comment or contradict: see Kioa, per Mason J at p 348. The guideline is fairness; in general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case.
In Kioa’s case, the material held to require that a chance be given to comment had come from a source other than the applicant. In the present case … the material which was prejudicial to the appellant had been provided by the appellant herself.”
72 In some situations where the adverse conclusion is not an obviously natural response or evaluation of the material the party affected by the decision may be entitled to respond to the adverse conclusions: see Kioa at 573, 588 and 634; Somaghi at 108 per Jenkinson J; Alphaone at 591. However, the rationale for that opportunity must be that the response raised a new matter in respect of which, in fairness, the party ought to be afforded an opportunity to respond or deal with.
73 Subject to the above qualifications, a decision-maker, or his or her delegate, is not required to comment on his or her mental processes, or preliminary views, prior to making the decision in question.
74 In the present case the qualifications described above are not applicable as ATSIC, acting as the Minister’s delegate, afforded the Council the opportunity to address the matters which were adverse to the Council’s application raised by material upon which it was proposing to act. It was not suggested that the conclusions or observations of the ATSIC assessment team raised any new matters or were obviously unnatural responses to, or evaluations of, the material.
75 Accordingly, the failure of ATSIC to afford the Pilbara Land Council an opportunity to address the conclusions and observations expressed in its report to the Minister did not constitute a breach of the rules of natural justice.
Cultural Sensitivities
76 It is appropriate to make some observations about one particular aspect of the present case. ATSIC’s assessment team leader, in explaining the procedures followed by the members of the assessment team in relation to their dealings with representatives of the Pilbara Land Council, stated:
“In leading the assessment process I was aware of a number of cultural issues such as the fact that English was a second language for many of the participants in the process, and the need to be careful about asking direct questions. In addition, Dr David Trigger, Anthropologist, was a Team member.”
77 Plainly, it was appropriate for the assessment team to have regard to the cultural sensitivities of the applicant group in carrying out its assessment functions. Indeed, basic principles of fairness would require that it do so. In stating that conclusion I am not suggesting that different or diluted rules or principles of natural justice apply in such situations. Rather, in such situations the principles of fairness simply require that the rules or principles be applied in a manner which ensures that the matters that are required to be raised and addressed are raised and addressed in an appropriate and culturally sensitive manner: cf Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 at [11]-[16].
Conclusion
78 For the above reasons the application of the Pilbara Land Council was dismissed. As the Minister did not apply for costs it is appropriate to make no order as to costs.
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I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. |
Associate:
Dated: 11 August 2000
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Counsel for the Applicant: |
Mr BA Keon-Cohen QC |
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Solicitor for the Applicant: |
Hunt & Hunt |
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Counsel for the Respondent: |
Mr PRD Gray |
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Solicitor for the Respondent: |
Blake Dawson Waldron |
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Date of Hearing: |
27 and 28 June 2000 |
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Date of Orders: |
29 June 2000 |
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Date of Reasons for Judgment: |
11 August 2000 |
