FEDERAL COURT OF AUSTRALIA

Aruwarri Aboriginal Corporation v Aboriginal and Torres Strait Islander Commission [2002] FCA 1650

ADMINISTRATIVE LAW – application for judicial review of decision of Aboriginal and Torres Strait Islander Commission or its delegate – consent order setting decision aside – whether appropriate for the Court to make such an order

Administrative Decisions (Judicial Review) Act1977 (Cth) ss 5, 8, 16

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 14

Federal Court Rules O 35 r 10

Xiao v Minister for Immigration and Multicultural Affairs (2001)109 FCR 129 cited

Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142 cited

Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265 cited

Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 cited

Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 1674 cited

ARUWARRI ABORIGINAL CORPORATION ABN 59 909 131 970 V ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION AND MALARABAH REGIONAL COUNCIL

W353 OF 2001

THE COURT ORDERS THAT:

1.         The time within which the applicant may apply for an order of review in respect of the decision of the first respondent, by its delegate the second respondent, made on or about 22 March 2001, to defund the applicant, be enlarged to 20 March 2002.

2.         The applicant’s application for an order of review dated 10 August 2001 and filed herein be and is hereby amended by deleting the first paragraph thereof and substituting the following:

“Application to review:

(a)        The decision of the first respondent, by its delegate the second respondent, made on or about 22 March 2001, to defund the applicant, and further, or in the alternative;

(b)        The decision of the first respondent, or alternatively the decision of the first respondent by its delegate the second respondent, made on or about 28 May 2001, to decline the applicant’s request for a grant pursuant to section 14 of the Aboriginal and Torres Strait Islander Commission Act 1989.”

3.         The decision of the first respondent, by its delegate the second respondent, made on or about 22 March 2001 to defund the applicant be and is hereby set aside.

4.         The decision of the first respondent, or alternatively the decision of the first respondent by its delegate the second respondent, made on or about 28 May 2001, to decline the applicant’s request for a grant pursuant to section 14 of the Aboriginal and Torres Strait Islander Commission Act 1989 be and is hereby set aside.

5.         The first respondent or its delegate, such delegate not being the second respondent, reconsider the applicant’s request for a grant pursuant to section 14 of the Aboriginal and Torres Strait Islander Commission Act 1989according to law.

6.         The respondents pay the applicant’s costs of the application, including reserved costs, to be taxed.

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

REASONS FOR JUDGMENT

LEE J:

1                     The applicant applied under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”) for review of a decision of the Aboriginal and Torres Strait Islander Commission (“ATSIC”) or, alternatively, a decision of ATSIC’s delegate, the Malarabah Regional Council (“Malarabah”).    The decision, made on or about 28 May 2001, refused the applicant’s request for a grant pursuant to s 14 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (“the ATSIC Act”).

2                     It was not in issue that the Court has jurisdiction in the matter pursuant to s 8 of the Act.   In the exercise of the jurisdiction so conferred, the Court is empowered, under s 16 of the Act, with a discretion to make any of the orders as set out in s 16, including a power to set aside the decision and/or refer the matter to which decision relates back to the person who made the decision for further consideration.

3                     The matter came on for hearing on 12 March 2002.  In the course of the hearing and on the exposure of the substance of the applicant’s case, counsel for the applicant perceived it to be necessary to seek to amend the application and obtain further discovery from ATSIC to permit the applicant to add a further ground, or grounds, of review.  Counsel for ATSIC acknowledged that matters raised with counsel in the course of the hearing suggested that grounds for review of the decision by ATSIC, or by Malarabah, may have been identified and that if adjourned the matter may be able to be resolved without the need to resume the hearing.  As a result the matter was adjourned until 20 March to enable the parties to confer and for further discovery to take place.

4                     On 20 March the parties presented to the Court, pursuant to O 35 r 10 of the Federal Court Rules, a minute of consent pursuant to which the Court was asked to make a number of orders.  These included an order amending the application by including an application to review a decision made by ATSIC on or about 22 March 2001 to “defund” the applicant; an order setting aside that decision; an order setting aside the decision made by ATSIC on or about 28 May 2001 refusing the applicant’s request for a grant; an order directing ATSIC or its delegate, not being Malarabah, to reconsider the applicant’s request for a grant “according to law”; and an order that the respondents pay the applicant’s costs, including reserved costs, to be taxed.

5                     As noted above, at all times the Court has had jurisdiction in the matter and the only issue is whether the consent of the parties is sufficient to satisfy the Court that it should exercise the discretion to make orders under s 16 of the Act.  The minute of consent orders is an acknowledgment by the parties that ground for review would have been established  if the trial of the proceeding had continued and that the parties were satisfied that the Court should make appropriate orders.

6                     In the circumstances I am satisfied that the consent minute is sufficient to ground the exercise of the power of the Court provided by s 16 in the manner sought by the parties.  ATSIC, of course, will have to redetermine the application ‘ab initio’ not restricted to the issue which the parties agreed provided ground for review of ATSIC’s earlier decisions.  Insofar as ATSIC may be assisted thereby, the transcript of the hearing conducted on 12 March 2003 records discussion between the Court and counsel on that matter.

7                     It is not a pre-condition to the making of an order that a particular ground of review be recited in the order.  (See: Xiao v Minister for Immigration and Multicultural Affairs (2001)109 FCR 129; Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142; Sanchez v Minister for Immigration and Multicultural Affairs [1999] FCA 265; Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186.)

8                     Similarly, it is not necessary for the Court to explain why a consent order has been made if it is apparent that the Court has jurisdiction in the matter and that the proposed order is within the power of the Court.   It is sufficient that the Court be satisfied that it is appropriate that the order be made as requested by the parties.  (Cf: Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 1674.)

9                     I will, therefore, make an order in terms of the minute.

Associate:

Dated:              8 August 2003