FEDERAL COURT OF AUSTRALIA

Mario Guiseppe v Registrar of Aboriginal Corporations and Another
[2006] FCA 1692

ADMINISTRATIVE LAW – procedural unfairness – adequacy of time allowed in show cause notice – whether reasonable – authority of Minister to approve appointment of administrator to Aboriginal Corporation.

Held: Application dismissed

Aboriginal Councils and Associations Act 1976 (Cth), ss 5, 43, 71

Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337, considered

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another 222 ALR 411, referred to

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, distinguished

Australian Retailers Association and Others v Reserve Bank of Australia(2005) 148 FCR 446, cited

Cassell v The Queen (2000) 201 CLR 189, followed

GJ Coles & Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503, cited

Hill v Green (1999) 48 NSWLR 161, cited

Jamieson v Guri War Ngundagar Aboriginal Corporation [2001] FCA 1104, referred to

Kioa and Others v West and Another (1985) 159 CLR 550, cited

Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24, followed

Re Refugee Tribunal and Another; Ex parte Aala (2000) 176 ALR 219, referred to

MARIO GUISEPPE v REGISTRAR OF ABORIGINAL CORPORATIONS AND BRIAN MCMASTER

NSD 1379 OF 2006

COWDROY J

18 DECEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the costs of first and second respondents.

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

REASONS FOR JUDGMENT

1                     The applicant, acting on behalf of the Mutitjulu Community Aboriginal Corporation (‘Mutitjulu’), seeks a review of the decision of the first respondent (‘the Registrar’) made on 18 July 2006 to appoint the second respondent as Administrator (‘the Administrator’) to Mutitjulu pursuant to s 71(2) of the Aboriginal Councils and Associations Act 1976 (Cth) (‘the ACA Act’). Such application is made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’), and s 39B of the Judiciary Act 1903 (Cth).

ESSENTIAL FACTS

Structure of Mutitjulu

2                     Mutitjulu is an Aboriginal association incorporated on 3 February 2006 pursuant to Part IV of the ACA Act. The business of Mutitjulu is the administration of the supply of essential services to the Mutitjulu Aboriginal Community located in the Northern Territory of Australia. Such services include employment, health and housing, youth care, after school care and anti substance abuse programs.

3                     The operation of the Mutitjulu Community is dependent upon financial assistance of the Commonwealth of Australia which is provided with the approval of the Commonwealth Department of Families and Community Services and Indigenous Affairs (‘FaCSIA’).

4                     Part II of the ACA Act makes provision for a Registrar of Aboriginal Corporations. The power of the Registrar and the functions thereof are contained in s 5 of the ACA Act and include the power to act as agent for an Aboriginal corporation: see s 5(2). Section 43 of the ACA Act provides for the creation of a Board of an Aboriginal Corporation (‘Governing Committee’).

5                     Section 71(1) of the ACA Act provides that if the Registrar considers that there may be grounds for appointing an administrator, the Registrar may serve upon the public officer of the corporation a notice in writing:

‘…calling upon the corporation to show cause, within a reasonable period specified in the notice, why an Administrator should not be appointed.’

An administrator may be appointed if the Registrar is satisfied that such appointment is required ‘in the public interest’ (s 71(2)(f)).

Cessation of funding by FaCSIA to Mutitjulu

6                     On 30 June 2006 FaCSIA notified the Registrar that funding to Mutitjulu would cease from 1 July 2006 and requested the Registrar to appoint an administrator. Such notification resulted from irregularities which FaCSIA believed existed in the operations of Mutitjulu as discussed hereunder.

7                     By email on 4 July 2006 addressed to the Registrar, FaCSIA confirmed the cessation of funding and on 5 July 2006 a meeting took place attended by representatives of Mutitjulu and other interested parties. A further meeting was held on 10 July 2006. The Registrar was kept fully informed of the correspondence and meetings between FaCSIA and Mutitjulu. However on 10 July 2006 FaCSIA again confirmed that funding to the community would not be resumed unless an administrator were appointed.

8                     On 11 July 2006 the Registrar wrote to Mutitjulu enclosing a notice issued pursuant to s 71 of the ACA Act (‘the Notice’), requiring Mutitjulu to show cause by close of business on 12 July 2006 why an administrator should not be appointed. The letter invited Mutitjulu to telephone a toll free number if discussion was required. The Notice contained details of the grounds upon which the Registrar relied and relevantly stated as follows:

‘The grounds which I consider may exist are that the appointment of an administrator is required in the interest of members and creditors of the Corporation and in the public interest.

Details:

…

·            On 4 July 2006 the Office of the Registrar of Aboriginal Corporations (ORAC) received from a delegate of FaCSIA a communication stating, among other things that:

·           FaCSIA has lost confidence in the Governing Committee and the Corporation;

·           As a result, FaCSIA has decided not to release funds to the Corporation for the 2006-07 financial year;

·           FaCSIA would however release the funds for the 2006/07 financial year to the Corporation if an Administrator were appointed to the Corporation pursuant to section 71 of the Act.

The notice then stated that FaCSIA would release funds if an administrator was appointed and on 10 July 2006 ORAC was again advised that no funding would be provided. The notice continued:

·         Without continued funding from FaCSIA, the Corporation cannot continue functioning at a level which would enable it to continue providing the services referred to above.’

9                     The Notice was forwarded to Mutitjulu by email and was received at approximately 3.15 pm on 11 July 2006. On the same day at 6.15 pm Mutitjulu wrote to the Honourable Mal Brough, Minister for Families, Community Services and Indigenous Affairs (‘the Minister’), acknowledging that it had received notification that Commonwealth funding to Mutitjulu was suspended and that there was the possibility of an administrator being appointed pending resolution of certain issues. The letter assured the Minister that his concerns would be satisfactorily addressed.

10                  On 12 July 2006 Mutitjulu telephoned the Registrar and advised that the appointment of an Administrator would be opposed. At 1.56 pm on that day Mutitjulu wrote to the Registrar in response to the Notice.

11                  On the same day the Registrar inquired of FaCSIA whether the information provided by Mutitjulu had satisfied its concerns. However, FaCSIA advised the Registrar that the information provided did not affect its decision to cease funding. FaCSIA advised the Registrar that it would only resume funding if an administrator were appointed.

Appointment of Administrator

12                  No further communication took place. On 18 July 2006 the Registrar appointed Brian McMaster as Administrator of Mutitjulu, effective from that day. On the same day the Registrar, by the Director of Regulations, Peter Armstrong, wrote to the Governing Committee of Mutitjulu referring to the Notice dated 11 July 2006 and of the decision to appoint an Administrator. The letter states inter alia:

‘I advise that before making this decision I gave very careful thought and consideration to all material before me, in particular your reply to the Notice. In addition the Office of Indigenous Policy Coordination was contacted to ascertain whether it had altered its view on the release of funds following your representations to the Minister on 11 July 2006. They advised there would be no change in its position.

This left me in a position where I had no choice but to make the appointment as I could not allow the community at Mutitjulu to go without the vital services that are provided by the Corporation.’

13                  By letter dated 19 July 2006, solicitors for Mutitjulu wrote to the Registrar challenging the validity of the appointment on the grounds that the Notice pursuant to s 71 of the ACA Act was defective because it did not allow a reasonable period to show cause and did not specify any grounds under s 71(2) of such Act.

Mutitjulu’s claims

14                  Mutitjulu seek declarations that the Notice and the decision of 18 July 2006 are unlawful and invalid; declarations that all holders of the office of Governing Committee of Mutitjulu held those offices validly and a writ in the nature of certiorari and an order under s 16(1)(a) of the ADJR Act setting aside the decision to appoint the Administrator.

15                  Mutitjulu’s claim for relief is based upon three allegations. Firstly Mutitjulu claims it was denied procedural fairness by the fixing of a period of one day in the Notice; secondly, that the Registrar acted in a way which was unreasonable or procedurally unfair by fixing a period of one day in the Notice when Mutitjulu had not had an opportunity to respond to the FaCSIA allegations; and thirdly, that the Ministerial approval of the appointment of the Administrator was invalid.

FINDINGS

Was procedural fairness denied to Mutitjulu?

16                  To determine whether the period of one day was reasonable notice requires an investigation of the circumstances leading up to the issue of the Notice.

17                  By 23 June 2006 the Registrar had received notification of allegations of mismanagement or possible fraud which had been reported to a Fraud Unit of the Office of Indigenous Policy Co-ordination (‘OIPC’), a department within FaCSIA, relating to the conduct of the Mutitjulu Governing Committee. Other concerns by officials were expressed in correspondence relating to numerous other issues of corporate governance, management, welfare and administration.

18                  On Friday 30 June 2006 Wayne Gibbons, Associate Secretary of OIPC wrote to Ms Beacroft, Registrar of Aboriginal Corporations, informing her that a decision had been made by FaCSIA to cease the provision of funding to Mutitjulu. The letter relevantly stated:

‘I am writing to confirm that FACSIA, as a major funder of services in Mutitjulu community (including for childcare, municipal services, after school hours care, and community housing and infrastructure) no longer has confidence in the Board of Mutitjulu Community Aboriginal Corporation (MCAC). Noting the absence of a CEO, the cessation of a number of important services in Mutitjulu that MCAC is contracted to run (such as the childcare centre), and the serious public interest issues associated with the alleged corrupt and illegal behaviour of some community members (including some members of MCAC’s staff and Board) that has been the subject of recent wide-spread media coverage, FACSIA can not at present justify any release of funding for the financial year beginning tomorrow (1 July 2006) to deliver services on behalf of the Australian Government.

…

I urge you to give consideration to the immediate appointment of an Administrator.’

19                  On Friday 30 June 2006 Ms Beacroft received a further message which referred to the previous message and relevantly stated:

‘I am writing to advise that FACSIA will place a stop on the release of funding (including for childcare, municipal services, after school hours care, and community housing and infrastructure) to the Mutitjulu Community Aboriginal Corporation, once the financial system is re-opened for the new financial year. I expect this to occur at the start of business on 3 July 2006.’

20                  Ms Beacroft was most concerned at the implications of such a course. She telephoned Mr Robert Knapp, Group Manager in FaCSIA, and informed him that a direction from the Minister to cease funding for unknown reasons was not adequate grounds for her to consider the appointment of an Administrator. She advised that she needed details of the reasons for such appointment.

21                  On Tuesday 4 July 2006 a message was forwarded to Ms Beacroft by Mr Gibbons. It provided details of the apparent failure of corporate governance within Mutitjulu, and advised that the Department of Employment and Workplace Relations (‘DEWR’) had decided that it could not justify the release of funding under its control to Mutitjulu. The message relevantly continued:

‘The question whether funding for municipal services will continue to be provided to the Corporation until 31 December 2006 was already answered, by me, and I repeat that answer again: the Department of Families, Community Services and Indigenous Affairs has concluded that release of funding, including funding for municipal services, to the Corporation is not at present justified: The release of funding is dependent on the receiving body having in place the necessary governance and staffing to deliver.’

22                  Another message was sent by Mr Gibbons to Ms Beacroft at 4.15 pm on 4 July 2006 which relevantly stated:

‘In summary, if an administrator is appointed the Department will continue to fund the Corporation and will work with the administrator to ensure the delivery by the Corporation of Australian Government services to the residents of Mutitjulu is sustainable over the longer term. In the event an administrator is not appointed we will no longer fund the Corporation because we believe it does not presently have the capacity to continue to deliver services required by the Australian Government.’

23                  On 5 July 2006 Ms Beacroft received information concerning the draft accounts for Mutitjulu for the 2005-2006 financial year from DEWR. The accounts revealed a deficit of current liabilities over current assets of $171,595.60. The information alleged that the Governing Committee had acted in their own interests rather than in the interests of the affairs of Mutitjulu; that the appointment of an Administrator was required in the interest of the members and creditors of Mutitjulu; that other parties were concerned that income provided to Mutitjulu was not being used for the purpose intended; that the Chief Executive Officer of Mutitjulu had resigned and left the community, that the Works Manager had left the community as well as one of the two bookkeepers. The message also claimed that vacant positions on the administration of Mutitjulu were being filled contrary to the appropriate processes and that a youth worker had left and the Outside School Hours Care Co-ordinator and his wife who was the Centrelink representative were planning to leave as soon as possible. The message stated that $500,000 of funds provided by FaCSIA for payments for the refurbishment of the childcare centre were at risk, and continued:

‘In my view if an Administrator is not appointed to the Association it is likely that the Federal funds will not be used to complete the childcare centre or to provide accommodation for the childcare mentor. It is also unlikely that the funds will be available for repayment to the Government.’

24                  On 5 July 2006 FaCSIA discussed its concerns with Mutitjulu at a meeting. Mutitjulu thereafter sought legal advice and requested that FaCSIA allow it until Monday 10 July 2006 to respond to the concerns of FaCSIA. FaCSIA agreed to such request and imposed a time limit of 3 pm on Monday 10 July for the receipt of any submissions from Mutitjulu.

25                  On 7 July 2006 a telephone discussion took place involving Ms Beacroft, Peter Armstrong and Joe Mastrolembo, delegates of the Registrar and Mr Robert Burden, who was retained by Mutitjulu as its corporate governance advisor. At such meeting Mr Burden acknowledged that the Mutitjulu accountant had been verbally advised on 3 July 2006 that funding had ceased.

26                  On 10 July 2006 at 6.43 pm Ms Beacroft inquired whether FaCSIA’s previous advice remained and asked whether any response had been received from Mutitjulu. On the same evening at 7.20 pm FaCSIA responded advising that no representations had been made by Mutitjulu. The letter also stated:

‘The position of the Department of Families, Community Services and Indigenous Affairs in relation to the Corporation has not changed. Thus, whilst it is said that the Corporation asserts that the appointment of an Administrator is not justified, the Department does not accept that assertion. The Department denies any allegation that the Corporation has been treated “unfairly”.’

27                  By letter dated 11 July 2006 Mutitjulu wrote to the Minister, seeking to address some of the concerns raised. The proposed appointment of an administrator was not referred to. The letter further advised that having consulted with the Office of the Registrar of Aboriginal Corporations (‘ORAC’) there were no specific outstanding corporate compliance issues and that if ‘any come to light’ they would be addressed. However, the letter did not cause FaCSIA to change its opinion.

Issue of Show Cause Notice

28                  Against this factual background the Notice was issued to Mutitjulu to show cause why an administrator should not be appointed. On 11 July 2006 at 5.55 pm Mr Peter Armstrong sent a message to Ms Beacroft, advising her that the Governing Committee disputed the need for the appointment of an administrator. The message continued:

The Committee also contended that ORAC had only issued the Notice at the bequest of OIPC. I informed the members that the Notice had been issued on the basis of public interest (that is ORAC is worried that the community will not have access to vital services unless the funding is forthcoming).’

29                  On 12 July at 11.12 am Ms Beacroft wrote to FaCSIA informing it that the Notice had issued. Ms Beacroft stated:

‘The basis of the notice essentially is that as FACSIA has previously made the decision not to release funds to the corporation in the 2006/07 financial year unless an administrator is appointed, then an administrator should be appointed in the public interest.’

30                  On 12 July 2006 at 12.21 pm FaCSIA advised Ms Beacroft by email that there had been no change in the Department’s position as a consequence of their consideration of the letter forwarded to the Minister. The email also stated:

‘If an Administrator is appointed to the Corporation, the Department is prepared to resume funding to the Corporation as soon as the Administrator is in control of it, as, from that time, appropriate corporate governance of the Corporation will be assured.’

31                  Also on that day, Mutitjulu wrote to the Registrar by email stating, inter alia:

‘At the outset, we state firmly and categorically that we are opposed to the appointment of an administrator. We are very disappointed that we have been allowed such a short time to prepare an adequate response, (just 24 hours), but realise never the less that we must comply with this deadline.’

Thereafter the letter referred to various matters and provided an assurance that Mutitjulu would co-operate on governance issues.

32                  At 4.11 pm on that day FaCSIA confirmed to Ms Beacroft that there had been no change in the Minster’s attitude.

33                  On 13 July 2006 Mr Peter Armstrong prepared a Statement of Reasons for Appointment of Administrator. The reasons included the following:

‘Without continued funding from FaCSIA the Corporation cannot continue functioning at a level which would enable it to continue providing the services referred to above to the detriment of residents of the Mutitjulu community.’

34                  The actual appointment of Mr McMaster as Administrator was made on 18 July 2006.

35                  Mutitjulu claims that the period of notice of one day was unreasonably short. It submits that s 71(1) requires ‘a reasonable period’ and that the period allowed was simply too short to satisfy this requirement. Mutitjulu refers to the decision of Stone J in Jamieson v Guri War Ngundagar Aboriginal Corporation [2001] FCA 1104 wherein Her Honour observed that a period of seven days was ‘a very short time’.

Finding

36                  The Registrar was aware, prior to the issue of the Notice, that Mutitjulu’s accounts recorded a deficit of $171,595.60, that funding had ceased from 1 July 2006, and that no funds would be available to pay staff or to provide for any of the services necessary for the continued operation of the community. Accordingly, Mutitjulu was unfunded.

37                  Despite meetings between FaCSIA and Mutitjulu, no arrangement had been made acceptable to FaCSIA for a resumption of funding in the absence of an administrator. The Registrar was aware that Mutitjulu had been afforded an opportunity to respond to the allegations made against it by FaCSIA and despite Mutitjulu’s representations contained in its letter of 11 July 2006 to the Minister, the situation remained unchanged. The letter from Mutitjulu to the Registrar did not offer any plan of action which might have led to a restoration of funding. Accordingly the Registrar was entitled to believe that the funding of Mutitjulu would not be resumed.

38                  The Governing Committee had been on notice since 30 June 2006 that no further funding would be provided unless an administrator was appointed. The Governing Committee was taking advice, as the Registrar knew, from Mr Burden who had been in discussions with FaCSIA since 5 July 2006. The Governing Committee had also been receiving legal advice in relation to its dispute with FaCSIA since 5 July 2006. Accordingly, by 12 July 2006 the Governing Committee had ample opportunity to raise any legal issues, or important matters with FaCSIA and with the Registrar concerning the allegations against it

39                  Taking these considerations into account, I do not consider that the period allowed in the Notice was unreasonable. The circumstances required immediate and decisive attention. The urgency was obvious, since the failure to obtain funding from FaCSIA would have resulted in a breakdown of the operations of the Mutitjulu community. The Registrar was aware that without funding the operations of the community could not continue, that no funding had been provided since 30 June 2006, and that no funding would be provided unless an administrator were appointed.

40                  The urgency of the circumstances may limit the period in which a person may have a right to be heard: see Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337 at 346; see also Re Refugee Tribunal and Another; Ex parte Aala (2000) 176 ALR 219 at [60]. The period in which to show cause provided in the Notice was short. However, the operation of the Mutitjulu community was in a state of crisis, and had been so since 1 July 2006. Accordingly I consider that in these circumstances the period prescribed was reasonable. Even if such period of notice were not regarded as reasonable, the Court would not grant the relief sought in view of the urgency and exceptional circumstances surrounding the need for an administrator’s appointment.

Was the Notice affected by Wednesbury unreasonableness or procedurally unfair?

41                  Mutitjulu submits that the Notice was unreasonable in the Wednesbury sense (see: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) or that it was otherwise procedurally unfair because only one day was allowed for a response.

42                  Mutitjulu submits that prior to the issue of the Notice, the Registrar was bound to satisfy herself that adequate grounds existed to warrant the issue of the Notice. Mutitjulu submits that the grounds relied upon by FaCSIA to cease funding to Mutitjulu were based upon unproven allegations that were broadcast in the ‘Lateline’ program on ABC television which related to alleged unlawful conduct of several persons holding office within the Mutitjulu community. Mutitjulu submits that it was the duty of the Registrar to ascertain whether there was any truth in such allegations. It submits that Mr Armstrong was aware of this possibility when, in a memorandum prepared by him in support of the issue of the Notice he observed:

‘Whilst the reply [of Mutitjulu] does raise some interesting points surrounding procedural unfairness by FaCSIA (which is not for ORAC to consider).’

43                  Mutitjulu further submits that the Registrar was subconsciously motivated to issue the Notice based upon untested information supplied to it by FaCSIA: see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] HCA 72; 222 ALR 411 at [19]. Mutitjulu submits that the Registrar, prior to the issue of the Notice, was bound to put the allegations made by FaCSIA to Mutitjulu as being ‘credible, relevant and significant’ information, and to obtain a response from Mutitjulu prior to the issue of the Notice.

Finding

44                  In VEAL the Court was concerned with the failure of the Tribunal to inform the appellant of the existence of a letter which could have influenced the decision which it was required to make. In Kioa and Others  v West and Another (1985) 159 CLR 550, the Court determined that the decision-maker was required to provide an opportunity to a party to respond to information which was adverse to the interests of that party, and which the decision maker proposes to take into account in making the decision (at 628).

45                  Although generally an opportunity should be given to a party whose interests are affected by a decision to deal with adverse information that is ‘credible, relevant and significant to the decision to be made’ (see Kioa v West at 629), the allegations influencing the decision of FaCSIA was not information which was credible, relevant and significant to the decision of the Registrar to appoint an administrator. That information ‘can and should be put aside from consideration by the decision-maker as not, credible, not relevant, or of little or no significance to the decision to be made.’(see VEAL at [17]).

46                  The ground of failure to take into account a relevant consideration similarly does not arise in this instance as this ground is only established if the decision maker fails to take into account a consideration which he or she is bound to take into account in making the decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24 at 39; Kioa v West at 630. The Registrar was not obliged to consider the material relied upon by FaCSIA because the Registrar had no power to control FaCSIA’s decision making. The Registrar was only concerned with the consequence of the disputed matters between Mutitjulu and FaCSIA, namely that funding had ceased on 30 June 2006 and that Mutitjulu had no source of income from that time.

47                  Section 71(2) of the ACA Act provides that the Registrar may appoint an administrator if satisfied that any of the grounds specified in that section have been established. The statute does not require the Registrar to consider matters which were relevant to a separate decision made by FaCSIA. Accordingly the Registrar was not bound to take those matters in to consideration in her decision to appoint an administrator. The impugned allegations are of a kind referred to by Brennan J in Kioa v West where His Honour said at 628:

‘Administrative decision making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made’

The events which caused FaCSIA to determine that funding should not be continued is not a matter which was relevant and significant to that consideration by the Registrar to appoint the administrator.

48                  Further, the Registrar was aware that FaCSIA had provided an opportunity for Mutitjulu to respond and that Mutitjulu had done so. Despite such response, FaCSIA remained unmoved.

49                  In the circumstances it was not unreasonable, in the Wednesbury sense, for the Registrar to issue the Notice. The Wednesbury unreasonableness alleged is of the kind referred to by Weinberg J in Australian Retailers Association and Others v Reserve Bank of Australia (2005) 148 FCR 446 at 585 [570] where His Honour said:

‘Many of the particulars relied upon by the applicants in support of Wednesbury unreasonableness seem to me simply to manifest disagreement on their part with some detail or other of PSB’s reasoning. Even if there is substance in some of their points, this does not give rise to reviewable error.’

50                  The Registrar had before her information that was ‘credible, relevant and significant’ (Kioa v West, per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar’s decision was reached ‘by a process of logical reasoning’: see Hill v Green (1999) 48 NSWLR 161. I therefore reject Mutitjulu’s Wednesbury submissions.

51                  Mutitjulu also claimed that by adopting the period in which to provide submissions of one day, and by declining to assess the correctness of the matters relied upon by FaCSIA, the Registrar denied Mutitjulu the opportunity to challenge the legality of the actions of FaCSIA before this Court. Mutitjulu also claims that it was denied the opportunity to seek to influence the position of FaCSIA through alternate political channels such as the Ombudsman and Question Time in the House of Representatives, and that it was denied the opportunity to obtain advice as to whether FaCSIA’s actions were judicially reviewable.

52                  Additionally, Mutitjulu claims that the delegate failed to take into account a relevant consideration, being the practical ability of a body such as Mutitjulu to obtain advice and respond to the Notice within 24 hours.

53                  Mutitjulu did not suggest in its response to the Minister dated 11 July 2006 that it wished to challenge the decision to cease funding by any of the methods now suggested nor that it was impossible for Mutitjulu to comply with the Notice. Nor did it request an extension of time. Rather the letter expressed a disappointment with the shortness of time but then responded to the Notice without further complaint. Mutitjulu did not claim that it would be prejudiced if the appointment were made.

54                  Mutitjulu submits that it can take up to three weeks to gather together the Councillors for a meeting due to the absence of proper postal arrangements; that the shortest period to organise a meeting is three to four days; that there was difficulty in accessing legal advice and that all of the women in the committee were unavailable.  It claims that such difficulties would have been plain to a regulator of Aboriginal corporations. 

55                  Mutitjulu was equipped with both facsimile and email for its communications and was able to communicate promptly with the Registrar in making its submissions. At the time the Notice was received, a meeting of the Governing Committee was in progress. Further, the letter written to the Registrar on 12 July 2006 in response to the Notice was written following advice received from the Central Land Council Lawyers in Alice Springs. In these circumstances I am unable to find any procedural unfairness.

Was approval held for the appointment of the Administrator?

56                  Mutitjulu claims that there was no approval by the Minister as required by s 71(3) of the ACA Act to the appointment of the Administrator. The Registrar claims that at the time that Mr Armstrong appointed the Administrator, the necessary approval was held since the Hon. Kevin Andrews MP, Minister for Employment and Workplace Relations, had been appointed to exercise that power on behalf of the Minister, pursuant to s 18C of the Acts Interpretation Act 1901 (Cth). Alternatively it is submitted that if Mr Armstrong did not have the effective approval of the Minister to appoint the administrator, the Court should exercise its discretion against the making the order sought.

57                  The facts disclose that sometime before 12.30 pm on 14 July 2006 the Minister, considering that he may have been in a position of conflict, signed a minute agreeing to the recommendation that another Minister be appointed pursuant to s 18C of the Acts Interpretation Act to determine whether to approve the appointment of the Administrator. Section 18C of such Act authorises a Minister who administers an Act to appoint another Minister to act on his behalf.

58                  Some time before 3.44 pm on 14 July 2006 Mr Andrews signed the minute agreeing to the recommendation to approve the appointment of the Administrator. At approximately 4.02 pm on that day the Minister signed the Instrument of Authorisation pursuant to s 18C of the Acts Interpretation Act appointing Mr Andrews. At 9.13 am on 18 July 2006 Mr Armstrong received an email attaching the signed Instrument of Authorisation. On the afternoon of the same day Mr Armstrong signed the Instrument of Appointment which noted that it was effective from 19 July 2006.

59                  The Registrar submits that the fact that Mr Andrews signed the minute recommending the appointment of the Administrator before the Minister signed the minute of authorisation is immaterial. The Registrar also submits that the central issue is whether the appointment of the Administrator had the approval of Mr Andrews at the time it was made

Finding

60                  Section 71(3) of the ACA Act provides that the Registrar must not appoint an administrator without prior approval of the Minister. Mr Armstrong had Mr Andrews’ approval at the time the Administrator was appointed. Mr Andrews had by then been authorised by the Minister to approve the appointment of the Administrator.

61                  Mr Andrews signed the recommendation to approve the appointment of the Administrator 17 minutes before Minister had in fact signed the Instrument of Authorisation pursuant to s 18C of the Acts Interpretation Act. However the actual appointment of the Administrator was not effected until 18 July 2006. By this date Mr Armstrong held the appropriate approval from Mr Andrews, who had himself been authorised to give such approval by the Minister.

62                  The fact that Mr Andrews signed the recommendation to approve the appointment prior to his authorisation does not render the appointment of the administrator invalid. There is no statutory provision requiring Mr Andrews to have authorisation to make the recommendation. The only statutory requirement is that provided by s 71(3) of the ACA Act which requires that the approval of the Minister be obtained for the appointment.

63                  In accordance with the agreed chronology set out above, the Court finds that Mr Andrews signed the minute approving the appointment in the expectation that it would not be acted upon by Mr Armstrong until such time as the Minister had signed the minute of authorisation. The appointment was not made until a copy of the Minister’s authorisation of Mr Andrews was received by Mr Armstrong.

64                  Further there was no statutory requirement that Mr Andrews’ approval be issued to Mr Armstrong in writing. The critical fact is that at the date of the appointment of the Administrator, Mr Andrews approved of such appointment with the authority of the Minister.

65                  Even if, contrary to the above finding, Mr Andrews did not possess the requisite power for the purpose of the appointment, the circumstances surrounding the appointment were such that the Court would exercise its discretion to decline the relief claimed. Considering the arrangements that may have been made in the intervening period the consequences of deeming the appointment invalid are such as may cause considerable inconvenience. The ‘defacto officers’ doctrine’ was considered by Kirby J in Cassell v The Queen (2000) 201 CLR 189 at [71] in which it was observed that the doctrine was usually invoked to cure an accidental or unintentional lack of authority: see also GJ Coles & Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503 at 525-526. At 527 it was said:

‘Whatever is the true account of the origin of the de facto officer rule, its rationale in modern times is the protection which affords the public’

Such doctrine would have application with equal force in the present circumstances.

66                  For these reasons the Court rejects the submission that the appointment of the Administrator was made without the approval of the Minister in contravention of the ACA Act.

Futility

67                  The Registrar submits that the Court should decline to grant relief, assuming that Mutitjulu was successful, because any relief would be futile. It relies upon the fact that even if the appointment of the Administrator was set aside, the community would be without funding from FaCSIA, since FaCSIA is not a party to these proceedings and has indicated that it will not fund Mutitjulu in the absence of the appointment of an Administrator.

68                  Since the Court has found that none of the challenges to the appointment of the Administrator succeeds, it is unnecessary to consider this ground.

Conclusion

69                  As a result of the findings made, it follows that Mutitjulu’s claim for relief must be dismissed.

Associate:

Dated:         18 December 2006