FEDERAL COURT OF AUSTRALIA

Miller v Goldfields Land and Sea Council Aboriginal Corporation

[2014] FCA 183

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The respondent is a representative body under s 203AD of the Native Title Act 1993 (Cth) (the NT Act).

2    The applicant is a member of the native title claim group seeking a determination under s 61 of the NT Act of the native title of the Mirning People in respect of certain land and waters in the respondent’s representative body region. That claim is being conducted in the Western Australian Registry of this Court and is known as “the Mirning Claim”. Mr Rumler, the respondent’s principal legal officer, is the solicitor on record for the applicant in the Mirning Claim.

3    By letter dated 31 July 2013, the applicant’s solicitors, Campbell Law, informed the respondent that he was seeking funding for legal assistance and representation in relation to the Mirning Claim, and that he opposed that claim. In the same letter, Campbell Law asserted that, as the respondent was acting for the Mirning native title claim group, it had a conflict of interest in making a decision regarding the applicant’s application for funding and that an independent body or independent counsel should make that decision. Campbell Law has maintained that position in subsequent correspondence.

4    The respondent’s Chief Executive Officer, Mr Bokelund, has delegated authority to process applications made to the respondent for assistance, using guidelines which it has established for that purpose.

5    Mr Bokelund denies that he is in a position of conflict. He has outlined to Campbell Law the process which he intends to adopt in relation to the applicant’s foreshadowed application for funding. He has retained a firm of lawyers, and more recently a barrister from the Victorian bar to provide independent advice to him, but has said that he will himself exercise the delegated authority to determine the application.

6    The applicant contends that Mr Bokelund’s proposed course of action does not overcome the conflict of interest which he perceives. The parties are in dispute about those matters.

7    By the present application, the applicant seeks orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in relation to the manner in which the respondent has said it will deal with any application for funding which he makes. The respondent has filed, pursuant to rule 31.05 of the Federal Court Rules 2011 (the FCR), a notice of objection to the competency of the application, containing three grounds of objection:

(1)    that the applicant is not a person “aggrieved” in the sense contemplated by s 3(4) of the ADJR Act by a decision or by any conduct of it;

(2)    that the applicant is not a person whose interests are adversely affected by any decision or conduct of it;

(3)    that it has not yet made a decision or engaged in conduct which impacts on the substantive rights of the applicant.

The respondent acknowledged that the second of these grounds was, in effect, an alternative manner of expression of the first. Essentially, therefore, the respondent’s notice of objection raises an issue as to whether the application relates to a decision or conduct to which the ADJR Act applies and an issue as to the applicant’s standing.

8    By FCR r 31.05(2), it is for the applicant to establish the competency of his application.

9    At the pre-trial directions hearing, the respondent sought to have its objection to competency heard in advance of a hearing of the substantive issues. However, it appeared that a hearing of both could be completed within half a day and without causing the parties to incur significant additional costs. In those circumstances, I directed that the objection to competency be heard concurrently with the substantive application so that, if the objection failed, the Court could proceed immediately to a determination of the applicant’s application.

10    As will be seen, I am satisfied that the objection to competency should be upheld. This makes it unnecessary to determine the substantive issues on the application.

The subject of the application

11    The manner of expression of the ADJR application gives rise to difficulties in identifying the matters which the applicant wishes to have reviewed. The application commences with a statement that the applicant seeks to have the Court:

review the conduct of the Respondent to make a decision in relation to a proposed funding application of the Applicant, which conduct and which decision the Respondent was obliged to make pursuant to its powers and responsibilities as a native title representative body derived from sections 203BB(5) and 203BK(1) of the Native Title Act 1993 (Cth).

This suggested that the applicant was seeking review of proposed conduct of the respondent in relation to the making of a decision in relation to his proposed funding application. It did not, however, identify the conduct in question.

12    The application then continues:

The Applicant seeks:

a.    Review of the decision (“the Decision”) of the Respondent to assess the Applicant’s proposed funding application by its:

i.    breach of the rules of natural justice in connection with making the decision;

ii.    failure to observe the procedures that were required by law to be observed in connection with the decision;

iii.    improper exercise of its power in the making of the decision; and

iv.    that the decision was otherwise contrary to law.

b.    In the alternative, review of the conduct in which the Respondent proposes to engage in connection with a decision (“the Conduct”) which would amount to a:

i.    breach of the rules of natural justice in connection with making the decision;

ii.    failure to observe the procedures that were required by law to be observed in connection with the decision; and

iii.    improper exercise of its power in the making of the decision.

13    These paragraphs indicated that the applicant was seeking review under s 5 of the ADJR act of a decision already made and, only in the alternative, a review under s 6 of proposed conduct. With the exception of the statement in subpar (a) that the applicant seeks review of the decision of the respondent “to assess the applicant’s proposed funding application”, neither subparagraph identifies the decision or conduct which the applicant seeks to have reviewed. Instead, each lists, in general terms, complaints which the applicant makes with respect to the unidentified decision and with respect to the unidentified conduct.

14    These shortcomings are not redressed in the body of the application which follows.

15    At the pre-hearing directions hearing, counsel said that the applicant sought review of the decision of the respondent to assess itself the applicant’s proposed funding application, rather than delegating that assessment to an independent third party. Counsel also indicated that the conduct of the respondent to which the alternative limb of the application referred was that same decision.

16    At the hearing, counsel for the applicant revised this articulation. Ultimately, counsel identified the decision which the applicant wished to have reviewed as:

The decision of the respondent that it will exercise the authority to make a decision as to whether to grant assistance to the applicant in the event that an application for assistance is lodged, and will not delegate that decision-making to an independent party.

A decision to this effect was communicated to Campbell Law by the respondent’s letters of 13, 17 and 24 September 2013. This formulation indicated that the applicant sought review of a decision already made and not of a decision yet to be made.

17    Counsel identified the conduct which is the subject of the alternative limb as:

The conduct of the respondent in determining that it will exercise the authority to assess a funding application by the applicant in the event that an application is lodged and will not delegate the assessment of such an application to an independent party.

18    This formulation tended to suggest that the focus of the review was to be on past conduct of the respondent, being the same determination relied upon for the decision in the primary part of the application. However, counsel indicated that, by this formulation, the applicant sought to attract the operation of that part of s 6 of the ADJR Act which permits review of conduct in which a person proposes to engage for the purpose of making a decision to which the ADJR Act applies. I understood therefore that the applicant sought review of conduct yet to occur and in which the respondent proposes to engage.

19    The hearing was conducted on the basis of these formulations of the impugned decision and conduct, but having regard to counsel’s elaboration of the latter.

20    It is appropriate to consider the applicant’s primary claim first. That is the claim with respect to the respondent’s decision.

Is the impugned decision a decision to which the ADJR Act applies?

21    It is convenient to consider this objection to competency first. As Gummow, Callinan and Heydon JJ observed in Griffith University v Tang [2005] HCA 7 at [43]; (2005) 221 CLR 99 at 117, the question whether an applicant under the ADJR Act is “aggrieved by” a decision arises only when there is a decision to which the ADJR Act applies. If there is no such decision, then there is nothing “by” which any applicant can assert a grievance.

The decision relates to a proposed funding application

22    It is a stark circumstance of the present application that it relates to a decision concerning an application for funding which the applicant has not yet made. As already seen, the ADJR application is stated to relate to a proposed funding application. This characterisation of the application is borne out by the evidence.

23    In its letter to the respondent of 31 July 2013, Campbell Law said:

Mr Miller is a member of the Mirning Native Title Claim and seeks funding for legal advice and representation. To be clear, Mr Miller opposes the Mirning Native Title Claim.

We note that although our client is a member of the Mirning Native Title Claim Group description, he is entitled to legal representation for the protection of his individual interests.

That was the extent of the information provided in relation to the application for funding. The balance of the letter of 31 July 2013 concerned the conflict of interest which Campbell Law perceived that the respondent may have in determining an application for funding and ways by which it considered that conflict may be addressed.

24    In correspondence to the respondent on 28 August, Campbell Law referred to “our funding application” and, in a letter of 12 September 2013, to “the funding application”. These expressions did not make clear whether Campbell Law regarded the letter of 31 July 2013 as “the funding application” or whether it was referring to the funding application which the applicant proposed making.

25    In its first response to Campbell Law’s letter of 31 July 2013, and subsequently, the respondent has invited the applicant to make an application for funding. In his letter of 13 September 2013, Mr Bokelund said:

[8]    Your letter of 28 August 2013 makes repeated references to your client’s funding application which was made in your letter of 31 July 2013. I wish to make it clear that your letter of 31 July 2013 does not constitute a funding application for the purpose of GLSC’s Policy and Procedure Manual Section F: Assistance in Native Title Matters. As such, I am not in receipt of an application for assistance by or on behalf of your client that I am able to consider. In the event that your client chooses to make an application for assistance, he should have reference to GLSC’s Policy and Procedure Manual Section F: Assistance in Native Title Matters. I attach a copy of this section of the Policy and Procedure Manual for your ease of reference. It would greatly assist if your client’s application for assistance, if and when it is submitted to me, could specifically deal with the various matters that are required to be attended to in GLSC’s Policy and Procedure Manual Section F: Assistance in Native Title Matters.

[9]    Once I have received an application for assistance by or on behalf of your client that addresses the matters required to be attended to in GLSC’s Policy and Procedure Manual Section F: Assistance in Native Title Matters, it will be considered promptly by me and you will be informed in writing of my decision in relation to your client’s application for assistance.

As can be seen, Mr Bokelund told Campbell Law explicitly that he did not regard its letter of 31 July 2013 as an application for funding. The applicant has not disputed Mr Bokelund’s characterisation of Campbell Law’s letter of 31 July.

26    In his later correspondence, Mr Bokelund has repeated his invitation to Campbell Law to provide an application for assistance in accordance with the respondent’s guidelines. Mr Bokelund has then gone on to outline the manner in which the respondent proposes to deal with any applications “if and when they are received”. His letter of 24 September 2013 states the respondent’s position:

[3]    As I have previously stated, I am not in a position to appoint an independent decision-maker to undertake a review of any applications for assistance that your clients may be minded to submit. As GLSC’s CEO, it is my obligation, by reason of the delegated authority given to me by GLSC’s board of directors, to consider applications for assistance that are made to GLSC in accordance with the policy and criteria set out in [the Guidelines]. I stress that I simply do not have the authority to delegate that authority to whomever I see fit.

[4]    I have already advised that I have retained an independent law firm, HWL Ebsworth Lawyers, to provide independent legal advice to me in relation to the consideration of your client’s applications for assistance, if and when they are received.

(Emphasis added)

27    Despite Mr Bokelund’s invitations, the applicant has not lodged any application for funding. The terms of his ADJR application, quoted above, indicate that it concerns a “proposed” application for funding.

28    Clause 7.2 in Section F of the respondent’s Policy and Procedure Manual concerning Assistance in Native Title Matters (the Guidelines) indicates that applications for assistance should be made in writing and that the respondent’s staff can assist in preparing a written application if so requested. Clause 7.1 indicates that applications for assistance will be considered by the respondent’s CEO who will use criteria set out in the Guidelines “to decide if the claim is of a sufficiently high priority to justify funding in the current financial year”.

29    The Guidelines do not stipulate any content for the written application but, in context, it is reasonable to suppose that an applicant for funding will, as part of a request, provide details of his or her eligibility for assistance, together with the nature, extent and purpose of the funding sought. It would also be a reasonable expectation that the written application would address the criteria for funding set out in the Guidelines. Plainly, the brief statement at the commencement of Campbell Law’s letter of 31 July 2013 quoted earlier in these reasons is not a written application of this kind.

30    For those reasons, I am satisfied that the application concerns a decision reached in relation to a foreshadowed application for funding only.

Principles relating to the proper characterisation of the decision

31    The fact that a funding request has not yet been made indicates that the present application is somewhat hypothetical. It raises the question of whether the present application relates to a decision of an administrative character made under an enactment, so as to enliven the Court’s jurisdiction under the ADJR Act.

32    Section 5(1) of the ADJR Act provides that a person who is “aggrieved by a decision to which this Act applies” may apply (relevantly) to this Court for an order of review. The expression “decision to which this Act applies” is defined in s 3(1) of the ADJR Act to mean:

a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a)    under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)    by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c)    a decision by the Governor-General; or

(d)    a decision included in any of the classes of decisions set out in Schedule 1.

33    This expression has been the subject of extensive judicial consideration. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ, with whom Brennan and Deane JJ agreed, said (at 337):

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

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

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

(Emphasis added)

34    In Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, the High Court considered the expression “decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)” in the Judicial Review Act 1991 (Qld), a counterpart to the ADJR Act. Gummow, Callinan and Heydon JJ held that the determination of whether a decision is “made … under an enactment” involves a consideration of both the authority for, and the effect of, the decision. At 128 their Honours said:

[78]    [T]he presence in the definition in the AD(JR) Act of the words “(whether in the exercise of a discretion or not …)” indicates that the decision be either required or authorised by the enactment. … However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.

[79]    The decision so required or authorised must be “of an administrative character”. This element of the definition casts some light on the force to be given by the phrase “under an enactment”. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

[80]    The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?

    (Citations omitted) (Emphasis added)

Later, at [89] 130-1, Gummow, Callinan and Heydon JJ said:

The determination of whether a decision is “made ... under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made ... under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

(Emphasis in original)

Similarly, at [18], Gleeson CJ quoted with approval the following passage from the judgment of Davies AJA in Scharer v New South Wales [2001] NSWCA 360 at [77]; (2001) 53 NSWLR 299 at 313:

The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.

35    In relation to the issue of a notice under s 222APE of the Income Tax Assessment Act 1936 (Cth), Greenwood J observed in Guss v Deputy Commissioner of Taxation [2006] FCAFC 88 at [67]; (2006) 152 FCR 88 at 105:

The question of whether a decision is one of an administrative character made under an enactment is not simply to be determined by whether legal rights and obligations owe their existence to the statutory instrument but also whether a decision to issue the notice derives from the statute the capacity to effect legal rights and obligations.

36    The effect of these decisions is that, for a decision to be one to which the ADJR Act applies, the decision must be expressly or impliedly authorised by an enactment and must itself confer, alter or otherwise affect legal rights or obligations.

Relevant provisions in the Native Title Act

37    The determination of whether there is a decision under the NT Act which in accordance with the above principles may enliven this Court’s jurisdiction under the ADJR Act must have regard to the statutory provisions by which the respondent operates.

38    By Part 11, Division 2 of the NT Act, the Minister may recognise an eligible body corporate as the representative body for a specified area or areas. Representative bodies which are recognised are vested by s 203B(1) with a number of functions. The “facilitation and assistance functions” contained in s 203BB are pertinent presently. Section 203BB provides (relevantly):

203BB Facilitation and assistance functions

General

(1)    The facilitation and assistance functions of a representative body are:

(a)    to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

(b)    to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

(i)    native title applications;

…

(v)    any other matters relating to native title or to the operation of this Act.

Facilitation and assistance functions only exercisable on request

(2)    A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

…

Consent required if matters relate to same land or waters

(4)    If:

(a)    a registered native title body corporate or a person who holds or may hold native title requests that a representative body represent the body or the person (the new body or person) in relation to a particular matter that relates to particular land or waters; and

(b)    the representative body is already representing another body or person (the original body or person) in relation to one or more other matters that relate wholly or partly to that land or those waters;

the representative body must not represent the new body or person unless the representative body has obtained consent, from the original body or person, for the representative body also to represent the new body or person to the extent that the other matters relate to the land or waters.

“Briefing out” matters that relate to the same land or waters

(5)    Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.

…

As can be seen, the facilitation and assistance functions of a representative body such as the present respondent include assisting native title holders in relation to native title applications, including by representing them, or facilitating their representation, in proceedings. A representative body is not to perform its facilitation and assistance functions in relation to a particular matter unless requested to do so (subs (2)). Section 203BB(4) contains a prohibition on a representative body representing two or more bodies or persons in relation to a particular matter, without the consent of the first person or body for which it provided representation. Subsection (5) makes it plain that the representative body may facilitate the representation of a body or person in relation to a particular matter by arranging for another person to represent the body or person in relation to that matter.

39    The NT Act does not contain a provision obliging a representative body to provide facilitation and assistance in relation to particular matters, but the content and structure of its provisions suggest that, when a request is made, it will endeavour to perform its functions expeditiously. Section 203BA(1) obliges a representative body to use its best efforts to perform its functions in a timely manner, particularly having regard to any statutorily imposed time limits. In addition, a representative body must perform its functions in a manner which maintains organisational structures and administrative processes promoting the satisfactory representation by the body of native title holders and the persons who may hold native title in the area for which it is the representative body; in a manner which maintains organisational structures and administrative processes promoting effective consultation with Aboriginal peoples and Torres Strait Islanders living in its area; and in a manner which ensures that the structures and processes operate in a fair manner (s 203BA(2)).

40    The applicant also relied upon s 203BK which provides (relevantly):

(1)    A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2)    Without limiting subsection (1), a representative body has power to enter into arrangements and contracts to obtain services to assist in the performance by the representative body of its functions.

…

41    A representative body may apply to the Secretary of the relevant department for the funding enabling it to perform its functions (s 203C). That funding may be provided subject to conditions, including conditions as to the purposes for which the money may be spent, the provision of information relating to the performance of the body’s function, and the period within which the money is to be spent (s 203CA).

42    In summary, the respondent, as a representative body, has two facilitation and assistance functions. Relevantly, one of its functions is the assistance of native title bodies corporate, native title holders and persons who may hold native title in proceedings in relation to defined matters. It may discharge these functions in a number of ways, including by itself representing the persons or by facilitating the representation of the persons.

43    It can be concluded that a representative body is, subject to the provisions of the NT Act, both required and authorised to make decisions on requests for assistance made to it.

The ADJR Act does not apply to Mr Bokelund’s decision

44    The circumstance that the applicant had not yet made any application for funding is significant because, as already noted, s 203BB(2) precludes the respondent from performing its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

45    The word “request” and its cognates is not defined in the NT Act, nor is there any prescription of the way in which requests, for the purposes of s 203BB or for the purposes of the Act more generally, should be made. Section 203BB(2) does, however, connote that there must be some act or event which can be characterised as a request. Ordinarily, this will involve some form of communication from an applicant to the representative body in question.

46    For the reasons already given, the manner and form of the “request” in Campbell Law’s letter of 31 July 2013, the subsequent correspondence between the parties, the absence of any contest to the respondent’s assertion that no funding application has been made, and the applicant’s statement in his application to this Court that he seeks relief in relation to a proposed funding application, combine to suggest that the Campbell Law letter of 31 July 2013 cannot be regarded as a request of the kind to which s 203BB(2) refers.

47    In that circumstance, the occasion for the respondent to make a decision under the NT Act in relation to a funding request by the applicant has not yet arisen. That being so, there is a difficulty in characterising the decision impugned by the applicant in these proceedings as having been required or authorised, in the relevant sense, by the NT Act. The respondent has not been required to make any decision. The NT Act may impliedly authorise a representative body to give intimations as to the procedures it will adopt as an incident of the discharge of its functions but it cannot reasonably be said that it is part of its statutory function to do so. In that sense, the impugned decision is not one which is authorised by the NT Act.

48    Further, the impugned decision does not affect the legal entitlements of the applicant in the sense discussed in Bond and in Tang. Unless and until the applicant does make a request for funding, the manner in which the respondent proposes to deal with such an application remains hypothetical.

49    The applicant’s counsel sought to avoid this conclusion by submitting that the applicant was entitled to be confident that any decision made on an application he lodges will be made by an impartial and detached decision-maker. That may be so, but unless and until he does make an application, any effect on the entitlement is at a theoretical level only.

50    It is by no means certain that the applicant will make a request for funding. The Mirning Claim was filed in 2001. The applicant cannot have been unaware of the Claim as he is a member of the claim group. Yet some 12 years have elapsed before Campbell Law’s letter on behalf of the applicant to the respondent with respect to funding assistance.

51    I also observe that the applicant has not deposed that he will, in any event, be lodging an application for funding. Counsel for the applicant deposed that an inference to that effect may be drawn from the Campbell Law letter of 31 July. That inference may be open but it is also pertinent that, just on five months later, the applicant has still not, despite repeated invitations to do so, lodged an application. To my mind it is surprising in this context that the applicant has not deposed positively to his intention to do so.

52    These matters serve to emphasise the hypothetical nature of the present application and, in particular, that the impugned decision does not at this stage affect any legal right of the applicant in the requisite manner.

53    Statements by way of intimation of the approach which may be adopted by a decision-maker have not been regarded as “decisions” in analogous contexts. In Pegasus Leasing Ltd v Commissioner of Taxation (1991) 32 FCR 158, the applicant sought a statement of reasons under s 13 of the ADJR Act in respect of two “decisions” of the Tax Department. A tax officer had told the applicant’s solicitors that the Commissioner regarded certain payments received by the company as being of a capital nature, and not deductible for income tax purposes, and that the applicant should not offer for sale shares in a syndicate on the basis that participants would obtain deductions for payments made. O’Loughlin J held that the advice of the officer did not amount to a “decision” under the Income Tax Assessment Act 1936 (Cth). Relevantly for present purposes, O’Loughlin J held at 162:

I have come to the conclusion that the communication … amounted only to an expression of opinion by the respondent or, perhaps, to a statement of policy. I do not believe that it should be classified as a “decision” for the following reasons. First, the Income Tax Assessment Act did not require the respondent to make any such communication; no such communication is contemplated by the legislation and, in that sense, it was not authorised by the Act. … I can only see it as advice given by the respondent to the applicants of an opinion that he had formed which would be applied in due course of time, to the individual affairs of each tax paying participant. Secondly, the manner in which I have classified the communication … means that it did not have “the character and quality of finality”. That would only come at a later stage during the assessment or amended assessment process of the individual affairs of each taxpayer.

54    Humane Society International Inc v Minister for Environment and Heritage [2003] FCA 64; (2003) 126 FCR 205 concerned a “decision” made under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The EPBC Act had the effect that a person who thought that the killing of animals of a certain species might be a “controlled action” had to refer that question to the Minister. The Minister then had to decide, under s 75, whether the action was a “controlled action”. An action was a controlled action if taking it without approval would be prohibited (s 67). Prohibited actions were those which would have a significant impact on listed vulnerable species. After negotiations with State governments, the Minister issued “Administrative Guidelines” which provided that fruit growers holding State permits for the culling of two species of flying foxes did not need also to secure permission from the Minister under the EPBC Act.

55    On a challenge by the applicant to the validity of the Guidelines, Kiefel J held that there had been no “decision” for the purposes of the ADJR Act. Her Honour considered that the occasion for a decision by the Minister as to the impact of the culling of flying foxes had not yet arisen, saying at 214:

[37]    It would not seem to me a sufficient connection with a statute, for the purpose of treating a decision as made pursuant to it, to say, as the Society did, that the statute should have been the source of power. Clearly there needs to be a statutory authority but there must also be shown circumstances upon which the statutory provision was meant to operate.

[38]    In the present case there was statutory authority for a determination, on the part of the Minister, as to the significance of the impact on the species. Notably it is one to be made under the Act after seeking information or comment on the proposed action the subject of a referral and considering them, processes which have not been undertaken. Importantly, the determination is to be made when a reference is made to the Minister of a particular proposal. That is to say, the occasion for the exercise of s 75(1) has not arisen. The subsection cannot be taken to impliedly confer a statutory function. In these circumstances it is not necessary to consider the further question, whether that determination by the Minister would itself be a reviewable decision if it were made in connection with a referral (see Bond at 337).

[39]    The other aspect of the Minister's decision in that regard, is that it could not be said to be operative or determinative, in the sense described in Bond , or to have legal effect. It might be otherwise if it were made in connection with, or applied to, a referral. Those qualities are also absent from the decision that the holders of state permits do not need to refer action, the subject of the permits, to the Minister.

(Emphasis added)

56    In Re Rennie and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 424, a Full Bench of the Administrative Appeals Tribunal held that an administrator’s advice as to the way in which it would act at a future time was not a decision which could be reviewed under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Mansfield J referred to Re Rennie with approval in Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413 at [24]; (2010) 185 FCR 42 at 48. It is appropriate to have regard to Re Rennie in the present context because the provisions in the ADJR Act and the AAT Act concerning the decisions which are amenable to review are, although not identical, quite similar.

57    I regard the reasoning in these cases as supportive of the conclusion which I have reached in respect of the impugned decision in the present case. They indicate that decisions as to the means by which a decision-maker may proceed, if the occasion for the discharge of a statutory function arises, are not decisions of the kind contemplated by s 5.

Conclusion with respect to the decision

58    For these reasons, I conclude that the decision which the applicant seeks to impugn by the primary limb of the application is not a decision of an administrative character made under an enactment. That being so, the applicant cannot be a person who is aggrieved in the requisite sense by that decision.

The alternative claim concerning proposed conduct

59    The applicant sought, in the alternative, to bring his application within s 6 of the ADJR Act. In its opening lines, s 6(1) provides:

(1)    Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds:

…

60    The applicant contended that the correspondence from Mr Bokelund evidenced conduct in which the respondent proposed to engage when it received his funding request. By this means, he sought to engage that part of s 6(1) which refers to conduct in which a person “proposes to engage … for the purpose of making a decision to which this Act applies”.

61    Counsel referred to, and relied upon, s 3(5) of the ADJR Act which provides:

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

62    As can be seen, s 3(5) elaborates the concept of conduct “engaged in” for the purpose of making a decision. This is the first form of activity to which s 6(1) refers. That is activity which has already occurred. It is not clear whether s 3(5) applies to conduct in which a person proposes to engage, which is the third form of activity to which s 6(1) refers. However, I will proceed on the basis that proposed conduct for the purposes of s 6 includes the proposed “doing of any act or thing preparatory to the making of a decision”.

63    The reasons of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341-3 provide some guidance as to the forms of conduct to which s 6(1) of the ADJR Act refers:

[O]nce it is accepted that “decision” connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of “conduct” in the statutory scheme of things becomes reasonably clear. In its setting in s. 6 the word “conduct” points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s. 3(5) refers to two examples of conduct which are clearly of that class, namely, “the taking of evidence or the holding of an inquiry or investigation”. It would be strange indeed if “conduct” were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

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

This view of the relationship between a “decision” and “conduct” is supported by an examination of the provisions of the A.D.(J.R.) Act. Section 6(1) provides for a direct challenge to conduct on procedural grounds only. The other grounds of challenge set out in the sub-section go to the invalidity of the proposed decision to which the conduct relates. Then, it is the proposed decision rather than the conduct which is challenged; s. 6 merely allows the challenge to take place before the making of the proposed decision. In other instances, conduct may only be impugned upon procedural grounds: see, e.g., s. 6(1 )(a) and (b).

As can be seen, Mason CJ emphasised that the conduct encompassed by s 6 is, in contrast to the decisions encompassed by s 5, procedural in nature.

64    However, as the terms of s 6(1) itself and the emphasised portions in the quoted passages from the reasons of Mason CJ made clear, the relevant conduct is only that in which the decision-maker proposes to engage “for the purpose of making a decision to which this Act applies”. Those words confine the scope of the relevant conduct. It is not just any conduct which may have some bearing upon a decision to be made by the decision-maker which is sufficient. There must be a proper connection between the impugned conduct and a decision under the enactment. That connection is lacking when the occasion for a single discharge of a statutory function has not yet arisen, and may never arise.

65    Herein again lies the difficulty for the present applicant. In the circumstance that he has not yet made a funding request, the intimation by the respondent as to the way in which it will proceed can relate only to a potential or possible decision in a hypothetical circumstance. Conduct of that kind does not answer the statutory description in the opening lines of s 6(1).

Conclusion

66    For these reasons, I consider that the respondent’s Notice of Objection to Competency should be upheld. The decision impugned by the applicant does not amount to a decision to which the ADJR Act applies, nor is the conduct impugned by the applicant conduct of the kind to which s 6(1) of the ADJR Act refers.

67    Those conclusions have the further consequence that the applicant cannot be a person “aggrieved by” the decision or by the conduct.

68    This conclusion makes it unnecessary to determine the substantive issues which the applicant sought to raise in the application. In some cases, it is appropriate for a court determining preliminary points adversely to an applicant to go on to consider the remaining issues agitated at the hearing. Doing so allows an appellate court, in the event of an appeal, to know the primary judge’s views on those issues. However, these proceedings have been marked by their hypothetical nature. Determining the issues which the applicant sought to agitate would only continue the hypotheticality. I consider it inappropriate to do so.

69    The application under the ADJR Act is dismissed. I will hear the parties on any consequential matters.

Associate:

Dated:    7 March 2014