Clements v Independent Indigenous Advisory Committee - [2003] FCAFC 143 - FCAFC 2003 case summary — Zoe

CTHFCAFC

Clements v Independent Indigenous Advisory Committee

[2003] FCAFC 143

Federal Court of Australia (Full Court)|2003-07-01|Before: Gray ACJ, Gyles JJ

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Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2003-07-01

Before

Gray ACJ, Gyles JJ

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143

[2]

ABORIGINALS - Aboriginal and Torres Strait Islander Commission - regional council elections - special rules for conduct of one regional council election - committee of indigenous persons to consider objections to inclusion of names on electoral roll - right of review by Administrative Appeals Tribunal - failure of applicant to attend hearing in Tribunal - notice of hearing not received until hearing completed - Tribunal rejected application on material available - whether right of appeal to Court from Tribunal's decision on a question of law - whether matter should be remitted to Tribunal after election completed ADMINISTRATIVE LAW - Administrative Appeals Tribunal - Tribunal proceeded in absence of applicant for review, on assumption that he had been notified of hearing - notice not received until after hearing completed - appeal on a question of law - whether alleged denial of procedural fairness by Tribunal a question of law - whether evidence admissible to establish denial of procedural fairness - whether error one of fact - whether Tribunal's decision a nullity - whether Court has jurisdiction to deal with appeal - whether matter should be remitted to Tribunal - whether any further decision-making function for Tribunal to perform - Tribunal's decision related to electoral roll - election completed COSTS - proper order - applicant partly successful in proceeding - success due to unwitting error by Administrative Appeals Tribunal - applicant's counsel appearing pro bono - respondent an authority of Commonwealth WORDS AND PHRASES - "question of law", "decision" Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 44, 45, 46 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Federal Court of Australia Act 1976 (Cth) ss 19, 20(2), 24, 25, 27 Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ss 100, 101, 113(3) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 14(1)(e) Federal Court Rules O 80 rr 9(1), (2) Judiciary Act 1903 (Cth) s 39B Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 Pt 8 Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483, referred to Australian Postal Commission v Hayes (1989) 23 FCR 320, discussed New York Properties Pty Ltd v Commissioner of Taxation (1985) 7 FCR 401, referred to Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 (1999) 56 ALD 321, referred to News Corporation Ltd v National Companies & Securities Commission (1984) 57 ALR 550, referred to Sullivan v Department of Transport (1978) 1 ALD 383, referred to Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483, considered Logounov v Commissioner of Taxation [2000] FCA 1745 (2000) 46 ATR 158, referred to Australian Postal Corporation v Bessey [2001] FCA 266 (2001) 32 AAR 508, referred to Hussein v Minister for Immigration & Multicultural Affairs [2001] FCA 1777 (2001) 34 AAR 316, referred to Lidono Pty Ltd v Commissioner of Taxation[2002] FCA 174 (2002) 191 ALR 328, referred to Haberfield v Department of Veterans' Affairs as Delegate for Comcare [2002] FCA 1579 (2002) 36 AAR 442, referred to Quitlong v Australian Postal Corporation [2003] FCA 359, considered Shaw v Wolf (1998) 83 FCR 113, discussed Patmore v Independent Indigenous Advisory Committee [2002] FCAFC 316, referred to Cameron v Cole (1944) 68 CLR 571, cited Taylor v Taylor (1979) 143 CLR 1, cited Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127, cited Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 187 ALR 117, applied Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, considered Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, considered Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367, cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1980) 144 CLR 577, cited Stack v Brisbane City Council (1995) 59 FCR 71, cited Minister for Immigration & Ethnic Affairs v Gungor (1982) 42 ALR 209, cited TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, cited Re Carmody; Ex parte Glennan (2000) 173 ALR 145, referred to Glennan v Commissioner of Taxation [2003] HCA 31, referred to Servos v Repatriation Commission (1995) 56 FCR 377, referred to John v Commissioner of Taxation (Cth) (1989) 166 CLR 417, cited PETER JAMES CLEMENTS v INDEPENDENT INDIGENOUS ADVISORY COMMITTEE T 12 of 2002 GRAY ACJ, NORTH AND GYLES JJ 27 JUNE 2003 MELBOURNE (HEARD IN HOBART)

[7]

The appropriate procedure: a question of law 3 Counsel for the Committee, who appeared for the purpose of assisting the Court, rather than opposing the appeal, initially suggested that such an appeal under s 44 of the AAT Act was inappropriate when there was an allegation of a denial of procedural fairness. He submitted that an application should have been made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). Counsel for the applicant drew attention to Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, where Davies J said: "As s 44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s 5 of the ADJR Act, when an appeal under s 44 of the AAT Act is available, should be dismissed as of course. See F J Bloemen Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 360; Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 483 - 484, 488 - 489, 505. In David Jones Finance & Investment Pty Ltd v Commissioner of Taxation (Cth) (1991) 28 FCR 484, it was thought by Morling and French JJ that a jurisdiction such as that under the ADJR Act or the Judiciary Act 1903 (Cth) may, nevertheless, be invoked in special circumstances. But no such circumstances are raised for consideration in the present case. Therefore, the limit imposed by s 44 of the AAT Act, namely that any challenge to a decision of the Tribunal be based on a question of law, must apply." 4 Counsel for the Committee referred to Australian Postal Commission v Hayes (1989) 23 FCR 320, in which Wilcox J dealt with an application under the ADJR Act in relation to a case in which, as his Honour held, the Tribunal had denied natural justice to a respondent by directing that material the respondent proposed to put in cross-examination be put to the witness at the outset of her evidence in chief. His Honour did not discuss the question whether a proceeding under the ADJR Act was appropriate in the light of the availability of a right to appeal to the Court under s 44 of the AAT Act. 5 Counsel for the applicant was prepared to apply for an amendment to the notice of appeal in the present case, to convert the proceeding to one in which the applicant relied on the ADJR Act, in case it should be necessary for him to do so. He submitted that, in the light of Tuite, an amendment was unnecessary, because the appeal was an appeal on a question of law. Counsel for the Committee did not object to the amendment sought. 6 There is authority to the effect that an allegation of denial of procedural fairness on the part of the Tribunal raises a question of law. A Full Court was divided on the issue in New York Properties Pty Ltd v Commissioner of Taxation (1985) 7 FCR 401. At 414, Beaumont J, with whom Northrop J agreed, expressed the view that: "refusal to grant an adjournment can constitute a failure to give a party the opportunity of adequately presenting his case and is thus contrary to the rules of natural justice … . But … where … the matter in contention is one of procedural fairness only, it is by no means easy to identify any question of law being involved." At 411, Lockhart J cited authority for the proposition that it is well established that a refusal to grant an adjournment may constitute a miscarriage of justice, which necessarily involves an error on which an appeal from the Tribunal may be based. Since then, a Full Court inGoldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 (1999) 56 ALD 321 at [44] held that, when the Tribunal decided an issue adversely to a party on a particular basis without informing him that it intended to do so, the Tribunal made an error of law. It was assumed, if not held, that determining whether there has been a denial of procedural fairness on the part of the Tribunal raises a question of law, which can be the subject of an appeal under s 44(1) of the AAT Act, in News Corporation Ltd v National Companies & Securities Commission (1984) 57 ALR 550 at 555 per Fox J, 563 per Woodward J and 582 per Beaumont J. See also the earlier judgment of the Full Court in Sullivan v Department of Transport (1978) 1 ALD 383 at 402 per Deane J. 7 Single judges have held that a denial of procedural fairness does raise a question of law. See Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 495 and Logounov v Commissioner of Taxation [2000] FCA 1745 (2000) 46 ATR 158 at [2]. Other judges have acted on the assumption that that view was correct. See Australian Postal Corporation v Bessey [2001] FCA 266 (2001) 32 AAR 508, Hussein v Minister for Immigration & Multicultural Affairs [2001] FCA 1777 (2001) 34 AAR 316, Lidono Pty Ltd v Commissioner of Taxation[2002] FCA 174 (2002) 191 ALR 328, Haberfield v Department of Veterans' Affairs as Delegate for Comcare [2002] FCA 1579 (2002) 36 AAR 442 and Quitlong v Australian Postal Corporation [2003] FCA 359. In the last of those cases at [9], Gyles J expressed the view that: "There is a question as to whether an application pursuant to s 44 of the AAT Act is the appropriate method of proceeding, however any procedural difficulty could be cured by amending the proceedings to include or make a claim pursuant to s 39B of the Judiciary Act 1903 (Cth)." 8 Given the state of the authorities, this Court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law. For this purpose, it is undesirable to attempt to distinguish between a denial of procedural fairness resulting from a course of action chosen by the Tribunal in conducting the case before it and a denial that is unintended and results from an error of fact made by the Tribunal. In the circumstances, the proceeding has been commenced properly and amendment is unnecessary. It goes without saying that, if an amendment were necessary, leave to make it should have been given, for the purpose of enabling the applicant to put his case.

[8]

The admissibility of evidence 9 The applicant filed and served an affidavit, by which he sought to place before the Court evidence that would establish the denial of procedural fairness he alleged. Counsel for the Committee did not object to the admission of the affidavit. He submitted that the applicant needed to seek the exercise of the discretion, given by s 27 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), to receive further evidence (ie evidence that was not before the court or tribunal from which the appeal is brought) in an appeal. 10 The original jurisdiction of the Court is conferred by s 19 of the Federal Court Act, which provides: "(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament. (2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts." 11 Section 44(1) of the AAT Act is the specific law vesting jurisdiction in the Court to hear and determine an appeal on a question of law from the Tribunal. It follows that, although termed an appeal, and instituted by a document entitled "Notice of Appeal" (in accordance with O 53 r 2 of the Federal Court Rules), an appeal of this kind does not fall within the appellate jurisdiction of the Court. The appellate jurisdiction is conferred by s 24 of the Federal Court Act and is confined to appeals from judgments of courts. This appeal is heard by a Full Court by virtue of s 20(2) of the Federal Court Act because, in making its decision adverse to the applicant, the Tribunal was constituted by members including the President of the Tribunal, who is also a judge of this Court. When the Court exercises its appellate jurisdiction, it generally does so by means of a Full Court, pursuant to s 25 of the Federal Court Act. 12 Sections 19 and 24 are found within Pt III of the Federal Court Act, but in separate divisions of that Part. Section 19 is in Div 1, which is headed "Original Jurisdiction". Section 24 is in Div 2, which is headed "Appellate and related Jurisdiction". It appears that the related jurisdiction is that conferred by s 26, to hear and determine any case stated or question reserved by any court from which appeals lie to the Court. Section 27, dealing with evidence on appeal, and conferring the discretion to admit further evidence, is also in Div 2. By s 13(1) of the Acts Interpretation Act 1901 (Cth), the headings of parts, divisions and subdivisions are deemed to be part of an Act. There is therefore a powerful case for concluding that s 27 has no application to a matter within the original jurisdiction of the Court, even if that matter is styled an "appeal". 13 In matters within the original jurisdiction of the Court, there is a general right in a party to place before the Court evidence that is probative of facts in issue. Because an appeal under s 44 of the AAT Act is limited to a question of law, generally there will be no facts in issue. The facts found by the Tribunal will be regarded as the facts for the purposes of the appeal. In a case such as the present, however, it is necessary for the Court to find some facts, because the applicant cannot establish the denial of procedural fairness of which he complains unless that is done. See Percerep at 495. Accordingly, his affidavit is admissible. 14 Even if it were necessary to exercise the discretion relating to further evidence, that discretion should be exercised in favour of admitting the affidavit. The evidence in the affidavit was not before the Tribunal by reason of the circumstances that appear from the affidavit itself, which are outlined below.

[10]

16 The question whether particular persons are Aboriginal persons for the purposes of the ATSIC Act has given rise to some controversy in the past. Following the elections for the regional council for the Hobart region in 1996, application was made to the Court to exercise its jurisdiction under s 140 and Sch 4 of the ATSIC Act as a court of disputed returns. The validity of the election of certain persons to the Hobart Regional Council was challenged on the basis that they were not Aboriginal persons. Merkel J declared that one of the persons had not been duly elected and made consequential orders. See Shaw v Wolf (1998) 83 FCR 113. In some concluding observations in his reasons for judgment, at 137, his Honour said: "It is unfortunate that the determination of a person's Aboriginal identity, a highly personal matter, has been left by a Parliament that is not representative of Aboriginal people to be determined by a Court which is also not representative of Aboriginal people. Whilst many would say that this is an inevitable incident of political and legal life in Australia, I do not accept that that must always be necessarily so. It is to be hoped that one day if questions such as those that have arisen in the present case are again required to be determined that that determination might be made by independently constituted bodies or tribunals which are representative of Aboriginal people." 17 Perhaps in response to this suggestion, in preparation for the 2002 Tasmanian regional council elections, the Minister administering the ATSIC Act made specific rules for the conduct of those elections. The rules are found in Pt 8 of the Aboriginal and Torres Strait Islander Commission (Regional Council Election) Rules 1990 ("the RCE Rules"). 18 Rule 140 of the RCE Rules provides that Pt 8 applies to the 2002 Tasmanian regional council elections. For present purposes, it is unnecessary to set out the provisions of Pt 8 in detail. An account of them can be found in Patmore v Independent Indigenous Advisory Committee [2002] FCAFC 316 at [10] - [20] per Gray J. In that case, the Full Court held that, to the extent to which Pt 8 of the RCE Rules provided for the creation and use of the Indigenous Electors Roll to establish a person's entitlement to vote or to establish whether a person is ineligible to stand as a candidate for election at the 2002 Tasmanian regional council elections, those rules are valid. 19 The purpose of Pt 8 was to provide for the establishment of an Indigenous Electors Roll ("the Roll") for the 2002 Tasmanian regional council elections. By r 145, the Aboriginal and Torres Strait Islander Commission ("ATSIC") was required to advertise for applications for enrolment. A person wishing to be included on the Roll was required to complete an enrolment form and lodge it with the Electoral Commission. Rule 146 required the Electoral Commission to create a provisional roll and give it to the Committee, which was established by r 156. The Committee was then to make copies of the provisional roll available for public inspection. Rule 148 provided for the making of objections to persons on the provisional roll on the ground that they were not indigenous persons. On receiving an objection, the Committee was required to notify the objector in writing that the objection had been received and to request a submission in relation to the objection. Rule 149 required that a person making a submission provide evidence that he or she is an Aboriginal person or a Torres Strait Islander. The Committee was required by r 151 to consider a submission. The Committee could ask for further information. After considering the objection, the submission, and any information provided, if satisfied on the balance of probability that the person concerned was an indigenous person, the Committee was required to reject the objection. If satisfied on the balance of probability that the person was not an indigenous person, the Committee was required to accept the objection. Rule 151(6) obliged the Committee to make its decision on or before the date on which nominations were to open. Rule 153 required the Committee to notify the person in writing of a decision and to give reasons. If an objection were accepted, the Electoral Commission was required to remove the person's name from the provisional roll. 20 By r 154, the Electoral Commission was required to create the Roll after receiving notice of the Committee's decision in relation to each objection that had been considered. The Electoral Commission was required to give the Roll to ATSIC. Rule 154(4) provided that ATSIC owned the Roll. Rule 154(5) provided that ATSIC may use the Roll only for the purposes of the 2002 Tasmanian regional council elections. Rule 163 provided: "(1) A person is guilty of an offence if the person discloses the contents of the Provisional Roll or of the Indigenous Electors Roll. Penalty: 60 penalty units. (2) However, it is a defence to a prosecution for an offence against subrule (1) if the person: (a) was allowed to make the disclosure under this Part; and (b) made the disclosure for the purposes of the 2002 Tasmanian Regional Council elections." Rule 166(1)(a) provided for review by the Tribunal of a decision of the Committee under r 151 to accept an objection.

[11]

The facts 21 In accordance with Pt 8 of the RCE Rules, the Committee was established and the provisional roll was created and made available for public inspection. The Committee received a large number of objections to the inclusion on the Roll of persons who had applied to be included. Among the objections were several objections to the inclusion of the applicant on the Roll. The Committee sent a letter to the applicant, advising him that it had received these objections and asking him for information. It suggested that he should provide information relating to the factors identified in the judgment in Shaw v Wolf as relevant to a determination of Aboriginal identity, namely descent, self-identification and communal recognition. By a subsequent letter, dated 6 August 2002, the Committee formally advised the applicant that one of the objections, from Brian Mansell, appeared to raise an issue that required the Committee to consider the applicant's eligibility to apply to be on the Roll. The letter gave the applicant 21 days from its date to make a submission in relation to the objection. It informed the applicant that the Committee would expect to receive a family tree for his family or evidence that showed his connection to a known family. It advised him that the onus was on him to provide adequate information. 22 Among the material submitted by the Committee to the Tribunal, in accordance with s 37 of the AAT Act, were several documents submitted by the applicant to the Committee. There was a form confirming that a person applying for membership of the Indigenous Tasmanians Aboriginal Corporation is of Aboriginal/Torres Strait Islander descent and is over the age of 18 years, dated 20 September 1996 and signed by the chairperson and two other persons on behalf of the Sports Aboriginal Corporation of Tasmania. The document confirmed that the applicant "is of Aboriginal/Torres Strait Islander descent" and was over the age of 18 years. There was a Statutory Declaration of the applicant, made in September 1996, stating that he was of Aboriginal descent, identified as an Aboriginal person and was accepted as such by the community in which he lived. There was a document under the common seal of the Sports Aboriginal Corporation of Tasmania, purporting to record a resolution of a meeting on 30 September 1996, confirming that the applicant, who was applying for assistance from the Aboriginal Development Commission, was of Aboriginal/Torres Strait Islander descent, identified as an Aboriginal/Torres Strait Islander and was accepted as such by the community in which he lived. There was an accepted application for admission to membership of the Indigenous Tasmanians Aboriginal Corporation, dated 20 September 1996, in which the applicant declared himself to be an Aboriginal person, normally and permanently living in Tasmania, and listed three Aboriginal people, not immediate family, whom he said knew him. There was a document under the common seal of the Sports Aboriginal Corporation of Tasmania, certifying that the applicant was Aboriginal, identified as Aboriginal and was accepted as Aboriginal within the community in which he lived. The document was signed by the chairperson and three members of the governing committee of the Corporation. 23 At a meeting of the Committee on 27 August 2002, the Committee decided to accept the objection of Brian Mansell to the inclusion of the applicant on the Roll, on the ground that the Committee was satisfied that the applicant was not a member of the Aboriginal race of Australia. The Committee advised the applicant of this decision by letter, which advised him of his rights to apply for review of the decision by the Tribunal. 24 The applicant applied to the Tribunal. He did so after the time limited for such an application. He also applied for an extension of that time limit. Counsel for the Committee informed the Court that the Tribunal granted the extension sought. The applicant's application was one of 128 similar applications. The Tribunal took the view that it was under the same time constraint as the Committee under r 151(6), so that it had to deal with the applications urgently, in order that the Roll could be finalised in time to conduct the Tasmanian regional council elections. 25 On 4 October 2002, at Hobart, the Tribunal called through a number of cases, including that of the applicant. Counsel appearing for a number of persons who had sought reviews of decisions of the Committee stated that he appeared for the applicant. 26 By letter dated 11 October 2002, an officer of the Tribunal, on behalf of its District Registrar, advised the applicant that his application was listed for hearing on Tuesday, 15 October 2002, at 10.00 am. In the material submitted by the applicant to the Court, there is a suggestion that the letter was not posted until 15 October. That allegation was not pursued by counsel for the applicant at the hearing of the appeal. The appeal was conducted on the basis that the applicant did not receive the letter until 17 October 2002. There is also evidence that, because of the applicant's inability to read, he had to seek help from someone else before he could understand the contents of the letter. 27 The transcript of proceedings in the Tribunal records that the applicant's case was called on at 3.31 pm on 15 October 2002. The applicant was not in attendance. He was called outside the hearing room and did not appear. The Tribunal proceeded with the next case. Later in the day, an officer of the Tribunal informed the Tribunal that the applicant had been given written notice of the hearing, but that the phone number recorded for him was incorrect, so that it was not possible to contact him. In fact, the applicant had given his telephone number to Tribunal officers, but the last digit had been recorded as "8", instead of "0". The Tribunal indicated to Mr Bowen, counsel then appearing for the Committee, that, if time permitted, it would look at the applicant's papers. Mr Bowen submitted that this would be appropriate, as the applicant had applied for review of the Committee's decision. Counsel who had announced an appearance for the applicant on 4 October, and who was appearing for other persons who had sought review of decisions of the Committee, had by then ceased to have instructions to act on behalf of the applicant and played no part in the Tribunal's consideration of the applicant's case. 28 The Tribunal concluded its hearings of the applications for review on 16 October 2002. On 18 October 2002, it gave a decision in relation to a number of persons who had applied for review of decisions of the Committee. It also published reasons for decision relating to the cases before it. The portion of the reasons for decision relating to the applicant's case was as follows: "398. Mr Clements did not appear before the Tribunal, notwithstanding that he received the same written notification as all other applicants. 399. The hearing of these applications attracted significant television and radio attention and the Tribunal would have been justified in concluding that he chose not to appear and to have dismissed his application. 400. We decided not to take that course, and with Mr Bowen's agreement we indicated that we would deal with his application on the strength of the s 37 documents. 401. Unfortunately, there is simply insufficient material contained in the papers to reach any other decision than one adverse to Mr Clements. 402. The s 37 documents do contain certificates of recognition of aboriginality [sic] from the Sports Aboriginal Corporation of Tasmania and from ITAC. They also contain a statutory declaration by Mr Clements confirming his own self-identification and acceptance as an aboriginal [sic]. 403. We have not acted in any case before us on material such as that standing on its own, and we do not feel it is appropriate to do so in this case. 404. Accordingly, the decision of the Tribunal is that the decision under review is affirmed." 29 The Court was informed by counsel for the applicant that the applicant's case was the only one of the 128 cases in which the Tribunal did not set aside the decision of the Committee and substitute a decision rejecting the objection to the inclusion of the relevant person on the Roll.

[12]

Denial of procedural fairness 30 The question of law identified in the applicant's notice of appeal is that he was denied the opportunity to be heard in relation to his application for review of the Committee's decision, due to an administrative error that occurred at the Tribunal. In his grounds of appeal, he relied on both the alleged error in failing to post the letter dated 11 October 2002 until 15 October 2002 and the incorrect recording of his telephone number. The argument focused on the fact that the applicant did not become aware until 17 October of the letter requiring him to appear two days earlier. 31 In one sense, it might be said that the Tribunal made an error of fact. As appears from par 398 of its reasons for decision, it found that the applicant received the same written notification of his hearing date as did all other persons who had applied for review of decisions of the Committee. As it turned out, the applicant had not received written notice of his hearing date at all. It arrived after the event. The Tribunal had no means of knowing this and did not know it. 32 At another level, the error can be described as a denial of procedural fairness. The AAT Act does not provide specifically for a right to a hearing. Rather, it assumes that a person exercising the right to seek review by the Tribunal of an administrative decision, whose rights are likely to be affected by the outcome of the Tribunal's deliberations on the case, is entitled to a fair opportunity to present evidence and to make submissions in support of the contention that the decision should be set aside. Various provisions of the AAT Act make reference to the hearing of a proceeding before the Tribunal. Section 32 gives a right to be represented at such a hearing. Subsections 33(2), (2A), (3) and (4) provide for directions as to the procedure to be followed at or in connection with a hearing. Section 34B provides for circumstances in which the Tribunal may dispense with a hearing. Section 35 provides that, with some exceptions, the hearing is to be in public. By s 35A, the Tribunal may allow a person participating in the hearing to do so by telephone, closed-circuit television, or other means of communication. Section 39 provides, subject to some exceptions, for every party to have an opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. Section 40(1)(b) provides that the Tribunal may proceed in the absence of a party who has had reasonable notice of the proceeding. All these provisions assume that, in the ordinary course, the Tribunal will conduct a hearing and give a party to a proceeding before it an opportunity to participate in that hearing. 33 The applicant did not receive such an opportunity, because the written notice of his hearing date did not reach him in time and the incorrect recording of his telephone number frustrated attempts to contact him by telephone. The fact that the Tribunal was unaware of the absence of notice to the applicant when it made its decision does not negate the denial of procedural fairness. It is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct, or even of negligence. It is enough that it occurred. See Cameron v Cole (1944) 68 CLR 571 at 584 per Latham CJ, 589 per Rich J, 593 per Starke J and 600 per McTiernan J, Taylor v Taylor (1979) 143 CLR 1 at 8 per Gibbs J, 10 per Stephen J, 15 - 16 per Mason J, 20 per Murphy J and 22 per Aickin J, and Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 at 129. Each of those cases concerned the absence of a party at the time appointed for a hearing, through no fault of that party, and resulted in the setting aside of the order of the court because of that absence, even though the court that had made the order had been unaware of the reason for the party's absence. 34 In Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 187 ALR 117, the Immigration Review Tribunal ("the IRT") had notified a party of the date and time of the hearing of his case. The party became ill and was unable to attend the hearing. Late on the day before the hearing, the party's agent sent an urgent facsimile to the IRT, informing it of the party's illness and seeking another hearing date. Because of an administrative error, the facsimile did not come to the attention of the member who constituted the IRT for that case, who proceeded as if the party had simply chosen not to attend, and decided adversely to him. Six of the seven justices of the High Court were of the view that the resulting decision was a nullity, because of a denial of procedural fairness. At [149], Hayne J said: "The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. … [T]he September decision was not a decision of the review that the respondent had sought in relation to the decision of the minister's delegate."

[14]

The Court's jurisdiction 36 The reference to Bhardwaj gives rise to a question whether the Court has jurisdiction to deal with this proceeding at all. The basis of the reasoning in that case was that the denial of procedural fairness was a jurisdictional error, depriving the "decision" of the IRT of any legal effect. It rendered the "decision" a nullity, so that it could be ignored and the power could be exercised by the IRT again, as if the "decision" had not been made. Gleeson CJ at [14] considered that the IRT had not performed its function of reviewing a preceding decision. At [51], Gaudron and Gummow JJ, with whom McHugh J agreed, said: "A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all." Kirby J dissented. At [153] - [154], Hayne J said that a decision capable of being set aside for jurisdictional error "can be seen to have no relevant legal consequences." His Honour drew attention to the importance of "the statutory provisions which are the source of the power that it is said has been exercised." At [163], Callinan J held that there was a failure to exercise a jurisdiction which the IRT was bound to exercise. 37 The conclusion that the decision of the Tribunal in the present case was tainted by jurisdictional error, being a denial of procedural fairness, gives rise to the question whether it is to be regarded as a "decision", within the meaning of s 44(1) of the AAT Act, the provision conferring the jurisdiction the Court has been asked to exercise in this proceeding. The word "decision" is not defined in the AAT Act, other than by the inclusion within its meaning of various kinds of acts set out in s 3(3). That provision does not touch the question whether validity, in the sense of absence of jurisdictional error, is essential to the existence of a "decision" for the purposes of s 44, and may be disregarded. Nor is there any specific authority on that question, for the purposes of s 44. 38 The Court has had to determine a very similar question for the purpose of applying s 25 of the AAT Act, the provision giving jurisdiction to the Tribunal to review decisions of various kinds. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, the question arose whether the Tribunal had jurisdiction to review the purported revocation of a licence in circumstances where, as the Court held, there was no statutory power to revoke the licence. At 314 - 315, Bowen CJ held that s 25 gave the Tribunal jurisdiction in relation to a decision made in purported exercise of powers conferred by the relevant statute. Smithers J discussed the question at length at 331 - 337, concluding that the fact that a decision is made by an administrator to take action, which he or she has no power to take in a legally effective way, does not exclude that decision from review by the Tribunal. Deane J dissented but, in doing so, recognised at 342 - 343 that s 25 would include a decision resulting from a wrong assessment of the content of a power or a mistaken determination that conditions precedent have or have not been fulfilled. Brian Lawlor was followed by another Full Court in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, in relation to s 1283 of the Social Security Act 1991 (Cth) ("the Social Security Act"), which conferred on the Tribunal jurisdiction to review a "decision" reviewed and affirmed, varied or set aside by the Social Security Appeals Tribunal ("the SSAT"). The Court held that a right of review by the Tribunal arose where an administrative decision made in purported exercise of powers conferred by the Social Security Act had in fact been reviewed by the SSAT. The right existed whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective. See also Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 375, in relation to the meaning of "decision" in s 5 of the ADJR Act. 39 There is considerable force in the view that these authorities should be followed in relation to the meaning of "decision" in s 44 of the AAT Act. It would be an unfortunate result if the same term were to be construed as having different meanings in different provisions of the same Act. The context of s 25 does not require that a different meaning be attached to the word "decision" in s 44 from that attached to the word "decisions" in s 25. Similar considerations apply to the construction of the two sections. In both cases, it is unlikely that there was an intention on the part of the legislature that the exercise of the right of review by the Tribunal, or of appeal to the Court, should be exercisable only after an inquiry as to whether there was in law, as well as in fact, a decision to be reviewed or appealed. Such an intention would be inconsistent with the intention expressed in s 33(1)(b) of the AAT Act, that a proceeding in the Tribunal should be conducted with a minimum of formality and technicality. Brian Lawlor and Alvaro have stood for significant periods of time without legislative intervention to reverse their effect as precedents. 40 Although it might be possible to give the applicant relief in relation to the decision of the Tribunal in this case by means of the exercise of the Court's power under s 21 of the Federal Court Act, to declare that the decision of the Tribunal was null and void, the preferable course is to deal with the decision in the context of the appeal under s 44. If the Court finds that the Tribunal's decision lacks legal effect, because of a denial of procedural fairness, it is appropriate to recognise its lack of legal effect by exercising the power under s 44(5) of the AAT Act on the ground that it lacks legal effect.

[15]

The proper order 41 It is therefore necessary to determine what order should be made. By his notice of appeal, the applicant sought an order that the Tribunal's decision be overturned and that he be afforded the opportunity to be heard. Ordinarily, upon finding that the Tribunal has made an error of law affecting the result, the Court will exercise the powers given to it by s 44(5) of the AAT Act to set aside the decision of the Tribunal and to remit the case to be heard and decided again. The Court will refuse to set aside the order if it cannot be shown that the denial of procedural fairness deprived the applicant of a fair opportunity to obtain a favourable decision. The Court can also refrain from exercising its power to remit the case if there would be no purpose served by having the case heard again. 42 There can be no doubt that the error in the present case deprived the applicant of a fair opportunity to obtain a favourable decision of the Tribunal. It deprived him of the chance to place evidence before the Tribunal and to make submissions as to why the decision of the Committee should be set aside. In an affidavit filed in the Court, the applicant set out evidence that he would have been able to give to the Tribunal if he had been able to attend a hearing. As well as recounting in brief the applicant's history of involvement in various Aboriginal bodies and activities over a period of 30 years, the affidavit records that the applicant was awarded three national sports grants, available to Aboriginal people only, to assist with his travel expenses and equipment when he represented Tasmania in Australian Rules Football - Super Rules. The affidavit also asserts that the applicant is a direct descendant of Granny Seymour. According to the affidavit, Granny Seymour was and is recognised as an original Tasmanian Aboriginal person. 43 It is not for the Court to attempt to make any finding of fact in relation to this evidence. In dealing with an appeal from the Tribunal, the Court is not a fact-finding body. The point of referring to this evidence is to say that, if the applicant had been able to attend a hearing before the Tribunal, he would have been able to put this evidence before it. If the Tribunal had accepted the evidence, it may well have decided in the applicant's favour. By being unable to attend the hearing of his case, the applicant was deprived of a chance of a successful outcome. 44 It cannot be said that the applicant stood by and acquiesced in the denial of his rights. The Tribunal's decision was given on Friday, 18 October 2002, the day after the arrival of the letter informing the applicant of his hearing date. On the following Monday, 21 October 2002, the applicant attended the Tribunal registry in Hobart, where he was given a copy of the Tribunal's decision. He complained about the result, and about the late receipt of the letter. The error in the recording of his telephone number was revealed. He was advised, correctly, that the Tribunal could not deal with his case any further, as it had made its decision, and that the only course of action available to him would be to appeal to this Court. 45 In these circumstances, the applicant is entitled to have the decision of the Tribunal set aside. It is another question whether he is also entitled to have the case remitted to the Tribunal to be heard and decided again. 46 It can be accepted that it is of great personal importance to the applicant to have the controversy as to whether he is an Aboriginal person resolved in his favour, if it can be. The validation of his claim to be Aboriginal would be likely to be of value to the applicant in relation to a number of aspects of his life. As Merkel J said in Shaw v Wolf at 124: "In my view it is clear that the determination of the issues arising in the present case carry [sic] significant consequences for each of the individuals concerned. A finding that any of the relevant respondents is not an Aboriginal person, as that term is understood in current Australian parlance, can have a severe and deeply personal impact on the particular respondent's identity, family and communal relationships and entitlement to participate in programs for the benefit of Aboriginal persons." Of course, his Honour was speaking of a finding of the Court, in a case in which it had jurisdiction. 47 The Tribunal does not have a general jurisdiction to resolve questions of the Aboriginal identity of persons, however important those questions may be in the lives of the persons concerned. It can only exercise its statutory function to review a particular decision. It should only be required to do so in circumstances where the result will give rise to consequences in the terms of the legislation conferring the function. Where the expenditure of public funds by the Tribunal and others would be required, the Court must be careful to ensure that those funds would not be wasted on an exercise that would be of significance only in general social terms. 48 It will be recalled that Pt 8 of the RCE rules was brought into existence for the specific purpose of its use only at the 2002 Tasmanian regional council elections. Rule 140 so provided. Rule 154(5) provided that the Roll was to be used only for the purposes of those elections. Those elections have now been completed. The purpose for which the Roll was prepared has been spent. No purpose relating to the conduct of those elections would be served by correcting any incorrect entry in the Roll at this stage. It follows that there is no longer any decision-making function for the Tribunal to perform in relation to the Roll. For these reasons, the Court should not make an order remitting the case to the Tribunal to be heard and decided again. 49 If the Court were to order that the decision of the Tribunal be set aside, but not to remit the matter to be heard and decided again, the result would be to leave untouched the Committee's decision, which is adverse to the applicant. There is nothing the Court can do about that situation. The Court cannot itself overturn the decision of the Committee, because it does not have the function of finding the facts that would have to be found to justify such a decision. 50 An order in such form would mean that the applicant would have succeeded in depriving the Committee's decision of the authority it acquired by reason of affirmation by the Tribunal. This will diminish to some extent the consequences to the applicant of a finding that he is not able to show that he is an Aboriginal person. As the Committee's decision relates only to the compilation of the Roll for the 2002 Tasmanian regional council elections, the applicant will be free to seek to establish his Aboriginal identity in any other context. The effect of the Committee's decision in relation to the affairs of the applicant generally will be minimised by the requirement of r 154(5) that ATSIC use the Roll only for the purposes of the 2002 Tasmanian regional council elections. It will also be ameliorated by the prohibition imposed by r 163 on disclosing the contents of the Roll, other than for the purpose of those elections. Any attempt to use for any other purpose the absence of the applicant's name from the Roll would be unlikely while those provisions remain in force. 51 Whatever method might be adopted for the compilation of an electoral roll for future regional council elections in Tasmania, it is hard to imagine that the applicant will not have an opportunity to seek to have his name included on that electoral roll. The likelihood is that it will be open to him to avail himself of any machinery designed to ensure the correctness of that electoral roll, by presenting to the relevant decision-maker the evidence which he would have presented to the Tribunal if he had received notice of the hearing. If his evidence should be accepted, the applicant will succeed in establishing his Aboriginal identity. He will do so in the context of a decision-making process carrying with it consequences as to his legal rights to vote, and to be nominated, in the Tasmanian regional council elections. He will be assisted in overcoming any residual effect of the Committee's decision by being able to produce the judgment of this Court. These reasons for judgment will provide an explanation as to why there is no decision of the Tribunal in relation to the applicant's case.

[16]

Costs 52 The question of costs is not easy. The applicant has succeeded in the appeal, to the extent that the Court is prepared to make an order setting aside the Tribunal's decision. He has been unsuccessful as to the other relief sought, in that the Court refuses to make an order affording him a further hearing of his case before the Tribunal. Ordinarily, partial success is sufficient to bring into operation the normal rule that costs follow the event, and to entitle a party to an award of costs. 53 When the question of costs was raised at the end of the hearing of the appeal, counsel for the applicant did not ask for an order for costs. Nor did counsel for the Committee. The Court raised the question of a possible order for costs, with a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) ("the Costs Act"). Counsel for the applicant then made an application for costs. Section 6 of the Costs Act gives the Court power to grant to a respondent a costs certificate in respect of a federal appeal which has succeeded on a question of law. The certificate is to express the opinion of the Court that it would be appropriate for the Attorney-General to authorise a payment to the respondent in respect of the costs incurred by the respondent in relation to the appeal and any costs incurred by an appellant in respect of the appeal that have been, or are required to be, paid by the respondent pursuant to an order of the Court. By s 14(1)(e), however, the Court is not empowered by the Costs Act to grant a costs certificate to an authority of the Commonwealth, of any State or of any Territory. That term is not defined specifically. Because the Committee is established by rules made under the ATSIC Act, to perform a public function on behalf of the Commonwealth, which would normally be performed by the Electoral Commission, it should be regarded as an authority of the Commonwealth. Compare General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 - 134, Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1980) 144 CLR 577 and Stack v Brisbane City Council (1995) 59 FCR 71 at 74 - 84. The Court could not grant a certificate under the Costs Act to the Committee, because of the exclusion contained in s 14(1)(e). 54 Counsel for the applicant appeared without fee, as a result of a referral of the applicant's case, pursuant to O 80 of the Federal Court Rules. The scheme of legal referral laid down by O 80 enables the Court to refer a litigant to a legal practitioner whose name is on a panel of legal practitioners who have agreed to participate in the scheme, for legal assistance. The scheme provides real benefits to litigants in the Court who are unable to afford to engage lawyers. It also provides valuable assistance to the Court by way of the presence of legal practitioners to present cases which would otherwise be presented by litigants without legal qualifications or experience. The Court records its appreciation of the assistance given by both counsel for the applicant. 55 Order 80 r 9(1) provides that a legal practitioner who provides legal assistance to a litigant under the scheme must not seek or recover any professional fees or disbursements for the legal assistance. An exception is made by r 9(2) in a case where an order for costs is made in favour of a litigant who is assisted under the scheme, to the extent to which another party is required to pay. 56 For several reasons, it would be inappropriate to make an order for costs in favour of the applicant in the present case. Perhaps the foremost is that the error of the Tribunal, as well as being unwitting, was in no way caused or contributed to by the Committee. It would be unthinkable that the members of the Committee should become personally liable for costs; their involvement in the proceeding results from the performance of their duties under the RCE Rules. As has already been said, counsel for the Committee appeared for the purpose of assisting the Court, not for the purpose of defending the Tribunal's decision. He informed us that the Committee would be indemnified by the Commonwealth in the event of a costs order against it, but the availability of public funds to satisfy a costs order should not be allowed to provide too strong a temptation to a court to take the opportunity of indemnifying another party for costs. The absence of a power to grant a certificate under the Costs Act is important. In the end, the initial reluctance of counsel for the applicants to seek costs seems to reflect the appropriate result. No order as to the costs of the appeal should be made.

[20]

REASONS FOR JUDGMENT GYLES J: 58 I have had the advantage of reading the judgment of Gray ACJ and North J and agree with the substance of it. I am concerned, however, about the procedural issues which were raised by counsel for the respondent, principally the question whether this proceeding is an appeal on a question of law from a decision of the Administrative Appeals Tribunal ("the Tribunal") pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the Act"). 59 The first consideration is the text of s 44, taken in its statutory context. The Act forms part of a coherent legislative scheme involving review of administrative action, which followed reports by committees known respectively as the Kerr Committee, the Bland Committee and the Ellicott Committee, which also included the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The Act constituted both the Tribunal and the Administrative Review Council. The Tribunal was established as the Commonwealth tribunal charged with the task of merits review of administrative decisions brought within its jurisdiction, in the sense that it could substitute its own decision for that of the decision-maker, based upon its own de novo decision-making process. The Administrative Review Council was to oversee the implementation of the scheme of reforms introduced and to be introduced. The Ombudsman was to afford non-judicial review of administrative action. Judicial review was to be the province of the newly established Federal Court, pursuant to theADJR Act. The jurisdiction of the High Court can be left to one side. General supervisory jurisdiction was not conferred upon the Federal Court until the introduction of s 39B to the Judiciary Act 1903 (Cth) in 1983, supplemented now by s 39B(1A) introduced in 1997. 60 The ADJR Act applied, and applies, to decisions of the Tribunal and included, as separate grounds of review: "that a breach of the rules of natural justice occurred in connection with the making of the decision" and "that the decision involved an error of law, …" (s 5) 61 Section 44 of the Act refers to a question of law, not an error of law. Section 45 of the Act casts some light upon the meaning of that phrase when it permits the Tribunal to refer "a question of law arising in a proceedings" to the Federal Court for decision. This, to my mind, assists in coming to the conclusion that "question of law" in s 44 refers to a question of law which may be posed as such rather than supervision of the way the Tribunal carries out a review. This is consistent with the general legislative scheme. Questions of natural justice more sensibly fall within the purview of the ADJR Act than the special and limited provisions of s 44. 62 This view is reinforced by the constitutional backdrop against which the legislation is to be viewed. The Administrative Appeals Tribunal is a purely administrative body, and does not exercise any of the judicial power of the Commonwealth. The Federal Court can only exercise the judicial power of the Commonwealth. Answering questions of law which have arisen in the course of the proceedings of the Tribunal can be seen to be the exercise of that power. Supervising the procedures of an administrative body as such is not the exercise of the judicial power of the Commonwealth. It is reasonable to assume that the legislature would have been anxious not to blur the role assigned to the Federal Court by s 44. Any necessary judicial review could be undertaken pursuant to the ADJR Act (cf Minister for Immigration & Ethnic Affairs v Gungor (1982) 42 ALR 209 per Fox J at 211-212 and Sheppard J at 218-223; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 particularly at 181). 63 The necessity in this case to receive evidence which was not before the Tribunal and to make findings based upon that evidence in order to grant relief indicates that the Court is being invited to engage in something different from deciding a question of law. The jurisdiction which is being exercised in this case is technically original rather than appellate in the strict sense of the word (Gungor at 219-220; Re Carmody; Ex parte Glennan (2000) 173 ALR 145 [39]-[43]; Glennan v Commissioner of Taxation [2003] HCA 31 at [4]-[6], [16]). Generally speaking, evidence can be tendered in proceedings in the original jurisdiction, assuming it to be admissible. It does not follow that evidence is always admissible in a proceeding in the original jurisdiction. That will depend upon the particular jurisdiction being exercised. 64 In Servos v Repatriation Commission (1995) 56 FCR 377 Spender J, having reviewed the authorities, said (at 385): "As s 44 of the Administrative Appeals Tribunal Act makes plain, only questions of law are to be considered at the Federal Court level. The policy of the legislation in my opinion is to make the decision of the tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the court on an application pursuant to s 44 of the Act, the object of which is to invite the Court to disagree with a factual conclusion reached by that Tribunal. In my opinion, consistent with the authorities to which I have already referred, the jurisdiction of the Federal Court of Australia pursuant to s 44 of the Administrative Appeals Tribunal Act does not permit the reception of further evidence which was not before the Administrative Appeals Tribunal." His Honour's conclusion is reinforced by s 46 of the Act, which requires the Tribunal to cause to be sent to the Court all documents that were before the Tribunal in connection with the proceeding to which the appeal or reference relates where either an appeal is instituted in accordance with s 44 or a question of law is referred to the Court in accordance with s 45. 65 In Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 495 Weinberg J said: "It is, no doubt, rare for the Court when hearing an application in the nature of an appeal pursuant to s 44 of the AAT Act to receive evidence which was not before the Tribunal. In Servos v Repatriation Commission (1995) 56 FCR 377 at 385 Spender J expressed the view that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act does not permit the reception of further evidence which was not before the Tribunal, a proposition which is generally unassailable. The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim." That reasoning depends upon the premise that such an issue is a question of law within s 44.