THE RESPONDENT BREACHED THE RULES OF PROCEDURAL FAIRNESS OR NATURAL JUSTICE BY DENYING THE APPLICANT AN EXTENSION OF TIME
47 Under this ground the applicants argue that by not granting their request for an extension of time to submit relevant documents, the delegate breached the rules of common law procedural fairness.
48 The circumstances which give rise to the duty of procedural fairness were set out by Mason J (as he then was) in Kioa v West (1985) 159 CLR 550 at 584:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
49 His Honour went on to note that (at 584-585):
Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute … the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.
50 The importance of the construction of the relevant statutory scheme has recently been reiterated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592. There, the Court stated that (at 598):
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.
51 In the context of this matter, it is s 190A of the Act and Item 90 of Sch 2 to the Amending Act to which the Court must have particular regard. Section 190A(3) of the Act sets out the material to which the Registrar must have regard when considering a claim under s 190A. That section provides:
(3) In considering a claim under this section, the Registrar must have regard to:
(a) information contained in the application and in any other documents provided by the applicant; and
(b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and
(c) to the extent that it is reasonably practicable to do so in the circumstances--any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;
and may have regard to such other information as he or she considers appropriate.
52 Section 190A(5A) allows, but does not require, the Registrar, before he or she has decided whether or not to accept the claim for registration, to notify an applicant that the application may be amended under the Federal Court Rules.
53 Item 90 of Sch 2 to the Amending Act supplements s 190A in this instance. Of particular relevance are Item 90(2)(b) (set out in [3] above), and Item 90(4):
(4) In considering, or reconsidering, a claim in accordance with subitems (2) or (3), the Registrar must:
(a) in addition to having regard to information in accordance with subsection 190A(3), also have regard to any information provided by the applicant after the application was made; and
(b) apply section 190A as if the conditions in sections 190B and 190C requiring that the application:
(i) contain or be accompanied by certain information or other things; or
(ii) be certified or have other things done in relation to it; also allowed the information or other things to be provided, or the certification or other things to be done, by the applicant or another person after the application is made; and
(c) for the purposes of paragraphs (a) and (b) of this subitem, advise the applicant that the Registrar is considering, or reconsidering, the claim, and allow the applicant a reasonable opportunity to provide any further information or other things, or to have any things done, in relation to the application.
54 In Gudjala People (supra), Dowsett J considered the procedural fairness requirements imposed upon the Registrar in considering an application under s 190A in the normal course of events; that is, where a normal application had been made to the Registrar to have an application entered on the Register. In that case, the Registrar's delegate had advised the applicant of some, but not all, deficiencies in its application. The applicant argued that this breached the rules of procedural fairness. His Honour said (at [21]):
In advising the applicant of the shortcomings in the Application, the Delegate was presumably exercising the power conferred by subs 190A(5A). However, he was not obliged to do so. To extend to the applicant an opportunity to re-formulate the claim before deciding whether or not to accept it for registration was a desirable, but not necessary, course. Even if the Delegate had not advised the applicant of all matters causing concern, that would not have led me to conclude that he was bound to proceed upon the basis that matters not addressed should necessarily be resolved in ways which were favourable to the applicant. The applicant was warned that it must satisfy the requirements of the Act. The Delegate directed attention to his major areas of concern. There is nothing in this point.
55 However, it must also be noted that the matter presently before the Court has a different historical context from that in Gudjala People. Aside from the additional requirements imposed on the Registrar by Item 90, it is important to note that the applicants' claim was already entered onto the Register, thereby conferring upon the applicants the various rights that come with registration. The applicants have enjoyed those rights for some 11 years. That context informs the requirement in Item 90(4)(c) for the Registrar to advise the applicant that he is considering the claim, and to provide the applicant with a "reasonable opportunity" to provide any further information or other things to the Registrar in his consideration of the claim.
56 The correspondence between the delegate and the applicants relevant to this issue is set out at [6]-[11] above. The relevant chronology is as follows:
· The Registrar wrote to the applicants on 24 April 2007 informing them that their claim was to be considered against the registration test; why it was to be considered; that they could provide further information; how their claim could be amended; and that the Registrar wished to undertake the test as soon as possible due to its age.
· The case manager wrote to the applicants on 14 May to tell them that the claim would be tested in September 2007, and that any amendments or additional information needed to be filed by 17 August 2007.
· The case manager wrote a reminder letter to the applicants on 7 August 2007, noting that the claim was still to be tested by 30 September 2007, and that information had to be filed by 17 August 2007.
· The applicants wrote an email to the case manager on 17 August 2007 requesting an extension of time to amend the claim and provide further information.
· The delegate refused to change the time for the testing of the claim, but gave the applicants until 24 August 2007 to provide further information. This was communicated to the applicants on 20 August 2007.
57 The applicants' arguments rest in large part upon the fact that they were, at the time, not legally represented. This was the case until after the delegate made the decision on the extension of time, and, the applicants argue, should have been apparent. The applicants argue that, without such representation, they did not know what amendments might have to be made to the application if it was to pass the registration test, and were therefore reliant on assistance from the National Native Title Tribunal.
58 The applicants further refer to the Registrar's first letter of 24 April, which indicated that the case manager would discuss with the applicants what would need to be done to prepare the application, any changes the applicants would like to make, and the type of assistance the Tribunal could give them. The applicants argue that there is no evidence that the case manager informed them of what they needed to do or what changes had to be made, other than the comment that "considerable amendments would need to be made". As such, it is argued, the decision not to grant an extension meant that the applicants were not granted "a reasonable time" to prepare the application, and amounted to a breach of procedural fairness.
59 In support of this argument, the applicants point to Item 90(2)(b), which requires the Registrar to "use his or her best endeavours to finish [considering the claim] by the end of one year after the commencing day." The applicants argue that as Item 90(2)(b) contemplates the Registrar taking up to a year to test claims, to require the applicants to prepare amendments to their claim in such a short time, especially after having been registered for 11 years, amounts to a breach of procedural fairness.
60 In addition, the applicants argue that, in assessing the "circumstances of the case" as required, the delegate failed to take into account certain issues. In this regard they refer to paragraph 2.247 of the Explanatory Memorandum to the Amending Act, which states:
The Registrar is required to reconsider the claim for registration within one year of the commencing day or as soon as practicable afterwards. Whether it is practicable to reconsider all claims for registration within one year of the commencing day may depend on the resources, not only of the NNTT but also of the applicants and their representative bodies.
61 Further reference is made to a letter written by the case manager to the applicants on 20 August 2007, in which certain factors which are taken into account when assessing whether or not an extension of time should be granted are identified. The letter states:
Whether or not an extension of time should be granted is assessed on a case by case basis, taking into account statutory timeframes, the applicant's situation, whether a reasonable amount of time has already been allowed and the effect of the delay on third party interests.
62 The applicants complain that the delegate did not give sufficient consideration to all of those factors. As such, and in light of the fact that the applicants had no legal representation, the delegate's decision is argued to be a breach of procedural fairness.
63 It is worthwhile noting that the applicants have not claimed as a ground of their application that the delegate failed to take into account relevant considerations in making the decision. Dowsett J in Gudjala People commented on an application which confused errors in the decision-making process and breaches of procedural fairness, observing that (at [13]) "errors alone will not generally amount to a denial of procedural fairness." In this instance, supposedly relevant considerations may have some bearing on the question of procedural fairness, but only to the extent that they inform the "circumstances of the case".
64 The question for the Court on this occasion is therefore whether the delegate "acted fairly" and gave the applicants a "reasonable opportunity" to amend their application and provide further materials to the Registrar. In considering this question, I do not agree with the contention of the applicants that the obligation upon the Registrar to consider claims for registration within a year has any application. It seems to me that, by imposing upon the Registrar a nominal deadline of one year within which to consider claims, Item 90(2) clearly aims to have claims for registration tested and decisions made as quickly as the resources of the Tribunal, the applicants and relevant representative bodies will allow. It follows that that time period is not, in my opinion, relevant to any consideration of whether an applicant has been given a reasonable opportunity to submit materials to the Registrar.
65 The Registrar first put the applicants on notice of the fact their claim would be tested on 24 April 2007. That letter informed the applicants that they would have the opportunity to amend their claim, however it was not clear from the letter the kind or extent of changes that would need to be made, or the time frame within which the changes would have to be made.
66 It was therefore the case manager's letter of 14 May 2007 which first informed the applicants of the timeline that would be applied. From that day the applicants were given three months to submit changes and new information.
67 As noted in [58] above, the applicants claim they were not given help by the case manager, as was promised. However, the memo produced by the delegate (see above at [11]) indicates that the applicants had a number of telephone conversations with the case manager, during which the applicants were informed that the application as it stood was unlikely to be registered and that considerable amendments would need to be made, and were advised to seek legal advice in relation to the claim. In my judgment, there is no obligation on the Registrar or his delegate to advise a claimant of what amendments are required to be made to an application to ensure compliance within the requirements of the Act.
68 Both the delegate's memo and the email request for an extension of time (at [9]) seem to indicate that the principal delay in taking action towards amending the claim or providing any information was due to an initial intention on the part of the applicants to withdraw the claim. However, the applicants eventually decided, at some point prior to 17 August 2007, that they wished to continue and to provide materials to the Registrar. On 17 August 2007, the applicants made their request for an extension of time to do so. I note that that email provided no justification or reasons for the requested extension, aside from the initial indecision over whether or not to withdraw.
69 Mr Black for the applicants argued that the "great rush" of the Registrar to test the applicants' claim was incongruous with the fact that the claim had been on foot, as yet unresolved, for some 11 years. In contrast, Ms Bowskill for the Attorney-General submitted that the length of time during which the applicants had enjoyed the advantages of registration without being subject to the test was a good reason for the claim to be tested first, and as quickly as was reasonable. It was also submitted on behalf of the Attorney-General that it was not unreasonable to expect the applicants to have, in the 11 years during which the claim was on the register, compiled material to support the claim which could readily have been provided to the Registrar.
70 The test for registration of a claim was enacted in 1998, although the applicants were not at that point subject to it. Any claim lodged after 1998 had to satisfy that test. The 2007 amendments, in light of the important purpose the test fulfils, extended the test's operation to claims which had not yet been tested. In my view, the fact that the applicants have enjoyed the privileges of registration for such a significant time without having had to fulfil the requirements of the registration test is not of itself a reason to allow that situation to continue. Rather, it seems to me that it is in the interests of all interested parties for the intention of the legislature to be carried out soon as is reasonably practicable.
71 The proposed orders claimed by the applicants in their Amended Application are also of some relevance. By that document, the applicants seek an order directing the Registrar to re-consider the claim subject to "allowing the applicants not less than 2 months to make any amendments to the claim…". (Emphasis added). For the applicants to seek two extra months to amend their claim seems to me inconsistent with a claim that the three month period originally granted to provide information and make amendments constituted a breach of procedural fairness.
72 In my judgment it has not been shown that the timeframe allowed by the delegate, in the circumstances of this case, unreasonably fettered or compromised the right of the applicants to a fair hearing. The Parliament had determined that the claims such as the applicants' were to be tested. The applicants' was one of the older claims in that category, having remained on the Register for many years and enjoyed those benefits without being subject to the requirements imposed on later claims seeking the same benefits. It was not unreasonable for the Registrar to place the applicants' claim amongst the first to be tested. In my opinion, the Registrar allowed the applicants a reasonable opportunity to make changes or to submit further information. The applicants failed to comply with the deadline not because it was unreasonable, but because, for whatever reason, they did not perform the necessary tasks in the time granted, which was a not unreasonable time for the performance of those tasks. In this application, the applicants have sought a month less than originally granted by the Registrar in order to complete the same tasks.
73 In my opinion there has been no denial of procedural fairness by the Registrar.
74 None of the grounds has been made out.
75 It follows that the Further Amended Application for Review is dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.