Glasshouse Mountains Gubbi Gubbi People v Registrar Native Title Tribunal

BACKGROUND 2 The Commonwealth Attorney-General (the Attorney-General) was added as an intervener in these proceedings on 26 February 2008, pursuant to s 18(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Submissions filed on behalf of the Attorney-General set out the legislative history of the Act and its interaction with the native title claim the subject of this application: 44. The application was lodged with the Native Title Registrar on 26 June 1996. Under the NTA as it then stood, details of the application were placed upon the Register of Native Title Claims once the application was accepted by the Registrar (ss 63 and 66 NTA as originally enacted). By operation of s 190(1)(a) of the NTA as originally enacted, the Registrar was required to include in the Register details of any claims contained in applications given to the Registrar. 45. The registration test (contained in ss 190A, 190B and 190C) was incorporated into the NTA by the Native Title Amendment Act 1998 (schedule 2, pt 1, Item 64). Item 11 of Schedule 5 to that Act made provision for s 190A to be applied to certain applications, the details of which were already recorded on the Register of Native Title Claims prior to the commencement of the 1998 amending Act. However, the subject application (having been lodged on 26 June 1996) was not one in relation to which s 190A was to be applied. Thus, the subject application remained on the Register by virtue of ss 66(1)(b) and 190(1)(a) of the NTA as originally enacted. 3 The current application has arisen by virtue of the operation of the transitional provisions of the Native Title Amendment Act 2007 (Cth) (the Amending Act), which came into force on 15 April 2007. Relevantly, Item 90(1)-(2) of Sch 2 to the Amending Act provides as follows: 90 Transitionals - applications made before 1998 amendments (1) This item applies to a native title determination application made by a person or persons claiming to hold native title if: (a) the application was made before the day on which Schedule 2 to the Native Title Amendment Act 1998commenced; and (b) either: (i) the claim was not considered by the Registrar under item 11 of Schedule 5 to that Act; or (ii) the claim was considered by the Registrar under that item but not accepted for registration; and (c) the claim is not one that, because it was amended on or after the day on which Schedule 2 to the Native Title Amendment Act 1998 commenced: (i) was considered under section 190A of the Native Title Act 1993; and (ii) is on the Register of Native Title Claims on the day on which this Schedule commences. (2) The Registrar must: (a) consider the claim under section 190A, or if the claim has already been considered under that section, reconsider the claim under that section; and (b) use his or her best endeavours to finish doing so by the end of one year after the commencing day. If the Registrar does not do so by that time, the Registrar must consider, or reconsider, the claim under that section as soon as reasonably practicable afterwards. 4 Item 90(1) thus sets out the circumstances in which Item 90 applies. It is not in dispute, as confirmed by the written submissions of both the applicant and the Attorney-General, that the applicants' native title determination application satisfies all of the elements of Item 90(1). 5 The requirement to consider the claim under s 190A, which is required by Item 90(2)(a), directs attention to s 190A(6), which relevantly requires the Registrar to accept a claim for registration if the claim satisfies all the conditions in s 190B (which deals mainly with the merits of the claim) and all of the conditions in s 190C (which deals with the procedural and other matters). Those conditions, both about the merits of the claim and of procedural and other matters, are extensive and detailed. 6 The Registrar concluded that, as Item 90(1) was satisfied, he was obliged to consider the applicants' native title determination claim, pursuant to Item 90(2)(a). The Registrar accordingly wrote to the applicants on 24 April 2007: Because of the changes [to the Act] I now have to apply the registration test to your application. If your application passes the test, it will remain on the Register of Native Title Claims, as a 'registered claim', and you will retain certain important procedural rights, like the right to negotiate with other people about some things proposed to be done to the area covered by your application. If your application fails to satisfy the conditions of the registration test, your application will come off the Register of Native Title Claims. Because of the changes you can provide new information to support your application if you wish. If you want to make changes to your application, you must amend your application by filing a notice of motion in the Federal Court. As your application is one of the older applications, I would like to test it as soon as possible. 7 The Registrar also assigned a case officer to the application, indicating that the case officer would shortly be in contact. On 14 May 2007, the case officer wrote to the applicants: I am now writing to you to advise you of the timeframe for the registration testing of your claim, and to invite you to consider providing further information or amending your claim in order to meet the registration test. A delegate of the Registrar will apply the registration test to your claim in September 2007. Please ensure that any amendments you may intend to file have been filed with the Federal Court by 17 August 2007. If you are providing additional material directly to the delegate, please provide this material to me by 17 August 2007. The material needs to be provided by this date to allow the Registrar to provide procedural fairness to persons who may be affected by the registration decision. This will also allow the delegate an opportunity to properly consider all the relevant material and draft their reasons for decision. 8 The case officer wrote to the applicants again on 7 August 2007, reminding the applicants that the registration test was due to be applied by 30 September 2007, and that any material the applicants intended to provide should be provided by 17 August 2007. That letter further informed the applicants that "If I do not receive anything further from you by 17 August 2007, the Registrar's delegate will proceed to test the claim on the basis of the information now before him or her." 9 On 17 August 2007, the applicants sent the following email to the case officer: Dear Ann At first we thought about withdrawing the [application], but now we wish to ask for an extension of time, to prepare the claim in conformity with the new format as it is quite different to that under which we presented the original. I might point out that there has never been any cultural heritage work in the national park in the last 15 years and probably never will be. This can be confirmed with National Parks & Wildlife. Our function in this matter is not for cultural heritage (as was stated at the last Directions Hearing), but to protect the mountains - our time and energy have been given freely. Would you mind passing on this request to the Court. Eve Fesl & Nurdon Serico 10 On 20 August 2007, the delegate decided to reject the request for an extension of time for the registration test decision (meaning the applicants' claim would still be tested by 30 September 2007), but granted the applicants until 24 August 2007 to provide any material in support of their claim. The case officer accordingly wrote to the applicants to inform them of the decision. That letter noted the following: As a general principle, there is no express statutory authority for delaying the application of the registration test once the duty to test has arisen and the Registrar or his delegate is ready, willing and able to do so. 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. 11 In addition, an internal memorandum written by the delegate on 20 August 2008 has since been provided to the applicant as part of these proceedings. A number of comments are relevant: In its current form [the applicants' claim] is not capable of registration. Whilst the applicant is unrepresented, I understand there have been a number of telephone conversations between the Case Manager and Dr Eve Fesl and Mr Nurdon Serico, claimants on the application. During these conversations, both Dr Fesl and Mr Serico have been reminded that the application in its current form is unlikely to be capable of registration and that considerable amendments would need to be made to make it capable of registration. They have both understood that to be the case. They have indicated on more than one occasion that they intend to withdraw the application and, probably, file a new application. The Case Manager advises that she suggested to Dr Fesl and Mr Serico that they seek legal advice from Ms Susan Gilmour who has been providing legal assistance to them in relation to other matters. The Case Manager is unaware as to whether they have sought that advice. 12 The applicants did not file any further material, and on 28 September 2007 the delegate considered the applicants' claim for registration against ss 190B and 190C of the Act. The delegate decided not to accept the claim on a number of grounds. As a consequence, the applicants' claim was removed from the Register. 13 On 9 November 2007 the applicants filed an Application for Review. By leave, an Amended Application for Review was subsequently filed on 14 December 2007, and on 11 March 2008 the applicants were granted leave to file a Further Amended Application for Review in Court. That Further Amended Application seeks review of the decisions and action set out in [1] above.

JURISDICTION 14 The particular jurisdictional basis upon which the applicants' claim was made is not articulated in the application for review, although it has been addressed by both the applicants and the Attorney-General in their respective submissions. The applicant submits that both decisions of the delegate were decisions "of an administrative character" made "under an enactment" such as to bring them within the scope of s 5 of the ADJR Act. In addition and in the alternative, the applicant submits (relying upon Western Australia and the Northern Territory of Australia v Patricia Lane, Native Title Registrar [1995] FCA 1484) that s 39B of the Judiciary Act 1903 (Cth) could confer jurisdiction on the Court, as the Registrar is an officer of the Commonwealth, and it is within the original jurisdiction of the Court to review the decisions of such officers. 15 The Attorney-General does not dispute that the decision of the delegate made on 28 September 2007 in relation to the claim for registration falls within the scope of the ADJR Act. However, the Attorney-General submits that the earlier decision of the delegate, made on 20 August 2007 in relation to the extension of time, was not of an administrative character, nor was it made "under an enactment". 16 Mason CJ set out, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, characteristics of decisions to which s 5 applies. In particular, his Honour held that (at 336): · Reviewable decisions are decisions "which a statute requires or authorises rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision"; · Such decisions have "the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute…"; and · Acts "done preparatory to the making of a 'decision' are not to be regarded as constituting 'decisions' for, if they were, there would be little, if any, point in providing for judicial review of 'conduct' as well as of a 'decision'." 17 Kiefel J, then of the Federal Court, considered the same question with regard to the refusal of a disciplinary review committee to grant an adjournment to the applicant in McGibbon v Linkenbagh (1996) 41 ALD 219. Her Honour stated (at 224) that the committee's refusal was …not a "decision" of which s 3(1) and s 5(1) AD(JR) Act speaks, since it is neither final nor determinative of a substantive matter. Although one is tempted to conclude that in a sense it has some operative effect and carries with it findings adverse to Mr McGibbon, it is to be seen as merely procedural and intermediate and as such is to be viewed as conduct engaged in as a step towards and for the purpose of the later "decision". 18 In my view, the decision in the present case made on 20 August 2007 regarding an extension of time falls into the same category. The granting of an extension was not required by or provided for under the Act, nor was it a final determination of a substantive matter. Rather, it appears to be a procedural and intermediate step. In my opinion, the conduct of the delegate would not be reviewable under s 5, but might be reviewable under s 6 of the ADJR Act. However, as the submissions on behalf of the Attorney-General acknowledge, the decision of 28 September is within the scope of s 5; the grounds of review relied upon by the applicants are the same in relation to both decisions; and the remedies sought by the applicants relate to the 28 September decision. It is therefore sufficient for the present proceedings that the court has jurisdiction to review the 28 September decision. It is not necessary to express a concluded view on the character of the 20 August decision. 19 I also note, however, that the application filed by the applicants was filed outside of the 28 day time period within which an applicant may lodge an application for review (s 11(3) of the ADJR Act). In such circumstances, the Court has a discretion, pursuant to s 11(1)(c) of the ADJR Act, to allow an application to be lodged "within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows." 20 The applicants submit that the application should be allowed to be heard, notwithstanding that it was filed outside of the prescribed period, on the basis that the applicant was not legally represented at the time of the delegate's decision and the application was filed only a very short time (some 10 days) after the end of the prescribed period. 21 On behalf of the Attorney-General, it was submitted that the Court, in the exercise of its discretion to allow further time pursuant to s 11(1)(c) of the ADJR Act, may take into account that the applicants had available to them "another more specific avenue for review by this Court, under s 190D" of the Act as it stood immediately before the commencement of the Native Title Amendment (Technical Amendments) Act 2007 (Cth). Section 190D(2) of the Act, before those amendments, provided that if the Registrar did not accept a claim for registration, the applicant could apply to the Federal Court for a review of the Registrar's decision. Such an application for review under s 190D(2) of the Act could have been made by the applicants within 42 days of the notification of the Registrar's decision: O 78 r 12(ii) of the Federal Court Rules. 22 It follows that the application for review filed on 9 November 2007 would have been within the 42 days provided by O 78 r 12(ii), and therefore within time. 23 It should be pointed out that although s 190D of the Act was repealed and replaced by s 190D to 190F in their present form by Item 107 of the Native Title Amendment (Technical Amendments) Act 2007 (Cth), Item 136 of that Act provided that the amendments were to be disregarded for the purposes of Item 89 and 90 of Sch 2 to the Amending Act, that is the Native Title Amendment Act 2007 (Cth). 24 It is plain that the applicants are seeking review pursuant to the provisions of the ADJR Act. In this case, the delay of the applicants in seeking review under the ADJR Act is only very short and no prejudice is suggested to other interested parties. It is therefore appropriate to extend the period within which an application, pursuant to the ADJR Act, to review the decision of the Registrar of 28 September 2007 can be made, to 9 November 2007.

GROUNDS OF THE APPLICATION 25 The Further Amended Application sets out 4 grounds upon which the application is made: 1. That the Respondent was not empowered by s 190A of the Act to 'not accept the claim for registration' in circumstances where the claim was already registered; 2. That the Respondent was not empowered by s 190 of the Act or otherwise to remove the claim from the register; 3. That the decision of 28 September 2007 did not represent a sufficient basis or direction to the Registrar to remove the claim from the register; and 4. If the Respondent was so empowered or directed he breached the rules of procedural fairness and/or natural justice in denying the Applicant's request for an extension of time in which to meet the registration requirements. 26 Each of these will be considered in turn.

THE RESPONDENT WAS NOT EMPOWERED TO NOT ACCEPT THE CLAIM FOR REGISTRATION 27 As noted above, it was not disputed in these proceedings that each of the elements of Item 90(1) of Sch 2 to the Amending Act apply to the applicants. Where Item 90(1) is satisfied, Item 90(2) is enlivened. The dispute which has arisen in the present proceedings centres upon the interpretation of Item 90(2). 28 Item 90(2) provides that: (2) The Registrar must: (a) consider the claim under section 190A, or if the claim has already been considered under that section, reconsider the claim under that section; and (b) use his or her best endeavours to finish doing so by the end of one year after the commencing day. If the Registrar does not do so by that time, the Registrar must consider, or reconsider, the claim under that section as soon as reasonably practicable afterwards. 29 The applicants submitted that this Item requires the Registrar to apply s 190A to an applicable claim in a very particular way. Relevantly for the applicants' argument, s 190A provides: Claims made to Federal Court (1) If the Registrar is given a copy of a claimant application under section 63 or subsection 64(4), the Registrar must, in accordance with this section, consider the claim made in the application. 30 The applicants argue that the Registrar has power only to consider a claim as against the criteria of the registration test in the circumstances specifically set out in s 190A(1), that is, where the Registrar is given a copy of the claim under s 63 or ss 64(4). The applicants argue that, as their claim does not fall within either of those sections, the Registrar has no power to consider their claim for registration under s 190A. In oral argument, Mr Peter Black, the solicitor for the applicants, noted that the applicants have had the benefits of registration for some time already, and any statute which purported to potentially remove those rights would require "the most plain language" to do so. In this instance, Mr Black submitted, the wording is ambiguous and the applicant should get "the benefit of the doubt". 31 The Attorney-General argues that Item 90(2) and s 190A cannot be so narrowly construed. Rather, the Attorney-General argues that Item 90(2) is a mandatory direction to the Registrar to consider the claim "under" or "in accordance with" s 190A. Ms Bowskill of counsel submitted on behalf of the Attorney-General that the provisions of Item 90 "impose a clear statutory obligation on the Registrar to consider claims which fall within Item 90, ss 1, under the registration test provision in the Act." It is argued that, as a consequence, the duty imposed on the Registrar under Item 90(2) is an extension of the scope of the operation of the duty imposed under s 190A which is otherwise set out in s 190A(1). As such, the Attorney-General argues that s 190A(1) sets out the general categories of claims that must be considered by the Registrar under s 190A, and that Item 90(2) operates to require the Registrar expressly to consider an additional category or class of claims, namely those which satisfy Item 90(1). 32 I accept this interpretation. In my opinion, the clear object of Item 90 is to have certain claims, which had not before been subject to an examination against the criteria of the registration test, tested by the Registrar. This view is supported by the Explanatory Memorandum for the Amending Act which, in relation to Item 90, notes: Item 90 - Transitionals - applications made before 1998 amendments 2.246 Item 89 makes provision for the Registrar to apply, or reapply as the case may be, the registration test to all applications that a native title claim group has authorised to be made if [Item 90(1) is satisfied]. The reference in that section to "Item 89" appears to be in error. As the heading in the Explanatory Memorandum indicates, the reference should be "Item 90". 33 In Gudjala People #2 v Native Title Registrar [2007] FCA 1167 (Gudjala People), in the context of an examination of the Registrar's duty under the Act, Dowsett J commented (at [14]): Sub-section 190A(1) required the Delegate to consider the Application. In effect he had to decide whether to accept it for registration pursuant to s 190. Sub-section 190A(5A) provides: Before the [NT] Registrar has decided whether or not to accept the claim for registration, he or she may notify the applicant that the application may be amended under the Federal Court Rules. 34 In my opinion, Item 90(2) similarly imposes upon the Registrar (or his delegate) a requirement to examine any claim satisfying the conditions of Item 90(1) against the requirements of ss 190, 190A, 190B, and 190C in order to decide whether it should be on the Register.

THE RESPONDENT WAS NOT EMPOWERED TO REMOVE THE CLAIM FROM THE REGISTRAR 35 On this ground, the applicants argue that, even if the Registrar was required to apply the registration test to the applicants' claim, he was not empowered to remove the claim from the Register other than in circumstances as provided for in s 190 of the Act. The applicants submit that the only power of the Registrar to remove claims from the Register is contained in s 190(4) of the Act, which provides: Entries removed or amended after determination, decision or withdrawal (4) If: (a) the Registrar is notified under section 189 or 189A of a decision or determination covering a claim; or (b) the Registrar is notified by a recognised State/Territory body of a decision or determination covering a claim; or (c) the Registrar is notified that an application that contained a claim has been withdrawn; the Registrar must, as soon as practicable: (d) if the application in question has been withdrawn, dismissed or otherwise finalised - remove the entry on the Register that relates to the claim; or (da) if an approved determination of native title is made to the effect that native title exists in relation to an area: (i) but no determination has yet been made under section 56; or (ii) a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3); amend the entry on the Register that relates to the claim so that it reflects that fact; or (e) in any other case - amend the entry on the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised. 36 The applicants argue that as no circumstances specified in s 190(4) are applicable to their case, the Registrar had no power to remove their claim from the Register. Further, the applicants argue that s 190 is comprehensive and exhaustively lists all of the Registrar's powers to deal with the Register. The applicants argue that there therefore can be no grant of power to the Registrar by "necessary implication". Accordingly, the applicants say, the act of removing the claim from the Register was beyond power, and should be reversed. 37 The Attorney-General argues that the Amending Act, although not containing an express power to remove claims from the Register in the circumstances of this case, must be read so as to imply such a power, as the removal of the claim is the necessary consequence of a decision that the claim does not meet the conditions in ss 190B and 190C. In support of that contention, the Attorney-General notes the following: · At the time of the filing of the original claim, the Registrar was required to enter onto the Register the details of any claim. Following the 1998 amendments, the only claims entered onto the Register are those which satisfy the registration test. · There are significant consequences which flow from the registration of a claim on the Register (and, hence, the continued presence of a claim on the Register). These consequences extend to impact on third parties with interests in the claim area. · The Register is a significant public document which is required to be available for inspection. 38 The Attorney-General further argues that: · The provisions of the Act indicate that the Register is intended to reflect the current state of affairs with respect to claims. · The intention of the Act, especially following the changes flowing from the Amending Act, is that any claim which does not satisfy the conditions in ss 190B and 190C should not be included on the Register. · If the Registrar decides that any claim included on the Register, which has not been subject to the registration test, does not satisfy the conditions in ss 190B and 190C, the Registrar must, by necessary implication, come under a duty to remove that claim, and must therefore have the requisite power to do so. 39 In her oral submissions, Ms Bowskill drew particular attention to the duties imposed on the Registrar by the Act with respect to the establishment and maintenance of the Register. Those duties were considered by Justice Kiefel in Wakaman People v Native Title Registrar [2006] FCA 1251 at [8]: The Register is a public document, to be available for inspection (s 187(1)). The provisions of the NTA concerning its maintenance suggest that it is intended to reflect the current state of affairs with respect to claims. Section 186(1)(ca) requires the date upon which the claim is entered on the Register to be included in it. The Registrar is required 'as soon as practicable' to include in the Register details of any claim accepted for registration under s 190A (s 190(1)(a)) and must likewise amend the Register where there is an amended application which complies with the Act's requirements and remove any entry relating to the claim where it does not: s 190(2) and (3). The Registrar must also take prompt action to remove entries where a claim has been withdrawn, dismissed or finalised: s 190(4). The need for the Register to reflect the current state of claims is confirmed by the Explanatory Memorandum to the Native Title Amendment Act 1998 (in connexion with s 190(2)). 40 Paragraph 29.2 of the Explanatory Memorandum noted by her Honour states: … the purpose of the registration test is to ensure that only claims which have merit are registered in the Register of Native Title Claims. 41 It is clear from the above that Pt 7 of the Act imposes particular duties upon the Registrar to maintain the Register, to keep it up to date, and to ensure that the only entries on the Register are those which have met the requirements of the statute. Prior to the Amending Act, the applicants' claim fell into that category. The effect of Item 90 of Sch 2 to the Amending Act was to require the applicants' claim to meet the criteria in the registration test if it was still to meet the requirements of the Act. In my judgment, if the Registrar decided that the applicants' claim did not so meet the Act's criteria, then he was under an obligation to update the Register accordingly. There is no express power in the Registrar to remove a claim under those circumstances, but such power exists, in my judgment, by necessary implication. 42 The principle by which power may be granted by necessary implication is a well established principle of statutory construction: see for example Hudson v Venderheld (1968) 118 CLR 171 at 175; Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77 at 83; Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at 362 and Collector of Customs v LNC (Wholesale) Pty Ltd (1989) 19 ALD 341 at 345. In D'Emden v Pedder (1904) 1 CLR 91, Griffith CJ, delivering the judgment of the High Court, described the principle as follows (at 110): …where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective. 43 In my opinion, as Item 90(2) of Sch 2 to the Amending Act requires the Registrar to examine claims as against the criteria in ss 190B and 190C, and as the Registrar has a duty to update and maintain the Register so that it contains only claims which have met the requirements of the Act, the comments of Griffith CJ are apposite. If, as the applicants argue, the Registrar could not remove claims such as the applicants' from the Register, he would be faced with a situation where he was required to examine certain claims for compliance with the registration test, but could not thereafter remove non-compliant claims from the Register. The power, and the duty, to review the claim in the first place would be rendered nugatory. 44 It follows from the above that, in my opinion, the Registrar had the power to remove the applicants' claim from the Register.

THE DECISION OF 28 SEPTEMBER DID NOT CONSTITUTE A SUFFICIENT BASIS TO REMOVE THE CLAIM FROM THE REGISTRAR 45 The applicants' submissions seem to class this ground as something of a corollary to that immediately above. That is, the argument that the decision of 28 September did not constitute sufficient grounds for the Registrar to remove the claim from the Register "flows on from" the argument above that the Registrar had no power to remove the claim. 46 It follows from my conclusions above that this argument cannot succeed. Once the Registrar had decided that the applicants' claim did not meet the registration test, he was under an obligation to update the Register, thereby ensuring that only claims satisfying the statutory requirements remained registered. The decision of 28 September enlivened that duty, and accordingly constituted a sufficient basis for removing the claim from the Register.

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.

Associate: Dated: 21 April 2008 Solicitor for the Applicant: Black & Co Lawyers

Solicitor for the First Respondent: Holding Redlich No appearance by the Second Respondent

Solicitor for the Intervener: Australian Government Solicitor