Guiseppe v Registrar of Aboriginal Corporations

REASONABLENESS OF NOTICE 20 The first question is the proper construction of s 71(1) and, in particular, whether the decision in Jameson [2001] FCA 1104 should be followed. In our opinion, it should not. The words of the section are "within a reasonable period specified in the notice". There is no proper basis put forward for reading that phrase as giving the Registrar the power to determine what is a reasonable period. The fact that the Registrar specifies the period does not establish the reasonableness of it. The reasonableness of the period of notice is a statutory condition to be objectively determined. The question was not whether it was reasonably open to the Registrar to set the period he did or whether the period was so manifestly unreasonable that no reasonable decision maker could have made such a decision (cf Sutherland Shire Council v Finch (1970) 123 CLR 657 per Menzies J at 663 and Gibbs J at 666). We should add that it does not appear that the point at issue was in contest in Jameson [2001] FCA 1104. 21 The question of reasonableness of the period was a question of fact for the primary Judge, subject to such limited role for respect for, or deference to, an administrative decision that is permitted according to the discussion by Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [39]-[50]. As it happened, he addressed and decided that question, unfavourably to the appellant. The appellant, thus, has the formidable task of displacing a finding of fact on what is, in any event, a matter of degree. There is no one reasonable period. 22 The appellant broadly took two positions. The first was that a period as short as a day could not possibly be objectively regarded as reasonable. Bearing in mind the subject matter of the Notice and the objective position of the Corporation and any like corporation there was no real opportunity given for a response. Urgency could never justify such a minimal period in such circumstances. In other words, the wrong conclusion was arrived at even if the primary facts were as found. The second position was that the primary Judge made errors when finding the primary facts, as a result of which he overestimated the urgency of the situation, so destroying the basis for the finding of reasonableness. In particular, it is submitted that there is no basis for the finding that funding of the Corporation had ceased from 1 July 2006 and that it was in deficit with no funds available to pay staff or provide for any of the services necessary. Furthermore, it is said that the primary Judge did not draw a distinction between the Corporation and the Mutitjulu community as such. 23 On 4 July 2006, a representative of the Department included the following in an email to the Registrar: "In the event an administrator is not appointed we will no longer fund the Corporation … In that event we will make arrangements to purchase services through alternative providers as appropriate to ensure the continuity of services to the community." That was consistent with a letter written by the same representative on 12 July 2006 to the Chairperson of the Corporation including the following: "I understand that issues relevant to question of the appointment of an administrator are currently being considered by the Registrar of Aboriginal Corporations. Whatever the outcome of the Registrar's deliberations, the Minister is committed to ensuring that services for the community are delivered effectively." 24 It appears from a communication of 7 July 2006 that the Registrar understood that, at that time, the Corporation was solvent and the staff were being paid but that the situation might change and that some staff may not be paid in the near future. The Registrar reported the following in a communication to the Minister on 14 July 2006: "The Corporation is currently compliant with the reporting requirements outlined in the ACA Act. The audited financial statements for the 2004/2005 financial year revealed the Corporation was in a fairly sound financial position, but were qualified due to a deficiency in the completeness for the recording of income, and for not maintaining an inaccurate asset register. Financial statements produced by the Corporation as at 30 June 2006 indicate total net assets of $6.95 million, an annual income of $3.3 million and expenses of $2.2 million leaving a surplus for the year of $1.1 million. The net current asset position is $900k (but the ICC at Alice Springs has advised there are unexpended grants of $1.1 million and these need to be offset against the net current asset position)." 25 The evidence of the appellant (which was not challenged) was that the Corporation provided what was described as usual local council services such as waste collection, construction and operation of child care facilities, aged care facilities and housing. It attended to youth training, community television, weed eradication, plants, trees and dog eradication programs. It also ran substance abuse and health campaigns and was in the process of establishing a repair and maintenance team for housing. It also acted as agent of the Commonwealth to deliver Centrelink, Youth, Sport and Recreation, Parks Australia, Families and Community Services and Indigenous Affairs and other services. In fact, the essential services such as water supply, electricity supply and the sewerage system were supplied by Parks Australia. 26 On 19 July 2006 the relevant Departmental officer wrote to the Chairperson of the Corporation including the following: "The Australian Government agencies are now working with the Administrator with a view to ensuring commencement of effective service delivery, to the extent practicable, through the Corporation. There was never any decision to prevent service delivery to the people of the Mutitjulu community. Our concern all along has been how to ensure the effective delivery of services for those mentioned in your letter - children, youth, aged and frail community members. What was in question was the ability of the Corporation to fulfil this role and this is a matter which, I expect, the Administrator will be able to address." 27 The evidence of the appellant was that Centrelink payments were made directly to members of the community through direct deposit into their bank accounts or by cheques sent to them individually, rather than through the Corporation. 28 The appellant's evidence about the role of Parks Australia was corroborated by a report of 19 July 2006 emailed to, amongst others, a Departmental officer that included: "Parks Australia have continued to provide key essential services - power, water, sewerage. Centrelink reportedly still operational." 29 Counsel for the appellant submitted that there was no evidence that funding had actually ceased, notwithstanding the threat to do so. Whilst there is no direct evidence to that effect, the trend of the material to which we were taken makes it unlikely that there was any funding actually provided to the Corporation after 30 June 2006. It does not follow that there was no provision of services to the members of the community. Counsel was on sound ground in submitting, firstly, that there was no evidence that the supply of essential services or Centrelink funding ever ceased and, secondly, that there was no proper evidence of insolvency of the Corporation. 30 In considering the ability of the Corporation to respond to the Notice, the primary Judge found that a meeting of the Governing Committee was in progress at the time the Notice was received. The foundation of that finding does not appear. It is contrary to the unchallenged evidence of the appellant. There is certainly no evidence that the Delegate of the Registrar had knowledge of any such circumstance. 31 It also appears that the primary Judge somewhat overstated the contribution of the lawyers of the Central Land Council on 12 July 2006 when he said that the Corporation received legal advice. Any such advice was limited in the way we have already outlined. 32 Whilst there is no doubt that the situation required early attention, we are satisfied that the primary Judge significantly overestimated the urgency of the impact of the Department's threat to cease funding the Corporation upon the lives of the members of the community. In our opinion, if the primary Judge had appreciated that the Corporation was not responsible for essential services or for the provision of Centrelink payments (except as an agent of the Commonwealth) he would not (indeed, could not) have decided that the urgency was so great as to justify a period of one day to respond to the Notice. The delay between the expiry of the period of notice and the appointment of the Administrator is inconsistent with the existence of such urgency. 33 Furthermore, in our opinion the primary Judge drew too much from the involvement of the Corporation in negotiations with the Department in finding that the Corporation could respond to the Notice in the time given. It is true that those negotiations meant that the Corporation was aware of the pending cessation of funding and was taking what professional advice that it could about that. The Notice would not have been a bolt from the blue. However, the communications relied upon by the primary Judge were very recent. It could hardly be contended that the Corporation had had an opportunity of fully considering, yet alone responding to, the many broadly framed and serious claims made against it by the Department. So far as the judgment is concerned, the earliest date when the Registrar had received notification of allegations of mismanagement or possible fraud relating to the Governing Committee was 23 June 2006. Other concerns by officials were expressed in correspondence at about that time. It appears that the concerns raised by Departmental officers were raised on the same day as the Australian Broadcasting Corporation, through its television program Lateline, broadcast a report entitled "Sexual slavery reported in Indigenous community". The broadcast contained allegations of illegal conduct, corruption, petrol sniffing and paedophilia. The first communication of the Department's concerns to the Corporation that is referred to in the judgment was at a meeting on 5 July 2006, although apparently, an accountant had been verbally advised on 3 July 2006 that funding had ceased. The Corporation had only responded by writing to the Minister on 11 July 2006 seeking to address some of the concerns raised. 34 The fact that some members of the Governing Committee were able to put together what could be described as a holding reply to the Notice on 12 July 2006 does not establish that a reasonable time had been afforded for the Corporation to give a considered reply. The appellant and counsel for the appellant have suggested a number of issues that might have been dealt with following proper advice and consideration. In addition to answering the concerns of the Registrar, voluntary administration or forms of restructuring might have been proposed. 35 It is not easy to conceive of a situation where notice to a corporation of one day to respond to a show cause notice of this type would be reasonable. It is even more difficult to conceive of such a situation where the recipients are some members of the Governing Committee of an Aboriginal corporation in a remote community who are informally served. We are satisfied that the primary Judge underestimated the difficulties faced by such a committee in responding to the Notice. There was no evidence of any particular threatened unlawful or imprudent transaction on the part of the Corporation that needed to be urgently prevented. Even if there were, the Registrar had adequate powers to step in without the appointment of an administrator. No doubt the reasonableness of the period of notice is affected by the urgency of the situation. However, the statute requires that the Corporation be afforded a reasonable period to respond to a notice. That requirement cannot be dispensed with. There must be such a period allowed whatever the perceived degree of urgency. In our opinion, notwithstanding the well known limitations upon appellate intervention, particularly where the decision involves questions of fact and degree (Fox v Percy (2003) 214 CLR 118), the primary Judge erred in holding that one day was a reasonable period within the meaning of s 71(1) of the Act. 36 The appeal must be allowed. In our opinion, the objective circumstances require a finding that the period of notice was not reasonable. There is no utility in remitting the matter to the primary Judge. It is convenient to deal with the other principal issues that were argued.

NATURAL JUSTICE 37 Counsel for the appellant clearly demonstrated that a number of complaints about the underlying conduct of the Corporation, which led to the decision by the Department to suspend funding, were known to the Registrar. Those complaints were not made known by the Registrar to the Corporation which, therefore, had no opportunity of answering them. To the extent that some of the underlying allegations were conveyed to the Corporation by the Department, there was hardly the opportunity to fully answer them in the short time until the expiry of the time limited to respond to the Notice. The appellant contended that this treatment amounted to a denial of natural justice or procedural fairness to the Corporation by the Registrar. 38 We are not persuaded that there was any error in the rejection of this ground by the primary Judge. The Notice did not directly raise the underlying Departmental allegations. It was based upon the decision to cease funding, not the causes for that decision. The decision to suspend funding by the Department might have been affected by the issues raised but the issue of the Notice was not affected in the relevant sense.

PRIOR APPROVAL OF MINISTER 39 The sequence of events found by the primary Judge was as follows. Some time before 12.30 pm on 14 July 2006, the Minister administering the Act, the Honourable Mal Brough MP, the Minister for Families, Community Services and Indigenous Affairs, having been advised that he may be in a position of conflict in considering the appointment of the Administrator, signed a minute agreeing to a recommendation that another minister be appointed pursuant to s 18C of the Acts Interpretation Act 1901 (Cth) to determine whether to approve the appointment of the Administrator. The Minister appointed was the Honourable Kevin Andrews MP, the Minister for Employment and Workplace Relations. Some time before 3.44 pm on 14 July 2006, Minister Andrews signed the minute agreeing to the recommendation to approve the appointment of the Administrator. At approximately 4.02 pm on that day, Minister Brough signed the actual Instrument of Authorisation pursuant to s 18C of the Acts Interpretation Act 1901 appointing Minister Andrews. At 9.13 am on 18 July 2006 the Delegate of the Registrar received an email attaching the signed Instrument of Authorisation. On the afternoon of the same day, the Delegate signed the Instrument of Appointment, which noted that it was effective from 19 July 2006. It is contended by the appellant that all that can be said about the time that Minister Brough signed the authorisation was that it was after 4.02 pm. That may be correct, but it was clearly before the appointment of the Administrator. 40 The point taken by the appellant is that Minister Andrews signed the minute approving the appointment of the Administrator before Minister Brough signed the Instrument of Authorisation of Minister Andrews. 41 The primary Judge found that, at the time of the appointment of the Administrator, the Delegate held the appropriate approval from Minister Andrews, who had by then been authorised to give such approval. It was found that Minister Andrews signed the minute approving the appointment in the expectation that it would not be acted upon until such time as Minister Brough had signed the Instrument of Authorisation. That had taken place. It was further found that there was no statutory requirement that the Minister's approval be obtained in writing (or in any particular form) prior to the appointment. The critical fact was that, at the date of appointment of the Administrator, it was found that Minister Andrews approved of the appointment with the authority of Minister Brough. 42 As developed in argument, the contention on behalf of the appellant is that s 71(3) of the Act requires an identified act of approval to occur prior to the appointment of the Administrator, rather than there being what might be called a state of approval at the time the appointment is made. On that basis, it was submitted that the act of approval by Minister Andrews took place at a time prior to the authorisation of him to give approval and what took place thereafter is irrelevant. 43 In our opinion, s 71(3) should not be so construed. The point of time at which the existence of prior approval is to be judged is the time at which the appointment of the Administrator is made. It is not sensible to think that an act of approval could have taken place at an earlier point of time and then be revoked and yet the statute be complied with. We can find no fault with the primary Judge's reasoning on this point. 44 As pointed out by Windeyer J in Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 at 576: "Whether or not a person consented to something is a question of fact. It may be proved that he did by proving an express consent or by showing conduct evidencing consent: Booton v Clayton (1948) 48 SR (NSW) 336, at pp 339, 340." See also Owen J in Brickworks 108 CLR at 589. 45 The inference that the approval by Minister Andrews continued at all times from the signing of the minute to the appointment of the Administrator is assisted by both the presumption of continuance (Mason v Tritton (1994) 34 NSWLR 572 per Kirby P at 587-588; Owners - Strata Plan No 23007 v Cross (2006) 153 FCR 398 at [68]) and the presumption of regularity (Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 per McHugh J at 164 and Clarke A-JA at 169-170; McLean Bros and Rigg Ltd v Grice (1906) 4 CLR 835). A recent example of the drawing of such an inference in a private law context is the decision of Barrett J in Gosford Christian School Ltd v Totonjian (2006) 201 FLR 424 at [110]. The inference is the stronger in the case of a minister of state. 46 It is, therefore, not necessary to deal with the alternative basis put by the primary Judge on this point, namely, the de facto officer's doctrine which, with all respect, is of no relevance to the point at issue, although it may have significance for the Administrator in due course.

FUTILITY 47 The Registrar contends that, even if the appellant establishes one of the grounds of review, it would be futile to grant the relief sought. The Department had made a decision to withdraw the funding of the Corporation's activities and its position was that it would not fund the Corporation unless an administrator was appointed. This was maintained, notwithstanding representations to the Minister by the Corporation. The facts that led to the appointment of the Administrator remained the situation at the date of the hearing and, if the appointment of the Administrator were set aside, then there would have immediately been the basis for the further appointment of an administrator. 48 In our opinion, this argument is misconceived. The focus of the hearing before the primary Judge was on the situation as it stood at the time of the appointment of the Administrator. It is not at all clear that there was a proper exploration of the situation as it stood at the time of the primary hearing and there certainly has been no exploration of the position as it is now, approximately nine months since the appointment of the Administrator. Much may have changed in the intervening period. 49 In any event, the argument has as its premise that, given the Departmental attitude, all else would necessarily follow. That is to prejudge the ability of the Corporation to respond to a new show cause notice in the light of current events in a fashion which would cause a different result (cf Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).

CONCLUSION 50 The Notice did not comply with s 71(1) as it did not specify a reasonable period within which the Corporation could show cause. The statutory procedure provided for by s 71 was, therefore, never set in train. Both the Notice and the consequent appointment of the Administrator were invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, particularly per McHugh, Gummow, Kirby and Hayne JJ at 389-390). Therefore, the appeal is to be allowed, the orders below set aside and in lieu thereof appropriate relief will be granted. The appellant should file and serve within seven days a minute of proposed orders for relief. If the Registrar disagrees, a note as to its contention should be filed and served within seven days thereafter. The appeal will be relisted for argument as to the orders to be made if deemed necessary by the Court. 51 The appellant would normally be entitled to an order for the costs of the appeal. However, the appellant has succeeded upon a ground that he was permitted by leave to raise on the appeal. That raises a question as to the proper order for costs. Costs were reserved when the amendment was permitted. The factual material relevant to the issue of reasonable notice pursuant to s 71 was not affected by the amendment. Indeed, if it were, it would not have been appropriate to permit the amendment (Coulton v Holcombe (1986) 162 CLR 1). Both parties produced what evidence they chose on that issue at trial. The difference in the case resulting from the amendment lies in the legal standard by which the question is to be judged. The primary Judge made findings upon both standards and both were in issue in a practical sense. The only real effect of the amendment upon the conduct of the appeal was to add a short argument about the correctness of Jameson [2001] FCA 1104. In those circumstances, the Registrar will be ordered to pay the appellant's costs of the appeal. The Administrator submitted except as to costs but made no application for costs. As he is the appointee of the Registrar, no order for costs is necessary in any event. The Registrar submits that there were features of the case before and at trial that call for a special order as to costs up to the primary judgment. It is agreed that that issue is best determined by the primary Judge and will be remitted accordingly. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles and Edmonds.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2516 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT BUCHANAN J: 52 The background facts of this matter have been set out in the joint judgment of Gyles and Edmonds JJ and it is not necessary to repeat them. I agree with the orders proposed by their Honours. I also agree with their Honours' conclusions on most of the issues which were argued on the appeal. There is one issue, however, where I part company from them. As it does not affect the orders to be made I propose to confine myself to a short explanation of my own view about that matter. It concerns the question whether the appointment of an administrator to manage the affairs of the Mutitjulu Community Aboriginal Corporation had the prior approval of a relevant Minister. 53 Section 71(3) of the Aboriginal Councils and Associations Act 1976 (Cth) (the Act) provides that 'The Registrar must not appoint an Administrator without the prior approval of the Minister'. As the joint judgment has explained the portfolio Minister, Mr Brough, decided to authorise the then Minister for Employment and Workplace Relations, Mr Andrews, to determine whether to approve the appointment of an administrator. It is clear from the evidence that Mr Brough did not authorise Mr Andrews to determine this issue before 4.02 pm on 14 July 2006. It may have been later. It is also clear that some time before 3.44 pm on that day Mr Andrews signed a minute approving a recommendation to approve the appointment of an administrator. 54 Although s 71(3) of the Act does not prescribe any particular form of approval, when a challenge to the validity of the appointment to the administrator was raised it became necessary to establish that prior approval had, in fact, been given. This was a statutory precondition to a valid appointment of an administrator. I accept that if a valid act of approval was proved it would not be necessary to formally prove that the position remained unchanged at the time of the appointment of the administrator. So much may be assumed on conventional grounds. However, what was necessary in my view was some evidence of approval at a time when Mr Andrews was authorised to give it. 55 The primary judge took the view that he could accept that Mr Andrews knew that he would be so authorised and that upon authorisation his prior approval was made effective. He found that Mr Andrews had acted on an expectation that his approval would not be relied upon until he had been authorised by Mr Brough to give it. The appellant contends that there was no evidence to this effect. The appellant's submission on this point should be accepted. I could not find any such evidence. None was referred to by the respondents. 56 It is clear from the terms of the minute accompanying the recommendation signed by Mr Andrews that he was made aware that Mr Brough wished him to give attention to the matter. This is because the minute informed Mr Andrews in the following terms: 'Potential Conflict of Interest: The Minister for Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP, has accepted the recommendation by the Registrar of Aboriginal Corporations to refer the matter of the appointment of an Administrator to the Mutitjulu Community Aboriginal Corporation to you for consideration (see attached brief to the Minister for Families, Community Services and Indigenous Affairs, dated 13 July 2006, prepared by the Registrar of Aboriginal Corporations). He requests that you consider the attached brief and consider whether you should approve the appointment of an Administrator, pursuant to Section 71(3) of the Aboriginal Councils and Associations Act 1976 (the ACA Act), to manage the affairs of the Mutitjulu Community Aboriginal Corporation. The Minister has, pursuant to section 18C of the Acts Interpretation Act 1901, authorised you to act on his behalf in the exercise of this statutory power' (emphasis added) 57 At the time Mr Andrews signified his agreement to the recommendation which then followed (that he appoint an administrator) the state of affairs posited by the minute had not yet come into existence. The proper inference, in my view, is that Mr Andrews thought, when he signed the minute, that he was already authorised to do so. There is no other evidence that he signed with a particular expectation or in anticipation. 58 Insofar, therefore, as Mr Andrews' formal approval of the recommendation to him is relied upon as an instrument, or as an act of approval, in my view it was ineffective and had no validity at the time it was executed. There is no evidence of any other instrument, or act of approval by Mr Andrews, prior to the appointment of the administrator. In my view it was not shown that prior approval was obtained as required by s 71(3) of the Act. The appointment of the administrator was therefore liable to be declared invalid for that reason also.

Orders 59 I agree with the orders proposed by Gyles and Edmonds JJ. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate: Dated: 15 June 2007 Counsel for the Appellant: Mr N Perram SC, Dr C Mantziaris

Solicitor for the Appellant: Edwin Davey Property and Environmental Lawyers

Counsel for the First Respondent: Mr P Applegarth SC, Mr D McLure

Solicitor for the First Respondent: Minter Ellison