Hicks v Aboriginal and Torres Strait Islander Commission[2001] FCA 586

REASONS FOR JUDGMENT 1 There is before the Court an appeal from a judgment of a Judge of the Court. By that judgment, the primary Judge dismissed an application which had been made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the JRA") for an order of review. 2 The Aboriginal and Torres Strait Islander Commission ("ATSIC"), established by subs 6(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) ("the ATSIC Act"), was the sole respondent to the application for an order of review (and is the sole respondent to the present appeal). 3 According to the application for an order of review, the applicants were "Wilfred Hicks and others on behalf of the Wong-goo-tt-oo native title claimant [sic] group". That description was also used in the notice of appeal to identify those persons who are the appellants on the present appeal. The identity of each of those "others" is not apparent to us from the appeal papers, but nothing seems to turn on their identities for present purposes. In these reasons for judgment, it will be sufficient to treat Mr Hicks as having been the sole applicant before the primary Judge and as being the sole appellant in the present appeal. 4 The application for an order of review was made in respect of a decision which had been made by ATSIC on 20 April 2000. That decision had been one not to make a grant of money under subs 14(1) of the ATSIC Act. ATSIC's decision had been made in respect of an application made to it that it make such a grant, which application had been made on 24 June 1999. 5 The application to ATSIC that it make a grant of money under subs 14(1) of the ATSIC Act had been made by the Wong-goo-tt-oo native title claim group ("the group"), of which group Mr Hicks was a member. 6 As well as making an application to ATSIC that it make a grant of money to the group, the group also made more than one application to the Aboriginal Legal Service of Western Australia (Inc) ("the ALS" or "the ALS WA") that that body make a grant of money to the group. In Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483 (Lee, Lindgren and Katz JJ, 1 May 2001, unreported), so much of the history of the group's applications to the ALS that that body make a grant of money to the group as was necessary for the disposition of that appeal was set out in the Full Court's reasons for judgment. It will be convenient, because of its relevance for present purposes, to repeat in these reasons for judgment at least some of that history. That repeated history will be supplemented by additional material relevant solely to the present appeal. 7 In 1998, the group applied for a native title determination in respect of land in the West Pilbara region of Western Australia. The group's application overlapped substantially, and therefore competed, with one already made by the Ngaluma and Yinjibandi people. The ALS, in its capacity as the representative body for the relevant area under the Native Title Act 1993 (Cth) ("the NTA"), was already providing legal assistance to the Ngaluma and Yinjibandi people for the purpose of their native title determination application. 8 On 28 April 1999, the group applied to the ALS in its representative body capacity to make a grant of $35,000 to the group under par 202(4)(a) of the NTA (since repealed) for the purpose of the group's native title determination application. On 5 May 1999, the ALS refused that application. On 14 May 1999, the group wrote to the ALS, asking whether the ALS would provide legal and (an unspecified amount of) financial assistance to the group for the purpose of the group's native title determination application. On 1 June 1999, the ALS replied to the group's request, telling the group in effect that the ALS would provide assistance to the group, but only of the legal kind and only if the group were to treat itself as part of the Ngaluma and Yinjibandi people. 9 On 24 June 1999, the group made the application to ATSIC to which we have already referred, seeking $665,000 for the purpose of obtaining legal representation and the assistance of experts in connection with the group's native title determination application and referring to the refusal by the ALS to make a grant of money to the group for that purpose. On 8 September 1999, ATSIC wrote to the ALS, asking the ALS to review the ALS's "decisions on the matter of support to the Wong - GOO - TT - OO claimants". On 9 September 1999, the group wrote to the ALS, in effect seeking from it a grant of $665,000. No doubt, it was the group's intent, if that application to the ALS succeeded, to withdraw its application to ATSIC for the equivalent sum. However, on 16 September 1999, the ALS, having complied with ATSIC's request of 8 September 1999 and acting through one of its employees who was a solicitor, affirmed its earlier position in the matter and rejected the group's application to it of 9 September 1999. Then, on 16 December 1999, ATSIC rejected the group's application to it of 24 June 1999. 10 Mr Hicks subsequently brought a proceeding in this Court seeking judicial review both of the ALS's decision of 16 September 1999 and of ATSIC's decision of 16 December 1999. On 11 February 2000, orders were made by consent by Carr J, setting aside ATSIC's decision of 16 December 1999 and remitting to ATSIC for further consideration the group's application to it of 24 June 1999. On 31 March 2000, Carr J heard what then remained of Mr Hicks's judicial review proceeding, namely, Mr Hicks's challenge to the ALS's decision of 16 September 1999. Among the grounds of that challenge was that there had existed a reasonable apprehension of bias on the part of the ALS, arising from the fact that, as we have already mentioned, the ALS had been providing legal assistance to the Ngaluma and Yinjibandi people for the purpose of their native title determination application while, at the same time, it had been considering the group's application for financial assistance for the purpose of its native title determination application. 11 On 20 April 2000, ATSIC, as we have already mentioned, decided (for a second time) to refuse the group's application to it of 24 June 1999. ATSIC's decision of 20 April 2000 was made by reason of the consent order made by Carr J on 11 February 2000, remitting to ATSIC for further consideration the group's application to it of 24 June 1999, and in accordance with an undertaking given by ATSIC to the group that ATSIC would make a fresh decision on the group's application no later than 21 April 2000. 12 As it happened, ATSIC's decision of 20 April 2000 was made a few days before Carr J, on 28 April 2000, gave his judgment in Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435. By that judgment, Carr J set aside the ALS's decision of 16 September 1999 not to make a grant of money to the group and remitted to the ALS for further consideration the group's application to it of 9 September 1999. Carr J set aside the ALS's decision on the reasonable apprehension of bias ground to which we have already referred above. He stated (at 444, [31]) that a fair-minded lay observer with knowledge of the material objective facts might have entertained a reasonable apprehension that the employee through whom the ALS had made its decision on the group's application would not bring an impartial and unprejudiced mind to the making of that decision. Such an observer might reasonably have considered that that employee was "too closely identified with the interests of the Ngaluma Injibandi Group", having regard, in particular, to the duties which, as a solicitor, he owed to the "Ngaluma Injibandi Group". 13 Together with its decision of 20 April 2000, ATSIC furnished to the group a statement of its findings and reasons for that decision. Before, however, turning to that statement of findings and reasons, we mention that s 22 of the ATSIC Act requires ATSIC to formulate principles about the making of grants under s 14 of the ATSIC Act, in accordance with which principles ATSIC must exercise its powers under the latter section. The making of those principles, though not their content, was notified in the Commonwealth Gazette: see Cth Gazette No GN 35, 2 September 1998, p 3015. On 20 April 2000, those principles provided that, in making decisions under s 14 of the ATSIC Act, ATSIC would apply ATSIC policy as set out in "the Program Policy and Guidelines Statements". One such statement was the "Native Title Policy Framework", which statement provided relevantly: "ATSIC will consider direct funding only in exceptional circumstances and only if the claimant has already sought and been denied funding by an NTRB [that is, a native title representative body]" ("the principle"). 14 It is convenient to make immediately a number of points about the principle. 15 First, the reference in the principle to "direct funding" was a reference to the making by ATSIC itself under subs 14(1) of the ATSIC Act of a grant of money to a native title claim group for the purpose of that group's prosecuting a native title determination application, as opposed to that group's obtaining such a grant from a representative body. The obtaining of such a grant from a representative body would have amounted to indirect funding of that group by ATSIC, since it was ATSIC which, under subs 203(3) of the NTA (since repealed), would have provided to the representative body concerned the funds needed to make any such grant which the representative body decided or had decided to make. 16 Secondly, certain conditions were identified in the principle as being ones which must be satisfied before ATSIC would "consider direct funding" (our emphasis). Contrary to a submission made by Mr Hicks on the appeal, it would not, in our view, be correct to read the principle as having conveyed the meaning that, provided the relevant conditions precedent were satisfied, an applicant for direct funding was entitled to a grant of such funding, only that the applicant was entitled to a consideration of whether such a grant should be made. One can, for instance, imagine a situation in which ATSIC took the view that the relevant conditions precedent had been satisfied, but either was without the necessary funds to make any grant at all or considered that the sum sought by the applicant was excessive, given the purpose for which it was said to be required. Clearly, to construe the principle as having, in such circumstances, entitled an applicant to a grant of the funding which the applicant had sought would be absurd. 17 Some analogy to the construction which we have just given to the principle may be seen in the construction given by Foster J to subs 19AP(4) of the Crimes Act 1914 (Cth) in Cornwell v Attorney-General of the Commonwealth of Australia (1993) 45 FCR 492. Subsection 19AP(1) of the Crimes Act conferred on the Attorney a power to grant a licence for a person serving a federal sentence to be released from prison, but subs 19AP(4) provided that the Attorney must not do so "unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence". According to Foster J (at 506), "Quite clearly there are two considerations involved in the application of this [sub]section namely whether exceptional circumstances exist and whether those circumstances should provide the necessary justification". Later (also at 506), his Honour referred to "the second element of the subsection, namely whether … 'exceptional circumstances' justif[y] early release". 18 The third point to be made about the principle is that one of the conditions precedent of which it required satisfaction was that "exceptional circumstances" exist. 19 In Nikac v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 65, Wilcox J gave consideration to the effect of the use in a quasi-legislative instrument of the term "exceptional circumstances". That case was decided at a time at which the Minister was merely obliged to reconsider an earlier decision to deport a person by reason of that person's criminal conviction if the Administrative Appeals Tribunal ("the AAT"), on review of the Minister's decision, had decided that the preferable decision was that the person not be deported. In other words, the Minister was not obliged to give effect to such a decision by the AAT. There was in place, however, a policy that the Minister would refuse to give effect to such a decision by the AAT "only in exceptional circumstances". In Nikac, the Minister had refused to give effect to two such decisions by the AAT, taking the view that "exceptional circumstances" existed which justified such refusals. Those "exceptional circumstances" had been the nature of the offences which had enlivened the Minister's discretion to deport, namely, drug offences, and the risk of recidivism by the deportees. The Minister's view that the nature of those offences and the risk of recidivism constituted "exceptional circumstances" was challenged in this Court as being incapable of plausible justification. 20 Wilcox J made plain in his reasons for judgment that, if he had been the Minister, he would not have considered the nature of the offences concerned and the risk of recidivism to amount to "exceptional circumstances" for the purpose of the policy. For instance, he said (at 80), "I admit to extreme difficulty in seeing how these factors can amount to 'exceptional circumstances' within the meaning of the … Policy". Later (still at 80), he said, "I have already made apparent my opinion that the offences themselves, and such risk of recidivism as exists in each case, cannot appropriately be described as constituting 'exceptional circumstances'". However, his Honour continued (at 81), "Notwithstanding my own view about the Minister's conclusions that the circumstances in the cases of Mr Nikac and Mr Gogebakan are 'exceptional', I do not think that it is possible to say that the Minister's contrary view is devoid of plausible justification. The term 'exceptional circumstances' postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Mr Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the Tribunal, by whom both the offences and all the other relevant circumstances were considered But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, 'exceptional circumstances' lies in the eye of the beholder." 21 We accept the correctness of the approach taken by Wilcox J in Nikac to the use in a legislative or quasi-legislative instrument of the notion of "exceptional circumstances" and consider that approach applicable to the principle. 22 The fourth and final point to be made about the principle at this stage of these reasons for judgment is that it identified two conditions, each of which was required to be satisfied before ATSIC would consider direct funding. Not only was ATSIC required to behold "exceptional circumstances" before direct funding would be considered, but ATSIC was also required to behold a situation in which the applicant for direct funding had, not only already sought indirect funding by a representative body, but also already been denied such funding. 23 Those points made about the principle, we turn now to ATSIC's statement of findings and reasons for its decision of 20 April 2000, which statement was made by Mr Mark Sullivan. Mr Sullivan was ATSIC's Chief Executive Officer and thus generally managed ATSIC's day-to-day administration: see subs 46(3) of the ATSIC Act. 24 Among the matters with which Mr Sullivan dealt in that statement of findings and reasons was the question whether "exceptional circumstances" existed within the meaning of the principle and, in that connection, he discussed the group's allegation of the existence of a reasonable apprehension of bias on the part of the ALS concerning the making of its decision of 16 September 1999. He was aware of the fact that Mr Hicks had brought a judicial review proceeding in respect of that decision, in which proceeding a reasonable apprehension of bias argument had been made, and that Carr J had reserved his decision in that proceeding. It is plain from the statement of findings and reasons that the existence of that proceeding before Carr J and the stage which it had reached had been of fundamental significance so far as ATSIC's own decision was concerned. 25 Mr Sullivan stated he had given careful thought to "the alleged conflict of interest issue". His reference to "the alleged conflict of interest issue" was a reference to the group's allegation of the existence of a reasonable apprehension of bias on the part of the ALS. (Both the group, in its dealings with ATSIC in connection with its application for funding, and Mr Hicks, in his various judicial review proceedings (including the one out of which the present appeal has arisen), have used the term "conflict of interest" inappropriately when describing their complaint about the ALS. Their complaint might better have been described as one of "conflict of duties". However, their intent, when using the term, to allege the existence of a reasonable apprehension of bias on the part of the ALS has been plain throughout.) Mr Sullivan then stated that he was aware that the ALS had decided to refuse to fund the group and that the group had contended that that decision was legally flawed. He continued, "7.3 I have decided that at this stage these considerations, important as they are, do not in themselves constitute exceptional circumstances for the reason that the current Federal Court challenge to the ALS WA decision has not yet been judicially determined. The applicants have sought judicial review of the ALS WA decision in the Federal Court. The relief sought is an order 'compelling ALS WA to act in accordance with law in making a decision upon the Applicants' request to ALS WA for financial assistance'. These judicial review proceedings were heard on 31 March 2000. A decision in that matter is expected in the near future. It follows that the applicants are still actively seeking funding from the relevant NTRB and the possibility of funding from the NTRB is therefore still very much alive. 7.4 I have decided that since the possibility of … ALS WA funding is still very much alive and is being actively pursued by the applicants the circumstances in which ATSIC would ordinarily consider direct funding have not yet arrived. The appropriate time for ATSIC to make a direct grant to the Wong-goo-tt-oo would be after the Wong-goo-tt-oo challenge to the ALS WA decision has been determined and either the challenge is dismissed (so the ALS WA decision stands) or the challenge succeeds and the ALS WA makes a valid decision again refusing assistance. 7.5 If the Federal Court upholds the Wong-goo-tt-oo's claims relating to invalidity and conflict of interest and grants the relief sought by the Wong-goo-tt-oo, then the ALS WA will be required to reconsider its decision according to law. If on the other hand the Federal Court were to dismiss the challenge, it would be necessary to consider the Federal Court's reasons. For example, if the Federal Court rejected the conflict of interest arguments submitted in support of the invalidity of the ALS WA decision then the conflict of interest claims would no longer support an exceptional circumstances claim." 26 We should mention now that, in the statement of findings and reasons, Mr Sullivan also discussed the prospects for success of the group's native title determination application. We will return to that matter later in these reasons for judgment. 27 We turn now to the reasons for judgment of the primary Judge. According to his Honour, Mr Hicks's arguments before him had focused on ATSIC's reasons on the question whether "exceptional circumstances" existed justifying the group's being funded directly, rather than through a representative body. 28 Foremost in that respect were Mr Hicks's arguments regarding "conflict of interest" as an exceptional circumstance. It will be convenient for us now to refer to those arguments, as summarised by the primary Judge in his reasons for judgment, and to the primary Judge's conclusions with respect to those arguments. 29 Mr Hicks had submitted before the primary Judge that, although at the date of ATSIC's decision, Carr J had not yet ruled on Mr Hicks's challenge to the ALS's decision of 16 September 1999, nevertheless ATSIC had been in possession of sufficient information to permit it to conclude for itself that the ALS had laboured under a conflict of interest when making its decision. Mr Hicks had further submitted before the primary Judge that ATSIC had employed inconsistent reasoning on the question of the existence of "exceptional circumstances" by reason of the ALS's alleged conflict of interest. If the fact that Mr Hicks's challenge to the ALS's decision on conflict of interest grounds remained undecided meant that the alleged conflict of interest did not amount to "exceptional circumstances", then, submitted Mr Hicks, ATSIC should not have made its decision on the group's application to it until that challenge had been decided. 30 The primary Judge rejected the submissions to which we have just referred. He stated that, whether or not the delaying by ATSIC of its decision might have been a prudent course, "the failure to follow it does not give rise to an error of law. Infelicities of language or logic in the reasons of the decision-maker on this issue disclose no error of law". He then continued, "The statement contained in the decision-maker's reasons that the pendency of the Federal Court decision negatived the contention of exceptional circumstances based on conflict of interest in the representative body is unobjectionable. The decision-maker was entitled to take the view that the existence of the circumstances said to be exceptional was a matter under consideration and to be determined by the Court and that the answer to the question whether those circumstances existed would be likely to emerge as a finding by the Court. The decision-maker appears to have treated the unresolved Federal Court proceedings as leaving open the question of the ultimate outcome of the application to the ALS." 31 The primary Judge next expressed the view that "whether any circumstances capable of being described as exceptional existed at the time of the ATSIC decision, the decision-maker was perfectly entitled, as a matter of discretion, to refuse funding pending the Federal Court decision". His Honour then quoted from [7.4] and [7.5] of ATSIC's statement of findings and reasons (set out in full at [25] above) and continued, "That, in my opinion, was perfectly valid reasoning and sufficient to justify the rejection of the application for funding at that time. A refusal at that time would not prevent the applicants from renewing their application subsequently in light of the Court's decision. ATSIC was not to be treated as functus officio in respect of all future applications for funding by these applicants relating to their native title determination application because this application for funding had been refused in particular circumstances." 32 Later, the primary Judge added, "In my opinion Mr Sullivan's reasons went further than was necessary in supporting his rejection of the application for direct funding. He was entitled to rest entirely upon the ground that the process of application to the ALS would not be exhausted until the Federal Court proceedings were resolved. And, indeed, his written reasons in paragraph 7 and particularly 7.4, make it plain that he had arrived at the conclusion that funding should be refused having regard to the pending Federal Court proceedings." 33 So far as concerned ATSIC's approach to the merits of the group's native title determination application, as disclosed by its statement of findings and reasons, Mr Hicks made submissions before the primary Judge about that approach, which submissions his Honour rejected. We will return to that matter later in these reasons for judgment. 34 Finally, so far as concerns the proceeding before the primary Judge, his Honour recorded the making by Mr Hicks of a "proportionality" submission, which submission his Honour also rejected. We will also return to that matter later in these reasons for judgment. 35 We should note now that the primary Judge in substance concluded his reasons for judgment by saying, "In any event even if one or other of the grounds for review were made out, I would have declined relief in my discretion having regard to the fact that the decision to refuse funding was taken properly in light of the fact that proceedings before the Federal Court in relation to the request to the ALS for funding were unresolved." 36 On the appeal, Mr Hicks renewed his attacks on ATSIC's treatment of the ALS's alleged conflict of interest as constituting "exceptional circumstances" and on ATSIC's approach to the merits of the group's native title determination application. As well, he repeated his "proportionality" argument. 37 It is convenient to deal in the first instance with the conflict of interest submissions which Mr Hicks made on the appeal. 38 Those submissions appear logically to have had the following steps, although not all of them were made explicit: first, the existence of the principle converted the discretionary power conferred by subs 14(1) of the ATSIC Act into a duty to make any grant of money applied for, provided that the two conditions precedent of "exceptional circumstances" and "denied funding by an NTRB" were satisfied; secondly, in the present case, the condition precedent of "denied funding by an NTRB" had been satisfied by the ALS's decision of 16 September 1999 on the group's application to it, leaving, as the only remaining question for ATSIC, whether "exceptional circumstances" existed; thirdly, ATSIC was obliged to form an opinion on the question whether there had existed a reasonable apprehension of bias on the part of the ALS in connection with the ALS's decision of 16 September 1999; ATSIC could not burke that duty merely because the same issue was then before Carr J; fourthly, the only opinion open in law to ATSIC on the material before it had been that there had existed a reasonable apprehension of bias on the part of the ALS in connection with its decision of 16 September 1999; fifthly, accordingly, the only opinion open in law to ATSIC had been that "exceptional circumstances" existed; and, sixthly, ATSIC had therefore been under a duty to make the grant of money applied for by the group. 39 We have already rejected the first of the steps which we have just set out (see at [16] above). However, it is not so much rejection of that first step which appears to us to doom to failure Mr Hicks's submissions as it is rejection of the second of those steps. 40 As to that second step, we consider that, although admittedly not in form, Mr Sullivan did, in substance, express the opinion in those paragraphs of the statement of findings and reasons which we have quoted at [25] above that, in the circumstances as they existed on 20 April 2000, the condition precedent to ATSIC's considering direct funding of the group that the group had been "denied funding by an NTRB" had not been satisfied by the ALS's decision of 16 September 1999 on the group's application to it. That was because the group had not accepted as final that decision, but had challenged its effectiveness in a judicial review proceeding which had not yet been concluded. Further, in that proceeding, the group was seeking an order by this Court (which, as it happens, the group shortly afterwards obtained from Carr J) that the group's application to the ALS for funding be remitted to the ALS for further consideration. 41 For ATSIC to hold the opinion to which we have just referred was, in our view, open to it in light both of the language of the principle and of the principle's evident purpose of ensuring that ATSIC would be the "last resort" administrative decision-maker regarding funding for native title determination applications. 42 It is apparent that Mr Hicks was alive to the problem which his submissions faced so far as the question of satisfaction of the "denied funding by an NTRB" condition precedent was concerned, since, in his written submissions on the appeal, he submitted (references omitted), "The direct funding policy statement in the decision-making principles expresses the two preconditions for direct funding cumulatively; exceptional circumstance[s] when denial of [indirect] funding has occurred. The decision-maker confused, by commingling, the two requirements which led the decision-maker to come to the flawed decision that because Carr J.'s decision was pending 'the circumstances in which ATSIC would ordinarily consider direct funding have not yet arrived'." 43 We consider that an appropriate response to Mr Hicks's submission which we have just quoted is to rely on what was said in the High Court of Australia by Brennan CJ and Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Their Honours there said that two propositions were well-settled: first, that a court exercising a supervisory jurisdiction should not be concerned with looseness in the language or unhappy phrasing of the reasons of an administrative decision-maker; and, secondly, that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Their Honours then said (footnote omitted) that those well-settled propositions, "… recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." 44 However, even if it be accepted that, in the statement of findings and reasons, Mr Sullivan went beyond merely using that loose language or unhappy phrasing the making of attacks on which the High Court of Australia deprecated in Wu, nevertheless, such error as may be perceived in the relevant part of the statement was, in our view, an immaterial one, given ATSIC's evident opinion that the group had not yet been denied funding by the ALS within the meaning of the principle. Since s 16 of the JRA confers on this Court a discretion to withhold a remedy in respect of immaterial errors, we would withhold such a remedy in the present case, even if we were satisfied that Mr Hicks had demonstrated the existence of the alleged error presently under discussion. 45 Given the view which we have expressed as to the second of the steps in those submissions of Mr Hicks's which we set out at [38] above, we consider it unnecessary to discuss the correctness of the remainder of those steps, although we would draw attention to the difficulty in the way of acceptance of the fifth of those steps presented by Wilcox J's approach in Nikac, to which approach we have referred approvingly at [19]-[21] above. 46 Further, given that, in the view which we take, the group had not satisfied the "denied funding by an NTRB"condition precedent to ATSIC's consideration of the group's application for direct funding, it is unnecessary to deal in these reasons for judgment either with Mr Hicks's attack on ATSIC's approach to the merits of the group's native title determination application or with his "proportionality" argument. Success for Mr Hicks on either or both of those two fronts would not overcome the group's failure to satisfy one of the conditions precedent to the enlivening of ATSIC's obligation to consider the group's application for direct funding.