Hicks v Aboriginal Legal Service of Western Australia

Application for an Extension of Time 10 Assuming for the moment that the decision under challenge is a reviewable decision, the time for an application for review under the ADJR Act expired on 15 October 1999. The application for review was not made until 24 December 1999. The applicant sought an extension of the time limit to that date. The respondent opposed any extension of time on two bases. First, that the applicant had not shown any explanation for the delay. Secondly, that the application was futile, because there were and are no funds available to grant the financial assistance which the applicant sought. The respondent also claimed (as part of the second ground) that in the circumstances of there being no financial assistance available, it was prejudiced by the delay in bringing the application. 11 The applicant contended that there was a readily acceptable explanation for the delay, being the fact that he was waiting for a decision from ATSIC in respect of his application made to ATSIC on 24 June 1999. ATSIC did not make its decision to refuse that application, until 16 December 1999. The applicant maintained that the respondent was well aware of the inter-relationship between the decision made by it and the decision made by ATSIC. The applicant argued that Mr Benn's affidavit (Exhibit R1) did not demonstrate any prejudice arising from the delay.

My Reasoning 12 In my view, the applicant should have an extension of time until the date upon which he filed this application. I accept the applicant's explanation for the delay i.e. that he was waiting for a decision from ATSIC. If ATSIC had approved a grant of legal aid, it would seem that the administrative arrangements for such aid would have been made through the respondent. The applicant's approach to ATSIC must have made the respondent aware that the finality of its decision was being contested - see Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. I do not think that the respondent has demonstrated any prejudice which would arise if time were extended. Even if the respondent has currently no funds available to grant the financial assistance which the applicant seeks, that circumstance does not, in my view, constitute prejudice to the respondent which would arise out of any extension of time. Furthermore, I am not satisfied on the evidence before me that there is no prospect of funds becoming available before the hearing of the Native Title Application comes to an end. I refer to the affidavit and oral evidence of Mr G F Shaw, a senior officer of the respondent, in that regard. There will be an order that the time for bringing this application be extended to 24 December 1999.

Whether the Decision is Reviewable Under the ADJR Act 13 This depends upon whether the respondent's decision of 16 September 1999 was a "decision to which this Act applies" within the meaning of s 3 of the ADJR Act. In turn this depends upon whether the respondent's decision was made "under an enactment". The applicant contended that the respondent's decision was made by it in its capacity as a representative body established by s 202(1) of the Native Title Act and performing its functions under s 202(4)(a) of that Act. Section 202 of the Native Title Act provides that the Minister may, in writing, determine that a body is a representative Aboriginal/Torres Strait Islander body for an area specified in the determination. The Minister must not make such a determination unless he or she is satisfied that the body is broadly representative of the Aboriginal Peoples or Torres Strait Islanders in the area, that it satisfactorily performs its existing functions and will satisfactorily perform its functions under sub-section (4). Section 202(4) provides as follows: "Functions of body (4) A representative Aboriginal/Torres Strait Islander body determined under this section may do the following: (a) facilitate the researching, preparation or making of applications, by individuals or groups from among Aboriginal peoples or Torres Strait Islanders, for determinations of native title or for compensation for acts affecting native title; (b) assist in the resolution of disagreements among such individuals or groups about the making of such applications; (c) assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to: (i) the doing of acts affecting native title; or (ii) the provision of compensation in relation to such acts; or (iii) indigenous land use agreements or other agreements in relation to native title; or (iv) rights of access conferred under this Act or otherwise; or (v) any other matter relevant to the operation of this Act; (d) certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body; (e) certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body; (f) become a party to indigenous land use agreements." 14 The remainder of s 202 places conditions on certification by a representative body, requires a representative body to make all reasonable efforts to achieve agreement in relation to overlapping claims and the like. 15 The respondent contends that its decision was not made under an enactment. It says that its decision was made under its Policy, that under the Policy the applicants had no legal right to assistance nor was there any legal obligation on the respondent's part to provide it. The respondent contended that the Policy was not an "instrument" within the meaning in the ADJR Act of the term "enactment".

My Reasoning 16 In my view, the respondent's decision was made under the Native Title Act. It may also, as the respondent submits, have been made under its Policy, but I do not think that prevents it from having been made under the Native Title Act. The respondent relied on Australian National University v Lewins (1996) 138 ALR 1 (a decision of a Full Court of this Court). The legislative provisions in that case [the Australian National University Act 1991 (Cth)] were very different in nature to the provisions of s 202(4)(a) of the Native Title Act. The relevant section of the Act in Lewins simply conferred power on the University to make Statutes with respect to the appointment of persons to positions of responsibility within the University, the terms and conditions of such appointments and the termination of such appointments. 17 I had some reservations about whether the payment of legal expenses could properly be described as being to facilitate the preparation or making of an application for determination of native title within the meaning of s 202(4)(a). However, I came to the conclusion that it did. The meaning of the word "facilitate" includes "make easy or easier; promote, help forward (an action, result, etc.)" - see the Shorter Oxford English Dictionary at 903 or "to make easier or less difficult; help forward (an action, a process, etc)" - the Macquarie Dictionary at 620. Furthermore, the Native Title Act is beneficial legislation and, if there is any doubt about the meaning of the word "facilitate", it should be construed widely so as to include donation of money to fund an application or payment of legal expenses for a native title application. 18 Mr P G Kennard, counsel for the respondent, did not seriously dispute the proposition that the respondent, when acting pursuant to s 202(4)(a) could provide funds. He accepted that the word "facilitate" authorised his client to engage members of the independent bar and expert witnesses, to pay for the transport of native title applicants to Perth and for their accommodation and the like. But he submitted that so far as solicitorial work was concerned, that had to be done "in-house" by the respondent. Money could not be provided for retaining the assistance of a firm of solicitors. I do not accept that distinction. In my view, "facilitate" extends to the granting of funding for the making of applications for determination of native title. The respondent's decision was to refuse such funding. In my opinion, that decision is reviewable under the ADJR Act.

The Grounds of Review 19 The amended application sets out what appear to be five separate grounds of review. One of those (Ground 13), to the effect that the respondent's decision was an impermissible interference with the exercise of Commonwealth judicial power, was not really pressed. I think that that was a sensible decision by counsel for the applicant. Common to each of the other four grounds was an allegation of bias. Grounds 11 and 12 each asserted that the respondent had failed to follow its own procedures. Counsel for the applicant informed me that he relied upon s 5(1)(b) of the ADJR Act in relation to those grounds. Finally, Ground 14 asserted Wednesbury unreasonableness on the respondent's part. 20 In view of the substantial overlap between these grounds, I propose to deal first with the allegations of bias.

Bias 21 The applicant claimed that there was perceived, not actual, bias on the respondent's part when it made the decision under challenge. Mr A J Power, counsel for the applicant, described this ground of review as "really the meat of this matter". I think that that is an accurate description. The respondent conceded that it was obliged to afford the applicant natural justice or procedural fairness in making its decision of 16 September 1999. The respondent's case was, in essence, that it had complied with that obligation and that there was no bias associated with the decision. 22 There was very little difference between the parties about the facts. The undisputed evidence was as follows. The respondent was acting for the Ngaluma Injibandi Group in that group's application for a native title determination over an area which overlapped an area for which the Wong-Goo-tt-Oo group (in the Native Title Application) sought a separate independent native title determination in its favour. 23 The respondent's decision of 16 September 1999 was made by Mr Benn. Mr Benn is a solicitor in the respondent's employment. The respondent organises its native title funding and resources into two different units. One unit is known as the ALS Representative Body ("the ALSRB"). The other unit is known as the Land and Heritage Unit ("the LHU"). The LHU comprises solicitors or teams of solicitors who provide legal advice, prepare cases and represent parties whom the respondent accepts as clients. The ALSRB is the administrative arm for both units. The functions of the ALSRB include the receipt, assessment and determination of all applications for legal assistance in relation to native title matters made to the respondent. Mr Benn is employed as manager of both units. In that capacity he is responsible for the overall management of both units including what he described as a "broad responsibility" for the professional management of lawyers within both the ALSRB and the LHU. He is kept informed of the general progress of matters conducted by the legal teams within the LHU, although he is not personally involved in the day to day conduct of particular claims. Mr Benn swore that in reaching the respondent's decision he had regard, among other things, to the Policy and that his decision was based on what he described as an independent review by Mr Kennard. Mr Kennard is an in-house counsel employed by the respondent. His own description of his position is "Counsel, Land and Heritage Unit". Exhibited to Mr Benn's affidavit is a copy of Mr Kennard's advice dated 15 September 1999 (see pages 22 to 25 of Exhibit "R1"). It is clear from Mr Benn's reasons for decision (see the third paragraph of page 10 of Exhibit "R1") that he was well aware that the applicant was seeking funding for a claim which competed with the Ngaluma Injibandi Group claim being handled by the LHU.

The Respective Submissions on Bias 24 Mr Power described the situation as one where the manager of that part of the respondent (acting as a representative body) which made the decision about who was and who was not to get funding was also the manager of that part of the respondent which administered, i.e. ran the case, for the Ngaluma Injibandi Group who have a claim competing with the applicant's group, the Wong-Goo-tt-Oo group. The applicant's case was that Mr Benn had a clear conflict of interest in that, as the solicitor for the Ngaluma Injibandi Group, he (as an officer of the respondent) owed that group a fiduciary duty. This conflict of interest was not resolved or ameliorated, so it was put, in any way by the decision-making process of taking advice from Mr Kennard, who was himself a legal officer employed within and instructed by the LHU. That, so the applicant contended, did not render Mr Benn's decision independent. The applicant submitted that the respondent's conduct and the circumstances in which it made its decision necessarily led to a reasonable apprehension of bias on the respondent's part, i.e. that the respondent in its capacity as a representative body had not brought an impartial, unbiased, fair and independent mind to the making of its decision. 25 The respondent submitted that there was no bias associated with its decision. It submitted that Mr Benn had no involvement in the conduct of the Ngaluma Injibandi Group claim, nor any particular reason to promote the interests of the Ngaluma Injibandi Group above those of the Wong-Goo-tt-Oo group. The respondent pointed to evidence that at one stage it had suspended the grant of legal assistance to the Ngaluma Injibandi Group. The respondent contended that its decision had been arrived at after an independent review by Mr Kennard who had not been involved in either the Ngaluma Injibandi Group claim or the applicant's request for legal assistance. 26 Alternatively, if bias were found to exist, the respondent relied on the doctrine of necessity to preclude the application of what it described as "the bias limb of the rules of natural justice" to the decision under review. The respondent submitted that the doctrine of necessity applied in this case because there was no other person to make the decision. In response to the applicant's suggestion that the application for funding should have been sent to an independent person outside the respondent's organisation for assessment, the respondent submitted that "… with the funding situation being as it is, that is not an option which the respondent takes and has never taken and is not required to". There was simply no provision in the Policy for "briefing out" a private lawyer to review a decision to refuse the grant of legal assistance. Thus the decision, so it was argued, had to be made "in-house". Furthermore, in its written submissions, the respondent contended that there was no conflict of interest in it representing the applicant and his group if they wanted to participate as claimants in the Ngaluma Injibandi Group claim. A conflict of interest would have arisen, so it submitted, only if it (the respondent) had represented the two groups in separate or independent claims. The respondent's position was that it was not under any public duty to represent the applicant and his group and that it had refused funding assistance to them for separate legal representation for two reasons. First, because their application failed what was described as "the legal merit test" under the Policy and, secondly, because the grant of funding to private practitioners was not permitted under paragraph 13 of the Policy. 27 In oral submissions, Mr Kennard said that the respondent admitted that there was a conflict of interest in the sense that the respondent could not represent the Wong-Goo-tt-Oo people and the Ngaluma Injibandi Group. One of his main arguments was that clause 13 of the Policy operated so as to preclude the grant of funding by the respondent pursuant to a request for assistance in a native title matter to a private practitioner. He submitted that there was no obligation on the respondent to consider the applicant's application for funding at all. The respondent had only done so in deference to ATSIC's request.

My Reasoning 28 There was little argument between the parties about the test for perceived or apprehended bias which should be applied in this matter. The fundamental principle is that justice should not only be done, but be seen to be done. I propose to apply the test formulated by Deane J in Webb v The Queen (1994) 181 CLR 41 at 67, duly adapted to accommodate the fact that the decision-maker in this matter is not a judge. In Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 at 336-338 Sundberg J and I reviewed some of the authorities and (at 338) said this: "… the special position of the administrator, and the administrative process, is accommodated by acknowledging that the Court may expect the fair-minded observer to require less of an administration decision-maker, according to the function being discharged and the particular circumstances, than of a judge or a formally-constituted tribunal." 29 So adapted, the test as I see it is as follows - would a fair-minded lay observer, with knowledge of the material objective facts, entertain a reasonable apprehension that Mr Benn might not bring an impartial and unprejudiced mind to the resolution of the question whether the first respondent should fund the applicant and the other members of his group in relation to the Native Title Application? The authorities show that in answering this question the Court must take the whole of the relevant circumstances into account. 30 Those circumstances, in my view, include the following: · the respondent was acting as solicitor for the Ngaluma Injibandi Group in preparing and presenting their native title claim, and owed to that group all the duties which accompany such a relationship, including fiduciary duties; · the applicant and his fellow applicants in the Native Title Application were seeking funding from the respondent for their claim, which competed with the claim being made by Ngaluma Injibandi Group; · the solicitors acting for Ngaluma Injibandi Group were in the unit known as the LHU; · the unit within the respondent's organisation, known as the ALSRB, which carried out the respondent's tasks as a representative body (one of which was to make the decision under challenge), was the administrative arm for both those units; · Mr Benn was a solicitor employed by the respondent and was the manager of both the LHU and the ALSRB. In his affidavit he said, among other things, this: "5. I am employed by the Respondent in the capacity of Manager, ALSRB/LHU. In that capacity I am responsible for the overall management of both units including a broad responsibility for the professional management of lawyers within both the ALSRB and LHU. In that capacity, I am kept informed of the general progress of matters conducted by the legal teams within the LHU. I am not, however, personally involved in the day to day conduct of particular claims." · notwithstanding the above evidence, it is clear that Mr Benn has access to matters of detail within the LHU, including particular pieces of evidence - see for example his reference (at the top of p 12 of Exhibit R1) to the fact that the ancestry and practices referred to in the affidavits filed by named Wong-Goo-tt-Oo claimants were consistent with the evidence in support of the Ngaluma and Indjibandi claims; · Mr Benn knew that the claims of the applicant and his fellow applicants in the Native Title Application competed with the claim being advanced by the LHU on behalf of the Ngaluma Injibandi Group; and · the person upon whom Mr Benn relied for independent advice was Mr Kennard. Although the evidence is that Mr Kennard has had no dealings with either set of claimants and in particular has not provided legal assistance or advice to either group, he is, as I have mentioned, an in-house counsel within the LHU. 31 In all of the above circumstances, and in particular the duties which Mr Benn and Mr Kennard owed professionally to the Ngaluma Injibandi Group, I think that a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that Mr Benn might not bring an impartial and unprejudiced mind to the decision under challenge. Such an observer might reasonably consider that the two lawyers were too closely identified with the interests of the Ngaluma Injibandi Group. 32 I do not accept the respondent's submission that the doctrine of necessity applied so as to require Mr Benn to make this decision, aided only by Mr Kennard. The respondent relied upon the decision of Gillard J in Metropolitan Fire and Emergency Services Board v Churchill (1998) 14 VAR 9. In that case Gillard J reviewed the authorities on the doctrine of necessity at 29-35 and set out five principles, which I find most useful in deciding this matter. At 30, his Honour stated the third principle: "Thirdly, it [the doctrine of necessity] does not apply where it is not necessary that the disqualified person or entity should make the decision. Hence if it is possible and practicable to appoint another person or entity to make the decision then the doctrine does not apply. However, this is not an inflexible rule and there may be circumstances where the doctrine should apply because not to do so, would result in enormous cost or substantial delay. See observations of Lord Brougham in Thellusson v Rendlesham (1859) 7 HLC 429 at 430-431; 11 ER 172 at 173." 33 In Churchill there was only one person authorised to make the relevant decision. That is not so, on the evidence, in this matter. The search is for someone who to a fair-minded lay observer can be seen to be reasonably detached and sufficiently remote from the interests of the Ngaluma Injibandi Group. ATSIC's letter dated 8 September 1999 requesting the respondent to review its decisions was addressed to a Mr Dennis Eggington, the Chief Executive Officer of the respondent. I appreciate that Chief Executive Officers are usually very busy people who have to delegate many of their powers and functions. But he might well be the appropriate person to have made the decision on the basis of some manifestly independent advice. Then, in the Policy, there is reference to the Executive Committee of the respondent. Putting aside for the moment those paragraphs of the Policy which might, on the face of them, preclude such a decision finding its way to the Executive Committee [paragraphs (13) and (15)] I think that the Executive Committee would also meet the requirements of an appropriate decision-maker. Again, manifestly independent legal advice would assist considerably in dispelling apprehended or perceived bias. 34 Mr Kennard, quite properly, raised the matter of the expense involved in obtaining independent legal advice, and I take that factor into account. On the other hand, there is evidence that the respondent is spending about $1 million in advancing the Ngaluma Injibandi Group's native title claim. The applicant has sought over $600,000 by way of funding legal services for his claim. In the context of such amounts, I think that it would be reasonable to brief an independent barrister to assess the legal merit of the claim being made by the applicant and his fellow applicants in the Native Title Application. Mr Kennard's memorandum of advice ran to only four pages. I think that an opinion could be obtained from an independent barrister at a fee of something like $1,000-$1,500. Alternatively, such a legal assessment might be sought from an interstate equivalent to the respondent. In all the circumstances, I do not consider that the evidence before me justifies the application of the doctrine of necessity. 35 In my view, the decision under challenge was vitiated by perceived or apprehended bias and, for that reason, should be set aside. I should emphasise that there is no suggestion of actual bias on the part of the respondent or its officers.

The Other Grounds of Review 36 The remaining grounds of review, other than the Wednesbury claim, were rather difficult to follow. 37 They included assertions that the respondent had failed to take certain matters into account (registration of the Wong-Goo-tt-Oo native title claim under the Native Title Act), an assertion based on administrative law with which, initially, I had no difficulty. But it turned out, in the course of submissions, that the applicant advanced that matter not really as an aspect of an improper exercise of power, but rather as falling within s 5(1)(b) of the ADJR Act i.e. failure to observe procedures that were required by law. The remaining grounds also included complaints that the respondent failed to apply its Policy in various respects, and then there was an attack on the Policy itself, in particular paragraph 13. 38 In the end, I have decided that in view of my finding on the matter of perceived or apprehended bias, there is no need to explore the other grounds. But I think I should say something, very briefly, about them. 39 Section 5(1)(b) figured in the foreground of the applicant's submissions. I asked counsel how it was that the procedures set out in the Policy constituted, on his case, "… procedures that were required by law to be observed …". Counsel was unable to assist, other than by pointing to the terms of the Policy itself. 40 I was not taken to any provision in the Native Title Act which gives to the Policy the status of a law. It lacks even the status of something that is "almost law" - see the discussion of a Full Court of this Court in Randwick City Council v Minister for the Environment [1999] FCA 1494 at paras 50-78. Although it is not necessary for me to decide this, the status of the Policy would appear to be that it gives rise to a legitimate expectation that its terms will be complied with, unless a person interested has been given an opportunity to be heard on the question whether the Policy should not be complied with in any particular case - see the authorities recently reviewed by Burchett J in One.Tel Limited v Deputy Commissioner of Taxation [2000] FCA 270 at paras 32 to 42. 41 It seems to me most sensible for a decision-making body such as the respondent to establish a policy on which such decisions are to be based. At the same time, it needs to be borne in mind, of course, that a slavish adherence to a policy may in itself give rise to an improper exercise of a discretionary power - see s 5(1)(e) of the ADJR Act when read with s 5(2). 42 My impression is that the Wednesbury unreasonableness ground advanced by the applicant did not raise anything more than the issues raised under the other grounds. I have serious doubts that the decision challenged was, as the applicant alleged, an exercise of power so unreasonable that no reasonable person could have so exercised it. However, it is not necessary to decide this point, in view of my conclusion on the matter of perceived or apprehended bias.

Conclusion 43 For the foregoing reasons, the respondent's decision of 16 September 1999 will be set aside. The matter will be remitted for further consideration and decision according to law.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Solicitor for the Applicant: Messrs Kitto & Kitto

Solicitor for the Respondent: Aboriginal Legal Service of Western Australia (Inc)