Hika Tarawa Te-Kowhai v Minister for Aboriginal Affairs and Treaty

Hearing dates: 2 December 2025

Date of orders: 27 February 2026

Decision date: 27 February 2026

Jurisdiction: Class 4

Before: Pritchard J

Decision: The Court orders:
(1) Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW), “Cobowra Local Aboriginal Land Council” be removed as a party.
(2) The summons filed on 3 November 2025, and amended on 7 November 2025 and on 2 December 2025, be dismissed.
(3) The applicant Hika Tarawa Te-Kowhai pay the first respondent's costs of the proceedings.

Catchwords: JUDICIAL REVIEW — whether former chief executive officer has power to commence proceedings on behalf of Local Aboriginal Land Council — operation of s 78A(2) of the Aboriginal Land Rights Act 1983 (NSW) — whether Minister failed to comply with the statutory preconditions imposed by s 223A and 222 of the Aboriginal Land Rights Act 1983 (NSW) in making decision to appoint administrator to a Local Aboriginal Land Council — whether Minister complied with the requirements of procedural fairness — whether the decision was made for an improper purpose — whether the decision was unreasonable — whether the applicant require leave to include ground of review pursuant to s 10 of the Racial Discrimination Act 1975 (Cth)

Legislation Cited: Aboriginal Land Rights Act 1983 (NSW
Aboriginal Land Rights Regulations 2020 (NSW)
Land and Environment Court Act 1979 (NSW)
Racial Discrimination Act 1975 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Azriel v NSW Land and Housing Corp [2006] NSWCA 372
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401
Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs (2006) 147 LGERA 348; [2006] NSWLEC 291
Dennis Flaherty v Columbia Nursing Homes Pty Ltd (2007) 152 LGERA 383; [2007] NSWLEC 148
Doulaveras v Daher (2009) 253 ALR 627; [2009] NSWCA 58
Friends of Gardiner Park Inc v Bayside Council [2020] NSWLEC 176
Golden v Vlandys (2016) 339 ALR 610; [2016] NSWCA 300
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
In the matter of Yowie Group Ltd [2025] NSWSC 524
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649; [1990] HCA 4
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Litigation Fund WCX Pty Ltd v Homebuilding Pty Ltd (2025) 117 NSWLR 188; [2025] NSWCA 16
Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
McAdam v Victorian Fisheries Authority (2025) 265 LGERA 1; [2025] VSCA 186
McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475; [1963] HCA 41
North Aboriginal Legal Aid Inc v Bradley (2001) 192 ALR 625; [2001] FCA 1728
Pacific Bay Beach and Golf Resort Association Incorporated v Transport for NSW [2024] NSWLEC 9
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Racecourse Co-operative Sugar Assoc Ltd v AG (Qld) (1979) 142 CLR 460; [1979] HCA 50
Raja v Darul-Iman (WA) Incorporated (No 2) [2011] WASCA 251
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57;
SAAP v Minister (2005) 228 CLR 294; [2005] HCA 24
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4
Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103
Stambe v Minister for Health (2019) 270 FCR 173; [2019] FCA 43
Stambe v Minister for Health (No 2) [2019] FCA 479; (2019) 270 FCR 217.
Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806
Tekowhai v Registrar, Aboriginal Land Rights Act [2026] NSWCATOD 11
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Wong Chang Song v Cmr, Australian Federal Police [2014] FCA 443
Wu Shan Liang v Minister for Immigration (1996) 185 CLR 259; [1996] HCA 6

Texts Cited: Aronson, Grove and Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Thomson Reuters (Professional) Australia Limited)
John Basten, ‘The Principle of Legality – An Unhelpful Label?’ in Meagher, Groves (eds), The Principle of Legality in Australia and New Zealand (2017, The Federation Press)
Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths)

Category: Principal judgment

Parties: Hika Tarawa Te-Kowhai (Applicant)
Minister for Aboriginal Affairs and Treaty (First Respondent)
Richard Callaghan (Second Respondent)

Representation: Counsel:
P King (Applicant)
J Curtin (First Respondent)
Solicitors:
Eddy Neumann Lawyers (Applicant)
Crown Solicitors Office (First Respondent)
Daniel Byers (Second Respondent)

File Number(s): 2025/424175-001
2025/424175-003
2025/424175-004

JUDGMENT

Introduction and procedural background

1. On 16 October 2025, the first respondent, the Minister for Aboriginal Affairs and Treaty (the Minister) appointed the second respondent, Mr Callaghan, as the administrator of the Cobowra Local Aboriginal Land Council (the CLALC), pursuant to s 222 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA) (the appointment decision).

2. These proceedings were commenced by summons filed on 3 November 2025 by Hika Tarawa Te-Kowhai (the applicant) in the name of the CLALC seeking, inter alia, review of the appointment decision. All references in this judgment to “the applicant” are references to Mr Te-Kowhai. On 7 November 2025, the applicant filed an amended summons in the name of the CLALC. Pursuant to leave granted by Pepper J on 7 November 2025, the amended summons changed the name of the first respondent from “Minister for Aboriginal Affairs” to “Minister for Aboriginal Affairs and Treaty”. At the expedited hearing before me on 2 December 2025, the Court Book included the original summons dated 3 November 2025. I granted leave for the summons dated 3 November 2025 to be amended as set out below at [5].

3. On 20 November 2025, Mr Eduard Neumann, solicitor, filed a notice of motion seeking, inter alia, to join to the proceedings Hika Tarawa Te-Kowhai, the former chief executive officer of the CLALC, and Sally Skyring, Registrar of the ALRA, as the second applicant and third respondent, respectively (applicant’s notice of motion). The notice of motion also sought to amend “the summons” (referring to the amended summons dated 7 November 2025) to seek relief against Ms Skyring in her capacity as Registrar of the ALRA:

1. That substituted service of the subpoena upon Mr Daniel ('Danny') Chapman be granted with respect to the subpoena issued by leave of the Court [the honourable Justice Pepper] granted on 12 November 2025, by service of the said subpoena upon the employer of Mr Chapman the New South Wales Aboriginal Land Council in lieu of service upon the said Mr Chapman.

2. That Mr Hika Tarawa Te-Kowhai be joined as a second applicant.

3. That Ms Sally Skyring be joined as third respondent.

4. Grant leave to amend the Summons to seek an order staying the disciplinary proceedings brought against the second applicant and a key witness in the instant proceedings by the third respondent pending the determination of the proceedings herein.

5. That a stay of the disciplinary be granted pursuant to Civil Procedure Act 2005 and/or UCPR rule 14.28 of the investigation and findings by report or otherwise of the third respondent pending the determination of the proceedings herein.

6 Alternatively to 5, interim injunctive relief to the same effect as sought in 5.

…

8 Such further or other orders as the Court deems appropriate.

4. On 25 November 2025, the Minister filed a notice of motion seeking the following orders (Minister’s notice of motion):

1. An order pursuant to s 64 of the Civil Procedure Act 2005 (NSW) that the summons filed on 3 November 2025, and amended on 7 November 2025 by Pepper J, be amended so that "Hika Tarawa Te-Kowhai" is named as the applicant instead of "Cobowra Local Aboriginal Land Council".

2. In the alternative to Order 1:

a. An order pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) removing "Cobowra Local Aboriginal Land Council" as a party to the proceeding.

b. An order pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) joining "Hika Tarawa Te-Kowhai" as an applicant to the proceeding.

3. In the alternative to Orders 1 and 2, an order by analogy with r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) that the applicant's summons filed on 3 November 2025, and amended on 7 November 2025 by Pepper J, be struck out.

4. In the further alternative to Order 1, 2 and 3, an order made in exercise of the Court's inherent power to prevent abuse of its processes that the proceeding be stayed.

5. The matter came before me on 2 December 2025 for the hearing of the substantive proceeding, and for the hearing of the two notices of motion. At the hearing, I granted the applicant leave to amend the summons filed 3 November 2025 (referred to herein as the amended summons). Mr King for the applicant sought to insert an additional ground into the amended summons as follows: “5. The Minister's decision was legally unreasonable and or disproportionate.” He also said “we [the applicant] don’t press [prayer] 4, we withdraw”. Accordingly, the relief sought and the grounds in the amended summons is as follows:

Orders sought

1. A declaration that the decision of the Minister for Aboriginal Affairs to appoint Richard Callaghan as administrator of Cobowra Local Aboriginal Land Council under s.222 of the Aboriginal Land Rights Act 1983 (NSW) is invalid and of no effect.

2. An order setting aside the appointment of Richard Callaghan as administrator.

3. An injunction restraining Richard Callaghan from acting as administrator of Cobowra Local Aboriginal Land Council.

4. An interlocutory injunction preventing the Second Respondent acting as administrator pending the determination of this Honourable Court of the matter.

5. Such further or other relief as to the Court seems fit.

6. Costs.

…

Grounds

1. The appointment was made ultra vires, beyond the power conferred by the Act.

2. The Minister failed to afford procedural fairness to the Applicant and affected members.

3. The decision was made for an improper purpose not consistent with the objectives of the Act.

4. The Minister took into account irrelevant considerations and failed to consider relevant matters.

5. The Minister’s decision was unreasonable and/or disproportionate.

6. At the hearing on 2 December 2025, Mr King did not press the applicant’s notice of motion in circumstances where the applicant no longer sought for Sally Skyring to be joined as third respondent, and the Minister no longer opposed the joinder of Hika Tarawa Te-Kowhai pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I made orders by consent joining Hika Tarawa Te-Kowhai as an applicant in the proceedings.

7. In written submissions relied upon by the CLALC dated 2 December 2025, reference was made to an additional ground of review, namely, that the Minister’s decision breached the rights of the CLALC and its senior officers to equality before the law, contrary to s 10 of the Racial Discrimination Act 1975 (Cth) (RDA). The applicant did not seek to further amend the amended summons, but its counsel Mr King made the following oral submissions:

KING: That issue is part of our argument in relation to ultra vires, and the form of the - and content of the Minister's instrument. It was expressed, and we got a note from Basten J about that relating to what his Honour called equal justice by reference to s 10 of the Racial Discrimination Act.

HER HONOUR: Yes, no, but what - it's a freestanding issue it appears Mr King. Why wouldn’t you be required to seek leave to amend your summons to include that as a ground of review?

KING: We're happy to leave that in. We consent to - in fact we're happy to corroborate with my friend in relation to all of her issues.

HER HONOUR: No, but the question is whether you need to amend your summons or seek leave to amend your summons and that's the matter I'm presently concerned with.

KING: No, we don’t seek to amend our summons.

HER HONOUR: But make submissions in relation to that point?

KING: Sorry your Honour?

HER HONOUR: But make submissions in relation to that issue?

KING: Yes, we make submissions in relation to that.

8. On 4 February 2026, Mr Te-Kowhai sent an email to the Court Registry requesting that the Court grant an interlocutory injunction restraining the second respondent, Mr Callaghan, from acting as administrator of the CLALC until I have published my judgment. On 11 February 2026, the Minister filed submissions in relation to Mr Te-Kowhai’s email of 4 February 2026 opposing the grant of the interlocutory injunction sought by Mr Te-Kowhai.

9. Having determined that the substantive proceedings be dismissed, for the reasons that follow, it is unnecessary to deal with Mr Te-Kowhai’s application for interlocutory relief.

Issues for determination

10. The key issues for determination are:

11. Whether Mr Hika Te-Kowhai had at the relevant dates authority to commence and continue these proceedings in the name of the CLALC (Issue 1).

12. Whether the CLALC should be removed as a party to the proceedings (Issue 2).

13. Whether the Minister failed to comply with the statutory preconditions imposed by ss 223A and 222 of the ALRA to the exercise of his power to appoint the second respondent, Mr Callaghan, as administrator of the CLALC pursuant to s 222 (Ground 1 of the amended summons) (Issue 3).

14. Whether the Minister complied with the requirements of procedural fairness imposed by the ALRA before making the decision under s 222 to appoint the second respondent as administrator of the CLALC (Ground 2 of the amended summons) (Issue 4).

15. Whether the appointment decision was made by the Minister for an improper purpose (Ground 3 of the amended summons) (Issue 5).

16. Whether the appointment decision was unreasonable and/or disproportionate (Ground 5 of the amended summons) (Issue 6).

17. Whether the applicant should be required to seek leave to advance an additional ground of review in relation to s 10 of the RDA (Issue 7).

Evidence

Factual background

11. The applicant tendered tabs 4 to 9A of the Court Book which included Mr Te-Kowhai’s list of facts dated 28 November 2025 and the Minister’s statement of facts dated 1 December 2025. The background that follows is largely derived from these statements of facts and from the evidence which was otherwise before the Court.

12. On 8 May 2025, at NSWALC’s 469th Council meeting, NSWALC by resolution approved an updated delegations policy and an updated delegations procedure pursuant to s 116 of the ALRA. The resolution provided that pursuant to s 1116 of the ALRA that NSWALC delegated to the CEO the functions set out in an updated delegations matrix. The delegations matrix provided, inter alia, that the function of approving the appointment of an administrator to a LALC pursuant to s 222(3) was delegated to the CEO pursuant to s 116 of the ALRA, “Delegate subject to prior consultation with the Chairman of NSWALC and the relevant Councillor”.

13. On 5 August 2025, Ms Clare McHugh, the Chief Executive Officer of the New South Wales Aboriginal Land Council (NSWALC), sent a letter to the Minister recommending the appointment of an administrator to the CLALC pursuant to s 222 of the ALRA “on the basis of serious governance, financial and compliance failures as set out below”. Ms McHugh identified as grounds for appointment the grounds in paragraphs (1)(b)(c),(d),(e) and (g) of s 222, and provided commentary in relation to each of those grounds as follows:

14. In relation to s 222(1)(b), Ms McHugh commented that the CLALC had failed to provide satisfactory financial statements and audit documentation to NSWALC, that the most recent audit report was qualified and non-compliant, and that the CLALC had failed to submit required insurance documents or respond to the auditor's management letter.

15. In relation to s 222(1)(c), Ms McHugh noted that the CLALC had not approved or submitted its s 158 budget for the 2025/26 financial year, despite making a commitment to do so by 30 May 2025 in its agreed support plan issued to the CLALC by NSWALC on 3 June 2025.

16. In relation to s 222(1)(d), Ms McHugh said that NSWALC's financial review of the CLALC uncovered “concerning mismanagement of funds and apparent misuse of Council property”, including payments of approximately $577,974 to individuals and families associated with the CLALC Board with “no alignment to approved budgets”, concerning remuneration patterns to the Acting CEO (including fluctuating salary payments, unusually high disbursements, excessive travel allowances and unauthorised meeting payments), and payments of $8,377.27 “identified under a Community Benefits Scheme which had not received approval”.

17. In relation to s 222(1)(e), Ms McHugh said that the CLALC had repeatedly breached requirements under the ALRA and NSWALC policies, including “depleted bank accounts and unpaid statutory obligations despite a recent land sale of $560,000”, ongoing financial irregularities, poor governance practices, and the erosion of internal accountability mechanisms, as well as the operation of an unapproved community benefits scheme, citing s 52A(1).

18. In relation to s 222(1)(g), Ms McHugh said that the CLALC had failed to comply with a compliance direction issued by the Office of the Registrar pursuant to s 221A on 18 February 2025, and despite extensive support and engagement by both NSWALC and the Registrar's office, including the development of a support plan in April 2025 and a performance improvement order in June 2025, no meaningful progress had been made.

19. Enclosed with Ms McHugh’s letter of 5 August 2025 was a document titled “CEO Brief” dated 5 August 2025 (the CEO Brief). In the CEO Brief, approved by Ms McHugh on 5 August 2025, the appointment of an administrator to the CLALC pursuant to s 222 was recommended for the grounds specified in paragraphs (b),(c),(d),(e) and (g) of s 222(1). Again, commentary was provided in the CEO Brief in relation to the reasons for the recommendation of the appointment of an administrator in reliance on each of the specified grounds. The commentary in the CEO Brief was similar in substance to Ms McHugh’s letter, recommending the appointment of an administrator to the CLALC pursuant to s 222 and identifying the grounds in paragraphs (1)(b)(c),(d),(e) and (g) of s 222(1) as grounds for appointment. The CEO Brief detailed the “concerning payments” identified pursuant to s 222(1)(d), including a payment of $33,510 to a current Board member, payments of $68,110 to members of one family group and various payments to Mr Te-Kowhai, such as payments of $750, $1,000, $350 and $1,000, to attend meetings “which is not standard practice for salaried roles”. The CEO Brief also said that “Councillor Chapman is aware of and has provided his support for the appointment of an administrator”. The CEO Brief was prepared by Tracey Page on 4 August 2025 and approved and signed by Ms McHugh on 5 August 2025, and referred to a separate set of attachments, Attachments A-G. The attachments were described as follows:

ATTACHMENTS

A. Analysis of CLALC Bank Accounts

B. CLALC Support Plan

C. Performance Improvement Order

D. Support from Councillor Chapman

E. EOI - Richard Callaghan, Yaran Business Services Pty Ltd

F. Administrator Scoping document

G. Correspondence to Minister Harris recommending the appointment of an Administrator

15. On 19 August 2025, the Minister signed a brief recommending that he approve and sign show cause notices under s 223A of the ALRA to the Board members of the CLALC, and notify NSWALC that he was considering appointing an administrator to the CLALC (the 19 August 2025 Ministerial Brief).

16. On 20 August 2025, the Minister sent Ms McHugh, the CEO of NSWALC, a s 223A notice. Also on 20 August 2025, a signed s 223A notice was posted to Ms Violet Carriage, a Board member of the CLALC. On 21 August 2025, a signed s 223A notice was sent via email to CLALC Board members Ms Theresa Brierley, Ms Jayde Belz, Ms Crystal Brierley, and Ms Karia Bond. In the signed s 223A notices, the Minister noted that the grounds upon which he was considering appointing an administrator to the CLALC were those “under” s 222(1)(b),(c),(d) and (g) of the ALRA. The Minister did not send the then CEO of the CLALC Mr Te-Kowhai a notice under s 223A about the possible appointment of an administrator.

17. On 17 September 2025, CLALC Board members Ms Theresa Brierley, Ms Jayde Belz, Ms Violet Carriage, Ms Crystal Brierley and Ms Karia Bond (the Board members) sent the Minister a signed submission in response to the s 223A notices. In that submission, the Board members “confirm[ed] that the Council [CLALC] ha[d] not failed to furnish satisfactory financial statements and documents to [NSWALC] in accordance with Division 2 of Part 8” of the ALRA. They also said that they were “not aware of any report by an investigator appointed in accordance with Division 1” of the ALRA, and that “the Board of CLALC or of any LALC remain[ed] powerless when NSW Aboriginal Land Council specifically but not limited to Councillor Danny Chapman who continually operate[d] in direct contravention of section 62(1)(b) [of the ALRA] which has inevitably caused the NSW Aboriginal Land Council to appoint an Administrator to CLALC”.

18. NSWALC provided no response to the s 223A notice sent to it on 20 August 2025.

19. On 16 October 2025, the Minister decided pursuant to s 222 of the ALRA to appoint the second respondent, Richard Callaghan, as administrator of the CLALC. When he made the appointment decision, the Minister had before him a ministerial brief dated 16 October 2025 titled “Appointment of Administrator – Cobowra Local Aboriginal Land Council” (the 16 October 2025 Ministerial Brief). The brief contained seven attachments (also described as Attachments A-G):

(a) a draft instrument of appointment of Richard Callaghan as CLALC administrator dated 16 October 2025 which stated “with the approval of … NSWALC … and pursuant to section 222(1) of the … ALRA …, I hereby appoint Richard Callaghan as the administrator with all the functions of … Cobowra LALC …, the Board of the Cobowra LALC and the members of the Cobowra LALC for a period of three (3) calendar months effective from the date I have signed this instrument” (Attachment A); (b) a draft NSW Government Gazette notice pursuant to s 222(1) of the ALRA giving notice of the appointment of Richard Callaghan as administrator to the CLALC for a period of three months dated October 2025 (Attachment B); (c) draft correspondence to Mr Callaghan advising of his appointment as administrator to the CLALC for a term of three months commencing from the date of execution of the instrument of appointment dated 16 October 2025 (Attachment C); (d) draft correspondence to Ms McHugh notifying NSWALC of the appointment of Mr Callaghan as administrator of the CLALC dated 16 October 2025 (Attachment D); (e) the submission of the CLALC Board members to the Minister dated 17 September 2025 (Attachment E); (f) Aboriginal Affairs NSW’s (AANSW) undated summary and assessment of submissions received as part of the “show cause” s 223A notices sent to the CLALC and NSWALC on 20 and 21 August 2025, including the submission of the CLALC Board members to the Minister of 17 September 2025 (the AANSW summary and assessment) (Attachment F). AANSW recommended that “grounds under sections 222(1)(b)(c)(d)(e) and (g) of the ALRA [be] used to appoint an administrator to Cobowra LALC”:

(i) In relation to s 222(1)(b), AANSW said in the “Summary of issue” column that the CLALC had failed to provide satisfactory financial statements and audit documentation to NSWALC in accordance with Division 2 of Part 8 of the ALRA, with the most recent audit report being qualified and non-compliant. It also said that the CLALC had failed to submit required insurance documents, and had not responded to the auditor's management letter. In the “Cobowra LALC Board Response” column, AANSW noted that the 17 September 2025 submission of the CLALC Board members “outline[d] that the Council has not failed to furnish satisfactory financial statements however provide[d] no supporting evidence”. In the “Aboriginal Affairs NSW (AANSW) Comment” column, AANSW stated that "[t]he Cobowra LALC failed to furnish satisfactory financial reports to the NSWALC within the required time frames”; (ii) In relation to s 222(1)(c), AANSW said in the “Summary of issue” column that the CLALC had not approved or submitted its s 158 budget for the 2025/26 financial year, despite direct support and guidance from NSWALC and a commitment to submit the budget by 30 May 2025, as per the agreed support plan issued by NSWALC on 3 June 2025. AANSW noted in the “Cobowra LALC Board Response” column that the CLALC Board members said in its submission of 17 September 2025 that the CLALC had not failed to comply with ss 153 or 158, but did not provide any evidence in support of this contention and, additionally, that the CLALC had been experiencing technical issues. In the “Aboriginal Affairs NSW (AANSW) Comment” column, AANSW commented that the CLALC had “substantially breached the requirements of section 153 and 158 of the ALRA by failing to submit the required financial accounts and reporting to NSWALC within the timeframes required”; (iii) In relation to s 222(1)(d), AANSW said in the “Summary of issue” column that NSWALC's financial review of the CLALC had uncovered “concerning mismanagement of funds and apparent misuse of Council property”, including payments of approximately $577,974 to individuals and families associated with the CLALC Board which had “no alignment to approved budgets”, concerning remuneration patterns to the Acting CEO, Mr Te-Kowhai (such as fluctuating salary payments, unusually high disbursements, excessive travel allowances and unauthorised meeting payments), cash withdrawals totalling $23,021.83 since April 2025 which bypassed standard payroll systems and internal control, as well as payments of $8,377.27 identified under a community benefits scheme which had not received approval. AANSW noted in the “Cobowra LALC Board Response” column that the CLALC Board members said in their submission of 17 September 2025 that all funds and property of the CLALC had “been correctly and accordingly applied and managed”, but provided no evidence in support of this proposition. In the “Aboriginal Affairs NSW (AANSW) Comment” column, AANSW commented that there were significant concerns that the funds or other property of the CLALC had not been properly applied or managed in accordance with s 221(d) (presumably referencing s 222(1)(d)); (iv) In relation to s 222(1)(e), AANSW said in the “Summary of issue” column that the CLALC had repeatedly breached requirements under the ALRA and NSWALC policies, including “depleted bank accounts and unpaid statutory obligations despite a recent land sale of $560,000”, ongoing financial irregularities, poor governance practices, and erosion of internal accountability mechanisms, operating an unapproved community benefits scheme (s 52A(1)) and failing to submit an annual budget pursuant to s 158(1), or submit “NSWALC Self Reporting and Assessments for December 2024 and June 2025”. AANSW noted in the “Cobowra LALC Board Response” column that the CLALC Board members in their submission of 17 September 2025 did not address whether the CLALC had substantially breached the requirements of the ALRA, Aboriginal Land Rights Regulations or the rules of the CLALC. Rather, the CLALC Board members outlined that communication between CLALC members and NSWALC was facilitated by the CLALC Board and that the NSWALC operated in contravention of s 62(1) which caused the recommendation for the appointment of an administrator. In the “Aboriginal Affairs NSW (AANSW) Comment” column, AANSW commented that the CLALC had substantially breached the requirements of the ALRA and the Aboriginal Land Rights Regulations; and (v) In relation to s 222(1)(g), AANSW said in the “Summary of issue” column that the CLALC had failed to comply with a compliance direction issued by the Office of the Registrar of the ALRA pursuant to s 221A on 18 February 2025. AANSW noted in the “Cobowra LALC Board Response” column that the CLALC Board members said Mr Te-Kowhai had complied with several compliance directions and that the Office of the Registrar of the ALRA had been provided with access to records in accordance with the compliance direction. In the “Aboriginal Affairs NSW (AANSW) Comment” column, AANSW commented that it had engaged with the Office of the Registrar of the ALRA who confirmed that the compliance direction was issued to CLALC on 18 February 2025 and a follow up on 10 July 2025 was yet to be complied with; and

(g) the letter from NSWALC dated 5 August 2025 recommending the appointment of an administrator to the CLALC, and enclosing the CEO Brief dated 5 August 2025 (Attachment G).

20. On 31 October 2025, the notice appointing the second respondent as administrator of the CLALC was published in the NSW Government Gazette and provided as follows: “During the period of his [the second respondent’s] appointment, the Administrator will have all the functions of Cobowra LALC, the Board of the Cobowra LALC, and the members of the Cobowra LALC exercised by resolution of the members of the Cobowra LALC, and subject to section 230 of the Act”.

21. On 10 November 2025, the second respondent, Mr Callaghan, sent a letter to Mr Te-Kowhai dismissing him as CEO of the CLALC pursuant to s 198(e) of the ALRA. The dismissal took effect immediately upon Mr Te-Kowhai’s receipt of the letter.

Applicant’s evidence

22. At the hearing, the applicant read:

23. an affidavit of Hika Tarawa Te-Kowhai dated 13 November 2025, excluding paragraphs 32, 33 and 36. Mr Te-Kowhai said that the CLALC complied with ss 153 and 158 of the ALRA for the financial years 2019 to 2024, and that he refused to comply with the compliance direction of the Registrar of the ALRA dated 23 June 2023 as he felt threatened and as his role in controlling custody of the CLALC documents meant the Registrar “was not entitled to receive the copies she had demanded”;

24. an affidavit of Hika Tarawa Te-Kowhai dated 18 November 2025, excluding paragraph 7. Mr Te-Kowhai said that Mrs Beverly Nye, a member of the CLALC, contacted Mr Chapman, NSWALC Councillor, in support of the appointment of an administrator to the CLALC. The applicant also tendered the exhibit to the affidavit which included the CLALC financial statements for financial years 2019 to 2024;

25. an affidavit of Hika Tarawa Te-Kowhai dated 28 November 2025. In that affidavit, Mr Te-Kowhai deposed that NSWALC issued the CLALC with a support plan dated 3 June 2025 after which the CLALC began “dealing with” Mr Rowan Lisson, NSWALC governance and compliance specialist, in relation to the support plan. Mr Te-Kowhai said that the CLALC Board accounts between the “year end 2019” and the “year end 2024” were audited, as “qualified audits have carried over from at least 2019”, and that the CLALC’s asset base “increased from $8,000,000.00 to $13,000,000.00” between 2019 and 2024. I treated that evidence as in the nature of submission. I also admitted, subject to weight, Mr Te-Kowhai’s evidence that he believes the “issue” of an administrator being appointed to the CLALC arose because of an intervention of NSWALC Councillor Danny Chapman “as a result of kinship conflict between him and me”.

26. paragraphs 1 to 5 of an affidavit of Gary Caines, Elder of the CLALC, known as Uncle Gary, sworn 31 October 2025. Uncle Gary said that Mr Te-Kowhai was not afforded procedural fairness in relation to the appointment of the second respondent as administrator;

27. an affidavit of Basil Smith, Elder of the Walbunja People, the traditional owners of the CLALC area, and a member of the CLALC sworn 27 November 2025. Mr Smith gave evidence in relation to the kinship tensions between Mr Te-Kowhai and Mr Chapman; and

28. an affidavit of Karia Lea Bond, CLALC Board member prior to the appointment of the second respondent as administrator, dated 28 November 2025. Ms Bond said that in the letter to the Minister from the CLALC Board members dated 17 September 2025 “I only responded to matters raised in the Minister’s letter to us [the CLALC Board members]. If other matters had been raised I would have done my best to reply to them as well”.

Minister’s evidence

23. The minister read an affidavit of Tram Nguyen dated 25 November 2025 (the Nguyen affidavit) and tendered the exhibit thereto, which included:

24. a copy of the resolution of NSWALC’s 469th Council meeting dated 8 May 2025, signed by Raymond Kelly, Chairperson of NSWALC approving the updated delegations policy and updated delegations procedure;

25. a copy of the delegation matrix referred to in the NSWALC Council resolution of 8 May 2025 ;

26. the letter of the CEO of NSWALC to the Minister of 5 August 2025 recommending the appointment of an administrator of the CLALC;

27. copies of the Minister’s correspondence to NSWALC and the signed s 223A notice to Ms Carriage dated 20 August 2025;

28. copies of the signed s 223A notices emailed to Ms Theresa Brierley, Ms Belz, Ms Crystal Brierley and Ms Bond on 21 August 2025;

29. the submission of the CLALC Board members to the Minister dated 17 September 2025;

30. Attachment F to the 16 October Ministerial Brief, being the AANSW summary and assessment; and

31. the 19 August 2025 and 16 October 2025 Ministerial Briefs.

32. As deposed to by Ms Nguyen, the material provided to the Minister was as follows:

33. the 19 August 2025 Ministerial Brief which included eight attachments (Attachment A to H), the seventh of which, Attachment G, was a copy of the letter of 5 August 2025 from Ms McHugh, CEO of NSWALC, recommending the appointment of an administrator and attaching the CEO Brief. The attached CEO Brief provided to the Minister did not include Attachments A-G to the CEO Brief.

34. the 16 October 2025 Ministerial Brief approved by Trish Oxford, Deputy Secretary, AANSW, Premier’s Department on 25 September 2025 and signed by the Minister on 16 October 2025.

Relevant legislation

Aboriginal Land Rights Act 1983 (NSW)

25. Section 3 provides that the purposes of the ALRA are as follows:

3 Purpose of Act

The purposes of this Act are as follows—

(a) to provide land rights for Aboriginal persons in New South Wales,

(b) to provide for representative Aboriginal Land Councils in New South Wales,

(c) to vest land in those Councils,

(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,

(e) to provide for the provision of community benefit schemes by or on behalf of those Councils.

26. In Part 5, “Local Aboriginal Land Councils”, Division 2 “Constitution of Local Aboriginal Land Councils and Local Aboriginal Land Council areas”, ss 50 to 51 provide in in relation to the constitution and objects of Local Aboriginal Land Councils as follows:

50 Constitution of Local Aboriginal Land Councils

(cf former section 6(1) and (2))

(1) A Local Aboriginal Land Council is constituted by this Act for each Local Aboriginal Land Council area.

(2) A Local Aboriginal Land Council is a body corporate.

(3) The corporate name of a Local Aboriginal Land Council is “Local Aboriginal Land Council” preceded by the name of the area of the Council.

51 Objects of Local Aboriginal Land Councils

The objects of each Local Aboriginal Land Council are—

(a) to improve, protect and foster the best interests of Aboriginal persons within the Council’s area and other persons who are members of the Council, and

(b) to relieve poverty, sickness, suffering, distress, misfortune, destitution and helplessness of Aboriginal persons within the Council’s area.

27. In Division 3 of Part 5 “Boards of Local Aboriginal Land Councils”, s 62 provides in relation to the functions of Boards of Local Aboriginal Land Councils:

62 Functions of Boards of Local Aboriginal Land Councils

(1) A Board of a Local Aboriginal Land Council has the following functions—

(a) to direct and control the affairs of the Council,

(b) to facilitate communication between the Council’s members and the New South Wales Aboriginal Land Council,

(c) to review the performance of the Council in the exercise of its functions and the achievement of its objectives,

(c1) without limiting paragraph (a), to enter into short-term residential tenancy agreements in relation to land vested in the Council and to manage or terminate such agreements,

(d) any other functions conferred on the Board by or under this Act.

…

28. Section 72 provides in relation to delegation by Boards:

72 Delegation by Boards

(1) A Board may delegate to the chief executive officer of the Local Aboriginal Land Council, or to any other person or body prescribed by the regulations, any of the functions of the Board other than this power of delegation and any matter under this Act or the regulations that also requires the approval of the New South Wales Aboriginal Land Council.

(2) A Board must review all its delegations within 12 months after an election of the Board.

29. In Division 5 of Part 5, “Staff of Local Aboriginal Land Councils”, s 78 provides that a Local Aboriginal Land Council may employ such staff, and engage such consultants, as are necessary to enable the Council to exercise its functions. Section 78A provides in relation to the chief executive officer of a Local Aboriginal Land Council:

78A Chief executive officer

(1) A Local Aboriginal Land Council must employ a member of staff to exercise the functions of the chief executive officer of the Council for the purposes of this Act.

(2) The chief executive officer has the following particular functions—

(a) the day-to-day management of the Council’s affairs,

(a1) to assist in the preparation and implementation of the Council’s community, land and business plan,

(b) the exercise of such functions of the Board as are delegated by the Board to the chief executive officer,

(c) the appointment of staff in accordance with the approval of the Board,

(d) the direction and dismissal of members of staff,

(e) such other functions as may be conferred or imposed on the chief executive officer by or under this or any other Act.

30. In Part 7 “New South Wales Aboriginal Land Council”, Division 2 “Functions of Aboriginal Land Councils”, s 116 provides that NSWALC may delegate to the CEO or any other person or body (not including another member of staff of the Council) any of the functions of the Council, other than those set out in sub-paragraphs 116(1)(a)-(j).

31. In Part II “Investigation and administration of Aboriginal Land Councils”, Division 2 “Administration of Aboriginal Land Councils”, s 222 provides in relation to an administrator for a Local Aboriginal Land Council:

222 Administrators—Local Aboriginal Land Councils

(cf former section 57)

(1) The Minister may at any time appoint, from a list of persons prepared, in accordance with the regulations, by the New South Wales Aboriginal Land Council, an administrator for a Local Aboriginal Land Council—

(a) if there are not sufficient members of that Council to form a quorum of the Council, or

(b) if the Council fails to furnish satisfactory financial statements and documents to the New South Wales Aboriginal Land Council in accordance with Division 2 of Part 8, or

(c) if the Council otherwise fails to comply with section 153 or 158, or

(d) if the Minister is of the opinion, on the receipt of a report by an investigator appointed in accordance with Division 1, or a report by the New South Wales Aboriginal Land Council, or otherwise, that the funds or other property of the Council have not been properly applied or managed, or

(e) if the Council has substantially breached the requirements of this Act or the regulations or the rules of the Council, or

(f) if the Minister is of the opinion that the Council has ceased for 6 months substantially to exercise its functions, or

(g) if the Council has failed to comply with a compliance direction given under section 235, or

(h) if the Council operates a community benefit schemes for the provision or acquisition of residential accommodation for Aboriginal persons in its area in contravention of a requirement under section 52A that the scheme be approved by the New South Wales Aboriginal Land Council.

…

Note.

Section 52A(1A) provides that the approval of the New South Wales Aboriginal Land Council is not required if the Local Aboriginal Land Council is a registered Aboriginal housing organisation (within the meaning of the Aboriginal Housing Act 1998) or a registered community housing provider (within the meaning of the Community Housing Providers National Law (NSW)).

(2) Notice of an appointment of an administrator under this section must be published in the Gazette.

(3) The Minister must not appoint an administrator under this section without the approval of the New South Wales Aboriginal Land Council.

(4) The administrator has, during the period of his or her appointment, to the exclusion of the Council and the Board of the Council—

(a) all, or such part as is specified in the administrator’s instrument of appointment, of the functions of the Board of the Council conferred or imposed by or under this Act, and

(b) the functions of the Council and the members of the Council exercised by resolution of the members of the Council that are prescribed by the regulations (except as provided by the administrator’s instrument of appointment).

…

32. Section 223A provides in relation to the giving of notice before appointing an administrator of an Aboriginal Land Council:

223A Notice of appointment of administrator

(1) The Minister may, before appointing an administrator of an Aboriginal Land Council under this Division, give not less than 14 days notice in writing of the appointment to—

(a) in the case of a Local Aboriginal Land Council—each Board member and the New South Wales Aboriginal Land Council, and

(b) in the case of the New South Wales Aboriginal Land Council—each councillor.

(2) The Minister must, before appointing an administrator, take into account any written representations received from any person or body to whom notice was given under this section.

33. Section 226 provides in relation to the removal of office holders on the appointment of an administrator:

226 Removal of office holders on appointment of administrator

(cf former section 57B)

(1) On the appointment of an administrator to administer all of the functions of a Local Aboriginal Land Council, the Board members of the Council are removed from office and fresh elections to fill the vacancies are to be held, in the manner specified by the regulations, so as to enable vacancies to be filled at the conclusion of the administrator’s term of office.

(2) On the appointment of an administrator to administer all of the functions of the New South Wales Aboriginal Land Council, the councillors are removed from office and fresh elections to fill the vacancies are to be held, in the manner specified by the regulations, so as to enable vacancies to be filled at the conclusion of the administrator’s term of office.

Note.

If an administrator is appointed to administer only specified functions of an Aboriginal Land Council, the officers or councillors (as the case may be) of that Council remain in office and may continue to exercise those functions of the Council not given to the administrator.

34. Section 228 provides that “The administrator of an Aboriginal Land Council may call meetings of the Council”.

35. Section 229 specifies the circumstances in which the administrator must report at least monthly to the Minister, NSWALC and the LALC concerned s 229(1)) and to the Minister and NSWALC (s 229(2)):

229 Administrator to report monthly

(1) The administrator for a Local Aboriginal Land Council must report at least once a month to the following—

(a) the Minister,

(b) the New South Wales Aboriginal Land Council,

(c) the Local Aboriginal Land Council concerned.

(2) The administrator of the New South Wales Aboriginal Land Council must report at least once a month to the following—

(a) the Minister,

(b) the New South Wales Aboriginal Land Council.

(3) The Minister may give directions to an administrator of an Aboriginal Land Council concerning the form and content of such reports.

(4) The administrator must comply with a direction given under this section.

Aboriginal Land Rights Regulation 2020 (NSW)

36. In Part 7 “Administration of Councils”, of the Aboriginal Land Rights Regulation cl 104 provides that an administrator of a Local Aboriginal Land Council may exercise all of the functions of the Council and the members of the Council exercised by resolution of the Council:

104 Functions that may be exercised by administrator or interim administrator

(1) For the purposes of section 222(4) of the Act, an administrator of a Local Aboriginal Land Council may exercise all of the functions of the Council and the members of the Council exercised by resolution of the Council.

Note.

Under section 222(4)(b) of the Act, the administrator’s instrument of appointment may limit the functions that may be exercised.

(2) For the purposes of section 223B(1A)(b) of the Act, an interim administrator of an Aboriginal Land Council may exercise all of the functions of the Council and the members of the Council exercised by resolution of the Council.

Note.

Under section 223B(1A)(b) of the Act, the interim administrator’s instrument of appointment may limit the functions that may be exercised.

37. Clause 106 provides in relation to the election of Local Aboriginal Land Council Board members after administration:

106 Election of Local Aboriginal Land Council Board members after administration

(1) For the purposes of section 226(1) of the Act, elections for Board members are to be held at a meeting of the Local Aboriginal Land Council called for that purpose by the administrator.

(2) The elections are to be held not less than 28 days before the end of the period of the administrator’s term of office.

(3) The term of office of the Board members elected commences at the end of the period of administration.

(4) Division 3 of Part 3 applies to the election of Board members under this clause.

(5) At a meeting called by the administrator, the Board members elected under this clause are to elect, in the manner determined by the Board members, a Chairperson and Deputy Chairperson.

38. Clause 107 provides in relation to the election of New South Wales Aboriginal Land Council councillors after administration:

107 Election of New South Wales Aboriginal Land Council councillors after administration

(1) For the purposes of section 226(2) of the Act, elections for councillors for Regions are to be held on a date determined by the Minister, after consulting with the administrator, being a date not less than 28 days before the end of the period of the administrator’s term of office.

(2) The term of office of the councillors elected commences at the end of the period of administration.

(3) Part 5 applies to the election of councillors under this clause.

Note.

Sections 121–129 of the Act apply to the election of councillors and the Chairperson and Deputy Chairperson of the New South Wales Aboriginal Land Council.

Land and Environment Court Act 1979 (NSW)

39. Section 20 of the Land and Environment Court Act 1979 provides in relation to the Court’s jurisdiction to hear and dispose of Class 4 proceedings concerning environmental planning and protection, development contract and strata renewal plan civil enforcement:

20 Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement

(1) The Court has jurisdiction (referred to in this Act as “Class 4” of its jurisdiction) to hear and dispose of the following—

…

(dd) proceedings under Division 5 of Part 7 of the Aboriginal Land Rights Act 1983,

40. Section 22 provides in relation to the determination of every matter before the Court completely and finally:

22 Determination of matter completely and finally

The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

41. Section 23 provides that the Court has power in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

Interpretation Act 1987 (NSW)

42. Section 49 of the Interpretation Act 1987 provides in relation the delegation of functions:

49 Delegation of functions

(1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned.

(2) A delegation—

(a) may be general or limited,

(b) shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose, and

(c) may be revoked, wholly or partly, by the delegator.

(3) A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.

(4) A delegate may, in the exercise of a delegated function, exercise any other function that is incidental to the delegated function.

(5) A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate.

Racial Discrimination Act 1975 (Cth)

43. Section 10 of the RDA provides in relation to rights to equality before the law:

10 Rights to equality before the law

(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

(3) Where a law contains a provision that:

(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

Issues 1 and 2: Whether Mr Te-Kowhai had at the relevant dates authority to commence and continue these proceedings in the name of the CLALC and whether the CLALC should be removed as a party to the proceedings

Minister’s submissions

44. The Minister identified as a preliminary issue that the proceedings appeared to have been commenced without the authority of the CLALC. While the proceedings were brought in the name of the CLALC by Eddy Neumann Lawyers, those solicitors had done so on the instructions of Mr Te-Kowhai, rather than the CLALC. Mr Te-Kowhai was appointed as CEO of the CLALC on 15 February 2023, and was dismissed from that position by Mr Callaghan on 10 November 2025. The Minister submitted that the functions that were conferred on Mr Te-Kowhai in his capacity as CEO of the CLALC by s 78A of the ALRA did not extend to a power to commence and carry on legal proceedings on behalf of the CLALC. This was subject to any possible delegation of the Board’s function to commence and carry on legal proceedings on behalf of the CLALC. Even if the Court were to accept that Mr Te-Kowhai’s functions as CEO did provide him with authority to commence and carry on proceedings on behalf of the CLALC, he ceased to have such authority when he was dismissed as CEO on 10 November 2025.

45. An alternative course proposed in the relief set out in the Minister's motion was that Mr Te-Kowhai be replaced as the applicant in the proceedings. The Minister accepted that Mr Te-Kowhai, as a member of the CLALC, has a sufficient connection with the interests of the CLALC and the question of whether or not an administrator had been validly appointed to manage its affairs such that he would have standing to bring the proceedings. By the applicant’s notice of motion dated 20 November 2025, it was proposed that Mr Te-Kowhai be joined as second applicant to the proceedings. The Minister submitted that the better course was to join Mr Te-Kowhai as the applicant pursuant to r 6.24(1) of the UCPR, and to remove the CLALC as a party pursuant r 6.29. In the event that Mr Te-Kowhai did not consent to this step, the proceedings should be struck out or stayed as the proceedings were commenced without the authority of the CLALC.

Applicant’s submissions

46. As to parties, the applicant submitted that the Minister’s contention that the CLALC had no standing to contest the appointment was contrary to authority: Darkinjung L**ocal A**boriginal L**and C**ouncil v Minister for Aboriginal Affair**s [1] (Darkinjung) where Preston CJ proceeded to deal with the real issues in a matter between similar parties raising similar issues. If the Minister’s submission was correct, then a public entity constituted by Parliament under s 50 of the ALRA and Sch 5 South Coast Region has no remedy, or must depend “on the goodwill and self-sacrifice of the person benefitting by the destruction or suspension of the public entity by the Minister”. Mr Callaghan had filed a submitting appearance with respect to all orders sought in the summons. The Minister’s submission would leave the CLALC without any remedy “even though constituted with extensive powers to protect its own interests”. In North Aboriginal Legal Aid Inc v Bradley [2] Weinberg J at [51]-[64] held that the public entity had standing to sue for itself and its members whose interests were adversely affected, cumulatively.

Consideration and decision

47. The functions of a CEO of a Local Aboriginal Land Council are set out in s78A(2) of the ALRA. These do not include the authority to commence and carry on legal proceedings on a LALC’s behalf. I accept, as submitted by the Minister, that the “day-to-day management of the Council’s affairs” cannot be read as extending to the grant of such authority. To construe s 78A(2) as contended by the applicant would permit the CEO, without Board consultation or resolution, to expose the CLALC to uncertain legal liability, as well as not insignificant adverse costs. Such authority is conferred upon the Board of a LALC, the functions of which include, “to direct and control the affairs of the Council”: s 62(1).

48. While the authority to commence and carry on legal proceedings is a function that could, by reason of s 78(2)(b) of the ALRA, be delegated to the CEO of a LALC, there was no evidence capable of suggesting that such function was delegated to Mr Te-Kowhai by the Board prior to the appointment of Mr Callaghan as administrator on 16 October 2025. On 21 November 2025, Ms Nguyen wrote to Mr Neumann, the solicitor who purported to have carriage of the proceedings for the CLALC, requesting that he provide any instruments of delegation, meeting minutes or other business records of the CLALC recording that Mr Te-Kowhai was delegated with the Board’s functions to commence legal proceedings and instruct legal representatives on behalf of the CLALC. No such records were provided. Even if it were the case that this function had been validly delegated to Mr Te-Kowhai, any authorisation or function conferred on him by the Board by s 78A(2)(b) of the ALRA would have ceased to have effect by reason of s 226(1) when the Board members of the CLALC were removed from office on the appointment of the second respondent as administrator on 16 October 2025: s 226(1), ALRA.

49. As Campbell JA observed in Doulaveras v Daher at [150], “it is a clear abuse of the process of the court for someone to bring litigation, supposedly in the name of a particular person, when there is no authority from that particular person to bring the litigation”. And, as the Minister has done here, “the appropriate way of bringing that sort of abuse of process to the attention of the court and establishing the facts underlying it, if there is any doubt about them, is usually by a notice of motion seeking to strike out the statement of claim or to stay the action”.

50. In Darkinjung, the applicants commenced proceedings prior to the appointment of an administrator to Darkinjung Local Aboriginal Land Council pursuant to s 222 of the ALRA. I accept the Minister’s submission that the state of affairs in Darkinjung is to be distinguished from the proceedings presently before me in which the administrator, the second respondent, was appointed prior to the commencement of the proceedings. On the appointment of an administrator to administer all of the functions of a Local Aboriginal Land Council, the Board members of the Council are removed from office pursuant to s 226 of the ALRA.

51. It follows that the proceedings, having been commenced by Mr Te-Kowhai without the authority of the CLALC, are liable to be struck-out or stayed. However, I accept the alternative relief proposed by the Minister, namely, that the CLALC be removed as a party pursuant to r 6.29 of the UCPR, and Mr Te-Kowhai be joined as the sole applicant in the proceedings pursuant to r 6.24. The Minister accepted that Mr Te-Kowhai, as a member of the CLALC, has sufficient connection with the interests of the CLALC and the question of the validity of the appointment of the administrator, and has standing to bring these proceedings. Accordingly, on 2 December 2025, I made an order joining Mr Te-Kowhai as a party to the proceedings. I will with the publication of this judgment make an order removing the CLALC as a party to the proceedings. The effect of that order will be that Mr Te-Kowhai is the sole applicant in the proceedings. It follows that all references in this judgment to “the applicant” are references to Mr Te-Kowhai.

Issue 3: Whether the Minister failed to comply with the statutory preconditions imposed by ss 222 and 223A of the ALRA to the exercise of his power to appoint the second respondent as administrator of the CLALC pursuant to s 222

Applicant’s submissions

52. Mr King submitted that in purporting to appoint the second respondent, Mr Callaghan, as administrator of the CLALC, the Minister acted beyond the power conferred by s 222 of the ALRA and the statutory preconditions in ss 223 and 223A in relation to notice and reporting. Mr King submitted that the High Court has consistently held that administrative decisions must remain within statutory limits construed to accord with the principle of legality, and any act beyond those limits is ultra vires and invalid. Where the principle of legality is engaged the rule of law ensures that executive power is not exercised arbitrarily. At a level of generality, so much might be accepted.

53. In particular, Mr King submitted that the Minister’s decision to appoint an administrator was made without satisfying mandatory preconditions under ss 222, 223 and 223A, and that such errors constitute jurisdictional error so as to render the appointment decision ultra vires.

54. In written submissions, the applicant referred to a range of well-known authorities, including Craig v South Australia [3] ; Darkinjung; Aronson, Grove and Weeks, Judicial Review of Administrative Action and Government Liability [4] ; Minister for Immigration and Citizenship v Li [5] (Li); R v Toohey; Ex parte Northern Land Council [6] (R v Toohey); Shanahan v Scott [7] ; and Griffith University v Tang [8] . The applicant submitted that the Minister's purported appointment of the administrator exceeded the statutory power, disregarded essential procedural fairness obligations, proceeded without any or any sufficient evidence, and was motivated by considerations extraneous to the Act. Accordingly, the appointment decision was invalid and should be set aside, and the Court should grant declaratory relief and an injunction “to preserve Cobowra's governance, and the democratic right of the CLALC and the Cobowra Aboriginal Community to govern themselves subject to the ALRA and not be disenfranchised”.

Minister’s submissions

55. Ms Curtin for the Minister submitted that the Minister relied on the presumption of regularity and s 49(5) of the Interpretation Act in relation to the delegation of the power of NSWALC in s 222(3) to approve the appointment of an administrator to a LALC, citing McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council [9] at 164, Kirby P agreeing at 157-158. The Minister submitted that each of the statutory pre-conditions to the exercise of the Minister’s power to appoint an administrator to a LALC was met prior to the Minister making his decision of 16 October 2025 pursuant to s 222 of the ALRA to appoint Mr Callaghan as administrator. In relation to the applicant’s submission that the instrument of appointment of the administrator was in legal error in failing to set out the grounds upon which the Minister acted, Ms Curtin drew attention to s 224 of the ALRA, to which no reference had been made in the applicant’s written and oral submissions, and which sets out what is required to be specified in the instrument of appointment of an administrator. Ms Curtin submitted that nowhere in s 224 is there a requirement that the grounds by which the Minister purports to appoint an administrator are to be identified in the instrument of appointment.

56. In relation to the applicant’s reliance on the “no evidence” ground of judicial review, the Minister submitted that at common law, that ground requires that there be no probative evidence or other material to justify the decision or findings that are made. Further, the “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a “skerrick of evidence” will mean that an allegation of jurisdictional error premised on this basis will fail. [10] Evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter. [11] There was sufficient probative material before the Minister, in the form of the material contained in the 16 October 2026 Ministerial Brief, including the CEO Brief, to justify his decision to appoint the administrator, such that the no evidence ground of review must fail.

Applicant’s submissions in reply

57. In reply, Mr King submitted that before appointing Mr Callaghan, the Minister failed to obtain the approval of NSWALC which was a mandatory requirement under s 222(3), and accordingly “the staged statutory process” required for a valid appointment of an administrator failed, and the decision and the appointment were invalid, citing South Sydney Council v Minister for Local Government [12] at [41]-[42] (Spiegelman CJ).

58. Mr King submitted that it was not put in issue by the Minister that without the approval of NSWALC, the appointment of the administrator was invalid. Nor was it in issue that a resolution of NSWALC approving the appointment of Mr Callaghan or any such appointment of an administrator of the CLALC was ever made. No resolution or any minutes evidencing any such approval had been produced to the Court, and the evidence of NSWALC CEO Ms Murphy was that none exists. Her letter to the Minister of 5 August 2025 attached a brief proposing the appointment, prepared by Ms Page on 4 August 2025 and endorsed by Ms Hardy, executive director community outcomes, on 5 August 2025, the day the CEO adopted the recommendation and signed the letter to the Minister. Mr King submitted that it was “physically and legally impossible”, having regard to the meeting procedures of the CLALC under Sch 3 of the Act, in the time between 4 and 5 August for any approval of the appointment to have been given by NSWALC.

59. In any event, “the mere recommendation or proposal” of 5 August 2025 by the CEO that an appointment occur was not an approval of a decision of the Minister by NSWALC to appoint Mr Callaghan or anyone else on NSWALC’s list of administrators. Any “approval” of a third party appointment by the Minister required a “genuine consideration” of that appointment, “whether or not a recommendation was made by anyone”, and a resolution of NSWALC recorded in the minutes as set out in Schedule 3 to the ALRA “Procedure of Boards and Councils”, Part 2 “Procedure of Boards of Local Aboriginal Land Councils” paragraph 9.2(d), and if held informally, by written resolution under paragraph 5A(2)(b). The powers of the CEO set out in s 139 do not include any power of approval of such an appointment on behalf of NSWALC. The Minister’s “fall-back” on this issue, as appeared from Ms Nguyen’s affidavit of 25 November 2025, was that the 5 August 2025 recommendation decision of the CEO constituted sufficient compliance with s 222(3) by an exercise of delegated authority by the CEO to approve the Minister’s appointment.

60. In relation to whether the CEO of NSWALC had authority to approve the appointment of the administrator on behalf of NSWALC, the evidence was that on 8 May 2025 at its 469th meeting, NSWALC Council approved a delegation to approve the appointment of an administrator to the CEO of NSWALC pursuant to s 116 of the ALRA, “subject to prior consultation with the Chairman of State Council and the relevant Councillor”. In this case, Mr King submitted in reply, the “relevant Councillor*”* would be assumed to be Mr Danny Chapman, delegate to the State Council for the South Coast Region which included the CLALC: Schedule 5 to the ALRA. However, there was no reference in Ms McHugh’s letter of 5 August 2025 to the Minister or the evidence more generally of any such consultation. According to the most recent annual report on NSWALC’s website, the current chair was Mr Raymond Kelly. The notation in the delegation meant that any appointment of an administrator to the CLALC was “subject to prior consultation*”* with two persons. The applicant submitted that the words “subject to” impose a statutory pre-condition [13] , and there was no evidence of any such consultation. There was no evidence that Mr Kelly was even aware of the appointment of the administrator. Neither Mr Kelly nor Mr Chapman had been called, and the terms of the delegation had plainly been exceeded [14] . Accordingly, the delegation had failed, the statutory pre-condition in s 222(3) that the Minister not appoint an administrator in s 222 without the approval of NSWALC had failed, and the Minister’s appointment decision was invalid.

61. Even had such consultation occurred, Mr King submitted that by reason of s 116 of the ALRA, “a delegation would be ineffectual at law”. Section 222(3) was submitted to be a provision which expressly confers a function, and hence excludes delegation, namely the approval of the appointment of an administrator. Again, Mr King submitted, there was no resolution of the NSWALC, and no approval by NSWALC of the appointment of the administrator.

62. Mr King also identified a “second issue of ultra vires”, being the form of the appointment dated 16 October 2025. This was submitted to be “in legal error” by failing to set out the “ground or grounds of ALRA s 222 upon which the Minister acted”. Read as a whole, and giving all words their meaning and effect, the ALRA, and in particular Part 11.2 and ss 222 and 230, the ground or grounds of appointment were required to be specified in the instrument of appointment furnished to Mr Callaghan and notified to the CLALC and its 641 members, and to NSWALC. On 21 August 2025, the Minister notified four of the grounds in s 222(1), those in paragraphs (b), (c), (d) and (g). However, the earlier CEO letter of 5 August 2025 referred to five grounds, those in paragraphs (b), (c), (d), (e) and (g) of s 222(1). The 16 October 2025 Ministerial Brief contained the AANSW summary and assessment which referred to five, not four grounds in s 222(1).

63. That ground[s] of appointment “must be stated in the public instrument under ALRA Part 11 s 222(1)” was submitted to be explicit in s 230(2), and “oddly” the s 230 limitation was referred to in the notice appointing the second respondent, Mr Callaghan, as administrator of the CLALC published in the NSW Government Gazette on 30 October 2025. A statutory limitation on the actions of the administrator was that he may not disclose or otherwise deal with land vested in the CLALC “without the consent of the Council*”*: s 230(1). The exception in s 230(2)(d) is that “if the administrator was appointed on one or more grounds including .. a community benefits scheme...necessary for the purposes of (**iii) operating …as a registered community housing provider…”. Here, the applicant submitted, the appointment of the second respondent as administrator “in part relied on alleged conduct relating to a community benefits scheme”, and that unless the ground[s] are identified in the instrument of appointment, s 230(2) becomes “meaningless and otiose”.

64. Further, Mr King submitted that considerations of public policy “lead to the same reading”: “Persons affected by statutory intervention upon their rights and property ought not as a matter of public accountability, and according to the principle of legality, be subject to covert action”. The principle of legality was submitted to be of relevance because the applicant and its members “have a right to equal justice or equality before the law including on matters of consulted with respect to statutory process such as suspension or liquidation on an equal footing and especially on racial grounds with others” [15] . Accordingly, the ground[s] of appointment should appear in the instrument of appointment, and in the NSW Government Gazette notice “for all persons affected to know the basis of the appointment and be able to observe if they seek to do so as a matter of public disclosure”. The ALRA did not contemplate a carte blanche, even though the “Department Brief” (presumably referring to one or both of the Ministerial Briefs dated 19 August 2025 and 16 October 2025) suggests that it does. The failure of the Minister to set out in the instrument of appointment and in the public notice in the Government Gazette the ground or grounds of the appointment of Mr Callaghan led to the appointment miscarrying.

65. Further, Mr King submitted that the instrument of appointment of the administrator was invalid because it “overreached the democratic roles of Cobowra Land Council members (641 members in total including the five signatories of the written case sent to the Minister on 17 September 2025), and usurped their power as comprising the Cobowra Land Council and the ongoing roles of members.” This was submitted to be contrary to the operation of s 222(4)(b) and Part 7 of the Aboriginal Land Rights Regulation, and “ultimately ha[d] the effect of usurping the democratic voting functions of the Cobowra Land Council members during the administration, in the event they were entitled otherwise to be consulted [eg under ALRA s 230] or to exercise their right to re-elect a replacement Board at least 28 days before the end of Mr Callaghan’s retrenchment, and replacement Chair and Deputy Chair under the Regulations”. In short, the appointment of Mr Callaghan in error conflated “all the powers of the Council and members with that of the administrator”. The appointment “meant the suspension of the Cobowra Land Council with respect to certain grounds with possible disciplinary consequences, and the conferral of a power which overreached members rights and powers creating, in effect, an uncertain term at the will of the appointee, in contravention of ALRA Part 11.2 in particular ss 222(4), 228, 229(1)(c), 230(1) and the Regulations Part 7 incl rr 104 and 106.”

66. Finally, Mr King submitted that s 32 of the Interpretation Act 1987 was inapplicable, and, in any event, “reliance by the Minister on the severance provision s 32 to save an admitted overreach of Executive power should be rejected”. Severance of the representative roles of Council members during the term of appointment would “plainly result in the balance of the terms of the appointment operating in a different manner from that in which the whole would have operated”: Hanave Pty Ltd v Waverley Council. [16]

Consideration and decision

67. In relation to Issue 3, the applicant contended, largely in reply, that the Minister acted beyond power in that the statutory preconditions to the exercise of his power to appoint the administrator had not been met. Whilst Mr King submitted that the Minister failed to satisfy mandatory preconditions in ss 222, 223 and 223A, other than to provide a sweeping high-level overview of his client’s complaints, he did not specify with any precision the preconditions he said were not met, and how they were not met.

68. Section 222 of the ALRA confers power on the Minister to appoint an administrator to a Local Aboriginal Land Council in the circumstances specified in s 222(1)(a) to (g). At a level of generality, I accept, as submitted on behalf of the applicant, that that power “must be exercised strictly within the confines of the Act and for its intended purpose”. Plainly, s 223A concerning the giving of notice of the appointment of an administrator of a Local Aboriginal Land Council (s 223A(1)(a)) and the taking into account by the Minister before appointing an administrator of any written representations received from any person or body to whom notice was given also apply to the appointment of an administrator pursuant to s 222. I do not consider that s 223 can have any relevance here as that provision concerns the appointment of an administrator to NSWALC.

69. The statutory preconditions to the exercise of the Minister’s power to appoint an administrator to a Local Aboriginal Land Council are found in ss 222(3) and 223A of the ALRA. By s 222(3), the Minister must not appoint an administrator without the approval of the NSWALC. Here, the approval of the appointment of an administrator to the CLALC was given by Clare McHugh, CEO of NSWALC, on 5 August 2025. On that date, Ms McHugh sent a letter to the Minister formally recommending that an administrator be appointed to the CLALC “on the basis of persistent and serious governance, financial and compliance failures” on the part of the CLALC, which failures were detailed in her letter and in the CEO Brief dated 5 August 2025 enclosed with that letter. I am satisfied also that NSWALC’s power to approve the appointment of an administrator to a LALC was validly delegated to Ms McHugh as the Chief Executive Officer of NSWALC by resolution of NSWALC on 8 May 2025, in accordance with s 116 of the ALRA.

70. As to the applicant’s complaint that the exercise by the CEO of NSWALC of the power in s 222(3) to approve the appointment of an administrator was deficient because there was no evidence that the power was exercised in accordance with the terms of her delegation which required “prior consultation with the Chairman of State Council and the relevant Councillor”, I am satisfied that the common law presumption of regularity and s 49(5) of the Interpretation Act apply. In Minister for Natural Resources v NSW Aboriginal Land Council [17] , McHugh JA at 164 (Kirby P agreeing at 157-158) said: “Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office.”

71. And s 49(5) of the Interpretation Act provides: “A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate”. As submitted by the Minister, unless the applicant proved that the chairman of NSWALC and the relevant councillor, Mr Chapman, councillor for the South Coast Region, were not consulted by the CEO prior to her approval of the appointment of the administrator, the presumption of regularity has the effect that the function of approval is taken to have been validly exercised by the delegate. The applicant could have called the Chairman Mr Kelly or Mr Chapman, and did not, and could have sought to obtain documents from NSWALC, and did not. The applicant took no steps to address the onus in s 49(5). In relation to Mr Chapman, in particular, there was evidence in the CEO Brief that “Councillor Chapman is aware of and has provided his support for the appointment of an administrator”. Further, there is no requirement in the ALRA for a resolution of NSWALC in relation to the approval of the appointment of an administrator. There is nothing in s 116 which prohibits the delegation to the CEO of the power in s 222(3) to approve the appointment of an administrator. It is true that s 116 identifies specific functions of NSWALC which cannot be delegated. However, s 116(1)(j) to which Mr King drew attention – “any function under this or any other Act that is expressly required to be delegated” (emphasis added) is inapplicable here in circumstances in which neither the ALRA nor any other Act expressly requires the function in s 223(3) to be exercised by resolution of the Council.

72. Section 223A provides two further pre-conditions to the exercise of the Minister’s power to appoint an administrator to a LALC. First, in accordance with 223A(1)(a), the Minister must provide not less than 14 days’ notice in writing of the appointment to each Board member of the LALC and to NSWALC. Second, in accordance with s 223A(2), the Minister must, before appointing an administrator, take into account any written representations received from any person or body to whom notice was given under s 223A(1). I am satisfied that in the circumstances here, each of those pre-conditions was met. With respect to the notice provided to NSWALC and the CLALC Board members, on 20 August 2025, signed correspondence was posted to NSWALC and a signed s 223A show cause notice was posted to CLALC Board member, Ms Violet Carriage. On 21 August 2025, signed s 223A show cause notices were emailed to CLALC Board members Ms Teresa Brierley, Ms Jade Belz, Ms Crystal Brierley and Ms Karia Bond. I am satisfied that the notice requirements in s 223A were satisfied, notwithstanding that Mr Te-Kowhai did not receive notice of the proposed appointment and was not provided an opportunity to make a written representation. In the case of a LALC, s 223A(1) only requires that notice of the appointment be provided to LALC Board members and NSWALC. Mr Te-Kowhai was neither. In response to the s 223A notices, the Minister received one submission from the CLALC Board members, dated 17 September 2025, and signed by each of Ms Theresa Brierley, Ms Crystal Brierley, Ms Violet Carriage, Ms Karia Bond and Ms Jayde Belz. A copy of this submission was before the Minister when he made his decision on 16 October 2025 to appoint Mr Callaghan as administrator. A copy of the AANSW summary and assessment was also before the Minister when he made the appointment decision.

73. Nor do I consider there to be any substance to Mr King’s complaint that there was legal error in the failure to specify in the notice of appointment published in the NSW Government Gazette the grounds in s 222(1) relied upon in appointing the administrator. The matters required to be specified in the instrument by which the Minister appoints an administrator under Division 2 of Part 11 of the ALRA are set out exhaustively in s 224(1). These do not include specifying the grounds on which the Minister relies in deciding to appoint an administrator for a LALC.

74. A further basis upon which Mr King contended that the Minister’s decision to appoint an administrator was made without jurisdiction was that the grounds to appoint an administrator were not enlivened. Mr King submitted that the Minister made his decision to appoint Mr Callaghan without any or sufficient evidence. I am satisfied that each of the grounds in s 222(1) relied upon by the Minister in exercising the power in s 222(1) to appoint an administrator was identified in the briefing note in the 16 October 2025 Ministerial Brief and in submissions received in response to the s 223A “show cause” notices sent to the CLALC and NSWALC on 20 and 21 August 2025, and in Attachment F to the 16 October 2025 Ministerial Brief. In Attachment F, AANSW recommended that grounds under paragraphs (b),(c),(d),(e) and (g) of s 222(1) be used to appoint an administrator to the CLALC, and provided comment in relation to each of those grounds. In addition to Attachment F, the evidence before the Minister when he made his decision to appoint the administrator consisted of the letter from Ms McHugh dated 5 August 2025 recommending the appointment of an administrator and attaching the CEO Brief which set out the evidence relied on by NSWALC in relation to each of the grounds in paragraphs (a)(b),(c),(d),(e) and (g) of s 222(1) identified by the CEO of NSWALC as grounds for appointment under s 222. Also before the Minister was a copy of the CLALC Board members’ submission of 17 September 2025. In relation to the applicant’s “no evidence” ground of challenge to the Minister’s decision to appoint an administrator, I am satisfied that there was probative evidence before the Minister to support his decision of 16 October 2025 to appoint Mr Callaghan as administrator to the CLALC pursuant to s 222.

75. I am satisfied that there was compliance with each of the statutory preconditions to the exercise of the Minister’s power to appoint the second respondent as administrator of the CLALC pursuant to s 222 of the ALRA. That is sufficient to dispose of Issue 3.

Issue 4: Whether the Minister complied with the requirements of procedural fairness imposed by the ALRA before making the decision under s 222 to appoint the second respondent as administrator

Applicant’s submissions

76. In relation to procedural fairness, the applicant submitted that no notice was given to Mr Te-Kowhai pursuant to s 223A prior to the Minister’s decision to appoint the administrator pursuant to s 222 and that the Minister was required to accord procedural fairness before exercising the power in s 222 to appoint an administrator. This duty, “including the giving of an opportunity to respond to an accusation before deciding adversely to the party”, was submitted to arise absent clear legislative exclusion and was reinforced by the principle of legality; citing Kioa v West [18] at 584 (Mason J); Saeed v Minister for Immigration and Citizenship [19] at [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

77. The content of procedural fairness in this context was submitted to require notice of the proposed appointment of an administrator, notice of the proposed appointment of an investigator, disclosure of adverse material relied upon, a reasonable opportunity to respond, and compliance with the ALRA due process requirements. Failure to provide notice under ss 223 and 223A and to disclose allegations of financial misconduct was submitted to breach those requirements of procedural fairness. The applicant also referred to the following authorities in relation to the content of the duty to accord procedural fairness: Kioa v West at 587 (Mason J); Re Refugee Tribunal; Ex parte Aala [20] (Aala) at [17]-[18] (Gaudron and Gummow JJ); Amos v AAI Ltd t/as GIO [21] at [42]-[45] (Rothman J); Bachelard v AFP [22] at [88]-[92] (Wigney J); and Darkinjung at [56]-[60] (Preston CJ of LEC).

78. The applicant submitted that allegations of financial misconduct were “neither disclosed nor substantiated”, referring to the “Ministerial Memo and the email chain with attachments A-G missing” (presumably a reference to the 16 October 2025 Ministerial Brief which included seven attachments, Attachments A to G). The CLALC was deprived of any opportunity to respond, contrary to the principles in Kioa v West*, Darkinjung*, and Aala. This failure was submitted to have caused practical injustice, and to “disclose elected governance without lawful process”.

Minister’s submissions

79. The Minister accepted that he was under a duty to accord procedural fairness to the CLALC before appointing the administrator. The questions to be determined by the Court were first, the requirements of procedural fairness in this context, and second, whether those requirements were met by the Minister. The party affected was required to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. [23] However, the precise content of the obligation to afford procedural fairness depends on “the particular statutory framework”. [24] With respect to the appointment of an administrator pursuant to s 222, s 223A was submitted to prescribe the particular measures of procedural fairness to be provided, and to identify the content of the obligation to accord procedural fairness. Section 223A was submitted to require not less than 14 days’ written notice of the appointment to be given to each Board member of the CLALC and to NSWALC, and that the Minister take into account any written representations received from any person or body to whom notice is given. Both these measures of procedural fairness were submitted to have been met by the Minister.

80. In relation to Mr Te-Kowhai’s complaint that he was not provided with notice before the Minister made the decision to appoint an administrator, and that this amounted to a breach of the Minister’s obligation to afford procedural fairness, the Minister submitted that the terms of s 223A do not require the CEO of a LALC to be provided with notice of the appointment of an administrator.

Applicant’s submissions in reply

81. In reply, Mr King submitted that this was “a case of a minister who is designated the minister for aboriginal affairs ‘and treaty’”, and that “many of the people being administered under the ALRA and by Department are people of limited means and education, and as the objects of the Act demonstrate may be subject to systemic helplessness [refer ALRA s 51(b)].” Accordingly, the highest standards of natural justice ought apply”, and “in respect of any doubt the Court should lean in favour of ensuring that such natural justice is afforded.” This meant more than a mere acknowledgment or denial by the Minister, but required a “proper, genuine and realistic consideration” of material matters raised by the applicant [25] .

82. Having sought and received a response from the CLALC Board and CLALC members, the Minister failed to take into account that written case dated 17 September 2025 (presumably, a reference to the signed submission sent by CLALC Board members Ms Theresa Brierley, Ms Jayde Belz, Ms Violet Carriage, Ms Crystal Brierley and Ms Karia Bond in response to the s 223A “show cause” notices). The primary failure of the Minister in making the appointment decision was the failure to take any account of three written representations in the “[a]pplicant’s response case” (presumably a reference to the submission of the CLALC Board members of 17 September 2025) and to give proper, genuine and realistic consideration to those written representations. The uncontested evidence was that the attachments to the CEO Brief were not reproduced in the 16 October 2025 Ministerial Brief. Those attachments included the CLALC support plan of 3 June 2025 (Attachment B), and the performance improvement order (Attachment C). The Minister did not have a proper opportunity to deal with “the critical issue or factor on which the administrative decision [was] likely to turn” [26] because documents the examination of which was fundamental to his decision, namely the accounts and linked documents, in particular, the document described in the CEO Brief as the “CLALC Support Plan” and “the analysis of them” were not before him. Accordingly, the applicant was not “afforded a proper opportunity to be heard in respect of the main issues forming the focus of the [Minister’s] concern”. [27]

83. Further, Mr King submitted, the AANSW summary and assessment included in the 16 October 2025 Ministerial Brief amounted to “a breach of the mandate on the Minister and those advising him under s 223A(2)” to “take into account any written representations received” in response to the show cause notices of 17 August 2025. In Stambe v Minister for Health *(*No 2) [28] (Stambe 2) (especially at [65]-[77]) Mortimer J held that a failure by a Commonwealth Minister in an investigation and report into “a pharmaceutical dispute” which failed to address an issue raised in a briefing note led to invalidity of the decision to grant approval to supply pharmaceutical benefits at particular premises. Similarly, in the present case, Mr King submitted, the Minister failed to take into account, as was expressed in the 17 September 2025 submission of the CLALC Board members to the Minister, that the conduct of Councillor Danny Chapman had frustrated the Board’s function to facilitate communication with NSWALC under s 62 of the ALRA. This was “a direct claim by the Cobowra Land Council members that their representative councillor on the State Council had an ulterior motive ... and would be an improper purpose for any proposed decision for intervention the Minister might make.” The concern of the CLALC on this issue was not referred to at all in the AANSW summary and assessment included in the 16 October 2025 Ministerial Brief, nor in any part of the decision memorandum adopted by the Minister on 16 October 2025. This was submitted to be “further transparent failure by the Minister on the face of the record to comply with ALRA S 223A(2)”.

84. A further basis for invalidity of the appointment decision was submitted to be the failure of the Minister to include in the signed s 223A notice sent via email to CLALC Board members on 21 August 2025 any reference to the ground in s 222(1)(e) (namely, “if the Council has substantially breached the requirements of this Act or the regulations or the rules of the Council”). This was submitted to be a clear case of breach of s 223A(1) and (2), and an alternative basis of invalidity. There was evidence of “affectation” of the applicant’s case in this respect from Board member Karia Lea Bond in her affidavit dated 28 November 2025 at [5]: “I only respond**ed to matters in the Minister’s letter to us. If other matter had been raised I would have done my best to reply to them as well.” This was submitted to be a classic case of breach of natural justice: Mobil Oil Australia Pty Ltd v FCT [29] , at 504 per Kitto J; Kioa v West at 633 per Brennan J.

85. A further set of failures was submitted to be in the failure of the AANSW summary and assessment to give “proper, genuine and realistic consideration” to material matters raised by the applicant. In particular, a complaint about the sufficiency of the accounts of the CLALC had never been put to the CLALC. In any event, an issue about delays in accounts did not justify the appointment of an administrator “when NSWALC has staff whose role is to support eg by a support plan, and who identifies the auditors which it must use”. The same criticism was made of the “new ground 222(1)(e)”. In response to the complaint of the CLALC Board members that the show cause notice did not address this issue, the Department’s answer “in one short sentence” was to deny it. That was not “a fulfilment of the test” in Weal v Bathurst City Council [30] (Weal).

86. In relation to the s 222(1)(d) ground, Mr King submitted that the Minister did not take into account “at all” written representations contained in the 17 September 2025 submission of the CLALC Board members as he did not commission a report by an investigator into the proposed appointment of an administrator, a step available to him pursuant to s 290 of the ALRA. Nor did NSWALC do so. In the 16 October 2025 Ministerial Brief, only Annexure F, the AANSW summary and assessment, “goes to this issue” as it generally addresses the 17 September 2025 submission of the CLALC Board members. However, Annexure F “takes no account of the representation - because it makes no reference to any [investigator] report”.

87. In relation to the s 222(1)(b) and (c) grounds, Mr King submitted that the 16 October 2025 Ministerial Brief “refers to the specified grounds but does so by an inadequate intellectual process”. Relying on Mr Te-Kowhai’s affidavit of 18 November 2025, Mr King submitted that the Board accounts for financial years 2019 to 2024 were audited and brought up to date by 16 October 2025, and financial year 2025 “was being attended to” with the “aid” of the support plan dated 3 June 2025 and Mr Lissom, NSWALC governance and compliance specialist. In those circumstances, the CLALC Board denied that the accounts were “unsatisfactory”. Instead of addressing that issue, Attachment F to the 16 October 2025 Ministerial Brief, AANSW’s submission and assessment, raised in relation to the s 222(1)(c) ground “timeframe” issues and did not take account of the Board members' response.

88. Further, the Minister’s reliance on the common law presumption of regularity, was submitted to be in error because it disregarded s 45 of the Interpretation Act 1987 “which provides for the exclusive operation of the presumption in the present statutory context”. By s 45(2), the presumption was submitted to be confined, in NSW, to an “instrument” as defined, namely an instrument “made by the Governor ... a rule of court ... an environmental planning instrument.” Here, “the instrument” was not made by the Governor, nor was it a rule of court, nor “an environmental planning instrument” as defined in s 4(1) of the E**nvironmental P**lanning and A**ssessment Act 1979 (NSW). The Minister's “instrument” of 16 October 2025 was one defined by s 3(1) of the Interpretation Act as an instrument “made under an Act”, namely s 222(1) of the ALRA. The case was submitted to be governed by Dennis Flaherty v Columbia Nursing Homes Pty Ltd [31] at [24] where Jagot J said that s 45 is “incomprehensible” should it extend the presumption of regularity to public instruments generally, as contended by the Minister here. Here, NSWALC did not approve the Minister's decision to appoint an administrator to the CLALC. Accordingly, a critical stage in the staged statutory process of appointment miscarried as the decision, “leading to the instrument on which it depended”, was no decision at all.

Consideration and decision

89. I am not persuaded that there was any failure by the Minister in making the appointment decision to comply with the requirements of procedural fairness. As submitted by the Minister, the precise content of the obligation to afford procedural fairness depends on the particular statutory framework: Kioa v West at 584, quoting Mobil Oil Australia Pty Ltd v FCT at 504 (Kitto J). In SZBEL, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ observed at [26] that the statutory context is “of critical importance when considering what procedural fairness requires”.

90. Here, the relevant requirements of procedural fairness are set out in s 223A which requires not less than 14 days notice in writing of the appointment to, in the case of a LALC, each Board member and NSWALC (s 223A(1)), and the Minister, before appointing an administrator, to take into account any written representations received from any person or body to whom notice was given under s 223A (s 223A(2)). Here, I am satisfied that each of those measures of procedural fairness required by s 223A was satisfied. In providing the measures of procedural fairness required by s 223A, the Minister disclosed to the Board members of the CLALC the substance of the adverse material proposed to be relied upon in appointing an administrator. Each CLALC Board member was given a reasonable opportunity to respond to the notices sent by the Minister pursuant to s 223A, and invited to provide a written submission relevant to the grounds identified in the notices or to identify any other reason why the Minister should not exercise his power to appoint an administrator by no later than 5:00 pm on 17 September 2025.

91. The 17 September 2025 written representation of CLALC Board members Ms Theresa Brierley, Ms Jayde Belz, Ms Violet Carriage, Ms Crystal Brierley and Ms Karia Bond was before the Minister when he made the appointment decision. There was no statutory requirement to give notice to the CEO of the CLALC, Mr Te-Kowhai, he not being a person specified in s 223A(1). The CLALC, through its Board, was provided with notice and an opportunity to respond. Also before the Minister were the CEO Brief (albeit without attachments) and the 16 October 2026 Minister Brief which included, in particular, Annexure F, the AANSW summary and assessment, and which referred to the joint submission of CLALC Board members Ms Theresa Brierley, Ms Jayde Belz, Ms Violet Carriage, Ms Crystal Brierley and Ms Karia Bond, and recorded their recommendation that the Minister not appoint an administrator to the CLALC for the following reasons:

92. The Council has not failed to furnish satisfactory financial statements.

93. The Chief Executive Officer has complied with several compliance directions.

94. The AANSW summary and assessment commented: “The submission received as part of the “Show Cause” do not outline how the outstanding compliance issues at the Cobowra LALC have been addressed. Therefore, the Minister has clear grounds to appoint an administrator under section 222(1) of the ALRA”. The AANSW summary and assessment continued:

Recommendation and background to administrator appointment

The appointment of administrators to LALCs is a discretionary power of the Minister administering the ALRA. The Minister may not appoint an administrator to a LALC without the approval of NSWALC. NSWALC makes a recommendation to the Minister for administrator appointments when attempts to rectify problems in a LALC have been unsuccessful, confidence is lost in the governance of a LALC to work with its membership and NSWALC, and/or the assets and property of a LALC are at serious risk.

Administrator appointments are usually the result of a LALC's incapacity to meet operational and compliance obligations.

The Minister needs only one ground to make an administrator appointment to a LALC under section 222(1) of the ALRA and is not compelled or required to follow the NSWALC recommendation.

On 18 February 2025, the Office of the Registrar ALRA issued a compliance direction under Section 221A of the ALRA which Cobowra LALC failed to comply with.

A Support Plan outlining the necessary actions was initially drafted in April 2025 and was scheduled to be tabled at a forthcoming Board meeting. However, the meeting failed to achieve quorum, and as a result, the plan was not discussed or endorsed. The Support Plan was subsequently updated, presented, and formally agreed upon at the Board meeting held on 3 June 2025. At this meeting, a Performance Improvement Order (PIO) was also issued.

• The Cobowra LALC have failed to approve and submit the Section 158 budget for the 2025/26 year, despite assistance from NSWALC to prepare the budget and agreeing to submit it to NSWALC by 30 May 2025.

93. In the “Detailed Summary of Submissions” the AANSW summary and assessment contains a column setting out the CLALC Board response, noting that the response did not address s 222(1)(e), but states that “The submission outlines that communication between the Cobowra LALC members and NSWALC is strictly facilitated by the Cobowra LALC Board. The submission outlines allegations that the NSWALC Councillor has operated in direct contraven[tion] with section 62(1)(b) which has caused the recommendation for the appointment of an administrator to the Cobowra LALC”.

94. These facts are different from those in Stambe v Minister for Health [32] to which I apprehend Mr King intended to refer (not Stambe No 2). In Stambe, Mortimer J was unable to draw any inference as to the material the Minister read or what he did not read beyond a briefing note in exercising the power to approve the operation of a pharmacy pursuant to s 90A(2) of the Nation**al Health Act 1953 (Cth). Here, the briefing note to the Minister recommended that he note the CLALC Board members’ submission and the AANSW summary and assessment, and that he approve and sign the instrument of appointment, the NSW Government Gazette notice, and the notification to the second respondent and NSWALC of the second respondent’s appointment as administrator. I draw the inference that the Minister read the briefing note and the attachment. I do not attach any significance to the fact that the AANSW summary and assessment refers to the ground in s 222(1)(e) as one of the grounds in s 222 to be used to appoint an administrator, whereas the s 223A show cause notice to the CLALC Board members made no reference to s 222(1)(e). In relation to s 222(1)(e) – “the Council has substantially breached the requirements of this Act or the regulations or the rules of the Council” – the AANSW summary and assessment provided a succinct summary of the issue and refers in general terms to the CLALC Board members’ submission and the allegations contained in it that the NSWALC Councillor has operated “in direct contravention of section 62(1)(b)” which had caused the recommendation for the appointment of an administrator to the CLALC.

95. Finally, in relation to the denial of procedural fairness ground of challenge to the appointment decision, I do not understand the applicant’s reliance on s 45 of the Interpretation Act 1987. That is because I do not understand the Minister to place reliance on s 45 in relation to the issue of procedural fairness. Rather, the Minister relied on s 49(5) and the presumption of regularity in relation to the question of the exercise of the function in s 223A(1) by the CEO of NSWALC as delegate of NSWALC pursuant to s 116 of the ALRA. The ALRA did not require NSWALC to approve the appointment of an administrator to the CLALC in circumstances where the power to approve the appointment of a delegate to a LALC had been duly delegated to the CEO.

96. It follows that the applicant has failed to establish any relevant denial of procedural fairness in the appointment of the second respondent as administrator of the CLALC.

Issue 5: Whether the appointment decision was made by the Minister for an improper purpose

Applicant’s submissions

97. In relation to its allegation of improper purpose, the applicant submitted that email correspondence revealed that “the intervention aimed to force a fresh election because of internal rivalry and possible jealousies towards CLALC personnel and the CLALC success in bringing …its community benefits programme many aboriginal people who had felt disenfranchised or helpless within the system - that is to say an ulterior political purpose outside statutory objectives”. This may, it was submitted, include an absence of reasonable proportionality in the decision leading to the setting aside of a Ministerial decision, citing McAdam v Victorian Fisheries Authority [33] at [111]-[129]; Project Blue Sky Inc v Australian Broadcasting Authority at [91]. [34] The ALRA, it was submitted, does not authorise intervention to achieve some ulterior purpose “such as a political or electoral objectives or to discourage a programme of social or community benefit which may not agree with the views of the decision-maker but is not so unreasonable that no reasonable decision-maker could have made it.”

98. The applicant submitted that s 222 ALRA empowers the Minister to appoint an administrator only for purposes consistent with the Act such as restoring governance integrity and compliance, and referred to provisions including those in Part 10 of the ALRA relating to investigations of misconduct and in Part 11 Division 1 relating to investigation of Aboriginal land councils “for a report prefatory to the appointment of an administrator”. By letter dated 10 November 2025, after the proceedings were commenced, the Office of the Registrar gave notice to the CEO of the CLALC, “apparently acting in coordination with the Appointee who had summarily and unlawfully dismissed him the day before”, of an investigation under Part 10. It was submitted to be “surprising if an appropriate investigation had occurred at all, that such an investigation in the middle of the litigation after the matter was fixed for hearing, should be initiated and implemented”.

99. The applicant referred to a series of decisions as authority for the well-established proposition that a statutory power must be exercised solely for the purpose for which it was conferred, and that use of power for an ulterior or collateral purpose renders the decision invalid: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [35] (Peko-Wallsend) at 40-41 (Mason J); Attorney*-General* *(*NSW) v Quin [36] at 35-36 (Mason CJ); Wu Shan Liang v Minister for Immigration [37] at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); R v Toohey at 181 (Gibbs CJ); and McAdam v Victorian Fisheries Authority (McLeish, Lyons and Kenny JJA).

100. As to evidence of an improper or ulterior purpose, the applicant relied on the “Ministerial Memo and Email Chain (Attachments A-G)” (presumably referring to the 16 October 2025 Ministerial Brief which included as an attachment the CEO Brief approved by Ms McHugh, the CEO of NSWALC, dated 5 August 2025 which referred to seven attachments, Attachments A – G, which were not included in the 16 October 2025 Ministerial Brief) which he submitted “reveal the intervention aimed to force a fresh election and ‘reset leadership’ rather than address statutory triggers under s.222”. The absence of such material in the 16 October 2025 Ministerial Brief was submitted to “speak volumes”, and one inference was that “neither he nor his advisers read the Brief or, if they did, they misunderstood and misapprehended it”. The affidavit of Mr Te-Kowhai of 12 November 2025 was submitted to confirm that no financial mismanagement was substantiated, and that “the stated rationale was a pretext for political restructuring”. This was submitted to align with the principle in Peko-Wallsend that “reliance on irrelevant considerations and pursuit of collateral objectives and proceeding by a decision unreasonably made vitiates legality.” Here, the dominant purpose was “ulterior to the power granted and appears to be political to get rid of an enemy or nuisance: to displace elected governance and engineer a new leadership outcome.” Such purpose was extraneous to the objectives of the ALRA which “emphasise self-determination and community control.” Even if some statutory grounds [in s 222(1)] were “nominally referenced”, the “true and operative purpose was improper, satisfying the test in Quin and Peko­Wallsend.”

Minister’s submissions

101. In relation to the contention that the Minister’s decision to appoint an administrator to the CLALC was made for an improper purpose, namely, “to remove the current council of the CLALC and to put in place a more compliant council.”, the Minister submitted that the onus of establishing improper purpose falls upon the party alleging it and is not to be inferred lightly. The applicant had fallen “well short” of meeting this onus. Further, the inference of improper purpose will only be drawn if the evidence cannot be reconciled with the proper exercise of the power, citing Golden v V’Landys [38] at [41], [135], [136] (Payne JA). Here, the material before the Minister set out multiple grounds upon which his power to appoint an administrator to the CLALC was enlivened. Only one ground needed to be established to empower the Minister to appoint Mr Callaghan as administrator.

Applicant’s submission in reply

102. In reply, Mr King submitted that the appointment of the administrator was invalid “because although nominally about the accounts of Cobowra Land Council it was on the evidence actuated by an ulterior purpose in those who obtained his signature on the instrument and other documents, namely to solve a kinship issue involving the South Coast Region councillor on the State Council, by getting rid of the CEO of Cobowra Land Council by an order which forced his dismissal and the election of a new Board, a new Chair and Deputy Chair”. In short, the appointment was a pretext for removing the CEO.

103. There was “no rule”, Mr King submitted, that an inference cannot be drawn as to motive, citing R v Toohey. Here, the evidence, “apart from the formal documents”, was uncontradicted. The “only remarkable thing” about the accounts for financial years 2017 to 2024, as Mr Te-Kowhai said in his affidavit of 28 November 2025, was that the asset base “kept improving from $8m to $13M suggesting good management, and that the Cobowra Land Council is not seeking subsidies from the State Council.” This material, it was submitted, did not suggest a case of financial defalcation or failure, “but if anything of relatively minor accounting failures being appropriately addressed by the auditors from year to year, and that are common with other local land councils at least in the South Coast region.” These failures were submitted to be “so insubstantial as to be consistently overlooked by the State Council over the many years of reporting, until in the current year when a different but personal issue arose.” This was submitted to suggest an “enmity of the South Coast Region Councillor Cr Danny Chapman, in part caused by the refusal of Cobowra Land Council to house one of his relatives.” An inference under Jones v Dunkel should be drawn where Mr Chapman, a councillor on the NSWALC, the person referred to in the CEO's instrument of delegation, and the person who represents the South Coast Region including the applicant on NSWALC, was not called to give evidence.

104. The financial information for financial years 2019 to 2024, together with that available for financial year 2025, was submitted to establish the following positive trends: asset base is growing, from $8m to $13m, but mostly due to revaluations, not operational surpluses; operational performance is volatile but shows improvement in the most recent years; liquidity and compliance have improved since financial year 2023; and audit issues are persistent and need ongoing attention. In summary, the CLALC was submitted to have moved from a period of deficits and compliance delays to one of asset growth, improved cash flow, and better compliance. That was submitted to give the case of ulterior motive a “strong foundation because it undermines the key reason given for the intervention.”

Consideration and decision

105. In relation to the improper or ulterior purpose ground of challenge to the appointment decision, as submitted by the Minister, such a purpose is not to be inferred lightly, and the onus falls upon the party alleging it: Wong Chang Song v Cmr*, Australian Federal Police* [39] at [21] (Pagone J). Such inference will only be drawn if the evidence cannot be reconciled with the proper exercise of the power: Industrial Equity Ltd v Deputy Commissioner of Taxation [40] . Whether an exercise of power is vitiated by an improper purpose on the part of the decision maker is determined by reference to his or her subjective state of mind: Golden v Vlandys [41] . Here, there is no evidence of the Minister’s subjective intention and no proper basis for drawing an adverse inference about his subjective intention.

106. There was material before the Minister when he made the appointment decision capable of supporting the appointment decision, including in relation to the failure of the CLALC to provide satisfactory financial statements to NSWALC as required by s 153, the failure of the CLALC to prepare before the commencement of each financial year a detailed budget relating to the CLALC’s proposed operations during the financial year, as required by s 158, and the failure of the CLALC to comply with compliance directions issued by the Office of the Registrar of the ALRA under s 221A of the ALRA.

107. The applicant has failed to establish that the appointment decision was made for an improper purpose.

Issue 6: Whether the appointment decision was unreasonable and/or disproportionate

Applicant’s submissions

108. The applicant submitted that it was unreasonable for the Minister not to “call for and read the missing Attachments A to G to the material” in the 16 October 2025 Ministerial Brief before making the decision to appoint the second respondent as administrator of the CLALC on 16 October 2025 (this was presumably a reference to Attachments A to G of the CEO Brief). It was “a simple step to take, which would have reduced if not have obviated the likelihood of an appointment”. Another “reasonable response” would have been for the Minister to exercise his powers under Part 11.1 of the ALRA and commission an investigation and report, as the CLALC Board members suggested in their response to the Minister’s s 223A notices dated 17 September 2025. The Minister’s decision to appoint the second respondent as the administrator of the CLALC was unreasonable, “and in the circumstances gave rise to a decision that was not meaningful”, in the sense referred to in Li at [4], [26] (French CJ), [72] (Hayne, Kiefel and Bell JJ), and [103] (Gageler J).

109. In relation to the Minister’s contention that even if Attachments A to G to the CEO Brief were not before him, he was entitled to rely on summaries, the applicant submitted that there was no summary of Attachment D, it was not referred to at all, and there was “no accurate or adequate summary of attachments A, B, C, E or F and even of G before him”. Annexure F was “all that he had to assist him”. The summaries either avoided the real issues or were deficient. The documents were “all very significant in context”, being “primary documents”, including the accounts information the subject of the letter of complaint of the CEO of NSWALC Ms McHugh to the Minister of 5 August 2025, the community benefits scheme details, the performance improvement order said to have been breached, the support of Councillor Danny Chapman for the appointment, particulars about the administrator, the administrator’s instructions, and correspondence to the Minister recommending the appointment.

110. On 16 October 2025, the applicant submitted, the Minister had material which showed that the position had changed since the CEO of NSWALC recommended the appointment of an administrator to CLALC on five grounds on 5 August 2025. The CLALC had made written representations to the Minister on 17 September 2025 in relation to four, not five, discrete grounds under s 222(1) because “that is all he had invited the Board to do”. It was “plain therefore that the CEO's recommendation was founded upon an erroneous view of the facts”. The Minister's decision did not take that into account, and it was not referred to anywhere in the 16 October 2025 Ministerial Brief. The material before the Minister should have included the attachments to the CEO Brief, or at least an accurate summary of them. A mere one sentence description of financial documents over 5 years was not a summary, let alone an accurate summary.

Minister’s submissions

111. The Minister submitted that the first limb of the unreasonableness ground, namely that the Minister's decision to appoint an administrator for the CLALC was “legally unreasonable” because the 16 October 2025 Ministerial Brief was inaccurate, incomplete and unreasonable, and because the Minister relied on summaries of documents, was not sound as a matter of fact or law. As a matter of fact, it was incorrect and unsupported by the evidence before the Court, the errors of fact appearing to have arisen from a combination of confusion on the part of the applicant as to what was provided to the Minister at relevant times, and conjecture, without evidential foundation. As set out in the Nguyen affidavit, the material provided to the Minister at relevant times was as follows:

112. On 19 August 2025, the Minister was provided with the 19 August 2025 Ministerial Brief, including eight attachments. The seventh attachment was a copy of the letter from Ms McHugh, CEO of NSWALC, dated 5 August 2025 attaching the CEO Brief and referring to a separate set of attachments, described as Attachments A - G. It is these attachments which were not provided to the Minister as part of the 19 August 2025 Ministerial Brief, although Attachment G to the CEO Brief was described as "Correspondence to the Minister Harris recommending the appointment of an Administrator" which, it can be inferred, was an unsigned copy of the letter from Ms McHugh dated 5 August 2025 to the Minister, being Attachment G to the 19 August 2025 Ministerial Brief;

113. On 16 October 2025, the Minister had before him a further ministerial brief, with seven attachments, also described as Attachments A-G.

114. There was, the Minister submitted, no evidence upon which the applicant could rely to assert that there was a failure on the part of the “Government” to read the 19 August 2025 and 16 October 2025 Ministerial Briefs or a failure "to make available to the decision-maker material which might have allowed him to see for himself what was behind the proposal." There was no factual foundation upon which the applicant could assert that there was “a lack of rationality or reasonableness associated with the process of decision-making adopted by the Minister such that it would give rise to the level of unreasonableness needed to establish this ground.” To the extent that the applicant contended that the failure to put before the Minister the "primary documents" (being the financial statements and accounts referred to in Ms McHugh's letter of 5 August 2025, or details of the unapproved community benefits scheme also referred to in that letter) was the source of legal unreasonableness, the Minister submitted that such contention should also be rejected. Even if the documents had been provided to the Minister, there was no obligation on the Minister to read the underlying financial statements and accounts or the community benefit scheme details referred to in Ms McHugh's letter prior to making his decision to appoint the administrator. He was entitled to rely on summaries of information prepared for him by the Premier's Department. [42] Those summaries and the other documents in the 16 October 2025 Ministerial Brief were “sufficient to justify” the Minister's decision.

115. In relation to the applicant’s submission that the Minister's decision to appoint an administrator was a disproportionate response to the matters of governance and financial and compliance issues said to have arisen at the CLALC, the Minister submitted that this was unsustainable for two reasons. First, it inaccurately summarised the evidence as to the first ground relied upon by the Minister for the appointment of an administrator. It did so by suggesting that the text in the "Aboriginal Affairs NSW (AANSW) Comment" column in Attachment F to the 16 October 2025 Ministerial Brief which was before the Minister on 16 October 2025 articulated the only issue giving rise to this ground. That was incorrect. The comment was a response to what was put to the Minister by the Board members of the CLALC in the 17 September 2025 submission, namely, a denial that the CLALC had failed to furnish satisfactory financial statements and documents to NSWALC. It was also made plain from the first row of Attachment F (dealing with the ground arising pursuant to s 222(1)(b)) that there were other issues identified that formed the basis of this ground. That is, the Minister submitted, the s 222(1)(b) ground relied upon to appoint an administrator had not been reduced “merely to a timeframe concern”.

116. Secondly, it was not the case that in making his decision to appoint an administrator, the Minister relied only upon one ground. Rather, five grounds were identified in Attachment F to the 16 October 2025 Ministerial Brief. Section 222(1) of the ALRA Act empowers the Minister to appoint an administrator to a LALC (assuming satisfaction of ss 222(2) and 222(3), as well as s 223A) if any one of the eight grounds identified in paragraphs (a) to (h) is established. Accordingly, even if one ground relied upon “had been confined in the manner suggested by the CLALC”, the continuing existence of and reliance on the remaining grounds meant that the Minister's discretion to appoint an administrator to the CLALC was enlivened. Therefore, the Minister's decision fell within "a range of possible, acceptable outcomes" (citing Gageler J in Li [43] at [105]) in the circumstances (to appoint or not to appoint an administrator). The decision to appoint the administrator was not a disproportionate response, and the decision was not vitiated by unreasonableness.

Applicant’s submissions in reply

115. In reply, the applicant again submitted that the Ministerial appointment of the administrator on 16 October 2025 was “a disproportionate response to the accounts issue, identified as a timeframe concern”, and which was being resolved by the CLALC at the time of the appointment; hence it was a case of using a sledgehammer to crack a nut: McAdam v Victorian Fisheries Authority at [111]-[129] (McLeish, Lyons and Kenny JJA). Further, Mr King submitted that there was no evidence of actual misconduct. The decision was legally unreasonable in that the 16 October 2025 Ministerial Brief was inaccurate, incomplete and unreasonable. Amongst other things, it failed to attach Attachments A to G (again, presumably a reference to the attachments to the CEO Brief) which were not considered by him or his advisors, “being material that explained and demonstrated the basis of the appointment, and presumably the ground relied on”. The apparent failure of anyone in the Government to read the “Brief Prepared by Premiers” (presumably a reference to the 16 October 2025 Ministerial Brief which was approved by Ms Trish Oxford, Deputy Secretary, AANSW, Premier’s Department, on 25 September 2025) and to make available to the decision-maker material which might have allowed him to see for himself what was behind the proposal also meant that it was in the circumstances legally unreasonable. [44]

116. It was, Mr King submitted, “not legally reasonable to contend that a summary of documents which comprised the evidence of grounds for the appointment of the administrator that had not been seen by the Minister’s advisors, was sufficient compliance with the requirements of both due process and procedural fairness.”

Consideration and decision

117. In relation to the applicant’s ground of challenge to the appointment decision on the ground that it was unreasonable and/or disproportionate, it is first to be noted that both the CEO Brief and the 16 October 2025 Ministerial Brief identified five grounds for the exercise of the power in s 223(1) to appoint an administrator to the CLALC.

118. Further, that the 16 October 2025 Ministerial Brief did not include the attachments to the CEO Brief does not render the appointment decision unreasonable. I find, as submitted by the Minister, that there was no relevant unreasonableness in the Minister relying on the summaries and on the documents in the 16 October 2025 Ministerial Brief. As Brennan J said in Peko Wallsend at 65-66: [45]

The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.

119. In the unreasonableness ground of challenge, the applicant has effectively descended into a dissection of the merits of the appointment decision and of the material relied upon by the Minister in making the appointment decision.

120. In relation to the applicant’s contention that the decision to appoint the administrator was a disproportionate response to the matters of governance and financial and compliance said to have arisen at the CLALC, I am satisfied that in making his decision to appoint the administrator, the Minister’s decision fell within “a range of possible acceptable outcomes which are defensible in respects of the facts and the law”. [46]

121. As has been held, the threshold for a court to conclude that a discretionary statutory power has been exercised legally unreasonably is “necessarily stringent” because the courts do not lightly interfere with a statutory power involving an area of discretion: Minister for Immigration and Border Protection v SZVFW [47] at [11] (Kiefel CJ); Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [48] at [25] (the Court). The applicant has failed to persuade the Court that the appointment decision was vitiated for unreasonableness or disproportionality.

Issue 7: Whether the applicant should be granted leave to advance an additional ground of review in relation to s 10 of the Racial Discrimination Act 1975 (Cth)

Applicant’s submissions in relation to leave to advance an additional ground of review

122. In its written submissions, the applicant made submissions in relation to an alleged breach of s 10 of the RDA which were not the subject of a ground of review in the amended summons. The applicant referred to Mr Te-Kowhai’s affidavit of 12 November 2025 and the “discriminatory disruption of CLALC governance”, and contended that the effect of the decision to appoint the administrator “by a form of indirect discrimination, has engaged basal human rights of the Applicant and its senior officers including the CEO, which when taken into account amounted to a vitiating consideration.”

123. Despite being put on notice by the Minister that leave would be necessary to rely on an additional ground of challenge to the Minister’s decision to appoint the administrator, Mr King declined to seek leave.

Respondent’s submissions

124. To the extent that the applicant sought leave to further amend the amended summons to include as a fifth ground that the Minister’s decision breached the rights of the CLALC and its senior officers to equality before the law contrary to s 10 of the RDA, the Minister submitted that leave should be refused on the basis that the ground, as expressed in the applicant’s written submissions, lacked merit.

Consideration and decision

125. The applicant’s challenge to the appointment decision on the basis of a breach of the rights of the CLALC and its senior officers to equality before the law contrary to s 10 of the RDA was not the subject of any application to amend the amended summons. More significantly, it was not articulated by Mr King at the hearing how any such challenge falls within the jurisdiction of the Court. Accordingly, I do not accept any challenge to the appointment decision on the basis of an alleged contravention of s 10 of the RDA.

Costs

126. For the foregoing reasons, the applicant has been unsuccessful in each of the grounds of challenge to the appointment decision.

127. In his written submissions dated 14 November 2025, Mr Neumann sought costs in favour of the applicant. In her written submissions dated 25 November 2025, Ms Curtin sought costs in favour of the Minister. The applicant has been unsuccessful in the challenge to the Minister’s appointment decision. Accordingly, I will make an order that the applicant pay the costs of the proceedings.

Orders

128. The Court orders:

129. Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW), “Cobowra Local Aboriginal Land Council” be removed as a party.

130. The summons filed on 3 November 2025, and amended on 7 November 2025 and on 2 December 2025, be dismissed.

131. The applicant Hika Tarawa Te-Kowhai pay the first respondent's costs of the proceedings.

**********

Endnotes

(2006) 147 LGERA 348; [2006] NSWLEC 291.

(2001) 192 ALR 625; [2001] FCA 1728.

(1995) 184 CLR 163; [1995] HCA 58.

7th ed, 2022.

(2013) 249 CLR 332; [2013] HCA 18.

(1981) 151 CLR 170.

(1957) 96 CLR 245; [1957] HCA 4.

(2005) 221 CLR 99; [2005] HCA 7.

(1987) 9 NSWLR 154.

MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] (Murphy J); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at 587 ([575]) (Weinberg J).

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32 at [39]–[41] (Gummow and Hayne JJ); also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 367 (Deane J).

(2002) 55 NSWLR 381; [2002] NSWCA 288.

Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 at 362-1, per curiam.

McCasker v Queensland Corrective Services Commission [1998] 2 Qd R 261 at 263 (Macrossan CJ agreeing with Helman J) (Pincus JA dissenting); Racecourse Co-operative Sugar Assoc Ltd v AG [Qld] (1979) 142 CLR 460 at 481; [1979] HCA 50 (Gibbs J) (Stephen, Mason and Wilson JJ agreeing) (Barwick CJ concurring).

The applicant cited, in particular, s 10 of the Racial Discrimination Act 1975 (Cth); Pearce and Geddes, Statutory Interpretation in Australia, 8th ed, ch 5; also the discussion by John Basten, The Principle of Legality (Federation Press, 2017) at 74-75.

[2025] NSWLEC 19 at [113] (Pritchard J).

cited in Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40 at [107] (Griffiths AJA, agreeing with Stern JA); Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401 at [57] (McClellan J).

(1985) 159 CLR 550; [1985] HCA 81.

[2010] HCA 23; (2010) 241 CLR 252.

[2000] HCA 57; (2000) 204 CLR 82.

[2023] NSWSC 1193.

[2025] FCAFC 5.

Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 590–591 (Northrop, Miles and French JJ), cited with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [32] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

Kioa v West at 584, quoting Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475 at 504; [1963] HCA 41 (Kitto J).

Azriel v NSW Land and Housing Corp [2006] NSWCA 372 (Azriel) at [51], [56], [59] (Basten JA). Also SAAP v Minister (2005) 228 CLR 294; [2005] HCA 24 at [184] (Hayne J).

citing Kioa v West at 587 (Mason J).

citing Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 at [256] Mason P.

[2019] FCA 479; (2019) 270 FCR 217.

(1963) 113 CLR 475; [1963] HCA 41.

(2000) 111 LGERA 181; [2000] NSWCA 88.

(2007) 152 LGERA 383; [2007] NSWLEC 148.

(2019) 270 FCR 173; [2019] FCA 43.

(2025) 265 LGERA 1; [2025] VSCA 186.

[1998] HCA 35; (1998) 194 CLR 355, 389-90 [91] (McHugh, Gummow, Kirby and Hayne JJ).

(1986) 162 CLR 24; [1986] HCA 40.

(1990) 170 CLR 1; [1990] HCA 21.

(1996) 185 CLR 259; [1996] HCA 6.

(2016) 339 ALR 610; [2016] NSWCA 300.

[2014] FCA 443.

(1990) 170 CLR 649 at 672; [1990] HCA 4.

at [135] and authorities there cited (Payne JA, McColl and Leeming JJA agreeing).

Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 418 ALR 133; [2024] HCA 11 (McQueen) at [19], (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ).

Li at 375 [105] (Gageler J).

Li at 350-1 (French CJ); 365-7 (Hayne, Kiefel and Bell JJ); 370-1 (Gageler J); ABT17 v Minister for Immigration (2020) 269 CLR 439; [2020] HCA 34 (Kiefel CJ, Bell J, Gageler J, Keane J, Nettle J, Gordon J, Edelman J).

Cited in McQueen at [19] (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ)

Li at 375 [105] (Gageler J), citing Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].

(2018) 264 CLR 541; [2018] HCA 30.

(2024) 280 CLR 265; [2024] HCA 2.