· the challenged decision was invalid;
· as a result, the original funding decisions were still valid; and
· the amount of $184,248 remained allocated to the Applicant."
31 There was a submission on behalf of the respondent that there was a difference between "allocation" and "grant", but paragraph 5 of those submissions acknowledges that on 13 August 1998 the respondent decided by Decisions 415 and 426 to make grants totalling $184,248 to the applicant for certain specified purposes. In the light, it said, of that letter (the letter being the letter of 18 November) the application is pointless and futile, raises issues which are wholly academic and should therefore be dismissed.
32 First of all, I accept the submission by Mr Vasta that "invalid" means "not valid" and "no force without legal force" or "void". In Brooks v Burnsfelt Trustee Company Ltd (1969) 121 CLR 432 the High Court treated the word "invalid" as meaning "void and unenforceable"
33 I accept the submission for administrative law purposes that there is no practical difference between a void decision and an invalid decision.
34 The importance of this in the present context appears from a number of decisions made subsequent to the filing of this application. By Decision 486 of 1 December 1998, the Goolburri Regional Council endorsed the action of the Regional Manager in regards to the "letter being sent to Kooma Aboriginal Corporation for Land regarding major breach".
35 On 4 November, prior to the commencement of these proceedings, the respondent in Decision 461 noted the appeal by Kooma Aboriginal Corporation for Land for restoration of funding of $184,428. The decision continued:
"However, Council declines to change its decision (No 452) because Kooma has not submitted any new arguments or justification in the matter."
36 The major concern, however, is in relation to Decision 497 of 19 January 1999. This is after the matter had been before the Court and before its hearing yesterday. I am told from the bar table and accept that there has been no communication or writing between the Council and the applicant subsequent to the letter of 18 November 1998 and before the passing of this resolution. The resolution records:
"Goolburri Regional Council
1. Council resolves to finalise defunding action against Kooma Aboriginal Corporation for Land (KACL) in respect to grants previously approved by Council for 1998/99, being for a total of $184,248 in Decisions 415 and 426.
2. Council notes that all necessary actions which commenced on 18 November 1998, have been taken in respect to the Defunding Process including issue of a final letter of intent, and now exercises delegation of RC3 to cease funding of the 1998/99 grants."
37 Notwithstanding the acknowledgment by Mr Kay in the letter of 18 November 1998 that the decisions for grant were "still" valid, this resolution resolves "to finalise" defunding action. It also claims that all necessary actions which commenced on 18 November 1998 have been taken. This decision is not presently the subject of an application for an order to review and is part of the difficulty that this case presents, but it seems highly arguable that the very reasons which made the Decision 452 invalid taint Decision 497. Moreover, Decision 497 peremptorily seeks to overcome any orders that might be made in the present litigation and, further, manifests a real intention or purpose on the part of the Council and Mr Kay (or at least, is consistent with such a purpose) that it is their intention to cause the indigenous corporation, that is, the applicant, to cease to exist for want of the provision of necessary funds.
38 It is accepted, it is said by the respondent, that Decision 452 is inoperative and void, but it seems to me that the Council has, by various means and stratagems, sought to achieve the same effect as if it had been in place. This seems to be the situation which is made as clear as can be by the terms of Decision 497. The real and practical question in the present application is the claim by the respondent that, notwithstanding its acceptance that Decision 452 is void or unenforceable, it is entitled to avoid providing the funds granted by the Decisions 415 and 426 unless and until it receives an acceptable response to the demand may by Mr Kay in the letter of 18 November 1998.
39 The decision to revoke funding is a very serious one. The applicant corporation, as the respondent well knew, had ongoing operating expenses from July of 1998 that the grant was meant to pay for. As Chapter 11 of the Funding Procedures makes plain, the serious decision to defund requires a punctilious compliance with the rules of natural justice which, certainly in relation to Decision 452, were ignored. The high-handed departure from proper procedures cannot be justified and the applicant was rightly entitled to protest in the strongest terms. So much seems to have been accepted by the respondent, yet it has continued to act as if it is entitled, in effect, to deny to the applicant the funding by Decisions 415 and 426, or at least to suspend the provision of those funds.
40 As I have indicated, there seems to me to be no basis for the stance adopted by Mr Kay in the letter of 18 November. There is absent the necessary requirements in cl 9.3 of the Conditions that apply to the suspension of the provision of the grant funds. In that absence, to delay or suspend the grant funds the subject of those decisions is, in my opinion, unauthorised and unjustified.
41 I accept Mr Vasta's contention that Decisions 415 and 426 are not set in stone; that is to say, it is not correct that funding can never be withdrawn or suspended. However, it is a serious step and has to be done in accordance with proper procedures. In my view, it has not been done in Decision 452, and arguably, although this matter is not presently before the court, in respect of Decision 497. Also, in my opinion, there is no authorisation or justification to suspend the release of grant funds until Mr Kay receives what he says he wants to know concerning KPMG's report. In particular, cl 9.3 of the grant conditions do not authorise the suspension of the release of funds until Mr Kay receives the information that he sought in the letter of 18 November 1998.
42 The respondent has acted unlawfully in respect of Decision 452. That is implicit in the respondent's submissions. However, as I have said, the respondent seems to have sought to achieve the same result as if Decision 452 had been valid.
43 The difficulty that I have, and which is causing me all this trouble, is what to do about the matter. The Federal Court is not a general supervisor of a dynamic relationship between an indigenous corporation and a regional council. The powers under the ADJR Act are for judicial review of a particular decision, or particular decisions, or of conduct. The orders that the Court can make pursuant to the Act are in aid of lawful decision making. It is not the function of the court to direct the correct administration of that dynamic relationship between the applicant and the respondent. The Federal Court is not the proper means by which the activity between the applicant and the respondent ought be regularised, although the court is able, in a rather disjointed way, to deal with particular aspects of decision making, if that should become necessary. It is clearly not either convenient or appropriate for every decision, every issue in what is obviously a very acrimonious and unhappy relationship be the subject of consideration by the Federal Court.
44 The decision made on 19 January 1999 "to finalise de-funding action" and the assertion (which seems to me to be wrong) that "all necessary actions which commenced on 18 November have been taken in respect of the de-funding process" are not presently the subject of an application under the ADJR Act. It seems to me to further evidence the determination on the part of the respondent to put the applicant out of existence by denying it funds necessary for its continuing activities.
45 It is not to be taken from what I have said that all fault in this matter is on the part of the respondent. The applicant, it appears, has been quite obdurate and recalcitrant. I frankly acknowledge that the motivation behind much of Mr Kay's correspondence and activities is a desire that public funds are properly expended and satisfactorily accounted for. I am not suggesting for a moment that it is not a genuine matter of concern on the part of Mr Kay, or the Council, that the consideration of the proper expenditure of public funds is called for. The withdrawal or suspension of grant funds can only be lawfully done in compliance with the conditions imposed for such action. In particular, such decisions can not be made to punish a grantee for alleged contraventions of conditions of earlier grants. However, as I say, it is not competent for the Federal Court to act as, essentially, a supervisor of a relationship between bodies such as the applicant and the respondent. It is unfortunate that real animus existed and seems to be ongoing.
46 It would be preferable if the Court did not have to be involved in all this on a continuing basis; it may have to be. It would seem to me to be prudent that intervention, including intervention at the highest levels of ATSIC if necessary, may be necessary to resolve the wholly unsatisfactory position as it presently exists between the applicant and the respondent. This court will, of course, consider any application for judicial review made to it in the future but, as I say, this is hardly the way to deal with the dynamics of the relationship between the applicant and the respondent.
47 I acknowledge the limited nature of the relief that the court can properly order under s 16 of the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act'). Section 16 relevantly provides:
"(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:-