Laurie v New South Wales Aboriginal Land Council & Ors; New South Wales Aboriginal Land Council v Laurie & Ors

The Applicant noted however the high threshold for setting aside a decision as unreasonable as described by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 citing Wednesbury . 211 As stated in Peko-Wallsend by Mason J at 40-41: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). ...in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation , at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it… 212 A number of decisions have considered Wednesbury in determining whether a decision was unreasonable in the context of a particular case. In Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 Spigelman CJ (with whom Beazley and Tobias JJA agreed) stated at [129]: Perhaps the most appropriate formulation is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165.

This formulation has since been quoted with approval in Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 (Bignold J at 193), Save Our Street Inc v Settree (2006) 149 LGERA 30 (Biscoe J at [29]), Cutelli v Wyong Shire Council [2007] NSWLEC 137 (Jagot J at [35]), Hastings Point Progress Association Inc v Tweed Shire Council (2008) 160 LGERA 274 (Pain J at [127]), Teoh v Hunters Hill Council [2008] NSWLEC 263 (Sheahan J at [12]). 213 I consider the submissions made by the Applicant amount to contesting the merits of the Registrar exercising his discretion under s 132(2). The test in Murrumbidgee Groundwater is not met on the facts in this matter. It is not a matter therefore which I can consider in judicial review proceedings. This ground is not proven on the evidence by the Applicant. (d) procedural fairness/apprehension of bias (APOC cl 35) 214 The Applicant argued firstly, she had been denied procedural fairness because (a) the Registrar failed to disclose to the Applicant the allegation that the driving offence was a second or subsequent offence for driving whilst disqualified (APOC cl 35(a)). Alternatively, the Registrar failed to disclose to the Applicant that he considered the issue of whether the driving offence was a second or subsequent offence for driving whilst disqualified was relevant and material to his decision (APOC cl 35(b)); (b) the Registrar failed to disclose to the Applicant the nature and content of the complaint to the NSWALC and his investigation into it (APOC cl 35(c)). Secondly, there was the appearance that the Registrar did not bring an unbiased mind to making the decision because of the nature of the complaint from the NSWALC, his investigation of it and his perception that he was required to or would bring an application to the ADT for an order declaring the Applicant's position vacant if he determined not to ignore the driving offence APOC cl 35(d)). Further he was interested in the matter for these reasons (APOC cl 35(e)). 215 Nearly all the events relied on by the Applicant in relation to procedural fairness (and apprehension of bias) are identified at length in the APOC in cl 21A-27 set out above and the parties' bundle of documents and can be summarised as follows. In January 2008 the Registrar received a complaint from the NSWALC asking him to investigate a possible breach of the ALR Act by the Applicant because of the existence of her driving offence (APOC cl 21A). On 25 January 2008 additional material was sent by the NSWALC to the Registrar (APOC cl 21B). On 29 January 2008 the Registrar wrote to the NSWALC stating that he would undertake further enquiries given the information about the Applicant's conviction disclosed in Maclean Local Court bench papers for the conviction in January 2008 (APOC cl 21C). The Registrar considered it was his role to determine whether the Applicant had been disqualified from holding office, despite s 165 conferring no such function on him. The Registrar wrote to the Applicant on 15 February 2008 saying he was investigating whether she was disqualified as a candidate and asked her to provide a statutory declaration setting out matters related to the driving offence. He also stated he would take action in the ADT to seek an order that her position as councillor be declared vacant (APOC cl 21D). This letter was copied to the NSWALC as he considered it arose from the complaint. 216 The Applicant admitted the driving conviction in March 2003, identified the circumstances and requested the Registrar ignore the driving conviction by letter dated 10 March 2008 (APOC cl 22, 23). The submissions put on her behalf by her counsel stated that if the Registrar proposed to consider other submissions from third parties the Applicant wanted the opportunity to address them. The Registrar wrote to the Applicant on 25 March 2008 (APOC cl 24) but did not refer to her record or subsequent offences or the contents of the complaint from the NSWALC. On 2 April 2008 the Registrar received documents from Maclean Local Court in relation to the driving offence. This included a certificate from the RTA stating the Applicant was disqualified from driving for one year after being convicted in January 2002 for driving whilst her licence was cancelled (which was not included in the attachments to the Applicant's submissions of 10 March 2008). This was not disclosed to the Applicant. Further submissions dated 13 April 2008 were made on behalf of the Applicant to the Registrar (detailed in APOC cl 25). By letter dated 19 May 2008 the Registrar told the Applicant he had determined not to ignore her driving offence for the purposes of s 132 of the ALR Act and that he would go to the ADT to seek a declaration unless she resigned (APOC cl 26). It was not the Registrar's function under s 165 of the ALR Act to apply to the ADT and he cannot do so as the Registrar. This was raised in a letter from the Applicant's solicitors to the Registrar dated 30 May 2008. 217 Between 11 and 17 June 2008 there were numerous communications between the NSWALC's principal legal officer and the Registrar. The Registrar told the NSWALC on 17 June 2008 that the Applicant was disqualified from holding office as a councillor and that it was a breach of the ALR Act for her to remain in office (APOC cl 26A-26E). The Registrar told the Minister of his views and obtained legal advice that he was not going to take any further action as her position was automatically vacant. Further reasons for the decision not to ignore the offence were provided by the Registrar to the Applicant dated 7 July 2008 (these reasons are detailed in the APOC cl 27, 28, 29).

Applicant's submissions (i) procedural fairness (a) whether second or subsequent driving offence 218 In the reasons dated 7 July 2008 at par (e), the Registrar found that the 2003 driving conviction was a second or subsequent offence for driving whilst disqualified. He inferred this from the two-year disqualification imposed on the Applicant by the local court which can only be imposed in the case of a second or subsequent conviction. The Registrar never gave the Applicant any indication that he was considering whether the convictions in January 2008 disclosed a previous offence. She was therefore denied procedural fairness because she had no opportunity to address the Registrar on whether he was correct that it was a second or subsequent offence for driving whilst disqualified, and whether that affected the question of triviality of the act giving rise to the offence such as when it happened, the circumstances surrounding it and whether these were different to those relating to the prior offence.

219 Adverse material should have been disclosed to the Applicant even if not relied on by the Registrar, such as the information received from the Maclean Local Court on 2 April 2008, per Kioa v West (1985) 159 CLR 550 at 628. It is not relevant that the Applicant should have told him the information as it was not her function to find out information. It is up to the Registrar to satisfy himself, see the unanimous decision of the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 33. It is not material whether the Applicant knew the information in fact. She may or may not remember that information. The relevant issue is what the Registrar considers. If a second or subsequent offence is relevant the Applicant should have been able to be heard by the Registrar on both matters.

(b) complaint by NSWALC 220 The Applicant claimed that the material sent by the NSWALC to the Registrar in the letter dated 17 January 2008 should have been forwarded to her. The complaint and the information provided to the Registrar were described in detail to the Applicant by the Registrar in the letter dated 29 January 2008. The attachments sent by NSWALC (the local court bench sheets and newspaper report) were also described. The bench sheets and newspaper report were adverse material from a third party on a topic closely related to the driving offence and should have been supplied to the Applicant. It makes no difference whether the Registrar ignored it or whether the Applicant's submissions in relation to this material would have made any difference; see Brennan J in Kioa 629, 633.

(ii) apprehension of bias 221 It is clear that the Registrar was fulfilling multiple roles in relation to this matter. These included: (a) considering whether to ignore the driving offence under s 132 which required consideration of two specific matters, the time that had passed since the offence and the triviality of acts giving rise to the offence; (b) considering and advising NSWALC on possible breaches of the ALR Act and its complaint, which involved a far wider inquiry including publicity, probity and integrity of the NSWALC and the ALC system and NSWALC's obviously adverse attitude to the Applicant; (c) considering whether to file an application to the ADT against the Applicant, which included a discretionary question of whether he should do so; and (d) briefing the Minister's office.

222 All these matters meant that a fair minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to the specific function he was required to perform under s 132(2) of the ALR Act; per Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. 223 The Registrar has raised the defence of necessity by claiming that all the above roles must be fulfilled in order for him to carry out his functions under the Act. Necessity, which applies after a finding is made of a reasonable apprehension of bias, was described in the context of apprehended bias of a tribunal member by Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89: The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. The defence of necessity requires that it was necessary for the Registrar to perform the roles he was performing. This is clearly not the case in respect to possibly bringing an application to the ADT. It was also not the case in respect of briefing the Minister or advising NSWALC. As far as breaches of the Act are concerned his functions in that regard are confined to those for which he could issue a compliance direction (s 235), and whether the Applicant should continue to hold office was not a matter within that power to issue directions because it was provided for elsewhere in the ALR Act; s 235(3)(b). The fact that the Registrar seems to have considered he had some sort of roving commission to advise and act on anything relating to the ALR Act despite the specific nature of the functions conferred on him by the ALR Act does not lead to the conclusion it was necessary he do all these things. The only thing he was required to do was exercise his function under s 132(2). Registrar's submissions (i) procedural fairness 224 The Registrar denied that the Applicant was not accorded procedural fairness. As a broad principle, stated in Kioa, a person about whom a decision is being made is entitled to be informed of and respond to adverse material under consideration by the decision-maker. In Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Gaudron J at [97] observed: Of course, if a Minister rejects an application simply because he or she is not satisfied as to some or all of the information provided by an applicant, there will be no occasion for him or her to consider the exercise of his or her power to invite further submissions or further information. However, if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information. Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the Minister has had regard. (a) whether second or subsequent driving offence 225 That the 2003 driving conviction was a second or subsequent offence was obvious from the material contained in the Applicant's submissions made by her legal representative. The Applicant's evidence in these proceedings does not assert that she was unaware that the driving offence was her second or subsequent offence. The requirements of procedural fairness did not require the Registrar to disclose that fact to the Applicant. The Applicant's complaint must be viewed in light of the fact that she was asked to provide her consent to the Registrar to obtain a copy of her criminal and traffic offence history. She initially gave her consent and then withdrew it. The Registrar sought a statutory declaration from her attesting to the existence or absence of any disqualifying convictions, which she declined to provide. Her disclosure was made by way of an unsworn written submission from her legal representative. Her legal representative asserted that the offence of disqualified driving carries a maximum penalty for a first offence of driving whilst disqualified of 18 months. The submission positively asserted that the penalty applicable was that for a first offence. The fact that the local court records provided with her counsel's submissions showed that the disqualification period was two years suggests that the offence was a second or subsequent offence. There was further opportunity to rectify that submission before the Registrar made his decision. As the Applicant had legal advice, was the only person in possession or ought to have been in possession of her traffic offence history and relied only on unsworn statements, the claim of procedural fairness must fail. Further, the evidence shows that the Registrar relied on the information supplied by the Applicant and not any information he obtained separately on 2 April 2008.

226 Alternatively, if the Court finds there was a failure to alert the Applicant that the Registrar was aware of the relevant offence and was intending to rely on that information, it was not crucial or determinative of the decision, per Gummow J in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 at [228]. The onus of establishing that the matter was material falls on the Applicant. The primary basis for the decision that the matter was not trivial was that the offence was for driving whilst disqualified and not whether it was a second or subsequent offence.

(b) complaint by NSWALC 227 In relation to APOC cl 35(b), in order for the Applicant to succeed the Applicant must demonstrate that the nature and content of the complaint were relevant to the exercise of the Registrar's discretion. The view of the NSWALC as to whether the Applicant is a disqualified person is not relevant to the exercise of the Registrar's decision. The content of the complaint was not material which could be taken into account in the exercise of discretion under s 132(2) and was not taken into account. The material in the complaint raised issues that were irrelevant to the exercise to be undertaken under s 132(2). There was no obligation to disclose to the Applicant the nature and content of the complaint and his investigations into it as they were not relevant to the exercise of his discretion. (ii) apprehension of bias 228 The apprehension of bias alleged is based on the Registrar receiving and dealing with a complaint from the NSWALC and also undertaking an investigation into a possible breach of the ALR Act while also exercising his discretion under s 132(2) of that Act. The Applicant was told the complaint had been received in a letter from the Registrar dated 29 January 2008 and that the complaint concerned information within the police fact sheets which were before the Maclean Local Court for the Applicant's conviction on 15 January 2008. The Registrar considered that he should investigate the complaint under s 165(h) of the ALR Act. He stated that he was going to investigate the possibility that a disqualifying conviction was recorded on 11 March 2003 and sought the Applicant's consent to obtain her traffic offence record. She did not request a copy of the complaint. The investigation was completed when the Applicant's submissions sent by her legal representative made an unsworn admission as to the existence of the disqualifying offence. The complaint remained on foot until determination of the Applicant's request for a determination under s 132(2) had been finalised.

229 That there was a complaint on foot while he was exercising his discretion under s 132(2) does not give rise to an apprehension of bias. On these facts that could only arise if there was proof the Registrar was predisposed or appeared to be predisposed to a particular outcome. No such predisposition is disclosed by the evidence. There is no evidence that the Registrar relied on the material including draft letters sent by the CEO of NSWALC for the purposes of the complaint or any other purpose.

230 That the Registrar held the belief that he could make an application to the ADT in the event that he did not exercise his discretion in favour of the Applicant and she did not resign does not create an apprehension of bias. The application was to declare the office of the Applicant vacant pursuant to s 135 of the ALR Act, which is a separate matter from that arising under s 132(2). The role of the ADT under s 135 is not to review the Registrar's decision under s 132(2).

Finding on procedural fairness/apprehension of bias (i) procedural fairness 231 Both parties agreed that the Registrar is required to accord procedural fairness in the exercise of his functions under s 132(2) and the test was articulated by Mason J in Kioa at 569 that where the rules of natural justice apply a party is entitled to a fair opportunity to comment on relevant prejudicial material before a decision is made. The Registrar argued that he did accord the necessary procedural fairness to the Applicant. She argued the contrary. 232 While the general principle in Kioa is readily stated it is necessary to apply that broad principle to the circumstances before me. There are no cases where these issues have been considered in this context that the parties are aware of. As noted in Kioa by Mason J at 585 the critical question in most cases is what does the duty to act fairly require in the circumstances of a particular case and that requires examination of the relevant statutory provisions. There are no procedures identified in the ALR Act or Regulation as to how the Registrar should approach the determination he may make under s 132(2). It is therefore necessary to consider his actions within the broad framework of the ALR Act. The Applicant has made lengthy submissions concerning the purpose behind the power conferred on the Registrar to make determinations under s 132(2), being the identification of a person as fit and proper to fulfil the important role of a councillor on the NSWALC. Her counsel has identified purported failures of the Registrar in his communications with the Applicant and her legal representatives to support the challenge on the basis of procedural fairness on two grounds.

(a) whether second or subsequent offence 233 The first failure alleged is the non-disclosure of material adverse to the Applicant before making his decision, namely the finding of the Registrar that the 2003 driving conviction was for a second or subsequent offence. Consequently the Applicant argued she did not have the opportunity to respond as to whether that was correct and whether it affected the circumstances surrounding the triviality of the 2003 driving conviction the Registrar was considering. The Registrar referred to the 2003 driving conviction as a second and subsequent offence in par (e) of the letter of reasons dated 7 July 2008. His evidence is that he was able to deduce that fact from the local court bench sheet provided by the Applicant in relation to the 2003 conviction. That she was sentenced to a two year driving disqualification suggests the conviction was a second or subsequent conviction because a first offence is punishable by a maximum of 18 months disqualification. While he requested bench sheets from Maclean Local Court and received these in April 2008 which confirmed this view, he did not consider these as part of his determination under s 132(2). 234 The Registrar relied on Ex parte Miah in his submissions where Gaudron J held that when information other than from an applicant is considered by a decision-maker whether that information should be supplied to an applicant depends on the circumstances. This situation does not arise on the facts. The Registrar states that he relied only on the material supplied by the Applicant in making his determination and there is no material to contradict that. That he had also received information from the NSWALC and the Maclean Local Court did not have to be disclosed as he did not rely on it in order to satisfy procedural fairness requirements. 235 I agree with the Registrar's submissions that the whole of the interactions between him, the Applicant and her legal representatives need to be considered to determine if there was a denial of procedural fairness, as outlined above in par 225. The Registrar asked for the Applicant's permission to obtain her driving record which was ultimately not granted. He made his own inquiries and obtained material known to her given that it was her driving record. The Applicant has not sought to establish that the 2003 conviction was not a second or subsequent offence in these proceedings. The submission of her counsel in March 2008 concerning the 2003 driving conviction was apparently incorrect in asserting that the maximum penalty was disqualification from driving for 18 months. 236 When the lengthy communications between the parties and the reasons provided are read as a whole I agree with the Registrar's submission that it is not demonstrated by the Applicant that this issue was material to his determination under s 132(2). Rather the gravamen of the reasons deals with the offence itself, not that it was a second or subsequent offence. On one view the Registrar was recording accurately in his reasons dated 7 July 2008 the position of the Applicant in light of the fact that she received a two year suspension from driving for the 2003 conviction. 237 In relation to the Applicant's submission that the adverse material should have been disclosed, the Applicant submitted that the Registrar had a duty to investigate such matters relying on Hardiman. Hardiman concerned the carrying out of investigations by the Australian Broadcasting Tribunal (ABT) which had specific investigatory powers under its operating Act. It was held in a joint judgment of Gibbs, Stephen, Mason, Aicken and Wilson JJ that the tribunal had a duty to thoroughly investigate matters relevant to its inquiry and had failed to discharge that duty because it precluded itself from discharging the duty due to rulings made. That case considered a quite different statutory framework to that under the ALR Act which included specific powers conferred on the tribunal in question which the Registrar does not have. The Registrar's functions in s 132(2) of the ALR are not analogous to those of the ABT under the Broadcasting and Television Act 1942 (Cth). I do not agree with the Applicant's submissions on this point.

238 A relevant decision referred to by the Registrar to consider in these circumstances is Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. The Federal Court (Northrop, Miles and French JJ) at [134] held in the context of the Migration Act 1958 that while a decision-maker is required to advise of any adverse findings arrived at which would not be open on the known material he or she is not obliged to expose all mental processes or views before making a decision, cited with approval by the Federal Court in MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94. 239 The Applicant was legally represented when her submissions were made and can be presumed to be aware of her driving record as part of the known material. It is not a legal requirement that in order to accord procedural fairness the Registrar had to alert the Applicant to factors which can be presumed to be within her knowledge before making the determination. The Applicant's counsel submitted that it was up to the Registrar to alert her to those matters he considered were relevant and not up to the Applicant to alert him of the fact it was a second and subsequent offence. The information on which the Registrar determined this aspect of the matter was supplied by the Applicant. In these circumstances there was no requirement of procedural fairness to advise her of the matter alleged before making his determination.

(b) NSWALC's complaint 240 The Registrar told the Applicant of the complaint by the NSWALC in his letter of 29 January 2008. That letter referred to the attachments to the complaint being the police fact sheets and the newspaper article which both referred to the Applicant's conviction for a driving offence in the Maclean Local Court on 15 January 2008. The Registrar disclosed in the letter that he had received a complaint and its general nature to the Applicant. One of the Registrar's functions under s 165(h) of the ALR Act is to investigate complaints. There was no statutory requirement under the Act or Regulation as to how the Registrar should investigate complaints, or requiring him to disclose the complaint to the Applicant. He did advise the Applicant of the complaint being received and its substance. 241 There was no specific obligation on him to further advise the Applicant of his responses to the NSWALC. When the correspondence between the Applicant and the Registrar, referred to in the chronology above in par 161, is considered in full it is clear that he kept her informed through her legal representative of what steps he was taking in relation to the investigation he was undertaking in relation to the breach of the Act. It is also relevant to note that the Applicant did not request a copy of the complaint despite being legally represented in her dealings with the Registrar. 242 There was no failure to accord procedural fairness to the Applicant in the circumstances and the challenge on this ground fails.

(ii) apprehension of bias 243 Ebner is widely recognised as providing a relevant test for whether an apprehension of bias arises for those exercising statutory functions. The facts in Ebner concerned whether there was an apprehension of bias resulting from a judge holding shares in a bank which had a financial interest in the outcome of the litigation and/or was a party to the litigation. The test propounded in Ebner in the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issue before them. As the decision recognises (at 343), that principle has been extended to many other kinds of decision making and decision makers. The application of the principle is described in two steps at 345: The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

244 The application of the test in Ebner was considered in the Court of Appeal in McGovern v Ku-ring-gai Council (2008) 161 LGERA 170 in the context of a multi-member elected decision-making body, a local council. The test for apprehended bias applies to statutory decision-makers and is affected by the functions they are required to perform and the identity and nature of the decision-maker who is obliged to perform those functions. This requires a context specific approach, usually as part of a process of statutory interpretation and the judicial paradigm is not universally applicable (per Spigelman CJ at [2], [7], [10]). Similar findings were made by Basten JA at [71] and [75] referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Hayne J at [179]-[187] as an example of how different standards to those applying to judges will operate in relation to ministerial decision-making in that case, because of the need to take into account the particular role and functions of the decision-maker. 245 The cases referred to above were concerned largely with apprehension of bias based on whether there was likely to be an apprehension that the decision-maker had prejudged the matter which had to be determined. The circumstances raised in these proceedings as giving rise to an apprehension of bias are quite different from those cases. As identified by Basten JA in McGovern at [151] (with whom Spigelman CJ and Campbell JA concurred on this point), it is necessary to consider the particular statutory framework in which the decision-maker is operating in determining the considerations relevant to an allegation of apprehension of bias. 246 The Registrar's functions in s 165 relate, inter alia, to the registration of land claims, the maintenance of the Register of Aboriginal Land Claims and the Register of Aboriginal Owners and the making of recommendations to the Minister in relation to changes to area boundaries of local aboriginal land councils, inter alia. Under s 165(h) the Registrar is to investigate complaints regarding, inter alia, the non-disclosure of pecuniary interests, misbehaviour by councillors and Board members, inter alia, and breaches of the Act and the Regulation. Under s 165(h1) if the Minister so requests the Registrar is to provide information about the operations of an aboriginal land council. Other functions can be statutorily conferred on the Registrar under the Act, as has occurred in relation to s 132(2). Under s 165 there is no limitation in terms of the Registrar carrying out any of those functions simultaneously. The Registrar is empowered under s 235 to issue compliance directions at the request of any person or body to an aboriginal land council or an officer of a land council or a councillor requiring compliance with the Act or Regulation made under the Act. He cannot issue a direction if the matter constitutes an offence under the Act or the determination of the matter is provided for in another section of the Act (s 235(3)). There are no specific provisions in the Act or the Regulation for how the Registrar should carry out his functions under s 165, including the handling of complaints.

247 The Applicant argued that because the Registrar fulfilled other functions (par 221 identifies four, investigation of breaches of the Act, considering and advising NSWALC on possible breaches of the ALR Act and its complaint, potential prosecution of the Applicant in the ADT and briefing the Minister) at the same time as making a determination under s 132(2) a fair minded observer might reasonably apprehend that the Registrar might not bring an impartial mind to the exercise of his discretion. Additionally the investigation into whether the Applicant should be disqualified was not within his defined functions under the ALR Act. It was not one of his functions to determine if the Applicant should be disqualified as a councillor and pursued proceedings in the ADT. As a result of carrying out this activity allegedly as part of his functions he was interested in the determination he was required to make in relation to s 132(2). I infer the Applicant is seeking to argue that he might be perceived by a fair-minded observer as not acting dispassionately in the determination he made under s 132(2), so that an apprehension of bias arises. 248 Consistently with s 165(h) the Registrar has the function of investigating complaints about breaches of the Act and the Applicant's situation was drawn to his attention in the context of a complaint by the NSWALC about a possible breach of the Act. The driving offences first drawn to his attention by the NSWALC did not fall within s 132(1)(c). He commenced an investigation into the matter raised by the NSWALC of whether there was a breach by the Applicant of s 132 of the Act, the relevant code of conduct or misbehaviour provisions. He told the NSWALC by letter dated 29 January 2008 that he was continuing to investigate the matters raised concerning the Applicant's driving offence convictions. He wrote to the Applicant on 29 January 2008 advising her of the complaint. There was correspondence and telephone calls with the Applicant's legal adviser. In the letter dated 15 February 2008 from the Registrar to the Applicant he advised of his investigation into whether she was disqualified from holding office under s 132(1)(c) of the Act. He advised that he considered he had to determine whether there were convictions relevant to s 132(1)(c) and sought a statutory declaration about certain matters. If there were such a conviction he also asked if the Applicant wished him to consider exercising his discretion to ignore the convictions pursuant to s 132(2) of the Act and to provide him with any matters she wished to be taken into account in considering that matter. 249 The Applicant's response was in the form of written submissions from her counsel which advised there was one offence of which she was convicted which fell within s 132(1) of the Act. This appears to be the first time the Registrar became aware of the 2003 driving conviction. The Applicant requested the Registrar through her counsel's submissions dated 10 March 2008 to consider whether the 2003 driving conviction should be ignored for the purposes of s 132(1) of the Act. Submissions were made concerning the application of s 132 in similar terms to those made by the Applicant's counsel in these proceedings concerning the broad range of offences falling within s 132(1)(c), and the fact that many of these have no relationship to the fitness or ability of a councillor to carry out their functions. Submissions on the time since the offence and the triviality of the offence were also made.

250 In his response dated 25 March 2008 the Registrar stated that the submissions did not deal with the circumstance surrounding the effluxion of time since the offence was committed. The Registrar at that stage stated that without further information the time that had elapsed since the Applicant nominated as a candidate was not capable of being taken into account in the Applicant's favour. She was invited to make further submissions in relation the circumstances of her non-disclosure of the offence when she nominated for election as a councillor which he could take into account in relation to the time that had elapsed. Supplementary submissions were received from the Applicant's legal representative. He disputed that any of the additional information sought was relevant to the Registrar's consideration of matters under s 132(2) but nevertheless responded as he was instructed to do. The letter of 19 May 2008 from the Registrar provided his determination that he had decided not to ignore the offence in accordance with s 132(2) of the Act. It also stated that the Applicant was disqualified from holding office as a councillor on the NSWALC from the time of appointment. He stated that the appointment was null and void and requested her resignation. If that was not forthcoming he stated that he would apply to the ADT under s 135(1) to seek an order that her position be made vacant. In a later letter dated 18 June 2008 the Registrar advised that no application to the ADT was necessary as she was automatically disqualified. His further expanded reasons for the determination under s 132(2) were provided by letter dated 7 July 2008. He also briefed the office of the Minister for Aboriginal Affairs on 17 June 2008.

251 Given that the complaint from the NSWALC raised issues concerning s 132 of the ALR Act, which deals with grounds for disqualification of councillors, the Registrar was investigating a matter that came within the scope of his functions under s 165(h), contrary to the Applicant's submission. The circumstances giving rise to a potential breach of the Act, the subject of his investigation, concerned whether there was a conviction to which s 132(1)(c) applied. Because of the timing of events this also involved considering the circumstances of the Applicant's election and the swearing of the incorrect statutory declaration by her in breach of cl 47(1)(c1) of the Regulation, there being no rectification of that failure under cl 47(4) before the close of nominations. His investigation of the breach of the Act was within the functions the Act required of him under s 165(h). 252 The Registrar's investigatory functions under s 165(h) are not limited in terms to those matters in which he can issue a compliance direction under s 235, contrary to the Applicant's submissions (par 223). There is no principle of statutory construction which suggests his functions under s 165(h) should be limited in light of s 235(1). This view is also supported by s 235(3) which states the circumstances when a direction is not to be issued. His investigative powers under s 165(h) include consideration of breaches of the Act. Under s 235(3)(a) he is not able to issue a compliance direction if a matter constitutes a breach of the Act. Further, under s 165(f) one of his functions is issuing compliance directions to specified persons. That function is separate from the investigative function under s 165(h). The Applicant's submission that the only role the Registrar had was to exercise his discretion in determining the matter under s 132(2) ignores the wide ranging function the Registrar has under s 165(h) of the Act. Further, there is nothing in the Act suggesting that the Registrar should not also brief the Minister when he considers it appropriate. He must brief the Minister if he receives a request for information from him or her (s 165(h1))

253 The Registrar's submissions at par 228-230 concerning the exercise of more than one of his functions at the same time are correct. Given that during the investigation process the Applicant requested him to exercise his discretion under s 132(2), it is difficult to see how, as a practical matter, he could have separated more clearly the various functions he was performing. The fact that he carried out more than one function does not alone satisfy the requirement the Applicant must meet in identifying the matters relevant to the two part test identified in Ebner. 254 The Applicant argued that the Registrar was relying on a defence of necessity in referring to the need to undertake more than one function at a time and submitted this meant by implication that he admitted there was an apprehension of bias (par 218). I do not find below that any apprehension of bias existed. The statute clearly provides for the Registrar to undertake numerous functions and his investigation function is broad. Whether or not it is necessary that he exercise multiple functions, given the terms of the Act there is no reason to confine his functions under s 165 or infer that these should not be carried out at the same time.

255 It is unclear on the Applicant's case how the two steps identified by Gleeson CJ, McHugh, Gummow and Hayne JJ at [8] in Ebner are satisfied. The first step requires the identification of what interest would lead the Registrar to decide the matter other than on its merits. The Applicant does not clearly identify the nature of the interest which the Registrar has which might cause a fair minded observer to conclude that he might not make the determination under s 132(2) impartially. The inference from the Applicant's case seems to be that he had an interest in seeking the disqualification of the Applicant or was unreasonably influenced by her conduct in seeking election while disqualified, in relation to his determination under s 132(2). I have already determined that the Applicant's challenge to the determination on the basis of failing to take into account relevant matters, taking into account irrelevant matters and unreasonableness, ought to fail. There is no other issue raised in the Applicant's submissions which the Registrar is said to have considered as the basis for the determination which suggests he has done anything other than consider the determination as he is required to do.

256 The second part of the test requires that there be a logical connection between the interest alleged and the possibility of deviation from deciding the case on its merits. Given that there is no interest articulated, this second step cannot be satisfied. In terms of the argument mounted, the Applicant submitted that there was an apprehension of bias because the Registrar considered he should apply to the ADT for a declaration that the Applicant's position was vacant, and that was not part of his functions. I note that he subsequently changed his mind that such an application was necessary because he considered the Applicant's position was automatically vacant. I surmise that the Applicant seeks to argue that because the Registrar also considered he had to deal with whether the Applicant's position as a councillor was vacant due to her disqualification under the Act, this gave rise to an "interest" in the outcome so that his determination of whether to ignore the driving conviction under s 132(2) might not be seen as having been conducted impartially from the perspective of a fair minded observer. 257 That there were in the Registrar's view legal consequences for the Applicant as a result of his determination not to exercise his discretion to ignore the 2003 driving conviction, whether or not that view may be correct, does not identify a matter that he took into account as part of his determination in relation to s 132(2). As submitted by the Registrar (par 230) an application to the ADT under s 135 of the Act is a separate matter from the issue he had to consider under s 132(2).

258 While the Registrar submitted there would have to be some evidence that the Registrar appeared to be predisposed to a particular outcome the "might/might" test of apprehension of bias does not require that level of proof to be established. In McGovern at first instance I held that apprehension of bias in the case of councillors on a elected council had to be firmly established and that the test was whether a fair minded observer would consider the decision-maker would not act impartially. This was criticised as setting too high a threshold by Spigelman CJ at [3] and Campbell JA at [236]. Basten JA did not so hold at [115]. Applying the lower threshold approved by the majority in McGovern, looking at the circumstances before the Registrar and aware of his functions under the Act, a fair minded lay observer would not reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of his functions under s 132(2). There is no apprehension of bias in these circumstances and the Applicant's challenge on this ground fails. 259 The Applicant is unsuccessful on the failure to accord procedural fairness and the apprehension of bias ground. Her challenge to the Registrar's determination not to ignore her 2003 driving conviction under s 132(2) is unsuccessful and that determination stands. Concluding remarks 260 The issues raised by the circumstances of this case are novel in the context of the ALR Act. I have determined that the Applicant was validly elected as a councillor by the returning officer (par 130) so that the issue arises of whether the orders she seeks in prayers 1 to 3 of her Class 4 application ought be made. I have also held that s 132 and 133(e) of the ALR Act apply to her present circumstances (par 135) so that the possibility of the declaration of vacancy of her position arises. I held in relation to issue 2 of the cross-claim (par 151) that the Applicant was not immediately disqualified on taking office. Section 22 of the Court Act states that the Court must grant all remedies to which the parties appear to be entitled so that as far as possible all matters in controversy between the parties can be completely and finally determined in order to avoid a multiplicity of proceedings.

261 I have determined the judicial review proceedings of the Registrar's determination against the Applicant. The issues arise of whether I have jurisdiction to consider whether the Applicant's position as councillor should be declared vacant and whether I should exercise that jurisdiction. This was not a matter that was fully explored in argument and requires further consideration by the parties. An added complication may be that the period of disqualification for the 2003 driving conviction of five years under s 132(1)(c) expired on 11 March 2008. I will ask the parties if they wish to make further brief submissions in this matter about the appropriate orders that should be made and whether further issues arise before finalising any orders. The issue of costs also needs to be considered by the parties.

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