Mario Guiseppe v Registrar of Aboriginal Corporations and Another - [2006] FCA 1692 - FCA 2006 case summary — Zoe

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Mario Guiseppe v Registrar of Aboriginal Corporations and Another

[2006] FCA 1692

Federal Court of Australia|2006-12-18|Before: Cowdroy J

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Source facts

Court

Federal Court of Australia

Decision date

2006-12-18

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant, acting on behalf of the Mutitjulu Community Aboriginal Corporation ('Mutitjulu'), seeks a review of the decision of the first respondent ('the Registrar') made on 18 July 2006 to appoint the second respondent as Administrator ('the Administrator') to Mutitjulu pursuant to s 71(2) of the Aboriginal Councils and Associations Act 1976 (Cth) ('the ACA Act'). Such application is made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'), and s 39B of the Judiciary Act 1903 (Cth).

[2]

Structure of Mutitjulu 2 Mutitjulu is an Aboriginal association incorporated on 3 February 2006 pursuant to Part IV of the ACA Act. The business of Mutitjulu is the administration of the supply of essential services to the Mutitjulu Aboriginal Community located in the Northern Territory of Australia. Such services include employment, health and housing, youth care, after school care and anti substance abuse programs. 3 The operation of the Mutitjulu Community is dependent upon financial assistance of the Commonwealth of Australia which is provided with the approval of the Commonwealth Department of Families and Community Services and Indigenous Affairs ('FaCSIA'). 4 Part II of the ACA Act makes provision for a Registrar of Aboriginal Corporations. The power of the Registrar and the functions thereof are contained in s 5 of the ACA Act and include the power to act as agent for an Aboriginal corporation: see s 5(2). Section 43 of the ACA Act provides for the creation of a Board of an Aboriginal Corporation ('Governing Committee'). 5 Section 71(1) of the ACA Act provides that if the Registrar considers that there may be grounds for appointing an administrator, the Registrar may serve upon the public officer of the corporation a notice in writing: '…calling upon the corporation to show cause, within a reasonable period specified in the notice, why an Administrator should not be appointed.'

[28]

Finding 36 The Registrar was aware, prior to the issue of the Notice, that Mutitjulu's accounts recorded a deficit of $171,595.60, that funding had ceased from 1 July 2006, and that no funds would be available to pay staff or to provide for any of the services necessary for the continued operation of the community. Accordingly, Mutitjulu was unfunded. 37 Despite meetings between FaCSIA and Mutitjulu, no arrangement had been made acceptable to FaCSIA for a resumption of funding in the absence of an administrator. The Registrar was aware that Mutitjulu had been afforded an opportunity to respond to the allegations made against it by FaCSIA and despite Mutitjulu's representations contained in its letter of 11 July 2006 to the Minister, the situation remained unchanged. The letter from Mutitjulu to the Registrar did not offer any plan of action which might have led to a restoration of funding. Accordingly the Registrar was entitled to believe that the funding of Mutitjulu would not be resumed. 38 The Governing Committee had been on notice since 30 June 2006 that no further funding would be provided unless an administrator was appointed. The Governing Committee was taking advice, as the Registrar knew, from Mr Burden who had been in discussions with FaCSIA since 5 July 2006. The Governing Committee had also been receiving legal advice in relation to its dispute with FaCSIA since 5 July 2006. Accordingly, by 12 July 2006 the Governing Committee had ample opportunity to raise any legal issues, or important matters with FaCSIA and with the Registrar concerning the allegations against it 39 Taking these considerations into account, I do not consider that the period allowed in the Notice was unreasonable. The circumstances required immediate and decisive attention. The urgency was obvious, since the failure to obtain funding from FaCSIA would have resulted in a breakdown of the operations of the Mutitjulu community. The Registrar was aware that without funding the operations of the community could not continue, that no funding had been provided since 30 June 2006, and that no funding would be provided unless an administrator were appointed. 40 The urgency of the circumstances may limit the period in which a person may have a right to be heard: see Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337 at 346; see also Re Refugee Tribunal and Another; Ex parte Aala (2000) 176 ALR 219 at [60]. The period in which to show cause provided in the Notice was short. However, the operation of the Mutitjulu community was in a state of crisis, and had been so since 1 July 2006. Accordingly I consider that in these circumstances the period prescribed was reasonable. Even if such period of notice were not regarded as reasonable, the Court would not grant the relief sought in view of the urgency and exceptional circumstances surrounding the need for an administrator's appointment.

[31]

Finding 44 In VEAL the Court was concerned with the failure of the Tribunal to inform the appellant of the existence of a letter which could have influenced the decision which it was required to make. In Kioa and Others v West and Another (1985) 159 CLR 550, the Court determined that the decision-maker was required to provide an opportunity to a party to respond to information which was adverse to the interests of that party, and which the decision maker proposes to take into account in making the decision (at 628). 45 Although generally an opportunity should be given to a party whose interests are affected by a decision to deal with adverse information that is 'credible, relevant and significant to the decision to be made' (see Kioa v West at 629), the allegations influencing the decision of FaCSIA was not information which was credible, relevant and significant to the decision of the Registrar to appoint an administrator. That information 'can and should be put aside from consideration by the decision-maker as not, credible, not relevant, or of little or no significance to the decision to be made.'(see VEAL at [17]). 46 The ground of failure to take into account a relevant consideration similarly does not arise in this instance as this ground is only established if the decision maker fails to take into account a consideration which he or she is bound to take into account in making the decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24 at 39; Kioa v West at 630. The Registrar was not obliged to consider the material relied upon by FaCSIA because the Registrar had no power to control FaCSIA's decision making. The Registrar was only concerned with the consequence of the disputed matters between Mutitjulu and FaCSIA, namely that funding had ceased on 30 June 2006 and that Mutitjulu had no source of income from that time. 47 Section 71(2) of the ACA Act provides that the Registrar may appoint an administrator if satisfied that any of the grounds specified in that section have been established. The statute does not require the Registrar to consider matters which were relevant to a separate decision made by FaCSIA. Accordingly the Registrar was not bound to take those matters in to consideration in her decision to appoint an administrator. The impugned allegations are of a kind referred to by Brennan J in Kioa v West where His Honour said at 628: 'Administrative decision making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made' The events which caused FaCSIA to determine that funding should not be continued is not a matter which was relevant and significant to that consideration by the Registrar to appoint the administrator. 48 Further, the Registrar was aware that FaCSIA had provided an opportunity for Mutitjulu to respond and that Mutitjulu had done so. Despite such response, FaCSIA remained unmoved. 49 In the circumstances it was not unreasonable, in the Wednesbury sense, for the Registrar to issue the Notice. The Wednesbury unreasonableness alleged is of the kind referred to by Weinberg J in Australian Retailers Association and Others v Reserve Bank of Australia (2005) 148 FCR 446 at 585 [570] where His Honour said: 'Many of the particulars relied upon by the applicants in support of Wednesbury unreasonableness seem to me simply to manifest disagreement on their part with some detail or other of PSB's reasoning. Even if there is substance in some of their points, this does not give rise to reviewable error.'

[32]

50 The Registrar had before her information that was 'credible, relevant and significant' (Kioa v West, per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar's decision was reached 'by a process of logical reasoning': see Hill v Green (1999) 48 NSWLR 161. I therefore reject Mutitjulu's Wednesbury submissions. 51 Mutitjulu also claimed that by adopting the period in which to provide submissions of one day, and by declining to assess the correctness of the matters relied upon by FaCSIA, the Registrar denied Mutitjulu the opportunity to challenge the legality of the actions of FaCSIA before this Court. Mutitjulu also claims that it was denied the opportunity to seek to influence the position of FaCSIA through alternate political channels such as the Ombudsman and Question Time in the House of Representatives, and that it was denied the opportunity to obtain advice as to whether FaCSIA's actions were judicially reviewable. 52 Additionally, Mutitjulu claims that the delegate failed to take into account a relevant consideration, being the practical ability of a body such as Mutitjulu to obtain advice and respond to the Notice within 24 hours. 53 Mutitjulu did not suggest in its response to the Minister dated 11 July 2006 that it wished to challenge the decision to cease funding by any of the methods now suggested nor that it was impossible for Mutitjulu to comply with the Notice. Nor did it request an extension of time. Rather the letter expressed a disappointment with the shortness of time but then responded to the Notice without further complaint. Mutitjulu did not claim that it would be prejudiced if the appointment were made. 54 Mutitjulu submits that it can take up to three weeks to gather together the Councillors for a meeting due to the absence of proper postal arrangements; that the shortest period to organise a meeting is three to four days; that there was difficulty in accessing legal advice and that all of the women in the committee were unavailable. It claims that such difficulties would have been plain to a regulator of Aboriginal corporations. 55 Mutitjulu was equipped with both facsimile and email for its communications and was able to communicate promptly with the Registrar in making its submissions. At the time the Notice was received, a meeting of the Governing Committee was in progress. Further, the letter written to the Registrar on 12 July 2006 in response to the Notice was written following advice received from the Central Land Council Lawyers in Alice Springs. In these circumstances I am unable to find any procedural unfairness.

[33]

Was approval held for the appointment of the Administrator? 56 Mutitjulu claims that there was no approval by the Minister as required by s 71(3) of the ACA Act to the appointment of the Administrator. The Registrar claims that at the time that Mr Armstrong appointed the Administrator, the necessary approval was held since the Hon. Kevin Andrews MP, Minister for Employment and Workplace Relations, had been appointed to exercise that power on behalf of the Minister, pursuant to s 18C of the Acts Interpretation Act 1901 (Cth). Alternatively it is submitted that if Mr Armstrong did not have the effective approval of the Minister to appoint the administrator, the Court should exercise its discretion against the making the order sought. 57 The facts disclose that sometime before 12.30 pm on 14 July 2006 the Minister, considering that he may have been in a position of conflict, signed a minute agreeing to the recommendation that another Minister be appointed pursuant to s 18C of the Acts Interpretation Act to determine whether to approve the appointment of the Administrator. Section 18C of such Act authorises a Minister who administers an Act to appoint another Minister to act on his behalf. 58 Some time before 3.44 pm on 14 July 2006 Mr Andrews signed the minute agreeing to the recommendation to approve the appointment of the Administrator. At approximately 4.02 pm on that day the Minister signed the Instrument of Authorisation pursuant to s 18C of the Acts Interpretation Act appointing Mr Andrews. At 9.13 am on 18 July 2006 Mr Armstrong received an email attaching the signed Instrument of Authorisation. On the afternoon of the same day Mr Armstrong signed the Instrument of Appointment which noted that it was effective from 19 July 2006. 59 The Registrar submits that the fact that Mr Andrews signed the minute recommending the appointment of the Administrator before the Minister signed the minute of authorisation is immaterial. The Registrar also submits that the central issue is whether the appointment of the Administrator had the approval of Mr Andrews at the time it was made Finding 60 Section 71(3) of the ACA Act provides that the Registrar must not appoint an administrator without prior approval of the Minister. Mr Armstrong had Mr Andrews' approval at the time the Administrator was appointed. Mr Andrews had by then been authorised by the Minister to approve the appointment of the Administrator. 61 Mr Andrews signed the recommendation to approve the appointment of the Administrator 17 minutes before Minister had in fact signed the Instrument of Authorisation pursuant to s 18C of the Acts Interpretation Act. However the actual appointment of the Administrator was not effected until 18 July 2006. By this date Mr Armstrong held the appropriate approval from Mr Andrews, who had himself been authorised to give such approval by the Minister. 62 The fact that Mr Andrews signed the recommendation to approve the appointment prior to his authorisation does not render the appointment of the administrator invalid. There is no statutory provision requiring Mr Andrews to have authorisation to make the recommendation. The only statutory requirement is that provided by s 71(3) of the ACA Act which requires that the approval of the Minister be obtained for the appointment. 63 In accordance with the agreed chronology set out above, the Court finds that Mr Andrews signed the minute approving the appointment in the expectation that it would not be acted upon by Mr Armstrong until such time as the Minister had signed the minute of authorisation. The appointment was not made until a copy of the Minister's authorisation of Mr Andrews was received by Mr Armstrong. 64 Further there was no statutory requirement that Mr Andrews' approval be issued to Mr Armstrong in writing. The critical fact is that at the date of the appointment of the Administrator, Mr Andrews approved of such appointment with the authority of the Minister. 65 Even if, contrary to the above finding, Mr Andrews did not possess the requisite power for the purpose of the appointment, the circumstances surrounding the appointment were such that the Court would exercise its discretion to decline the relief claimed. Considering the arrangements that may have been made in the intervening period the consequences of deeming the appointment invalid are such as may cause considerable inconvenience. The 'defacto officers' doctrine' was considered by Kirby J in Cassell v The Queen (2000) 201 CLR 189 at [71] in which it was observed that the doctrine was usually invoked to cure an accidental or unintentional lack of authority: see also GJ Coles & Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503 at 525-526. At 527 it was said: 'Whatever is the true account of the origin of the de facto officer rule, its rationale in modern times is the protection which affords the public' Such doctrine would have application with equal force in the present circumstances. 66 For these reasons the Court rejects the submission that the appointment of the Administrator was made without the approval of the Minister in contravention of the ACA Act.

Mario Guiseppe v Registrar of Aboriginal Corporations and Another

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