Powder Family, on behalf of the Jetimarala People v Registrar, National... [1999] FCA 913 | Case summary

"Review" of the decision 16 "Review" is a word which has no settled meaning and is of considerable width, its meaning in a particular case being said to depend upon context: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261; Kainhofer v The Director of Public Prosecutions (No 2) (Full Court of the Federal Court, 17 September 1996, unreported). It may signify judicial control of administrative action or the grant of jurisdiction to exercise judicial power. It may involve a hearing restricted to the material before the decision-maker or one de novo: Republic of South Africa v Dutton & Anor (1997) 147 ALR 310, 316. 17 In most cases where the term has been considered there are indicators of what was intended to be undertaken by way of hearing; for example in South Africa v Dutton, which concerned "review" of a Magistrates' order in extradition proceedings, the statute recognised that the Court was itself authorised to determine eligibility for surrender. Hill J concluded that a limited review was not intended and that the Court could consider the facts for itself, although there the statute expressly limited the rehearing to one on the materials which had been before the Magistrate. 18 The Act in question in these proceedings does not provide such a clear indication with respect to review generally of the Registrar's refusal to register, although it does specify the Courts' powers where review is sought of the Registrar's decision to refuse registration on the basis that the physical connexion test under s 190B(7) is not satisfied. It will be recalled that the Registrar is to consider the connexion, if any, between members of the native title claim group and the land. On "review" the Court is given further power, by s 190D(4), to consider the connexion of the parents of the group members. That would likely require additional evidence and a right to be heard is given to other parties to the native title determination proceedings. A hearing is clearly contemplated, with the Court in some cases possibly deciding disputed, or at least tested, facts. In addition, it revisits the other question of fact which the Registrar has determined, whether there is a prima facie case for native title (see s 190D(4)(a)). In the event that the Court is satisfied of those two matters, it is given the express power to order the Registrar to accept the claim for registration. 19 The section makes no similar provision for review of refusals to register on other grounds. It may be that it was not intended that the same process attend "review" generally of refusals to register. Special provision might have been thought necessary for the exercise of the power to consider the extended physical connexion test, since it requires the reception of evidence. It was obviously thought necessary to balance that right with that providing for the other parties to be heard. It is not possible to infer that the same was thought necessary for review generally. 20 It was submitted for the Attorney-General that regard ought to be had to the Supplementary Explanatory Memorandum to the Native Title Amendment Bill 1997 [No 2]. It appears to have been presented to Parliament by the Prime Minister on 2 July 1998 (see Votes and Proceedings No 175, p 3203). It says, with respect to the proposed insertion of subsections (4) and (5): "…If the Court is satisfied about the matters in paragraphs 190D(4)(a) and (4)(b) the Court may order the Registrar to register the claim and the Registrar will then enter a description of the rights and interests in the claim which prima facie can be established in the Register of Native Title Claims. This is a different outcome to other applications to the Court for a review of the Registrar's decision. Where applicants seek a review of the Registrar's decision on grounds other than those set out in subsection 190D(1A), the Federal Court can order the Registrar to review a decision not to register a claim, however, the Registrar is left with a discretion not to register a claim, however, the Registrar is left with a discretion not to register as a result of the review." 21 The last sentence suggests, clearly enough, that a limited judicial review process and not a rehearing was intended, although it would not be accurate to say that, in a circumstance where the Court ordered the Registrar to reconsider a matter that the Registrar then had a discretion not to register. Non-registration following reconsideration could only result from the Registrar not being satisfied that the statutory criteria were fulfilled. 22 Section 15AB Acts Interpretation Act 1901 provides that material not forming part of the Act being interpreted, including any explanatory memorandum relating to the bill, may be considered "in the ascertainment of the meaning of the provision" in doubt. A second reading speech, to which reference has earlier been made, may also be considered. Its relevance lay in the intention expressed about registration as a threshold test, although it was not necessary to use it as an aid to the construction of the provisions. 23 The passage from the Supplementary Explanation Memorandum is relied upon by the Attorney-General not for an expression of some outcome which was sought to be achieved but, in reality, to provide the missing information about the process, which is to say to give meaning to the word "review". It cannot be determinative of that question. In Re Bolton & Anor; Ex parte Beane (1987) 162 CLR 514, 517-518 it was said: "Furthermore, given that s 19 is ambiguous, consideration may be given in ascertaining the meaning of the provision to the second reading speech of the Minister when introducing the Bill for the Act into the House of Representatives in 1963: Acts Interpretation Act 1901 (Cth), as amended, s 15AB. That speech quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law." (See also Director of Public Prosecutions v Logan Park Investments Pty Ltd & Anor (1995) 37 NSWLR 118, 126). Here it may be observed that the construction referred to in the Memorandum would substantially limit a party's rights upon review. 24 The Attorney-General and Marlborough Nickel submitted that the meaning of review ought to be regarded as limited to error on the grounds now set out in the ADJR Act, because it related to a decision by the Registrar of an administrative kind. It follows, in their submission, that the Court would be concerned only as to the legality of the Registrar's decision. It would not conduct a rehearing and it would not substitute its own decision: see Johnson v Federal Commissioner of Taxation (1987) 72 ALR 625, 628. 25 The use of the word "review" usually signifies that the decision under review is administrative in character, although there are exceptions: Brandy, 261. It has been said that the answer to what will be undertaken by a Court (there in connexion with an "appeal") will depend upon an examination of the legislative provisions rather than classifying the function of the administrative authority, which classifications tend to be too general: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd & Anor (1976) 135 CLR 616, 621-2. This approach would not however seem to me to deny the relevance of what the Statute conveys about the administrative tasks undertaken and what may then be inferred about what was to be undertaken on their completion. 26 In North Ganalanja Aboriginal Corporation & Anor (For and on behalf of the Waanyi People) v State of Queensland & Ors (1996) 135 ALR 225, 241 the High Court held that the Registrar and President of the Tribunal were not exercising judicial power when considering whether an application for native title determination was frivolous or vexatious or that prima facie it could not be made out, those being the basis given by the then s 63 for non acceptance of an application. What the section did not authorise was the judicial function, which was there undertaken, of undertaking a hearing and determining the question on findings made on contested facts and argument. The intended administrative process required consideration of the application and material accompanying it, and if it was fairly arguable, it was to be accepted by the Tribunal. 27 The Registrar's function under consideration here is, in my view, in a similar category. The Registrar assesses the material provided by the applicant, but no other party, for compliance with the statutory requirements. Whilst the questions relating to the native title rights and interests claimed and the physical connexion of the group members to the land require determinations of fact the former is not required to a very high standard and although the lastmentioned requires the Registrar to be "satisfied", that position may be reached by considering the facts put forward by the group. The only other information which the Act permits the Registrar to consider, under s 190A(3), is that resulting from the Registrar's own searches of registers and information provided by the Commonwealth, a State or Territory which the Registrar considers is relevant to the factual enquiries under s 190B or s 190C. The firstmentioned information, relevant to acts of extinguishment is likely to be of public record or official documents. Information provided concerning the native title rights and interests claimed or physical connexion to land might not in any event be provided by the Commonwealth, a State or Territory by the time the Registrar comes to consider registration. If it did this would seem to be the only significant area for a determination on disputed facts. Information received by the Registrar on these topics, and any concerning acts of extinguishment, may not be known to the applicant and it may be prudent for the Registrar to allow the applicant an opportunity to consider it and comment upon it. The process is not however the kind undertaken by a Court (see Brandy 256-258) and, whilst the decision postpones the right to negotiate, it is not determinative of it. The Registrar's tasks in this connexion may be contrasted with that which may be undertaken by the Court where an order under s 190D(4) is sought. 28 In Re Greenhill; Ex parte Pook (1988) 83 ALR 295, 296-7 Gummow J considered that the word "review" rather than "appeal" might have been carefully chosen by the legislature: "with an eye to the complex history that has attended the question of the exercise of the judicial power of the Commonwealth other than by judges; cf Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49, 63-4 …" The Act here does not provide that the primary decision-making power is that of the Court and the Registrar is not part of the Court's organisation. Cases involving delegated functions, and which hold that a rehearing is in such circumstances, necessary to be undertaken by the Court on a "review" are then not relevant (see eg Harris v Caladine (1991) 172 CLR 84; Cockatoo Dockyard Pty Limited v Atamian, (NSW Court of Appeal, 11 August 1995 unreported). 29 The Native Title Act does make provision for an appeal process, in s 169. Part 6, Division 5, s 139 provides that the Tribunal must hold inquiries into a right to negotiate application, a special matter (see s 137) and where an objection to registration of a land use agreement is maintained. Provision is then made for the parties to those inquiries; for references of questions of law to the Federal Court and for the taking of evidence, amongst other things. A written record is required to be kept and findings of fact must be made in the determination of the Tribunal. Section 169 then provides for an "appeal", limited to a question of law, from that decision to the Federal Court, which may be constituted as a Full Court. The Court hearing the appeal may affirm or set aside the decision or determination or remit it for hearing again or it may make such order as it considers appropriate. The provisions are usual to an appeal proper and the Court's function on it reflects the nature of the proceedings undertaken by the Tribunal. It may be inferred that those drafting the Act intended a "review" to reflect a different procedure from an appeal; and that they were cognisant of the nature of the functions undertaken here by the Tribunal and, on the other hand, then undertaken by the Registrar with respect to the registration test. 30 By contrast with the Tribunal's function referred to above, the nature of the first decision-making process may have been so limited that it could not be supposed that an appeal court is to be confined. In that event, it may be concluded that a rehearing was intended to be undertaken. Much will depend upon the character of the function undertaken and, of course, the legislative context. In Sperway Constructions 621-2 the nature of the proceedings before the Commissioner did not lend themselves to an appeal in the County Court, confined to the materials before the Commissioner, when regard was had to the extent of them and the lack of a record and reasons. 31 In the present case, reasons are required to be provided by the Registrar and all of the material considered by him should be on the file. Where it concerns a matter within his own knowledge, such as that relating to other prior applications, that should appear in his reasons. In that connexion, there is much to the point made by the Attorney-General that, if a review by way of rehearing were to be undertaken, the Court would be in some difficulty in fulfilling the functions to be undertaken by the Registrar. Although not determinative of the question, it may be seen that judicial review in the manner provided for by the ADJR Act may be appropriately applied to the materials and the determination. 32 A statute which does provide for both a review by way of rehearing and an appeal in the strict sense, is the Administrative Appeals Tribunal Act 1975. The Tribunal's power to review is such that it is put in the same position as the original decision-maker, with all necessary powers and discretions and it is able to substitute its own decision for that under review (s 43). An appeal to the Court is limited to a question of law. The ability of a Court to substitute its own decision provides a strong indication that it was intended to consider all of the facts for itself. Such was the case in South Africa v Dutton; and see Phillips v The Commonwealth of Australia (1964) 110 CLR 347. Whether it is then limited to the evidence which was before the decision-maker or it may receive other evidence, is a matter not relevant to these proceedings. 33 Subsection 190D(4) does permit the Court to reach its own conclusion. It is of interest that its role is limited to the two areas of fact and law: those with respect to the native title interest and the extended physical connexion test. The limited range of the "review' does not require it to consider all of the matters with which the Registrar had been concerned. There is, however, no power given to the Court to come to its own view of the facts put forward by the applicant on reviews on other grounds. It does not seem possible to me to imply such a power. Conclusion 34 The nature of the Registrar's decision, and the materials provided for, upon which it is based, is such as to be suitable for review in the administrative law sense. The function to be undertaken by the Registrar is not one which could readily be undertaken by the Court, which lacks necessary knowledge of other native title applications and would involve it in searches for information before fact-finding. There is no authorisation of a rehearing by the Court to be gleaned from the Act and the provisions surrounding those in question. What is provided for is a review of the legality of the Registrar's decision on the established grounds, and one which may be undertaken expeditiously, given the requirement that the Registrar furnish reasons as soon as possible. 35 The appellant submitted that, because a valuable right was involved, it may more readily be inferred that a Court would consider the matter for itself. As I have said, the right to negotiate is not determined at this point, it may be postponed. To the contrary of this submission, I consider that one might assume more readily these days that the legislature is concerned not to duplicate processes and that there is a move away from de novo hearings. 36 Lastly, I observe that the conclusion I have reached as to the nature of the review is supported by the reference in the Supplementary Explanatory Memorandum. 37 I shall hear Counsel as to the terms of an appropriate order as to costs. State of Queensland as a Party 38 Contrary to Marlborough Nickel's submission, it does not seem to me that the State of Queensland is automatically a party to these proceedings. This is not an application to which subsection 190(4) relates, and which would require the State to be given an opportunity to be heard, as a party to the native title determination proceedings. The registration process, and I would think any applications with respect to discussions made in connexion with it, are not part of the main proceedings. In those circumstances the parties to the review proceedings will not necessarily be the same as those identified by the Statute as interested in the main proceedings. With respect to joinder of a party to applications such as this, neither provisions of s 84(5) of the Act nor O 78 r 8 Federal Court Rules would seem to apply. Orders under O 6 r 8 would however remain open. On normal principles Marlborough Nickel would have an interest in whether the right to negotiate provisions were available to the claimant. The State of Queensland would not however seem to be a necessary party. There will be an order removing it from the proceedings. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Powder Family, on behalf of the Jetimarala People v Registrar, National Native Title Tribunal

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