Editors --- "Clements v Independent Indigenous Advisory Committee - Case Summary" [2003] AUIndigLawRpr 23; (2003) 8(2) Australian Indigenous Law Reporter 41

• Clements V Independent Indigenous Advisory Committee
• Facts:
• Held:

---

Court and Tribunal Decisions – Australia

Clements v Independent Indigenous Advisory Committee

Federal Court of Australia (Gray ACJ, North and Gyles JJ)

27 June 2003

[2003] FCAFC 143

Appeal from a decision of the Administrative Appeals Tribunal —unreasonable notice of tribunal hearing — a denial of procedural fairness — a question of law — an error in law — the Court’s jurisdiction — the Administrative Appeals Tribunal Act 1975 (Cth) — the Administrative Decisions (Judicial Review) Act 1977 (Cth)

Facts:

The applicant appealed a decision of the Administrative Appeals Tribunal, which affirmed a decision of the respondent, the Independent Indigenous Advisory Committee, upholding objections to the inclusion of the applicant’s name on the Indigenous Electors Roll in Tasmania.

The Committee advised the applicant by letter of these objections and of the onus on the applicant to make a submission in relation to this objection within 21 days of its date and the expectation that a connection to a known Aboriginal family is demonstrated. The applicant submitted to the Committee documents from several indigenous bodies which confirmed his Aboriginality. The Committee decided to accept the objections at a meeting on 27 August 2002, on the grounds that it was satisfied that the applicant was not a member of the Aboriginal race of Australia.

The Committee advised the applicant of this decision and of his rights to apply for review of the decision by the Tribunal. The applicant applied to the Tribunal and was advised by letter that his application was listed for hearing on 15 October 2002. The applicant failed to attend the hearing on this day. The tribunal concluded, on the basis of the submitted documents alone, that there was insufficient evidence of the applicant’s Aboriginality and dismissed the application.

The applicant appealed the decision of the Tribunal on the grounds that he did not receive advice of the hearing date until 17 October 2002, after the hearing had taken place, and that this denial of opportunity to be heard constituted a denial of procedural fairness which raised a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

Held:

1. Per Gray ACJ and North J: The decision of the Tribunal should be set aside. Otherwise the appeal to this decision is dismissed. The case should not be remitted to the Tribunal to be heard and decided again.

2. Per Gray ACJ and North J: An administrative error on the part of the Tribunal, which denies a party the opportunity to be heard in relation to an application for review of the Committee’s decision, can be described as a denial of procedural fairness [30], [32]–[33], [42].

3. Per Gray ACJ and North J: A denial of procedural fairness is an error of law and therefore an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). New York Properties Pty Ltd v Commissioner of Taxation [1985] FCA 304; (1985) 7 FCR 401, Goldie v Minister for Immigration & Multicultural Affairs 1999 FCA 1277; (1999) 56 ALD 321, News Corporation Ltd v National Companies & Securities Commission [1984] FCA 400; (1984) 57 ALR 550 followed [6]–[8], [41].

4. Per Gray ACJ and North J: The tribunal can only review particular decisions and does not have a general jurisdiction to admit further evidence to resolve questions of the Aboriginal identity of persons. Therefore the court should not make an order remitting the case to the Tribunal to be heard and decided again [43], [47]–[48].

5. Per Gyles J (dissenting): Leave to amend to seek relief should be granted. Section 5 of the Administrative Decisions (Judiciary Review) Act 1977 (Cth) applied on the basis of a ‘breach of the rules of natural justice’ and ‘an error in law’. A failure to follow necessary statutory procedures, which does not appear on the face of those documents but requires evidence outside those documents, cannot properly be described as an appeal on a question of law within s 44 of the Act, [60], [66].