Editors --- "Mario Guiseppe v Registrar of Aboriginal Corporations [2006] FCA 1692 - Case Summary" [2007] AUIndigLawRw 12; (2007) 11(1) Australian Indigenous Law Review 112

• Mario Guiseppe v Registrar of Aboriginal Corporations and Another
• Facts:
• Held, dismissing the application:

Mario Guiseppe v Registrar of Aboriginal Corporations and Another

Federal Court of Australia (Cowdroy J)

18 December 2006

[2006] FCA 1692

Administrative Law – procedural fairness – Wednesbury unreasonableness – Whether the notice gave the applicants a reasonable time to show cause – authority of Minister to approve the appointment of administrator to Aboriginal corporation.

Facts:

On 18 April 2006 the Registrar of Aboriginal Corporations (‘the Registrar’) appointed Brian McMaster, the second respondent, as Administrator (‘the Administrator’) of the Mutitjulu Community Aboriginal Corporation (‘Mutitjulu’). This appointment was made pursuant to section 71(2) of the Aboriginal Councils and Associations Act 1976 (Cth) (‘ACA Act’).

The Mutitjulu community was dependent upon Commonwealth financial assistance which was provided with the approval of the Commonwealth Department of Families and Community Services and Indigenous Affairs (‘FaCSIA’). On 30 July 2006 FaCSIA notified the Registrar that they would cease funding unless an administrator was appointed to Mutitjulu. Two meetings were held between representatives of Mutitjulu; however, on 10 July FaCSIA confirmed that funding would cease unless an administrator was appointed.

On 11 July the Registrar wrote to Mutitjulu with a notice pursuant to section 71 of the ACA Act requiring Mutitjulu to show cause by 12 July why an administrator should not be appointed. The notice was forwarded to Mutitjulu by email and was received at 3.15pm on 11 July 2006. At 6.15pm Mutitjulu wrote to the Honourable Mal Brough, Minister for Families, Community Services and Indigenous Affairs, acknowledging that they had received the notification and that the Minister’s concerns would be satisfactorily addressed.

On 12 July Mutitjulu telephoned and wrote to the Registrar and advised that the appointment of an Administrator would be opposed. The Registrar contacted FaCSIA and was advised that this would not affect their decision to cut funding. On 18 July an Administrator was appointed.

Mutitjulu sought declarations that the Notice and the decision of 18 July 2006 were unlawful and invalid; declarations that all holders of the office of Governing Committee of Mutitjulu held those offices validly and a writ in the nature of certiorari and an order under section 16(1)(a) of the Administrative Decisions Judicial Review Act 1975 (Cth) (‘ADJR Act’) setting aside the decision to appoint the Administrator: [14].

Mutitjulu’s claim for relief was based upon three allegations: that pursuant to section 5 of the ADJR Act it was denied procedural fairness by the fixing of a period of one day in the Notice; secondly, that the Registrar acted in a way which was unreasonable or procedurally unfair by fixing a period of one day in the Notice when Mutitjulu had not had an opportunity to respond to the FaCSIA allegations; and thirdly, that the Ministerial approval of the appointment of the Administrator was invalid: [15].

Held, dismissing the application:

1. Where there are urgent circumstances which require immediate and decisive action, the prescribed period of time in which a person has a right to respond to a notice may be limited: Alfred Thangarajah Durayappah v W J Fernando and Others [1967] 2 AC 337 and Re Refugee Tribunal and Another; Ex parta Aala [2000] HCA 57; (2000) 176 ALR 219. Consequently, the Court found that the period allowed in the Notice was not unreasonable owing to the urgency of the extant situation: [39]-[40].

2. The ground of failure to take into account relevant considerations only arises where a decision maker fails to take into account a consideration which they are bound to take into account in making the decision: [46] See Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1985-1986) 162 CLR 24, 39; Kioa and Others v West and Another [1985] HCA 81; (1985) 159 CLR 550, 630. Thus, the application for relief based on Wednesbury unreasonabless failed because 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: [46].

3. It was not unreasonable in the Wednesbury sense for the Registrar to issue the Notice because the information before the Registrar was ‘credible, relevant and significant’: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 628-29 (Brennan J). Mere disagreement with the outcome of a decision-making process does not ground a claim for Wednesbury unreasonableness: Australian Retailers Association and Others v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 585 [570] (Weinberg J): [48]-[50].

4. Mutitjulu’s claim that the delegate failed to consider the practical ability of a body such as Mutitjulu to obtain advice and respond to the Notice within 24 hours was dismissed on the basis of Mutitjulu’s access to both facsimile and email correspondence: [55].

5. While section 71(3) of the ACA Act provides that the Registrar must not appoint an administrator without prior approval of the Minister, the Court could exercise its discretion to deny the relief claimed if the consequences warrant such a refusal. In this case it was said that even if the Registrar had not gained Ministerial approval for the appointment of the Administrator, the circumstances of the case were such as to warrant the invocation of the ‘de facto doctrine’, which cures an accidental or unintentional lack of authority: [65] Cassell v The Queen (2000) 201 CLR 189; GJ Coles & Co Ltd and Others v Retail Trade Industrial Tribunal and Others (1987) 7 NSWLR 503.