Taylor, Simon --- "Administering the Land Fund: New South Wales Aboriginal Land Council v ATSIC" [1996] AboriginalLawB 32; (1996) 3(81) Aboriginal Law Bulletin 28

• Administering The Land Fund: New South Wales Aboriginal Land Council V Atsic
• Issues
• Jurisdiction
• Merits

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Administering the Land Fund:

New South Wales Aboriginal Land Council v ATSIC

New South Wales Aboriginal Land Council v ATSIC

Federal Court, Hill J

(1995) 131 ALR 559

30 August 1995

Casenote by Simon Taylor[1]

The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth) ('the Land Fund Act') was passed as part of the Keating Government's response to Mabo (No. 2) (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1). It established a Land Fund, to be funded by government grants, and an Indigenous Land Corporation ('ILC') to help Indigenous people acquire land through grants of Land Fund money.

However, the ILC is not the only body initially designated to administer Land Fund money. Until 1 July 1997, approximately half will be channelled to Indigenous interests through the Aboriginal and Torres Strait Islander Commission (ATSIC). After that, the ILC is to be the sole administrator. The case concerns the way ATSIC resolved to direct its portion of Land Fund money over the 1995-6 and 1996-7 fiscal years.

There was established by the Land Fund Act an important difference between what could be done with Land Fund money channelled through the ILC and Land Fund money channelled through ATSIC. The Land Fund Act provides (at s191U) that Aborigines who acquire Northern Territory land using Land Fund money provided by the ILC are prohibited from claiming that land under the Aboriginal Land Rights (NT) Act 1976 (Cth) ('the NT Land Rights Act'). Significantly, this restriction does not apply to Northern Territory land acquired using Land Fund money provided by ATSIC.

The NT Land Rights Act facilitates the conversion of crown land or land owned by Aborigines in the Northern Territory to 'inalienable freehold' where there are traditional Aboriginal owners of that land. Aborigines have significant rights in relation to 'inalienable freehold' which do not apply in relation to ordinary freehold. For example, there is a veto over mineral exploration (subject to its being overridden by the Governor General in the national interest). Almost 50 percent of the Northern Territory is held or has been claimed under the NT Land Rights Act.

There is a sunset clause in the NT Land Rights Act which prevents land claims being made after June 1997; that is also when ATSIC ceases to administer Land Fund money. On 30 August 1994, in the Second Reading Speech to the original Land Fund Bill (the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994), the then Prime Minister, Mr Keating, told the House of Representatives that the Chief Minister of the Northern Territory was concerned to avoid a sudden increase in applications under the NT Land Rights Act in advance of the June 1997 cut-off date. The Prime Minister told the House that the Land Fund Bill, if passed into law, would not lead to an 'inappropriate' increase in land held under inalienable title because of the prohibition on NT Land Rights Act claims over land acquired by the use of Land Fund money provided by the ILC. The Explanatory Memorandum stated that the purpose of the prohibition is 'to ensure that there is not a significant increase in the number of pastoral properties converted to inalienable title' (page 563).

On 29 March 1995 (the day the Land Fund Act was proclaimed) the Board of Commissioners of ATSIC met to determine the principles upon which it would conduct its land acquisition and maintenance programs for 1995-6 and 1996-7, the two years during which it shares the administration of Land Fund money with the ILC. It should be stressed that ATSIC did not then decide the merits of any particular application for funds.

There was an options paper before the ATSIC Board. It said that, in line with 'discussions' with the Government, ATSIC's task was to maximise grants to the Northern Territory to facilitate applications under the NT Land Rights Act, and that 'This is the underlying rationale for the ATSIC and ILC parallel programs' (page 564).

The ATSIC Board resolved to set aside $10 million for land purchases in the Northern Territory and only $2 million for other priority national purchases in each of the years 1995-6 and 1996-7. ATSIC then wrote to the ILC informing it of the resolution and encouraging the ILC 'to purchase land elsewhere in Australia, where conversion to inalienable freehold is not available'. (At its first board meeting the ILC decided to take the course suggested by ATSIC, but then decided in mid-July 1995 not to exclude the Northern Territory.)

Organisations representing Aborigines from outside the Northern Territory took exception to ATSIC's resolution. The New South Wales Aboriginal Land Council and the Tasmanian Aboriginal Centre Inc commenced proceedings to overturn it. The Foundation of Aboriginal and Islander Research Action Aboriginal Corporation commenced separate proceedings with the same objective. The Chief Executive Officer of ATSIC was joined as a respondent. The proceedings were heard together before Hill J.

On 9 August 1995, by which time the proceedings were well under way, ATSIC determined that applications for grants might still be considered on their individual merits, even if there had been a 'global allocation'; ATSIC argued that this rendered the proceedings moot. However, the 9 August determination was not framed so as to require individual applications to be considered on their merits.

Issues

Justice Hill of the Federal Court was required to consider the following jurisdictional issues:

Did the Federal Court have power to grant, and in the circumstances should- it grant, relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') or the Judiciary Act 1903 (Cth)? Alternatively, was the Court's pendent jurisdiction attracted?

If the Court had jurisdiction, was ATSIC's resolution of 29 March 1995 so unreasonable as to involve an error of law? Did ATSIC err in its understanding of Government policy in coming to its decision and did it take into account irrelevant considerations?

Jurisdiction

Relief could not be granted under the ADJR Act, as there was no 'decision' capable of being reviewed under s5 of that Act, nor 'conduct' for the purpose of making a decision capable of being reviewed under s6: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. The resolution was not a 'decision' as it did not determine in a final, substantive or operative way any particular application for funds, and it was not a decision contemplated by the Land Fund Act. It merely laid down a general policy (pages 568-9 and 571). The resolution was not 'conduct' for the purpose of making a decision; in the context of the ADJR Act 'conduct' refers to matters of procedure. It was difficult to classify the resolution as a matter of, procedure (page 571).

There was no jurisdiction to issue a prerogative writ or grant an injunction under s39B of the Judiciary Act 1903. Section 39B allows such relief against an officer or officers of the Commonwealth. But ATSIC is not an officer of the Commonwealth. Although the second respondent, Ms Lois O'Donohue, as the Chief Executive Officer of ATSIC, clearly is an officer of the Commonwealth, it was clear she had only been joined in an attempt to get relief under s39B. She would not play a substantive role in relation to the future granting or rejection of particular applications for funds; her joinder was therefore 'colourable'. The Court has no jurisdiction to grant relief under s39B where the jurisdictional element is 'colourable' (pages 572-3).

However, there was pendent general administrative law jurisdiction. Where the Court has core jurisdiction under a Federal statute, it also has jurisdiction to consider the common law implications of relevant conduct and grant relief where appropriate, even if the core Federal action is dismissed. Does the Court have core jurisdiction under the ADJR Act given there was no relevant 'decision' or 'conduct'? Section 8 of the ADJR Act provides '[t]he Court has jurisdiction to hear and determine applications made to the Court under this Act' (italics added). Arguably the ADJR Act claim was an application, and the Court had been exercising ADJR Act jurisdiction, even though the ultimate result was a finding that there was actually no reviewable decision or conduct. On this view, the Court had been exercising core jurisdiction; it followed there was pendent jurisdiction. Though Hill J had reservations, he felt bound to follow Post Office Agents Association Ltd v Australian Postal Commission ((1988) 84 ALR 563) which held that where an ADJR Act application is made as a matter of substance, rather than artificiality or subterfuge, the pendent jurisdiction is attracted, even though the conduct may not be found reviewable under the Act (pages 573-5).

Merits

Having found that the Court had pendent jurisdiction, Hill J proceeded to consider the matter in accordance with general administrative law principles.

He held that ATSIC's decision of 29 March 1995 was so unreasonable as to involve an error of law. Although the June 1997 sunset clause in the NT Land Rights Act, and the advantages of land held under that Act, were not irrelevant considerations, it did not follow that 'ATSIC could commit virtually all of the funds available to [the Northern Territory] for land acquisitions to that end'. Hill J also observed that it would be inappropriate for the ILC to connive with ATSIC to achieve that end.

Second, he noted that ATSIC had called no evidence of the 'discussions' with the Government referred to in the options paper before the Board on 29 March 1995. If ATSIC had correctly interpreted Government policy, then the Prime Minister must have deliberately misled the House of Representatives when he sought to assuage the fears of the Chief Minister of the Northern Territory. This could not be lightly inferred. Thus ATSIC must have erred by taking into account an irrelevant consideration (the 'discussions', or its interpretation of them) and failing to take into account a relevant consideration (viz, what Hill J presumed, on the basis of the Prime Minister's Second Reading Speech, to be the real Government policy) (pages 576-578).

Hill J held that he should exercise his discretion to intervene notwithstanding the ATSIC determination of 9 August 1995, which he did not see as removing the fetter on ATSIC's administrative discretion, and found to be mere 'window dressing' for the purpose of the proceedings. It did not render the proceedings futile (pages 578-9).

In the result, ATSIC's resolution of 29 March 1995 was set aside, and ATSIC was restrained from making grants in accordance with it.

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[1] The views expressed herein are the writer’s and not necessarily those of the parliamentary Joint Committee on Native Title and Aboriginal and Torres Strait Islander Land Fund.