CATCHUORDS AUMINISTRATIVE LAU - Judicial Review - Grant of leasehold ainmterest - Jurisdiction of decision maker — Whether decisions authorised by enactment - Error of Law - Grant of ainterest ko "Aboriginal Corporation" - Whether applicant an "Aboriginal Corporation' - Quantum and revocability of interest granted - Whether applicant an 'aboriginal body' - Alleged Breach of Rules of Naturai Justice - Legitimate Expectation - Whether improper exercise of power, Aboriginal, Bevelopment Commission Act 1980 ss.3, 441), 8, 9, 24, 27, 28, S51 Administrative Deciszons (Judicial Raview) Act, 1977 Sad - Aboriginal Land Eund, Commission Act 1974 ss.18, 19, 206, al Associations Incorporation Ack 5.21(23) RALKON AGRICULTURAL COMPANY PTY. LINITED v ABORIGINAL DEVELOPMENT COMMISSION and POINT NcLEAY COMMUNITY COUNCIL INC. FISHER J. AUELAINE 29 EFERRUARY 1984. » ~ AGRICULTUPAL tal Bal ul a me a fay cc Pears to rid b= eal hal i HI Hd Leal Aryra ict ~ tLe IN THE FEDEPAL COURT OF AU SOUTH AUSTRALTA DISTRICT REG GENEPAL, DIVISION tr 29 February 1984 PEASONS Fisher J. This is an application pursuant to 5.5 of the Administrative Decisions {Judicial Review) Act 1977 ("the Act"), n2 applicant ("Ralxon") seers an order of review of the decision of the rezpondent Abori A.D.C.') made on or about 243 harcnh 1921 to oaffer to the eespondent Point McLeay Community Ccunc2l Incorporated ("tne Community Council') a iease of a Pproeperty at or near Point MecLeay known as Bartlett Ralkon is eat company incorporated ain South Austrailia under the Companies Act 1962, its principal objects being tine pursuit of pastoral, farming and grazing activities. The A.D.C. as a body corporate established under the Aboriginal Development Act 1980. Under that Act the A.D.C. succeeded to the property, under the Aboriginal Land Fund Act 1974, Tne functions and powers of these bodies will, ta the extent relevant, he later considered. BE Ralkon challenges the abovementioned decisions to grant @ iease of Bartlett's Farm to the Community Council and seeks a ' id le ora Ieaseh ul ov Oo grant cto itself of an estate in fee im 'J n interest in the farm. Tre ontest primarily centred upon the decision of 23 March 19B1i to offer the lease to the Community Council. ul For the purpose of assessing the legitimate expectation '3 Farm and aiso th £ id tm Be ni =] rt fe] of Ralkon in relation to Bartiett ci ial H uw m li en ri which 1t can be said to be reasonably aggrieved, tO view the decision in its context and against its historical Background. To this end it 2s necessary to extract from the vast amount of evidence, both Gocunentary and oral, the facts ana circumstances which I consider relevant and significant. ihRis necessitates commencing in the year 15974. Durang this year the Community Council, which represents some 200 Aboriginals residing at Point McLeay, arranged for an independent consulting body to inspect Bartlett's Farm with a view to 1ts purchase. On 15 January 1975 a meeting of the Community Council recommended that the farm he purchased and thet "Canberra" be approached for funds. The Community Council acquired an option to purchase the property. The A.L.F.C. met on li Juiy 1275 and nad before ait 4 recammendatiion From ane of its officers, Mr. Muddle, to purchase Hartlett's Farm for $280,c00 and to provide $70,000 for expenses. There was in additzron a recommendation that another statutory Sody, the Aboriginal Loans Commicsion, provide 694,000 for tne purchase of stock and development of the property. In fact $182,885 was made available in ra 1976 and 1977 Ior such expenditure. 1G These recommendations, which were accepted hy the A.U.F.C., noted that the Community Council had since 1 July 1974 held from the South Australian Aboriginal Lands Trust a 99 year lease of an adjoining farm of 1156 hectares called the Foint McLeay farm. it was contemplated that the two properties would be worked as one unit. Certain Matters in the recommendation ars of relevance. The Cortunity Council expressec its willingness to accept sutside assistance from a general organization which organisation would be obliged to report annually to the Deparcment of Aboriginal Afiairs. Under the heading ci "Organization" the recommendation made the following comments: "The project should be kept seperate from the service functions of the community administratiion By incorporating the project into an agricultural company wholly owned by the community. eae It is proposed that immediate steps be taken by the Point McLeay Community Council to set up a properly constituted company to operate the Point McLeay Far project. Recommendation: It 15 recommended thar tne Commission approve the purchase ot Bartlett's Farm on the basis that: (a) ac. (b) ... (c) The Commission holding c<citile pending dz 5 5 between the Point McLeay Community Counc2l Inc. and the South Austraiian Lands Trust." At the meeting of the A.U.F.C. held on ii July i975 the This decision was conveyed by Mr. Muddle to the Community Couneii by letter dated 1 August 1975 the relevant parts of which are as follows: "PURCHASE OF BARTLETT'S FARM Iam pleased to inform you that the Aboriginal Land Fund Commissioners have approved a grant to enable your council to purchase the property known as 'Bartlett's Farm'. The grant was aporoved subject to the foilowing conditions:- (a) that a properly constituted company be set up ta Manage the operations of the farming project; {b) that the position regarding a water licence te clarzfied as soon as possible; (ce) that application be mage to tne Aboriginal Loans Commission for financzai assistance to operate and develop the project; (d) that the training of apprentices b separately, either from the Epecial Froj or the Training Fund; (e) that t2tle deeds be hneld by tne Fouth Australian Fund cts Fu it ia wm J ian a ut Aboriginal Lands Trust for r2leacing to the Point McLeay Community Council Inc; (1) that the Point McLeay Community Council Inc. comply with the Department's financial rules; (q) that you accept supervision and guidance from qualified consultants. To meet the above conditions it will be necessary for the Council to advise this office in writing that the above conditions are acceptable," On 4 December 1975 Mr. W. Prior wrote on behalf of the mal Director of the Department of Aboriginal Affairs in a Dt ia] gi ade to che Executive Orficer of the A.L.F.C. a letter, the E hu ide Ft prinary significance of which is that the recommendations therein were not accepted or implemented by the A.L.F.C. There was no n evidence that it was at the time seen by Ralkon but for surticient campleteness it is, to tre extent relevant, as follows: "Teanster or Titie -— Bartilett's Farm, Foant Now that settlement for the Bartlett property is complete, the question arifes as to who should hold title to the area. I consider it desirable that this Office should be seen to be consistent in the approach to the question of land title, and the obvious course is to support the convention that titie to 811 Aboriginai lands acquired in this State from public monies continugs to he vested an the South Australzan Aboriginal Lands Trust. 2. Consequently, I recommend that title to Rartiett's property should be transferred, ain accordance with Section 20 (1)(b) of the Act, to the Trust at 25 Bank Street, Adelaide. 3. There are several conditions of transfer that I would suggest 21f the Commission 12 to accept my recommendation, and these are - (a) that the Trust accept permanent titl e. (bh) that the Trust agree to immediately arrange On the following day circulated to lease the Agricultural Co. wholly owned by Point McLeay) first five of which €. entire Pty. area Lrd. the Aboriginal for a period of are to be rent free. ta (a the Raikon corporaticn people 50 years, of the (c) that the lease agreement include all land anda improvements etc. fixed the settlement price." amongst the inhabitants of which were Point a letter prepared by Mr. McLeay. par t of Prior was Ralkon placed considerabie reliance on this letter and 1t 1S appropriate to include it in its chronological order. It was as follows: "Dear Ms Rankine, Re: The Benefits of Being a Shareho of the Ralkon Agricultural Company Frv, Ltd. WHO OWNS THE COMPANY? The owners of the Raikon Agricultural Company Pry. Ltd. are the people of Point NcLeay over the age of 18 years. No-one else can be an owner, but any person at Point McLeay can refuse if he or she does not want to he an owner. That 1s his (or her) decision. The owners are calied SHAREHOLDERS, and their shares are held for them in trust by the Council. WHAT IS THE COMPANY'S JOBr The Ralkon Agricultural Company Pty. Ltd. is a company formed to do a certain job. That job is ta maxe sure that the farm is run properly as a business, and that it makes & profit as soon as possible. Where do the shareholders fit in? The main job of the shareholders is to elect Four Foint McLeay people to the Board of Darectors Gach year. Those four people are then Darectors of the Company. The shareholders must he fair and elect the best Board lo de the job, because the Loard has the biggest responsibility and the members are the people who would be in the most troubie if something went wrong. Elections are held only once a year at the Annual General Meeting. There will be an Annual General Meeting in July, 1976. At other times during the year, 1f 6a shareholder wants to have a sav, he or she can go to one of tne Board members and ask that member to put forward his views at the next Board meeting. To sum up, these the RIGHTS and RESPONSIBILITIES OF SHAREHO - re DERS aad 1. To vote for peopie on the Hoard of Directors once a year, 2.8. every duly. 2. To keep an anterest in the Company and to support ait sa that ome day it will make a profit which can be shared out. 3. You can become a shareholder by having a share in the Company and paying for it, but this also means that you cannot transfer your share tO anyone else without the approval of the Directors. a rv Also, all shareholders will have EQUAL shares. WHAT IS TN IT FOR You? There are BENEFITS to being a shareholder. The main one is that when the Company starts to make a profit in a few years' time, the profits will be paid to the Community Council to provide more noney for Foint Mciheay. in other words, you actually have some of the money from the prortits returned for your Henefait, aif you are a snareholcer. HY YOU SHOULD BF A SHAREHOLDER, Tt costs money te become a shareholder. The reazton for this 25 that all sharehoiders (in any company) are expected to contribute something towards making the company run properly. TF the sharenolders nelp, then they are supporting the Company and heiping it to run properly. If they don't help, then it might ga broke. Riso, 1f the pecple don't help, them you © 8. Caunuol expect the Government to help. The Government has put ina lot of money, but the people of Foint McLeay also are expected to help with their company. The Government has Bought Bartlett's farm, and has paid a lot of money to start the Company, Dut now it is up to the people to give something in return. Very soon, you will be asked to pay something, perhaps 55.00 each, to snow tne Government thet you are also prepared to help. When you pay this money, you will be a SHAREHOLDER. (You only pay once, not every year). artant: The Aboriginal Loans Commission Has eed to LOAN a lot of money to the Company to pit get started. The loan will only be given, ever iz all the peormle become sharenoiders. be ono toan if the seople don't support i sy' Bi Dey Ws tr e i the Comrany Ir s letter has heen written for you, Aboriginal men and women at Foint Department of Aboriginal Affairs in n important letter, and you should try Tf you don't. then you should ask Wayne Prior or John Smith, both from D.A.A., when next they visit Foint McLeay. = Company will be very re of Point Mcheay, and n interest, and contribute The success of th important toa the futu everybody should take a something. Ke wiil tell you later on just when you can Make vrour vaymMent. Mr. Prior did not give evidence and a fair comment on the letter ais that ne wis doing his best ta explain to people, many oF whom had little or no commercial experience, the part they, Ralkon and the Community Council were to play in relation +gt) is] B a rtA na ny fit) he to Barclett's Farm. A number of members of t community did pay for shares but only 100 were allotted exclusively to the Community Council. During 1976 the A.L.F.C. considered generally the matter of formal leases of the varisus properties ait had purchased but there was no mention or faggestien in its Minutes or agenda ad Papers that a formal lease to Ralkon was contemplated. Father to the contrary, its view appears to have been that the matter of formal leases snould be aeferred until the "Councils and Associations Bill" was passed "when the interests granted to Communities should be in the nature of leases but that these communities shovwid he incorporated under the Councils and Associations Act". The wera "Comrunities" has been empnasized b at is apparent that it was the Aboriginal communities to n p c m hi) vhom iT was contemplated ieases would ultimately be granted. It was at the meeting of the A.L.F.C. held on 16-17 Septenber of that year consideration was given to the granting of interestsS under s.20 of its Act. At this stage at is not necessary to set aut the provisions of s.20, though ultimately they will have to be carefully considered, It suffices to nore that tre A.L.F.C. was empowered to make grants of interests in land to specified Anoriginal bodies. Tne A.L.F.C. was aware ctnat an interest in iand could oniy be granted to an "Anoriginal Corporation" the qualifications of which body were uprezesly Gefined under its Act. Notwithstanding the fact that the 1c. + t Y te nol cunsidered, the »F.C. purported to approve grants o interest under 5.20 to a number of allegedly Aboriginal Corporations, including Ralkon ain respect of Hartlett's farm. nt of anterest must ultimately he t h The effacacy of th fs sg It also approved at the v nt B py ul a a in critically reviewed in thes same meeting a grant of anterest tG & particular company as an operating company "in the interim until the relevant Aboriginal group is incorporated". ad fu fhe There was no evidence that Ralkon, wnich was alre farming the land, was advised of this grant of interest. The quantum and nature of the interest which as a matter of law was granted, and whether Raikon was qualified toa receive any such grant are all matters for later consideration. I note as a matter of background and without any view on oO the merits that it was reported to the A.L.F.C. early in 1577 wad arisen in reiation te Ralkon and that that at its meeting on 27-28 April 1977 at resolved that eviction peoceedings be commenced against Mr. I.M. Hiilock the resident manager of Bartlett's farm. Mr. xHiilock played a significant role in the affairs of Ralkon ance tne relationship hetween the Point McLeay. During this year and the two subsequent years the A.L.F.C. was understandabiv greatly concerned, as was the Commonwealth Aug2tor General, ahout the mature and form of the interests which it was both obliged and entitled to grant and purported to have granted under 5.20. It was also apprenensive because 1t had no evidence that the recipients of its grants of interest were, wathin the relevant definition, Aboriginal in Corporations. On a number of occasions it had before 1t, quer relating to the concept of a "grant of interest entitlement of recipients. Some of these queries were raised the Buditor General. Efforts wnich the A.L.F.C. assistance in relation to these queries from ommenvwealth Crown if i) is ii} Ld iit I- S El wD i wD mt ct Aa any ct 'x! a m7 unproductive. It also appears that on every occasion upon which it gave comsideration toa the granting of an interesr, The nature and arguably the extent the A.L.F.C. contemplated it nad earlier granted to Kaikon Wade apparent by its letter to Ralkon of B March 1979. As far relevant, this lerter was as follows: "Dear Mr. Koolmatrie, When the Abo: Land Fund Conzvission purchased 'Bartietz' it proceeded to male a 'Grant of Interest te enable it to eccupy and utilise the la Under Section <0 of the Aboriginal Land 1972 upon waking a Formal 'Grant of Interest' vour company assumed responsibility for the payment of rates, and other charges associated with operating the proverty i.e. electricity, water etc. The Commission i5 not responsible for the day to day operations of the property. With regard to your query on insurance I ake the following comments:- th 12. The holds title to taken to prepare a formalize communities 'Grants of Interest' Aboriginal Land Fund Commission currently Bartlett' standard agreement responsibilities in and Farm but steps are being which will having allow the Commission to transfer titles to yours and other groups following incorporation under the Aboriginal Councils and Associations Act. The Commission has been directed to hold titles to land purchased by it for communities until communities ancorporate under the Act so as to ensure land 15 not disposed of. The request for ansurance Getails is required if agreements are drawn up and 185 necessary to safeguard the Commission faxed assets or injury to third persons. an the event of damage ta i shall keen you informec on Future developments regarding the agreement and transfer or title." It appears that it was at about this tame that Ralkon first became concerned as to the adequacy oF its t2tle to and its security of tenure of Bartiett's Farm. At a meeting of directcrs held on 7 September 1979 the following resolution was passed. "2 It was resolved that che Company reques the Minister for Aboriginal Affairs to effect the speedy transfer of the title of Bartlett's Farm from the Abdoriginal Land Fund Commission to the Ralkon Agricultural Company in accordance with his suggestions or 14th dune 1979 and confirmed by his letter of 15th June i979," Neither the "suggestions" of tne Manaister nor the letter of 15 dune 1979 of the Minister were proved in evidence. A copy of the minutes of this meeting was forrarded ta the A.L.F.C. which at the same time became aware of the desire of Ralkon to grant tenancy rights to cwmers of shacks on portion of Bartlett's Farm. On these two topics it wrote to the extent relevant to Raikon on 16 October 1979 in the following terms: "In regard to the transfer of title toa Bartlett's Farm it is iikeiy that the Commission Wili take steps to effect this transfer pending amendment to Section 78 of the Abor2ginal Councils and Associations act. Tne Commission wiil then formally approve a Grant af Interest under Section 29 (1)(a) of ats Act to the Fr. MchLeay Community, who will held title to the property, with the Ralkon Agricultural Company continuing to manage and operate the same. ft have noted that vour Directors have resolved that the Ralkon Company should undertalhe responsibility towards serrlang the dispute aver ownership and rentai for the shack on Section 489 of the property. Ferhaps I should point osut to you that as the Commission holas title to the property it is iegally responsible towards such matters. It cannot enter into agresments such as sub-leases etc. The Commissions Legal Advisers are currently examining this ratter and hopefully I should he able to provide you with further advice shortly. The Commission if hoperul e matters raised may he resolved by mutual co-operation in order to avoid any further misunderstanding of it's responsibilities towards the points raised in your advice. rt > flr ca ct Dl Please donor nesitate to contact me should you have anv queries oan the matters I have Yeized." Ralkon replied to this communication by Iletter dated 5 November 1979 as follows: "As regards the transfer of title of "Bartlett's Farm" TI would refer you ta yours of 8th March 1979, You informed us then that formal qrant of interes under section Z0t1)(a) had alreacy heen given to this company. No coubt you had inadvertantly overlooked this Manage and 14, The busimess of the shacks seems cven more confused. However let aut be for the meanwhile. Members of our Consultative Committee will he discussing these and other related matters with the Minister in the near future." yy its letter in reply of 21 December 1979 to Ralkon th Made, ain my opinion, its attitude very oblain. ed that a superior title to Bartletr's Farm would the Community Council with Ralkon "continuing ecperate" the property. That letter was as follows "T refer to your letter of S November 1979 concerning whe transfer of title to Bartlett's Farm. You will i an my advice ar i6 October 1379 Tf c that it is likely that the Commiesian Lil steps ta efrect the transfer or the title ing amendment to Secrian 78 oF the Aboriginal Councris and Associations Act. The Commission will then formally approve a Grant of Interest u 20(1) (a) of it's a E Act to the Point McLeay Community, whno will hold title to the property, with the Ralkon Agricultural Company continuing to manage and operate it. By taking this course of action the Commission would be acting in accordance with its ariginal antention when the initial application ta purchase the property was made on behalf of the Foint McLeay Community Council in July 1975. It was at that time also intended that the South Australian Aboriginal Bands Trust vould accept title to the Property and an doing so would reach agreement with the Foinz McLeay Community Council to arrange a suitable lease for the operating company (Raikon Co. Pry. Ltd.) PrOperty. AS this arrangement vas is edged with the Commission accepted ry hoeiding title to the Property approved a Grant cf Interest trie Ralken Company. As mentioned, aCtTion was contrary ta the Commission's antention; therefore the Commission wail the situation, DY yecrnding the Grant of Interest to the Ralkon Company approving a new Grant of Interest to the I icLeay Community Council 15. inc. who will ultimately accept responsibility for holding titie to the property. Your Company will of course continue to Operate and maintain the land in accordance with the wishes of the Pr McLeay Community Council and Ralkon Directors. I shall endeavour to keep you informed of any Further developments concerning the poants raised." Ralkon indicated its attitude by letter of reply dated 30 December 1979 as follows: "Tt refer to your two letters 33/75 of Zist inst... As to the letter regarding the shack erected on section 4289 of Bartlett's - what you Say is Breadly speanming the same as we had agreed earlier with your representatives. Rowever 1f we understand you correctly vou bow (sic) uggest that this company waive its right toa coliect any accrued rental from the tenant concerned. This would be ain breach of the tenancy agreement you refer to an your letter and in fact is the main point at issue with Mr. varmyn. There is no dispute - the ownership of the shack was never in question - there would have been no tenancy agreement otherwise. This Company does not agree to waive its rights. As to your second letter of the same date. We note that you say that you intend rescinding the 'Grant of Interest' in Bartiett's to the Ralkon Company and approving a new Grant of interest to the Pr Mcheay Community Council. I must advise you that this would only be done against the expressed wishes of the Community of Ft Mcieay, whose every indctvidual member mow hold shares in the Corpany. In very ceal terms they now own this Company. the course of action you now outline is seen by the an attempt to retain the title in 2 Derartment of Aboriginai Affsirs The ownership of Bartlett's 15 a key component an the further Gevelorpment of this Company. Please donot take any further actiom on this e have sought advice ard hele furcrher Giscussion with our Shareholders, 16. We shall be in touch again with you in due course." Thereafter Ralkon actively pursued its efforts to obtain title to Bartlert's Farm. At a joint meeting of the directors of Ralkon and the councillers of the Community Council, with Mr. Hillock present, held on 32 January 1980 the following resoiution Was Passed: "That the land known as Sartlett's farm be vested in the Pt McLeay Community in the name of the Raikon Agricuitural Company by purchase it necessary." On 6 January 1980 Mr, Hillock vrote the foil to the Minister of Aboriginal Affaires. Even though at as heipful to set it out virtually in full because it states - cleariy Ralkon's attitude, and the alteration ta its sharensidings and establishes the extent of the A.L.F.C's awareness at the time shortly thereafter when 2t purported to rescind the grant of iunterest to Ralkon. "Dear Senator Chaney, to the Company's I enclose a copy of the changes ner with explanatory Articles of Association togetrt notes on them. These chanc effect at an Extraordinar Company on 14/11/79 ing of the accountants, Giles and ide. me alterations are in respect zrenoiding Proposed am were agreed unanimously. New EFhare R g has been set up uncer the supervision of Company's accountants, Giies and Giles and the New Shares Script issued to the individual membe r the Point McLeay Community. Iam sure that you wiil a vourself in agreement with tne changes. We now have a wornanle formula for the future and I donot think that something aluny 17. these sae lines would be unacceptable on other reserves. However, there still vcemain two essentials for the successful continuity of a viable Company of this nature. Soth are intimately connected. 1. The proviszon of tne necessary collateral for capital improvement and antensification, without which the Company is quite unable to optimise labour imputs and utilize the pool of unemploved in Fornt McLeay. . The removal of the stress on th Company's finance, caused by the cast o providing sound professional management, under the Company's terms, for as long as it deems necessary and desirable, without which a limit 25 placed om 1ts potential for optimising its function in providing nful emsloyment for the hl = f Bs for the first - necessary coliateral - this is logically bound up with Land Titles. The as yer unsilocated portion of Ralkon - Bartlett's Farm - would =feeam, a5 you suggested in June ta Provide the answer, The legal and political miceties are not insurmountable. Indeed, the rights and privileges inherent in ownership Carry concomitant responsibility - the JZull knowledge that failure exacts an awful penalty - which nas demonstrably ensured the unqualified success of our operations to date. The step of giving unencumbered Land Title requires courage - courage no less on one side than the other - but nothing was ever achieved without it and never will be. As to the practicabzlities - your letter of the 23ra@ GQcrober, 1979, anédicated that the Land Funé Commission would be writing to us snortly. They have and I enclose 1t together with a copy of the Chairman': reply. in essence, they have efaid thar the 'Grant of Interest' currentiy ur: the mame of Ralikan would be rescinded and handed to the Point McLeay Community Council. At a meeting of Snarenclders on 3/1/80, which virtually conprised (sic) the whole community, including the merbers of the Councii and its Chairman, it was unanimously agreed to reject any cite of Trtie and/or 'Grant or Interest' by th Land Fund Commission to the Foint MciLeay Nl Community Council an respect of Bartiert's Farm. The Aboraginal Lands Trust of South Australia have similarly intzmated. It would therefore appear that the only relevanmt entity willing and abie to accept ais the Ralkon Agricultural Company - which since the issue of Shares is now more truly yepresentative of the Fornt McLeay Community than the Council itself. Any other course justified by the Land Fund Commission - no Matter what else it entazled - would be deemed a useless exercise in semantics by the people. ates Act of 1976. wher you visited hat the Title for placed at the Tor purposes of c The Ralkon 'Agri pout eur ae Company is an Aboriginal Corporatia under the Abor Land Fund Act of 1974, but this act does sai of land in such a Way. iginal Council and Asso 1,78) there is the nece granted to you. But of COUE a ericuitural Company is not within the definition of an Aboriginal Corporation under this Act. Nevertheless, we are informed by the Land Fund Commission that this clause 798 18 to be amended. If it is proposed ain this or any other amendment to widen the definition oF an Aboriginal Corporation to include a group such as the Ralkon Agricultural Companv, then there is no problem. from you as saan 5 £ Ly as possible whether or nor this ais intended and if sa uncer what conditions. As ta the second essential - financial Provision tc the Company for protessional management. This would require the allocation of a Direct Grant to the Comoary far this Purpose oniy, tc be used or not at the Giscretiaon of the company alone - a small coneession but a eacund investment. ait your early reply. At its meeting heid 3-7 March 1980 the A.L.F.C. vosolved as follows under the heading "Bartlett's Farm" "(321) The anommess ton formally agrees to rescind the xisting gr or anterest an the Ralkon Company and approve anew grant of interest to the Point McLeay Aboriginal Community Inc. with appropriate terms and conditions." to Ralken in the following letter of 13 May 1980: "This etter is to inform you that the Commission, at it's 25th meeting, formally agresd to transfer the existint (sic) Grant of Interest vested an the Ralkon Agricultural Conpany to the Fr. McLeay uncil f x On 21 the Rallkon inientions a Ft. McLeav 2a the appropr ately hold titie ts Ralkon Company, @ established by the Ht continue tao operate and n accordance with the wishe lkon Directors. Bartlett's Corporation community would no dou Maintain the property of your Council and th D ir In order that your organisation understands, it's responsibilities over the managenent aspects or the property I have listed a number of points which should clarity the situation. (a) 5 .C. will hold tatie to the property until such time 4s the Ft. McLeay Ceonrmunity Council becomes ratea under the Aboriginal sand Associations Act, at which &® Janda title can be transferred organisation, (Bh) AS 1s legally responsible and countable ta the Auda cor General you organisation must tak out adequate ins ets and be cov ty. These ins nt names of the Council incorporated and the. A.L.F.C, hl ZI Insurances an non-tixed acsets such as motor vehicles, machines ete should be arranged by Ralkon ain assistance with normal commercial practices. (c) Your organisation 1s now responsible for ; all oather on going costs such as : ansurances, rates and rents etc. The ' A.L.F.C. ais currently fanalizing legal ' Matters associated With obtaining ' Freehoid titie toa sections 349 ané 460 Soldiers hecquire Lands Perpetual Leases. (da) This transfer rgqan2 eccupation an By referred to as Bartletts Farm by t McLeay Ccommunity Council Incerpora rio wm aa uu mt mt d Mace concerning the position at this date. (a) The B.L.F.C. had not aunvestigated the ' qualifications of any recipient, and in particular of Falkon, to receive a grant of interest under (op) The A.L.F.C. nad no clear grasp or uncerstanding of i (fu Or (ce) The A.L.F.C. had not at any stage contemplated Panagement company farming the land. to the sxtent easehold interests were uncer i) that grants of consideration, these interests were contemplated as being granted to communities and not operating During the succeeding months Ralkon did not take any action to challenge the purported rescission of its grant of interest but mounted a considerable campaign in an effort toa wersuade the A,.L.F.C. and after 1 July i9B0 the A.D.C. to grant it security of tenure of activity on the part of ali persons or bodies interested Girectiy or andarectiy in Sartiett's Farm. Palkon either itself or through the Chairman cf its Consultative Cormittee put its case for a secure title thoroughly and exhaustively. Numerous to the A.L.P.C. and ii] ic Be i) Be 13] ca m " i letters were vritten to successiv the A.D.C. Gecision of 23 March 1581 to offer a lease <tc that Soedy, the A.D.C epecifically referrea to a letter 2t had received from Paikeon's consultative committee. This letter bore date 7th July 1980 and was in the Following terms: "This ietrer is ta brang to your attention 7 relating to b the current and future positicn Palkon Ag uiturai Company. Hoth che Consul Committee d the Corpany consider that this = enterprise ich has been conc 3. since Octohe has reached the point where t continue t without access tO Laptlal Funds. At the present tire, the only method available toa the Company of obtaining funds is by way of stock mortgage, hovever this avenue is dlamited due to the vrestriction placed on the borrowing. However, 1f the Company 25 to be run on a commercial basis in keeping with the original intention, then we consider it essential that the Company have access to capital in order to xpand the commercial operation and run a viable enterprise. We advise that the Committee wrote to Senator Chaney on the 28th May 1980 putting forward a proposal for the Company to purcnase iand known as 'Rartletts Farm' which 1% currentiyv uses. This would enable the Company to provide security for borrowings, so that with proper Planning and management, it would expand and fully utilise its assets and realise its full potential. copy of our letter setting out his proposal is enclosed. Untfortunmatety either Senator Chaney @:da not see this letter, or did not study it closely, as many of the points raised were ignored when we received his reply. We point out that tne Fut considerable time and e ensure that such a Company c 2 at the same tims protecting ins people safe S the shereholding ta ensure that assets provided by Government funding are not 3 that the Company will continue on for the Community. It is not our wish to see any alienated or any of the Company's assets put a We would alsa point our that we conside: Company may well be used as a Siuepr Booriginal organisations. Tf this 15 so, not be hamstrung DY Government req anterference but should have the opportu run On & proper commercial basis. The Com some degree of independence with the ahi Funds but at the same time, sate-quarding rer OY proposal. in view af urgent need delays hav mq n We would be Ppieased pefore your Cormissio We look forward to your reply. Yours faithfully, nl iat (eiygned) W. Nankivell Wi. NANKIVELL Cc ERMAN OF CONSULTATIVE COMMITTEE, " There were also many interviews, with one Minister at least, with the Chairman of the A.U.C. and its members and with efficers of the A.D.C. oar other departments. Ralkon's case for commercial independence, taken out of context, might in other It sought the opportunity ta stand on its own feet tuninhibired by wha it saw a5 paternalistic handouts and restrictions. The Fund in accordance with and subject to the aims, cbhjectives ana = their respective charters. Rallon also pressed its claim as an incident in an Aboriginal Land Rights campaign to which much publicity was given by the media. riod wavered in its Tne Community Council during this p view as to the appropriate recipzent of title to Bartletts Farn, farst rejecting but then seeking @ isase to 2tteeirt. Bath the A.D.C. and tre relevant Minister correspancea aspirations with its position as they saw it as the vehicle 24. farm iand for the benefit of the community at Foint MecLear. There were indications of exasperation and of impstience on both Sides and aiso between Ralkon and the Community Council whicn I mote but of which I am not oabliged to assess the rights and vrongs. conjunction with the other properties leased ta the Community Council. There was criticism or these operations and the part Played generally by Mr. Hillock, which matters are aniv of marginal significance and of relevance only to the extent herearter mentioned. Blthougnh Ralikon Was understandably attempting to improve its conmercial wosition, it was at all im oe rt iT 1B a o my Ww 'gd s tu Fyol u a i wv times aware or should have hesn aware th was to vest title in the Community Council. This was the climate wnich existed at the time wnen the It was ta nf ch A.D.C. made the farst decision which was chailen conveyed to Kalkon by letter dared 23 March 1981 which was as "tT correspondence Company that resolved their Farm, The Commissioners, having yeagard to the facts that (a) Bartlett's Farm was purchased at the request of the Foint McLeay Community Council for the benerit of the entire Fount McLeay Community, (b) Ralkon was estanlished by the F Community Counc21] Inc. to manage farming interests, and nw i (c? the Council currently holds the grant cf anterest in the property from the Commission, Rave decided to offer the Council a formal lease of the property." This letter was initially said to contain rea u zeccordance with 5.12 of the Act although during the hearing reasons were expanded. sons in such On the same day the itellowing letter was written by the Chairman of the A.D.C. to the Chairman of the Comnunity Council Although it is lengthy it 215s profitable to set cut the full text or the letter. tts contents have relevance o the terms anc conditions upon which the lease was granted to the Comrunity Councal. "Tam writing to convey to you the decision of the Aboriginal Development Commissioners in respect to the property known as Bartlett's Farm and in response to your letter of 21 November 1980, seeking a lease over Bartlett's Farm. 2. In considering the Council's request, the Commissioners noted that the Council had established in October 1975, the Ralkon Agricultural Company Pry Ltd (Ralken) to manage its farming interests. The Commissioners considered at the same time quests by Ralhkon for title to on y let re the land as conveyed to the Commis @ated 7 dJuiy 1980, from Ralkon' committee. The Commissioners alsa the time a revort of the untuccess agricultural consultancy firma ce to inspect the property in Decen Mr. David d sful attempt by Tr Der 1LOBO. he cL v 1 3. The outcome of che Commissioners' consideration is that they have decided ta offer the Council a 99-year lease to Bartlett's nominal rental subject ta normal ieas and in particular to the follio2ng cond (1) that the Council undertak ri a o Cc wiwD J ia (2) (3) (4) (5) (6) (7) 26. manage the tland in a proper and husbandiike manner, in accordance witt any relevant Commonwealth or State statutory requirements, and toa the satisfaction of the Commission. that the Council, to accomplish the first condition set out above, assert its Pesition as major shareholder ain Ralkon and bring the company fully under its control so that the company will perform the function for which it was intended, that 215, ta manage Partlerr's Farm and otner lands on behalf of Council, that che Council act without delay to set asiage or have declared nuli and the alterations purported to have made to the company's structure by 4 reeting of the company's Gers on 14 November 1979. Council review, upen as contral of the compan ent or Ralkon to ensure t rated competently an Coune2l an the best Point McLeay Community; requested, 15 ready to to secure approoriate 0% ert is) Fh ree 1 ut J] p~ fa t arte Hoo E i) Boa mp i dennis gs Samra roo w Db fa teat iw r+ ii) La it) uw a ul a mh rn wp je th ft Lal L uot re ein this ¢ the Council "have, at the expense of the Commission, the accounts of Palkon audited for the years 1977/1978, 2978/1579, 1979/1980 within six months (or some other period ta be agreed between the Council and the Commi 1 of the Council accepting the Commi offer of the lease and take any ne corrective action arising from he audits. that the Council undertake f it chooses to uze Palkon t Farming interests ta have th that corpany properly kept, o the Comm the end of «= Commission ia) ™ c t i t a a t J fl Wy ied tr Be pe a. agree, should it choose alkon to concuct its farming interests, to have accounts or its farming interests properiy kept, audited and made available to the Commitsicn wathin six months of the enc of each financial year until the Commiatsion notaries the Council otherwise. 7. tl (8) that the Council, should at choose toa pursue its farming interests through Ralkon enter into an agreement in writing with that company to regularise and clarify its occupation and use of Bartlett's Farm, the terms of that agreement to he acceptable to the Commission. that the Council agree to the appointment orf an agricultural consultant, such appointee ta be agreed between the Couneil and the Commission, to advise the Council and the Commission in matters relating to the operation of the property. (10) that the Council agree, at Commission expense and with a view to preparation of an overall development plan, to have the consultant appointed under (9) ahove inspect and produce a report on the current state of the Council's farning anterests the inspection to taka piace withzn 10 days, or as near to 10 days as practicanle, oF tne Council 5s acceptance of this condition. ike) 4, In arriving at the above decision, whe Cormissioners aiso agreed that should the Council accept the Commissian's conditions for the offer of the lease, the Commission is ready to provide advice and, if necessary, financial assistance to the Council to further develop ats farming interests including Bartlett's Farm. In considering any request for financial assistance, the Commission would of course examine closely management aspects. by 5, The Commissioners further agreed that should the Council encounter legal aifficulties in meeting the above conditions the Commission would he , if legal aid , to consider al advice and Prepared in the last resort, that 2 or other fundang is not availabl meeting the Council' need fer le represenration, a Ww 6. A copy of this letter nas been sent to the Commissioner for Corporate Affairs, Fouth Australia and to the Chairman of the South Australian Aboriginal Land Trust. 7. The Commission has also written to whe Chearman of Directors of Raikon and a copy of that letter is attached for your informaticn. 8. The Commission has instructed solicaters tu Craw up a document of lease and will forward that document for your perusal on recezpt of your acceptance of these condztions. For its part, the Commission undertakes to make every reasonable effort to conclude the lease agreement without delay once it is satisfied that the conditions set out above have been net. 5. If you have any queries on matters raised in the letter, I suggest you ring in the first instance the Commiss2e0n's Regional Manager in South Wayne Frior on 2125499, or Mr. Ra Commission': Central office on garnestly hope these are je toe the Counc2zi and your eply The unsSatistr in to Bartlett''s Farm h some years now and the Commission ally Wi resclive the matter as qguncki ll. IT have enclosed eigh copies for members of your Council tof Council's consideration of the Commi At its meeting on 30 March 1981 the Community Council rejected the offer of a lease by declaring all previous agreements with the A.D.C. null and void. Thereafter the A.D.C. rad set about seeking te persuade the Counc21 to accept the lease and ts Lerms and conditions. On 27 Avrii 1981 the Community Council By nt) sought vesting of the titie in Raikon. Between that date and 3 creed ta accept a conference 'as Chairtan oF and répresentatives of the 4.D.C. Subsequently a lease between the A.D.C. and the Community Council "3. Utrice in Adelaide on 25 Sentrember 1981 antl uly reyistered. Ralkon continued and continues to farm the land although in August or September 1981 the Community Council gave Ralkon notice to quit Bartlett's Farm. Eviction proceedings were commenced in the Supreme Court but did not proceed to the stage of a finai oraGer. On 24 November 1981 the s foc Ralkon wrote to the solicitors for the A.D.C. a ie rein they achnowiedgei that Falken nad mace submissions to the A.D.C. vequesting che IW cl Fy rt iT oO gyant of a lease and also sought reasons purtuert to s.i Unfortunately this request was not pressed, actvithstanding the failure of the A.D.C. to provide adeguate reasons until the trial of the action was weil under way. This delay occurred notwithstanding Keely o's finding in a preliminary hearing cf this matter (see anfra) that the A.D.C's letter of 23 March 1981 did mot adequately ser out the findings, reasons and other matters referred to an paragaph 11(3)(a) of the Act and inferentialiy sub.s. 123(1) thereof. The consequence was 1ssues were clearly defined. It iS appropriate at th2s stage to turn ta the chellenges of Ralkon to the decisions and the grounds upon which it relied ta support these chailenges. It is apparent that 17 3G. te an Raiken''s notice of application was not a scparate decision but an implementation of the earlier decision of 23 March 1981 to offer the lease to the Community Council. It was not disputed ne that that earlier decision was for the purposes of the Act decision to which this Act applies". The status of Ralkon as a "person aggrieved" by the decision, in that its interests were Falton bared its chalienge on five of the grounds rerterred ta in s.5(1) of the Act. In my oa fall into and can conveniently be considered in two categories. [34] rr Ni The first c gory encompasses three grounds which go to the power or furisdicticn of the A.O.C, to make the decision to grant lows: (2) Tre G@ece1sion wf not authorised by the enactment in pursuance of which it was purperted tao be mace. ie] I-] 5! Cy gorv covers the remaining two grounds of challence The secencd cat 1B and goes to the manner in "hich the A.D.C. mace its decrsion. These grounds are: (4) That a breach of the rules of natural justice eccurred in econnectron with the making of the decision. (5) The making of the decision was an improper exercise of the Power conferred hy the enactment in purzuance of which it was purported to he made. a grant of anterest in s Fsary pursuant toa 8.20 of the Aboriginal Land Fund &ct which grant could not be revoked and 1.C. could net grant a lease ae ie 2S a consequence the A. to tha Community Council. (bp) The A.D.C. should not have granted a is to the 3) uw Community Council as it had no power to carry on 4 farming Dusiness. pect OF the contention In zed in re Be Ma) Pre '4 cl cAa n rm a ib (2) above that the Cecision was not authcriseda by the ena repeated particular (8). The comtention that the decision involved an errar at in like form to (a) ane (B) above, '] ey a ie is as] n fu mr He tr In1D nt] ri] nO rr "%, Et fey ia] a a mn i ht st tr iy rer trFs] or tt La I o sl tna) Purported to grant an interest im Bartlett's Farm tuo Ralkon pursuant to its powers conferred by 5.20 of the Aboriqinal Land Fund Act 1974. This Act established the A.L.F.C. with its stated objective, namely "to assist Aboriginal Communities to acquire land outside Aboriginal Reserves". Tt also established a fund known as the Aboriginal Land Fund, and the A.L.F.C. was empuwered to apply the moneys of the Fund in accordance with the following provisions of the Act. "18. Moneys of the Fund may be applied - (a) an making gremts under section 19; and (hb) an discharging the obligations and Tsahilities af the Comm:ssion arising under this Act. # The Commission may mane grants of money out af the Funé — (a) to an Aboriginal Corporation to enable it to acquire an interest ain land far the purpose of enabling the members of that corporation toa occupy that land; and (b) to an Aboriginal land trust ta enable it to acquire an interest in land for the Purpose of enabling Aboriginals to occupy that lane, 20, (1) The Cormission may, on such terms and cond:ztians, if any, as it thinks f:t - (a) grant to an Ab anterest an Jan enabling the mem to occupy that la (Db) grant toa an AE interest in ilan enabling Aborigi1 (2) No paynent shall in Yespect ar any inte Section (1). Zi. (1) Yor the purposes of section 20, the aon may acquire by agr t in land. ty ia (2) The powe: comuferred by sub-sectzon (1) extends to the acquisition of shares ina body corporate for the purposes of acquiring an aunterest in land heid by that body corporate. Tt is apparent that the A.L.r.C. was only empowered under s.21(1) to acquire Bartiett's Farm or any other land for the purpose of making a grant of interest therein to an Aboriginal Corporation or an Abor2gqginai land trust. in purported fo grant ar interest in Bartistt's Farm to Ralton, the rp company which it had required Fe set up ta McLeay Farm project". The wore "interest" 15 defined in s.3 0 ih ats Act as meaning, in relation to Janda "legai or equitahbis estate or interest (including a Jicence) in the land". Sefore attempting to assesS the nature and quantum of the estate or interest which the A.L.F.C. purported by its decision to vast in Ralkon, that company's entatlement to saceive such a @rant must be considered. It was mot suggestec that it qualified under para.Z0{1)(bD) as an Aboriginal Jland trust, as defined, but as an Aboriginal Corporation under para. _O(1){(a). Section 3 defines the expression "Aboriginal Corporation" as meaning - "a body corporate of which all the members for the time Being are persons as to vnom the Minister 1s satisfies that they are members of a community of Aboriginals." Aboriginal Corporation in accordance with this definition ane thus was not eligidnle to receive from che A.L.F.C. a grant crt interest in Bartlett's Farm. In my vpsi:dion thas submission must be accepted as correct. At the relevant time, namely September 1976, the members of Ralkon were two residents of Point McLeay each holding one subscribers' share and the Community Council which held 100 shares. The Community Ceuncil was a body incorporated under the Associations Incorporations Act 1956 of South Australia. As such it can not be said to be a "member of a community of Aboriginals", nor was there any evidence that the m1B i) 1D ¢ wu rd rt ui iu ad H Ww H B n ct ja im} Minister had in any way expressed t The A.L.F.C. purported to grant an anterest under 20(1)(a) an Bartletrt's Farm to FPalkon on the assumption that Ralkon was elzgibie. Tr took no steps ta check its status even though the topic of eligibiizty was considered generally by the meeting which made the decision. Tre question of the quantum of the anterest wnich the A.L.F.C. contemplated it was granting was much in issue ain these proceedings though not the question whether the terms of the resolution were effective toa vest any interest at 211 in Falkon. On the assumetion that some interest as defined was effectively granted IT sea no justification for construin iQ ia tis q La pu ie ct pa In qd D m ci I4 a re} ra] =) wt Ven ra ia] J Gloe] Pal bi wu DI ct iy ba tt Pa) ha wu 1% ug wi rr then was necessary to enab farming the land. I reject it was granted an exclusive licensee coupled with an equity, for an inéefinzte perioct sa long as 1t farmed or alternatively for 50 or 99 years. IF can Find no support for this contentzen and no justification for aszessing 35. such @ substanlial term. In my opinien the interest which the A.L.F.C. intended to grant was in the nature of a licence whi is by the definition deemed to be an anterest in land. I would construe it as a licence to occupy and farm the land determinable upon reasonable notice. It was not necessarily an exclusiv it bo fa) re right to occupy. However, I have already concluded that Ral Was not eligible to receive such an int itt ri re 10] t by way of grant fr the A.L.F.C. T oan however prepared to e@rcept an arcument Because of what 2t did rather than what it was Ralkon did have in March 1980 as against the A.L.F.C. certain rignt=s ain relation to Bartlett's Farm which the A.L.F.C. obliged to recognize. It haé at the suggestion and with the approval of the A.L.F.C. entered inte occupation of the farn, farmed it for a number of years and expended money in farming anc n making improvements thereta. In this way it acquired rights which 2t could raise by way of defences such as proprietary or equitable estoppel even thougn it had ir law no interest in the land and in my judgment no expectation that it would receive = lease. There 2s for Zittle sagqniticea-z tacit pare. 20(2)(a). Thus it hereafter call Palkon's bundle of rights it- convenience an This was the general mature of the interes= which tne 36. B.L.F.C. took steps Lu revoke wh March 1980. Palkon contends HU m that it) could not be revoked by the A.L.F.C. and in consequenc: its successor the A.D.C. could not grant a lease to the Community bt a Council. Even if the interest cf Ralkon was not revocable, its existence was in my opinion no bar to the granting of a lease 99 years ta the Community Council. That Council would be chliged ct 3) =) fp <q wwm [ost fr % ph rtcr o a tw iii) u ut iH 1% # "5 ct a i iF) if) Tr a] Rh mw iy {+ rra He d ad y 13) ra wy ied eh jue hh H. ct lesser unterest would dovbtless only he determinable on s.6 of its Act to revoxe, or perhaps more correctly determine, Ralkon's right to occupy Bartiert's Farm on reasonable notice. objecting to this action Ralkon took no point on the it subject of lack of notice. The right of the ouner or holder of superior anterest to determine upon proper notice Ralkon ur Tacence to occupy was inherent in the nature of its interest. Thereafter, on the assumption that the simulteneous grant of interest to the Community Council was effective, Raikon's continued occupation of Bartlett's Farm was at the wiil afr the Community Council which atself would have the right to determine Raiken's occupation on proper notice and terms. Counsel for Ralkon also relied ain support of his 37. contention that the A.D.C. had no jurisdiction to grant a lease to the Community Council on the fact that the Community Council had po power to carry on a farming business. This argument relied on the restrictions of sub-s. 21(2) of the Associations incorporation Act under which the Community Council was incorporaced. It 15 as follows: "Nothing in this section shall be deemed to empower any inc m to carry on trading or secure pecuniary profit, whether directly ofr andirectiy, to ite members." Tt 28 worthy of nete though not of any necessary significance that this vestriction does not appear to inhibited the Community Counc:1 from taking leases from the South Australian Aboriginal Lands Trust of other farming land at Fount be conducted thereon by o rt o MeLeay and allowing farm cperatior Ralkon. rh The rules of the Comnunity Council were not tenderec 6ni there was mo evidence on their contents, any =pecial restrictions members. Doubtless compliance with uw therein or as to whe are it net ceny at the right to accept the lease and the terms ani cona@iiions thereot. It was said that this was a "farming lease fulfil. However the lease expressiy ccrntemplsates that theo 28. Jand, albeit only with the written consent of the A.D.c. and subject to compliance with onerous obligations aif Palkon was to the sub-lessee. Tt is my opinion that sub-s. 21(2) does not b 1D prevent the Community Council from accepting the lease on the terms and cenditions therect. if the Carmunity Council experiences difficulties in complying with the terms and cenditions of the lease, it is not to be assumed that the A.D.C. will unreasonabiy or yeremptorily exercise its right to foarteit. d Tenant Art 19326 Tf at dad, the provisions of the Landlord an South Austrailia providing certain reliet against forfeiture may be avatrlabie to Falkon. Tt Follows chat I reject the two grounds upon which it is contended that the 3.D.C. nad no jurisdiction to grant the lease to the Community Council. In my opinion the decision of the A.D.C. to offer the lease was authorised by its Act and it did not involve the error of law alleged. Before dealing with the other grounds of challenge it is necessary to consider the role of the B.D.C. and in some derail ra OPerates and pursuanct on 16 May 1980, its purpose being defined by s.3 as follows: '2, The purpose of to further the co and social yeople of the is) £Fotn people who ar rdants of indig rts of the Torre BAroricinal Develarment Commission Act 1980 Was assented to Strait Islands recognition of the ef such people) to the object of self-management and self-sufficiency. By s.s. 1974 and the Aboricinal Land Fund Act 1974. Le wo end, an particular, (as a past dispossession and dispersal estaclish a Capital Account with promoting their development, the Aboriqinal Loans Commission Act It established a Commission under the nare ar the Aboriginal Development Commission which is a respondent to these proceedings. Section 2 of the Comnzesiaon as follows: lon are, subject to et, to fTurther the or Aboriginals and, ting the generality (a) to assist ag nties and groups of Aboriginals to accunrre land; (5) assist Aboriginsis toa engage in business ypclses; (c) assist Abori to obteim finance for ki and for Personal needs, and to such finance; (da) ist in the training of Aboriginals in nto matters celated to the functions Commission; Ce) yo and control the Capital Account; (Zr) ce and make recommendations to the th vespect to the furtherance of ic and social development of and (gq) in connection with the economic and social nals as the Minister nowriting given to the Gneer 5.9 ait nas keer to do all things necessary or convenient to be done for cr in connection with the performance of the Kboriginal Loans Pursuant to s.81 all rights and iiahiiities Commission and the A.L.F.C. were whicn was also su5stituted in ail Tt be E ui Ps Ke iter ag entracts and arrangements in place of one or other oi Commissions. The A.D C. was given wide powers in respect of the application af moneys to enable Aborigznals to engage in business enterprises in provision of housing and personai loans and for other purposes. Its powers in respec grants of interest were provided by 5.27, namely "27. (1) The Commission may acquire by agreement any interests in land or personal property and may, cn such terms and conditions as it determines, grant any intersects so acquired, or any interests Gerived from anterests so acquired, ta Aboriginal land trusts for the object of enabling Abcriginals to occupy land or to Aboriginal corporations for the ebdect of enabling members of those corporations to occupy land. (2) No payment sralil be duz to the Commission ain resmect oF a grant made under sub-section (1)." The Cormission was also given power to make gran property specificaily for the purposes of business enterpris E E the following terms: For the Purposes of section 24, the May acqurare by agreement any real ar property 2 Tl sell iease or make 7 acquired to an an Ahoriginal iio oanr) as are & Business enterprise, which is the purpose referred ta in as defined as inclucing an enierprise relating toa er production". Falkon conterded it was qualified to teceive the ts of e5 in Ts ne ul . Ia "4 i a et A a 1. granted to the Community Counc+l and relied on Lhe provisions of 5.28 in that it was an Aboriginal body. It did not contend that at was an Aboriginal lane trust or an Aboriginal corporation and thus eligzble under s.27. The expression "Aboriginal body" has the meaning prescrib'ed by sub.s. 4(1) of this Act unless the contrary intention appears, namely "*Rboriginal body' means a body corporate - Ca) contral , wae Yr Girectly or hy Aboriginals; a (bh) objects of which are canducive nals, but does nat include...' Keely J. was of opinion, with which ft agree, that tne principal objects ot Ralkon vere nov ""canducive to | 06the advancement of poriginals"™. At that tire paragraph 2 of its Memorandum of asso0caation stated the company's objects az follows: "(a) To carry onin all respects the business af pastoralist farmer ograzier husbander at such Place or tlace aod. t = 3 company shall i f (bh) To Ga alli thin c Vv the proper full bs c 211 of the objects of t company. " Keely do & canciusicn cn page Fe2 cr his = YS8S56N5 wat that FPalaon was net an Apar:iginai mot aS 5uUCh a person aggrieved. Doagres wath adopt his reasoning. The ground upecn mich he primarily was prepared ta find that Raikor was a persor aggrisved was A Ralkon head a raghtl wit anterest in the occupation of Bartictti''s Farm which was adversely affected by tie Community Council having the right to eject it and having in September 1981 sought ta eject it. In attaching primary significance to Ralkon's occupation of the land his reasoning is consistent with my view that it hac a determinable right to occupy for farming The balance of the grounds upon which review is sought consider Ralkon's ap its officers were biased towar or against Ralkon. inadequacy of its ca a5 10 was accepted that it did not come within the rules af natural justice. Tce was also agrescd herween the parties that there was no need to ditferentia aa bt mt o a rt i a rr in is) u rl by fi rh al ty ir) % WW) n u eu ur ry i] a fu in support of ra I~is Sreach of the rules of natural justice, counsel for FP cortended that consequent upon the enactment of th dudicial Review Act his client was entitled to the benefit of these rules even if it was unable to establish a "legitimate expectation". In my opinion this submission 15 unacceptable and is contrary to many decisions of this Court given when exercising jurisdiction under that Act. I refer in particular to the Full Court decision e. Both tne trial judge and the Full Court estion wrether applicant could establish a aftacn". Oniy 1f he could Immigration ang Erknic Affairs (1980-827) 4 A.L.D. 3223 are likewise to thea effect that tara. 5f(1)(a) of the Act does not of itself airport an obligation to observe the rules of natural Justice. This obligation must be found at commen law or in the a or A.D.C, Act. TI reje the submission that the A.D.C, is required by that Act to observe in verepect of Ralkon the rules of matural justice when considering the grant of A 1e8a5e2 cl rar Raikon in the elternative contended that the facts ava circumstances of this mstrer gave Yise cn its part ta 4 iegitimate expectation. Cole v Cunningham fupra 15 authority far the proposition chat it 25 not mneacestsary For the applicane ta rt ly" in establish eanforceabie legai rights aS the asis oF ney ned expectation. A Legitimate expectalion cam be eyualed to a reasonabie expectation. The submission of counsel for Raikon was that his client had a reasonable expectation that it would be invited tc mare ian receive a lease or at least chat it woul submissions before a lease was granted ta the Community Council. He placed much reliance upon the reasoning of the Hidh Court in FLAT. Insurances innsyve 6 nr FS td. vi which concerned a refusal to renew a licence. I do not gain much assistance from that case and refer to and adopt as appropriate yhat was ssid in Cole v Cunninghan supra at p.i3l, namely "Fiven if ane ence cases, the present case th involving the grant oa el 2s seléa given and no the renewal oa licences, whi atecary." In my opinion the facts and circumstarces of this matter do not support Raikon's claim that it nad aA reasonable expectation that it would be granted a lease. It doubtless hoped that ats submissions based on commercial persuade the A.D.C. to grant it a lease or a freehold title bur there was na justification For & reasonable exneactation that thas would happen. Raikonm could ron pornt to ary vunequivacal intimation taat by the A.L.F.C. or the &A.D.C. upon which £2 found this expectation ane there vere manv contrary intimations subsequent apparent departure therefrom by it, the Manister rer the time being or the 3.D.C. was in the course of suploring ways re) % ny rt \4 chu aud teams oF attempting toe meet Pralkecn's commercial as T would add at this stage that I firmly reject the cers were activated in the contention that the A.D.C. or its relevant sense by bias. I emphasize the relevant sense because I see no ground which justifies criticism ci therzr actions. The concept of bias 25 usually coansidered in cine context of 2 guasi-qudicial deczsion maker or adjudacator and not when a Gepartment of government or statutory body ais imslementing a favours Gone course or action in matter with a each with a reasonabie expectation a lease. This is not the position in this matter. chat © reject each of the i dus grounds upon which counsel contended I should find bias iy en the part of the A.D.C. Ti contrary to my opinion Ralkon was entitled to tne benefit of the rules of natural qustice I wovldc stiil fave refused its application on this ground ror a review. Ii ar of the opinicon that 1t was given annurerable opportunities to state 1s case to the A.D.C. and it dig in fact do sa most exhaustively. A rerusal of the correspondence set out in the earlier Part oF Lnese reasons leaves no doubt on this score. There was 9 pi ty ri % vu iy rt iy fa element oF unrsairness in the manner in which Ralkon w by the A.D.C. and no evidence to support a contention that Ralkon was ambushed" by the A.D.C. at the time when it made the decision. For the reasons have given on the topic of Ralkon''s legitimate expectation and its eligibility to be granted a lease, it can not be salc that at had, in law or ain fact, a competing claim to a isase. that the making of the decis:on was an improper exercise of the power conferred by the enactment, see para. S(1)te) of the Act. Raikon units pleadings relzed upon 6 of the 9 matters which sub-=. 5(2Z) 2nclivdes under paps.3(1)(e). The first two complaints relate to an allegation that the £.0.C. took into account irrelevant considerations and failed to tee into account relevant considerations. The evidence does not indicate whether the A.D.C. made its decision under s.27 or 5s.2B of the Aboriginal Development Commission Act. However neither section expressly imposes any restriction on the matters vnicn the 3.0.C. is obliged to tame into account or ta disregard except that @ grant under s.2& must be for the purpose oF s.24, In my opinion ne applicant's comtentions on these od < pty m Dil grounds must 3e rejected. It ai5 not necessary for me to ca ul it) [a Cu i y in detazl the 10 allegedly irrelevant matters which it was the A.D.C. considered nor the same mundber of relevant matters which it was aileged the A.D.C. failed to consider. Many of these matters such as the ahility of the Community Council to farm the land and the alleged existence of aA pre-existing sufficient foundation aun fact. As Deane J. said an £ean Investments Pty. Ttd. v MackKellar (15981-1982) 38 A.L.R. 263 at p.375 a party affected by a decision is not "entitled to make an exhaustive list of ail the matters which a decision maker might conceivably regard as relevent and then attack the decision on the ground that a particular one was mot specifically taken inta account". Nor ais it tor the Court to orescribe what matters shoulda not be taken 2nto account except ta the extent that the consideration of any such matters is incansistent with the scope and purpose of the Act. As the High Court said in The Queen v Australian Broadcasting Tr2bunal (1979) 144 C.L.R.45 at p.80: "The general rule is that a discretion expressed without any qualafication 15 unconfined except in so far as i is affected by Jlawitatiors to he derived from the and purpose cf the statute." context and scope In this present matter the ecene and purpose of the re made very ciser. the purpose is &@5 statec in 5.5 ry ct ir a He) im] ia) m " ny wl T cr ul c = Pp pal rr) ca ty c td f n supra and the functions o ra the A.D.C. +25 bound to pursue'in the exercise of its specific powers. It is clearly a matter for the A.D.C. to determine what matters are relevant and what are irrelevant to the exercise of ats discretion, provided it acts in accordance with statutory provisions. MATTEFS arising Sout OF THe exparde competing claims of Falkon but aiso because the fact that it ray ciaims 3 yu) or may not have attached nothing to the point. 50 lorg as it kept in mind its functions and objectives under the A.D.C. Act, the selection of appropeyzace recipient was a ratter A.TLC. mM iz) LC Pa) w 1D ran p [es wi a) nm i) w i i ny rs) a D n ia] n ft) My by m rt rt 1 ux |v a qd rvHe] i)wy [u a1D It was also contenced that the terns of Lhe lease granted to tne Community Council effectively terminated xalxon's right to farm, which was a matter of crucial significance, and was a relevant consideration ignored by the A.D.C. This contention 1¢ based on clause 3(1)(a) of the lease granted to the Community Councai. Tne clause previded that the A.D.C. as lessar would not consent to an underleaze or parting with possession of the leased land to Ralkon nor permit Ralkon to occupy or farm the ued Rares b ons trust e ot to hale 5 es in the 1. unless he 5 exo unqualified ani irrevocable Tarat such shares vpon trust for the lessee." opinion that this natter is msither or a relevant consideration in 4 decision to grant a ieaase to possible to demonstrate that hy D b rt mwMy was doing no more than ¢r rn ef the Community Council. If the cf Rellticom ant Ralkon it are prepared toa accert this state of affairs, the rem Cocurcil wish it fern for merbers of the comnunity anc mot only those vho are shareholéers Th can mot be said That 50. irrelevant or unzeasonable wursideration or one whack 2s taken otherwise than in accordance with its statutory objectives, The A.D.C. ais expressly given power under both s.47 and 5.28 ta impose terms and conditions when making a gyant of an interest. Much the same maz be said of other contentions cencerning relevant or irrelevant ccnsiderations. In many instances the facts are iumsufficient to support the contentions, but even assuming the basic facts are present, IF am not satisfied that in any matter the 8A.D.C. has transgressed by going D>eyond attached by Palkon on the grounc either that there was a lack of sufficient evidence to support or that they were irrelevant. The first subsidiary matter to which the A.D.C. had regard was that it considered it desirable that an Aboriginal should be appointed to manage Ralkon. This consideration accaoras, 1m my Oopinicen, with the objectives which the A.D.C. is boune 9 pursues, ance it to vhich ve1ght should he given to such a consideration aqecidin whether to qdranmt the Community Councii a iease 15 5 smoulad mot have to S " Ralkon then contended that the consicered a report dated 13) January 1981 from Mr. David Pri 51. arising out of an inspection of Bartlett's Farm. 1t was not contended that this was an irrelevant consideration, but that there was no evidence to support some of the findings in the Yeport. However there was nothing ain this report which was particularly critical of Raikon and in the light of the fact that a subsequent and nore critical report by Mr. Price accepted by the directors of Ralkon as substantially correct Ralkon Gentes validity to the present corplaint. Counsel or contended that his client should have had the opportunity to put representations on this report to the A.D.C. The chairman ct divectors of kKalkon however achrowledged that the subsequent eritical report centained nething which Had not alreacy Oe2en brougnt by them to the notice of the A.D.C. The Final matter alleged to be irrelevant was that the B.D.C. took into account, in its words, the fol "(3) That Mr. Tan Hillock was running the farming Operations without regard to the views of the Council, that he was using his anfluence on certain members of the community to support him and that these activities were causing serious diversions, resulting in two factions. The esion believecd that it was likely that d continue unciil mony in the cammunityv wou Yillock was replaced as 3 There is no doubt thar there had been the community for quite sore coansiderable time, and the A.D.C. neid the view, which received support from the eévicence, that the o wt ty i ay pe wi ag Dy3 a ra] presence of Mr. Hzillock at least conzributec nme A,D.C. was of the oapinion that cisharmony would continua ir NI until Mr. Hillock was replaced as manager, and it can nel le said that this view was unreasonable or without foundation. It 28 again not for me to determine the rights and wrongs of these prcblems at Point McLeay. Suffice to say that the 3.D.C. held a view which on the evidence I find was rot Mr. Hiliock was not manager of the farming operations. thether on balance this 1s the correct view and how much weight it was Proper to attach if not Tor me to say. What I can say is that this was mot an irrelevant ratter for the A.D.C. to take into account and there was surticirent Factual basis for its assertion. As to relevant matters which were disregarded, counsel contended that s.24 of the A.D.C. Act hac not been taken into account by tne A.D.C. It was said that if it had done so, it crerations. It was also conmtenced that the A.D.C. disrezardec Ralkon's desire for self-management and self-sufficiency ard the facte that it had spent money on the proverty. Rathout Rining whether these matters were Cisregarded, though in deter * ia) 53. would consider they had nol been, am ail the circumstances I can not find that they were relevant to the decision to grant to the Community Council a lease. The final around was that, in terms of para.5(2)(q) of the Act, the decision vas unreasonable and thus an improper exercise of pever,. Twenty cone particulars were given of this contention, and aimast all relate ta matters previously dabatec was based on had faith anré ruch criticist was madea + evidence of Mr. Tynan the acting general manager of the A.D. reject this crsticism as well as the allegatzon of bad faith as ther contention. Reliance was also v there is no foundation for 2 Placed on the conditions of the lease and the length of the tern, but these factors do not support the contention. The submission that the decision was unreasonable has not been made out. for a review. This Gecision is ultimateity anevitable in rv opianior notwithstanding the fact that counsel fer Falkon canvassed rost thoroughly every that covid he prezented in its favour. There was much argument before me as to what renecy = could grant if I had upheld tne application, Ba, Lhis obstacle by exercising the powers under par.16(1)(d) of the Act to give Girections, operaring in persenam, to the Community Council and the A.D.C. In my opinion Palkon should pay the costs of the respondents, the same to be taxed if mot agreed and I so order. I certify that this and the J oreceding pages are a true copy of the Reasons for Judgment of Mr Justice Fisher. uz Associate RY ASSOCIA Dated) 2°. 2-S He