FEDERAL COURT OF AUSTRALIA Winnam Aboriginal & Torres Strait Islanders Corporation v South East Queensland Indigenous Regional Council [2000] FCA 1243 WINNAM ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION v SOUTH EAST QUEENSLAND INDIGENOUS REGIONAL COUNCIL AND ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION Q 83 OF 2000 DOWSETT J 29 AUGUST 2000 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 83 OF 2000 BETWEEN: WINNAM ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION APPLICANT AND: SOUTH EAST QUEENSLAND INDIGENOUS REGIONAL COUNCIL FIRST RESPONDENT ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION SECOND RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 29 AUGUST 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 83 OF 2000 BETWEEN: WINNAM ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION APPLICANT AND: SOUTH EAST QUEENSLAND INDIGENOUS REGIONAL COUNCIL FIRST RESPONDENT ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION SECOND RESPONDENT JUDGE: DOWSETT J DATE: 29 AUGUST 2000 PLACE: BRISBANE REASONS FOR JUDGMENT 1 Pursuant to s 14 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the "ATSIC Act"), the first respondent may make grants of money to an individual, a body corporate or an unincorporated body for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders. It has power to delegate this particular function and has done so, its delegate being the first respondent. 2 The applicant is a corporation concerned with the provision of housing for Aboriginal and Torres Strait Islander people. It has in previous years derived substantial funds from the first respondent for this purpose. As I understand it, the first respondent's budget for the presently relevant year was some millions of dollars. In accordance with previous practice, as it is alleged, it invited numerous bodies, including the applicant, to apply for funding for the current year. The applicant made such an application in accordance with various guidelines published by the respondents, however it received only a very small sum from the allocation, about $38,000. In previous years it had received in excess of $300,000. It asserts, and there seems to be some substance in the assertion, that the reason for this disappointment was the adoption by the first respondent of a new policy, which appears to be that set out in ex CK10 to the affidavit of Colin John Kay filed 29 August 2000. The first respondent had apparently formed the view that it will be more efficient to rationalise the provision of Aboriginal housing by, in effect, reducing the number of organisations involved in the delivery of such housing, or at least, the number of organisations with which the first respondent deals for that purpose. The policy seems to be designed to achieve that outcome. 3 The applicant seeks judicial review of the first respondent's decision. For present purposes I am willing to assume that such review is available, although I do not decide that question. I am presently concerned with an application for interlocutory relief, that is, relief pending hearing of the application for judicial review. It is said that the first respondent has available to it only a limited budget for housing purposes, and that if that budget is dispersed, the applicant will be unable to acquire any additional funds from the first respondent in the event that its application for judicial review is successful. It has been accepted, as I understand it, that in order to justify interlocutory relief of this kind, the applicant must demonstrate a serious question to be tried and that the balance of convenience favours the grant of such relief. 4 The applicant attacks the decision upon two grounds, firstly that there was a breach of the rules of natural justice in connection with the decision, and secondly that the decision constituted an improper reliance upon policy without regard to merits. The second ground has not been pressed. There are said to have been two breaches of the rules of natural justice. The first arose out of the change in policy. It is said that the applicant was not told of the change in policy, nor was it given an opportunity to be heard in respect thereof before the decision was made. The second breach concerns apprehended bias. It is said that at the meeting of the first respondent at which relevant decisions were made, representatives of various bodies which were successful in obtaining funds, who were also members of the first respondent, voted in respect of the proposed allocations, although each such member abstained from voting on the resolution which concerned his or her own body. 5 It is necessary that I say something about the structure of both respondents. The first respondent is a regional council, representative in nature, and elected by Aboriginal people in the specified geographical region mentioned in its name. The second respondent is, in effect, a representative commission which takes the place of a department of state in the administration of Aboriginal and Torres Strait Islander affairs. Both bodies are constituted pursuant to the provisions of the ATSIC Act. Thus the first respondent is not representative of bodies such as the applicant, but is rather representative of the Aboriginal community in its area. That it has delegated power to make funds available for Aboriginal housing is the result of a decision made by the second respondent as to the way in which it would dispose of its funds. There are, I am told, ten members of the first respondent. It will be appreciated that the applicant has no legal right to the receipt of funds from either respondent. It may be arguable that principles applicable to charitable trusts might apply to these circumstances, but that has not been argued for present purposes. The applicant has preferred to base its claim upon the alleged breaches of the rules of nature justice. 6 It is not immediately clear to me that those rules can be applied to the decision-making process followed by either respondent for present purposes. To do so would not be without difficulty. Further, the allocation of public funds is not generally a process to which such rules can be readily applied. It is pointed out that the second respondent has indicated in its own public documents a desire to observe the rules of natural justice in connection with its activities. That does not necessarily lead to the conclusion that the rules of natural justice in their highest, or any form apply, or should be treated as applying to every decision made by the second respondent or any delegate of the second respondent. It is necessary, as I understand it, that one find within the Act, an intention that the body in question proceed in a way which renders the rules of natural justice, in one form or another, applicable to the decision-making process in question. No real attempt has been made to do that in these proceedings. Rather, the applicant has sought to rely upon the general statement which appears in the material to which I have referred, the fact that, in the past, it has been heard in respect of its applications and that in the present case, it was invited to make submissions. In my view, none of these matters leads to the conclusion that there was an obligation upon either respondent to comply with the rules of natural justice in the sense in which that expression is usually understood. 7 Even assuming some limited application of those rules for present purposes, it is not clear that this would lead to the consequences for which the applicant opts. Firstly, it is very difficult to see how the rule relating to bias could be applied. The members of the regional council are, as I have pointed out, elected representatives of Aboriginal people in the area in question. It is not, as far as I can see, practicable to subject their decision-making processes to a series of tests developed to regulate the exercise of the judicial function. In any event, I cannot see why the process actually followed should be thought to be unacceptable. If each of the members disqualified him- or herself and left the room during the vote in which he or she was interested, then that would seem to me to be consistent with usual meeting procedure. The applicant sought to rely upon special cases in which it has been held to be inadequate to take such a course, but as I understand it, those cases have generally been cases of much smaller bodies. It is very difficult to see how this regional council could perform its function if it were not acceptable for it to do it as it did in this case. I can see no substance in the complaint of perceived bias. 8 As to the question of change of policy and notice to the applicant, I have been told that after the various submissions were received, the first respondent requested from the various applicants information concerning matters which it considered to be relevant to the exercise of the new policy. It is said that its decisions were based upon information so supplied. The applicant says, however, that it should have been allowed to make submissions in connection with the policy. I know of no general proposition to the effect that a decision-making body must communicate its policies to anybody who may be affected by them, although it may often be desirable that such notification occur. In some circumstances, a failure to do so may result in material supplied being misleading. The applicant was given the opportunity to provide the information which the first respondent considered to be relevant to its policy, and there is no reason to believe that it proceeded on any basis other than a fair assessment of that material for the purposes of applying the policy. 9 The applicant is really seeking to be heard in opposition to the policy, but that is not a proper use of judicial review. I must stress that in what I have said, I have been making prima facie observations on the material as it has been put before me. I do not exclude the possibility that the prior conduct of the respondents, together with maintenance obligations incurred by the applicant in previous years may have induced in the applicant some reasonable expectation as to the way in which it would be treated in the future. That matter has not been ventilated before me. 10 The applicant's case, as it has been presented, has little chance of success. This factor has overwhelming relevance in this case when one comes to consider the balance of convenience. The argument as to balance of convenience advanced by the applicant depends upon the assertion that the respondents have only a limited amount of money available to distribute. This may be so. However, the applicant, as I have said, has no legal claim to that fund or any part of it. In those circumstances, it would be surprising if it were able to restrain its distribution. In fact, the applicant seeks to restrain the distribution of the whole fund, although there could be no basis for claiming entitlement to that extent. There is a further difficulty in that the decision as to distribution was made in early May 2000 and the applicant only now seeks interlocutory relief, although it had previously, as early as the middle of May 2000, indicated an intention to challenge the decision. 11 Events have moved on, and various people have entered into arrangements upon the basis of funding being available in accordance with the decisions which have been made. This was to be expected in the period of three months or more which have elapsed. Although the applicant made known its intention to take action, it did nothing to carry that intention into effect. In those circumstances, it is not surprising that people have acted in reliance upon the decisions in question. That matter would not necessarily militate against interlocutory relief, but it is a factor to be taken into account. For present purposes, giving proper weight to the difficulties faced by the applicant in the case as it is presently mounted, and having regard to the absence of any legal claim upon any part of the fund, I consider that the balance of convenience is very much against the grant of interlocutory relief. I am satisfied as to neither aspect of the traditional test for interlocutory relief. In those circumstances, I will decline the application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 5 September 2000 Counsel for the Applicant: Miss E Ford Solicitor for the Applicant: Deacons Counsel for the First and Second Respondents: Mr M Swan Solicitor for the First and Second Respondents: Australian Government Solicitor Date of Hearing: 29 August 2000 Date of Judgment: 29 August 2000