FEDERAL COURT OF AUSTRALIA Hicks v Aboriginal Legal Service of Western Australia (Inc) [2000] FCA 1448 ABORIGINES – native title – decision by representative body under Native Title Act not to fund native title claim – decision set aside and reconsideration directed – body ceasing to be representative body before reconsideration concluded – fresh application under Administrative Decisions (Judicial Review) Act to compel decision – whether application competent – no useful relief available – want of power in body to comply with any direction. Native Title Act 1993 (Cth) s 202 Administrative Decisions (Judicial Review) Act 1977 Native Title Amendment Act 1998 Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435 referred to WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO NATIVE TITLE CLAIMANT GROUP v ABORIGINAL LEGAL SERVICE OF WESTERN AUSTRALIA (INC) W105 of 2000 FRENCH J 13 OCTOBER 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W105 OF 2000 BETWEEN: WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO NATIVE TITLE CLAIMANT GROUP APPLICANT AND: ABORIGINAL LEGAL SERVICE OF WESTERN AUSTRALIA (INC) RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 13 OCTOBER 2000 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application is dismissed. 2. The Applicants are to pay the Respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W105 OF 2000 BETWEEN: WILFRED HICKS AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO NATIVE TITLE CLAIMANT GROUP APPLICANT AND: ABORIGINAL LEGAL SERVICE OF WESTERN AUSTRALIA (INC) RESPONDENT JUDGE: FRENCH J DATE: 13 OCTOBER 2000 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The applicants who are pursuing a native title determination in proceedings pending in this Court seek judicial review in respect of the failure of the Aboriginal Legal Service of Western Australia (Inc) (ALS) to make a decision about the provision of funding for their representation in those proceedings. A decision of the ALS refusing funding was set aside in an earlier judicial review action by Carr J and remitted to the ALS for reconsideration. However, before any further decision was made the ALS ceased to have standing as a representative body under the Native Title Act 1993 (Cth). It was that standing which had conferred upon it the statutory function invoked by the applicants. A threshold question arises in this case whether there is any power in this Court to make any of the orders sought now that the ALS lacks authority under the relevant federal statute to make the decision which it is said to be under a duty to make. Factual Background 2 Wilfred Hicks and Others, members of a group making a native title determination application under the name Wong-goo-tt-oo sought funding for that purpose from the ALS in April 1999. The ALS was at that time a native title representative body under the Native Title Act. Funding was refused and the decision to refuse it was challenged in judicial review proceedings in this Court. On 28 April 2000, Carr J ordered that the decision of the ALS refusing funding be set aside and the matter be remitted to the ALS for further consideration and decision according to law. The ground upon which the decision was set aside was that there was a reasonable apprehension of bias in that the ALS was already providing legal services to competing applicants for a native title determination covering land also the subject of the Wong-goo-tt-oo group application. That judgment is now reported as Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435. Carr J suggested, in his reasons, that the ALS brief independent counsel for advice on whether the application should be funded. His Honour observed that whether the resultant decisions were taken by the Chief Executive Officer of the ALS, Mr Eggington, or by its Executive Committee "…manifestly independent legal advice would assist considerably in dispelling apprehended or perceived bias" (at 444). 3 The applicants sued the Aboriginal and Torres Islander Commission (ATSIC) in the same proceedings in relation to a decision made on 16 December 1999 in which ATSIC had declined their request to it for direct funding. The applicants and ATSIC agreed that the claims for relief against ATSIC could be the subject of consent orders. These were made on 11 February 2000. By the consent orders Carr J referred back to ATSIC for reconsideration its refusal of the applicants' request for funding and otherwise dismissed the proceedings against ATSIC. On 20 April 2000, ATSIC advised the applicants' solicitors that it declined funding. It provided a statement of reasons with its letter of that date. Although the applicants asked ATSIC to reconsider its position and its decision of 20 April 2000 in the light of the judgment of Carr J given on 28 April 2000, their request was not acceded to. ATSIC's refusal decision of 20 April 2000 is the subject of separate review proceedings in respect of which judgment is also delivered today. 4 On 3 May 2000, the solicitors for the applicants wrote to the ALS asking for advice of the process the ALS intended to follow in order to reconsider their clients' request for funding pursuant to the orders of Carr J and how long it was envisaged that it would take for the ALS to reconsider the matter and make a decision. They also asked whether the ALS would provide them with any funding to cover the costs of making further submissions to it and doing all other necessary work to represent their clients in the process of reconsideration of the request for funding. On 4 May 2000, Mr Paul Kennard, counsel in the Land and Heritage Unit of the ALS, wrote to the applicants' solicitors advising that the ALS was considering Carr J's decision and its own position in light of that decision. The letter concluded: "I appreciate the urgency of the matter and expect to provide you with a response to your letter early next week." The urgency existed because the applicants' application for a native title determination was the subject of Federal Court proceedings also involving an overlapping application by Ngaluma Yinjibandi people which were due to resume on 12 June 2000. At that time it was intended to complete the evidence of one of the applicants' witnesses and continue for another four weeks to take expert evidence. 5 A further letter of 15 May 2000, from Mr J O'Connor, the Acting Principal Legal Officer of the ALS, to the applicants' solicitors advised: "…that the reconsideration of your clients' request for funding to conduct their native title claim will now be referred for decision to Mr Denis Eggington, Chief Executive Officer of the ALS." The applicants' solicitors wrote back the following day asking for advice of what involvement the Chief Executive Officer had had in relation to the matter up to date and particularly whether he had any involvement with the Ngaluma and Yinjibandi claim and whether he would be seeking independent legal advice from counsel with native title expertise. They asked again how long it would take the ALS to reconsider the matter. 6 On 19 May 2000, the applicants' solicitors again wrote to Mr J O'Connor confirming telephone advice received from him that day that Mr Eggington was reconsidering their clients' request for funding and that a legal practitioner, Mr Fiocco of the firm Fiocco Hopkins Nash, would be providing an independent legal opinion on the matter. They also confirmed advice that the ALS would make a decision with respect to funding in the following seven to ten days. A further letter was sent on 26 May 2000 referring to a further telephone conversation between the applicants' solicitors and Mr O'Connor and advising that they were awaiting Mr Eggington's decision by the following Monday, 29 May 2000. 7 On 30 May 2000, the applicants' solicitors wrote to the ALS pointing out that they were still awaiting a decision regarding funding for their clients. They said: "As you are aware the Native Title Federal Court matter is ongoing and your delay in making a lawful decision has already severely prejudiced our clients, and continues to do so. We request that the ALS(WA) advises us of its decision before 12 noon tomorrow, failing which we shall have no option but to take action (which we shall do without further notice to you) against the ALS(WA)." 8 On 2 June 2000, Mr Eggington sent the applicants' solicitors a letter advising that he intended to reconsider afresh their clients' application for funding. He said that in the course of that reconsideration he intended to have regard to all available materials, including those which were before ATSIC in the course of making its decision contained in its reasons of 20 April 2000. He enclosed a copy of the statement of reasons from ATSIC. He referred to various documents in the index of documents provided to ATSIC which he did not have. He then said: "When I consider your client's application, I shall also be required to take into consideration the applicable policy of the ALS with respect to applications of this nature. I shall also be taking advice from a senior independent legal practitioner with respect to the matter." The letter went on to invite further submissions within seven days. On 6 June, the applicants' solicitors sent a fax to Mr Eggington at the ALS expressing disappointment at the delay and stating their intention of taking appropriate court action for the failure of the ALS to comply with the order of Carr J. The solicitors also required that Mr Eggington take into consideration oral evidence given by their clients to that date in the proceedings in the Federal Court and two volumes of an expert report from Mr Rory O'Connor, an anthropologist, which had been filed by the applicants in the same proceedings. They gave permission to the ALS to obtain court transcripts relating to the applicants and Mr Rory O'Connor's report from the Land and Heritage Unit of the ALS. On 9 June 2000, Mr Eggington responded advising that he was in receipt of the relevant court transcript and Mr O'Connor's reports which had been forwarded to the independent legal practitioner for his consideration. 9 During this exchange of correspondence, on 18 May 2000, the Acting Principal Legal Officer of the ALS had made contact with Mr Fiocco seeking his advice in relation to reconsideration of the request for funding. On 19 May, he met with Mr Fiocco who indicated that he would require the assistance of other counsel in assessing the legal merit of the application. He was given approval to brief counsel to provide an advice. A brief was apparently forwarded to Mr Fiocco with documents provided by the applicants and further documents were requested. 10 As a result of various discussions with ATSIC representatives, it became clear to Mr Eggington in June 2000 that the ALS was to lose its status as a native title representative body for the Pilbara after 1 July 2000 pursuant to Division 1A of the Native Title Amendment Act 1998. On 30 June 2000, the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron, sent a facsimile to Mr Eggington in the following terms: "I am writing in relation to the Aboriginal Legal Service of Western Australia's application for recognition as a native title representative body for the Pilbara invitation area under the amended Native Title Act 1993 (the Act). I have decided not to recognise the Aboriginal Legal Service of Western Australia as the representative body for the Pilbara invitation area as I was not satisfied that the Council met the requirements of section 203AD of the amended Native Title Act 1993 in relation to that invitation area. In accordance with subsection 203AD(5) of the Act, I will provide a statement of the reasons for my decision in the near future. I understand the Aboriginal Legal Service may be disappointed with my decision not to select it for recognition as the representative body for the Pilbara, however, I have recognised the Yamatji Barna Baba Maaja Aboriginal Corporation as the representative body for the Pilbara invitation area." 11 The applicants' application for a native title determination falls within what is called, for the purpose of the recognition of representative bodies, the Pilbara invitation area. Mr Eggington said he considered the implications of the Minister's refusal of recognition as a representative body. On 5 July he advised the applicants' solicitors of the Minister's decision in the following terms: "On 30 June 2000 we were advised by the Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, that he had decided not to recognise the Aboriginal Legal Service of Western Australia as a representative body for the Pilbara invitation area. As a result of this decision, we have ceased to be the Representative Body for this area. Accordingly, our role in considering funding for the Wong-Goo-tt-oo group has ceased. The Minister further advised us that he has recognised the Yamatji Barma Baba Maaja Aboriginal Corporation as the Representative Body for the Pilbara area." It was Mr Eggington's evidence that the ALS no longer holds any funds to finance the applicants' native title claim. All funds which it had received from ATSIC up to March 2000 have been committed to the conduct of existing native title claims in the Pilbara. The ALS no longer receives any funds from ATSIC for native title work in that region. In the circumstances it is said the ALS acted reasonably in its efforts to apply the decision of Carr J in assessing the applicants' request for funding. The Application for Judicial Review 12 On 30 June 2000, the applicants filed an application in this Court under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act)seeking to review: "…the failure of the Respondent to make the decision which the Respondent was under a duty to make pursuant to the order made by His Honour Justice Carr on 28 April 2000 in Federal Court matter Hicks v Aboriginal Legal Service of Western Australia (Inc) W6043 of 1999 [2000] FCA 544 upon the Applicants' request for funding to assist them in their application for a native title determination being heard by the Federal Court in matter numbers WAG 6017 of 1996, Part WAG 127 of 1997 and Part WAG 6256 of 1998 ("the Federal Court proceedings")" The grounds upon which review was sought were in the following terms: "4. The Respondent has a duty to make the decision. 5. The Respondent has failed to make the decision. 6. In the circumstances described in the Affidavit sworn by Wilfred Hicks on 29 June 2000 the failure of the Respondent to make the decision nine weeks after it was ordered to do so by His Honour Justice Carr is wholly unreasonable and to the continuing prejudice and disadvantage of the Applicants." The Objection to Competency 13 The ALS has filed a notice of objection to the competency of the application on the grounds that the loss by it of its status as a representative body for the Pilbara region meant it had no power to make the decision sought by the applicants. In order to consider that objection it is necessary first to turn to the statutory framework and the facts relevant to the objection. Statutory Framework and Status of the ALS as a Representative Body 14 The Native Title Act 1993 (Cth) defined a class of body known as a "representative Aboriginal/Torres Strait Islander body". It was defined in s 253 as "a body that is the subject of a determination under subsection 202(1)…". Section 202 , which was found in Part 11 of the Act, comprising ss 202 and 203, provided that: "202(1)The Commonwealth Minister may, in writing, determine that a body is a representative Aboriginal/Torres Strait Islander body for an area specified in the determination. (2) The Commonwealth Minister may determine more than one body in relation to any area. (3) The Commonwealth Minister must not make the determination unless he or she is satisfied that: (a) the body is broadly representative of the Aboriginal peoples or Torres Strait Islanders in the area; and (b) the body satisfactorily performs its existing functions; and (c) the body will satisfactorily perform its functions under subsection (4). (4) A representative Aboriginal/Torres Strait Islander body may: (a) facilitate the researching, preparation or making of claims, by individuals or groups from among Aboriginal peoples or Torres Strait Islanders, for determinations of native title or for compensation for acts affecting native title; or (b) assist in the resolution of disagreements among such individuals or groups about the making of such claims; or (c) assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to the doing of acts affecting native title, the provision of compensation in relation to such acts or any other matter relevant to the operation of this Act." The Act provided that a representative Aboriginal/Torres Strait Islander body could apply to the Commonwealth Minister or to ATSIC for assistance under s 203 (s 203(1)). Upon an application being made to ATSIC and ATSIC being satisfied in all the circumstances that it was reasonable to do so, ATSIC was empowered to authorise the provision of financial assistance from money appropriated for the purposes to ATSIC to enable the representative body to perform its functions under subsection 202(4) (202(3)). 15 The ALS is a body corporate established under the Associations Incorporation Act 1987 (WA) on 7 January 1975. On 30 December 1993 it was determined as a representative body under s 202 of the Act for the whole of the State of Western Australia. Other bodies were determined as representative bodies in respect of particular regions of the State of Western Australia, exercising responsibility concurrently with the ALS. 16 From September 1997, the ALS operated as the sole representative body for the West Pilbara area following the collapse of the organisation which had previously had responsibility as representative body for that region. It received a six month grant from ATSIC for that purpose on the understanding that its operation as representative body for the West Pilbara was on an interim basis only. It continued to receive native title funding grants from ATSIC thereafter on a six monthly basis. 17 The Native Title Amendment Act 1998 amended the provisions relating to representative bodies in two stages. Under Part 1 of Schedule 3 of the Amending Act, Part 11 of the 1993 Act, comprising ss 202 and 203, was amended and those sections redesignated as Division 1A of Part 11. A new Division 1 comprising ss 201A and 201B was inserted together with Division 2 comprising ss 203A to 203AI. A new Division 7 was also inserted comprising s 203FH. Division 1A continued in operation only for a period designated the "transition period" defined in s 201A. The coming into effect of Divisions 3 to 6 would mark the end of that period. During the transition period the Commonwealth Minister was obliged to invite applications from eligible bodies for recognition as the representative body for an area specified in the invitation (s 203A). Eligible bodies included bodies corporate that were representative bodies at the commencement of s 201B (s 201B). An eligible body could apply for recognition in respect of a specified area for which applications had been invited (s 203AB(1)). The Minister was empowered to recognise, as the representative body for an area, an eligible body that had applied for recognition (s 203AD). The recognition of the body as a representative body was to take effect no earlier than the day on which Division 3 commenced (s 203AD(2)), namely the end of the transition period. 18 The second stage of the amendments to the representative body provisions took effect from the end of the transition period and involved the repeal of Division 1A and the insertion of additional provisions relating to the extension and variation of the areas covered by representative bodies (s 203AE and s 203AF) together with the withdrawal of recognition of representative bodies (s 203AH). Divisions 3 to 6 were inserted by operation of these amendments with effect from the end of the transition period. The functions of representative bodies were redefined and provisions inserted for the manner of the performance of those functions. The functions include assisting native title holders and persons who may hold native title by, inter alia, representing them or facilitating their representation in proceedings relating to native title applications (s 203BB(1)). 19 Under Item 12 of Part 1 of Schedule 3 of the amending Act, the definition of representative Aboriginal/Torres Strait Islander body was amended to add recognition under s 203AD so that it read: "representative Aboriginal/Torres Strait Islander body" means a body that is the subject of a determination under subsection 202(1) or that is recognised under section 203AD." By Item 37 of Part 2 of Schedule 3 that definition was further amended to delete the reference to a determination under subsection 202(1). Thus the only basis upon which a body could be a representative Aboriginal/Torres Strait Islander body, after the coming into effect of Part 2 of Schedule 3, was recognition under s 203AD. As a note to the amending Act observed, that amendment had the effect that when Part 2 of Schedule 3 commenced representative bodies under subsection 202(1) would no longer be representative bodies. 20 Section 2(4) of the amending Act provided for Part 2 of Schedule 3 to commence twelve months after the commencement of Part 1 of Schedule 3 or on a later day fixed by proclamation provided the proclamation were made before the end of that period. Part 1 of Schedule 3 commenced on 30 October 1998. On 14 October 1999, by proclamation in the Commonwealth of Australia Gazette, 1 July 2000 was fixed as the date on which Part 2 of Schedule 3 was to commence. 21 In the meantime, on 13 August 1999 and pursuant to an invitation from the Federal Minister for Aboriginal Affairs, the ALS submitted an application for recognition as representative body for the Pilbara region. The relevant invitation area covers an area which includes the applicants' native title claim area. On 30 June 2000, the Chief Executive Officer of the ALS, Mr Eggington, received a letter from the Minister for Aboriginal and Torres Strait Islander Affairs informing him that the Minister had decided not to recognise the ALS as the representative body for the Pilbara invitation area. Instead the Yamatji Barna Baba Maaja Aboriginal Corporation was recognised as the representative body for that area. There is no transitional provision which authorises the ALS to continue to carry out any further functions under the Native Title Act in respect of pending proceedings in the Pilbara invitation area. 22 As a practical matter, the quarterly release of funds from ATSIC received in March 2000 was the final payment made to the ALS for native title claims work in the Pilbara. It was evidently widely anticipated that the ALS would not be recognised as the representative body for the Pilbara after 1 July 2000. So much had been foreshadowed in a report entitled "The Review of Native Title Representation" published in 1995 and referred to in paragraph 24 of the Minister's reasons for decision which are exhibited to the affidavit of Mr Eggington in these proceedings. That report recommended that the native title role of the ALS should be redefined as a result of the coverage of the State by regionally based native title representative bodies with sole jurisdiction. The report had recommended: "The Legal Service's future role should be focussed on providing centralised services under contract to NTRBs subject to protocols developed by them." During June 2000, and as a result of various discussions with ATSIC representatives, it was made clear to Mr Eggington that the ALS was to lose its status as the representative body for the Pilbara after 1 July 2000. Whether the Court Can Review the ALS's Conduct and Grant Relief in Respect Thereof 23 The question that arises under the objection to competency is whether or not the Court can entertain an application for review of the conduct of the ALS pursuant to the ADJR Act in respect of its failure to make a decision on the applicants' funding application in accordance with the judgment of Carr J and grant relief under the Act. The present application is not brought by way of enforcement of the order of Carr J. Contempt or ancillary proceedings for enforcement of that order could no doubt have been brought in or in connection with the proceedings before his Honour. 24 The present application is expressed to be made pursuant to the provisions of s 7 of the ADJR Act. Whether or not jurisdiction existed at the time of the application, the powers to grant relief conferred by that Act can only be invoked prospectively if the ALS has a continuing statutory function under a law of the Commonwealth, whether by way of transitional provision or otherwise to consider the provision of representational assistance to the applicants. It is plain that it does not. It has no continuing existence as a representative body under the Act, no authority to provide assistance pursuant to the Act and no standing to apply for and receive grants from ATSIC for the purposes of the Act. There is no argument that the Acts Interpretation Act 1901 is of any assistance in this case. 25 It might be argued that the Court has authority to review the conduct of the ALS up to 1 July 2000 in so far as it did not move with reasonable expedition to give effect to the Court's direction. But whether it did move with reasonable expedition or not and whether there is jurisdiction or not in respect of such conduct, there is in my opinion no useful relief that could now be granted. 26 The applicants contend that the order of Carr J applies to the ALS as a body corporate under Western Australian law. As a body corporate it had the functions of a representative body conferred upon it under s 202 of the Native Title Act. Notwithstanding the absence of those functions since 1 July 2000 it is said that the ALS can still make the decision ordered by Carr J, namely to refuse or accept the request for funding assistance. It is submitted that if a decision were made to accept the request then an application for a grant could be made by the ALS to ATSIC under s 14 of the Aboriginal and Torres Strait Islander Commission Act (ATSIC Act). Nothing in the Native Title Act prevents ALS from making such a decision. It would lie then with ATSIC to decide whether funding assistance for the applicants was to be made by the body recognised as the present representative body for the Pilbara or directly to the applicants under s 14 of the ATSIC Act. The ultimate decision, it was said, lies as it always has with ATSIC as the source of funding. 27 With all due respect to those arguments, they overlook the difficulty that there is no decision that this Court could now direct the ALS to take in respect of the applicants' application under the Native Title Act. In my opinion the Court lacks power to grant the relief sought. The applicants must redirect their application to the representative body that has been recognised for the Pilbara invitation area, namely the Yamatji Barna Baba Maaja Aboriginal Corporation. Conclusion 28 For the preceding reasons the application will be dismissed with costs. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 13 October 2000 Counsel for the Applicant: Mr R I Viner QC Solicitor for the Applicant: Kitto & Kitto Counsel for the Respondent: Dr JJ Hockley Solicitor for the Respondent: Aboriginal Legal Service of Western Australia Date of Hearing: 21 September 2000 Date of Judgment: 13 October 2000