Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483

FEDERAL COURT OF AUSTRALIA

Hicks v Aboriginal Legal Service of Western Australia (Inc)

[2001] FCA 483

ABORIGINES AND TORRES STRAIT ISLANDERS – application for review under Administrative Decisions (Judicial Review) Act 1977 (Cth) of failure by Aboriginal Legal Service as Aboriginal Torres Strait Islander representative body to make decision on application for grant of money to finance native title claim – whether Aboriginal Torres Strait Islander representative body had duty to make decision but unreasonably delayed making decision. ABORIGINES AND TORRES STRAIT ISLANDERS – function of Aboriginal Torres Strait Islander representative bodies facilitating the making of applications by groups from among Aboriginal peoples for determination of native title – whether conferral of function of facilitating encompassed or implied conferral of power to facilitate – whether power to facilitate included power to grant money – whether decision to grant money funded by application to Aboriginal and Torres Strait Islander Commission under Native Title Act 1993 (Cth) s 203(1) – whether conferral of power to grant money impliedly required Aboriginal Torres Strait Islander representative body to decide whether to grant application for performance of power – whether implied requirement ceased to exist following amendments to Native Title Act 1993 (Cth) as a result of which Aboriginal Legal Service lost representative body status. ABORIGINES AND TORRES STRAIT ISLANDERS – whether Aboriginal Legal Service remained subject to duty to make decision on application for grant of money as Aboriginal Torres Strait Islander representative body pro tem under Acts Interpretation Act 1901 (Cth) s 8 – whether right to exercise of power to grant or refuse money an "accrued right" within the meaning of the Acts Interpretation Act 1901 (Cth) s 8 – whether futile to grant relief under Administrative Decisions (Judicial Review) Act 1977 (Cth) where decision-maker unable to implement decision for want of funds – whether Aboriginal Legal Service as Aboriginal Torres Strait Islander representative body pro tem could obtain such funds by application to Aboriginal and Torres Strait Islander Commission under Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 14. Administrative Decisions (Judicial Review) Act 1977 (Cth) s 7(1) Native Title Act 1993 (Cth) Pt 11 (Divisions 1A, 2, 3, 4), ss 201A, 202, 203, 202(1), 202(3), 202(3)(c), 202(4), 202(4)(a), 203(1), 203AD(1), 203BK(1), 203AD(2), 203(3), 253 Native Title Amendment Act 1998 (Cth) Sch 3 (Pts 1, 2), ss 2(2), 2(4)(b) Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 14(1) Acts Interpretation Act 1901 (Cth) s 8 Associations Incorporation Act 1895 (WA) Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435 referred to Edelsten v Health Insurance Commission (1990) 27 FCR 56 followed Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445 referred to Coopers & Lybrand v Australian Securities Commission (1994) 53 FCR 599 referred to Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 followed Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 referred to The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 followed Re the Bristol and North Somerset Railway Co (1877) 3 QBD 10 followed JR Exports Pty Ltd v Australian Trade Commission (1987) 14 FCR 161 considered Director of Public Works v Ho Po Sang [1961] AC 901 referred to Robertson v City of Nunawading [1973] VR 819 referred to Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494 referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 referred to Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340 considered Durham Holdings Pty Ltd v The State of New South Wales (2001) 177 ALR 436 referred to Esber v Commonwealth (1992) 174 CLR 430 referred to Lee v Secretary, Department of Social Security (1996) 68 FCR 491 referred to Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583 referred to Secretary, Department of Social Security v Lee (1997) 148 ALR 145 referred to Repatriation Commission v Keeley (2000) 98 FCR 10 referred to Repatriation Commission v Keeley [2001] 1 Leg Rep SL 1 referred to Repatriation Commission v Thompson [2001] FCA 341 referred to WILFRED HICKS & ORS ON BEHALF OF THE WONG-GOO-TT-OO NATIVE TITLE CLAIMANT GROUP v ABORIGINAL LEGAL SERVICE OF WESTERN AUSTRALIA (INC) W 6009 of 2000 LEE, LINDGREN & KATZ JJ 1 MAY 2001 PERTH