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Editors --- "Hicks v Aboriginal Legal Service of Western Australia (Inc) - Case Summary" [2001] AUIndigLawRpr 45; (2001) 6(4) Australian Indigenous Law Reporter 36

Court and Tribunal Decisions - Australia

Hicks v Aboriginal Legal Service of Western Australia (Inc)

Federal Court of Australia (Lee, Lindgren and Katz JJ)

1 May 2001

(2001) 108 FCR 589; [2001] FCA 483

Native title — application for review — Administrative Decisions (Judicial Review) Act 1977 (Cth) — Aboriginal and Torres Strait Islander representative body — Aboriginal Legal Service — failure to make decision on application for grant of money to finance native title claim — function of representative bodies facilitating applications — provision of funds to representative bodies for the purpose of fulfilling their function

Facts:

On 9 September 1999 the appellants submitted to the respondent an application for financial assistance in support of its native title application. On 16 September 1999, the respondent refused the application for financial assistance. The appellant alleged ‘perception of bias’ against the respondent under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Carr J found this allegation substantiated and remitted the decision to the respondent on 28 April 2000 (Hicks v Aboriginal Legal Service of Western Australia (Inc) [2000] FCA 544; [2000] 98 FCR 435). By 30 June 2000, the respondent had failed to make a decision in relation to the appellant’s application for financial assistance and the Appellant initiated the present action.

At the time of Carr J’s decision, the respondent had the status of a representative body under s 202(1) of the Native Title Act 1993 (Cth). On 1 July 2000, this provision was replaced by a new s 203AD(1), which was created by the 1998 amendments to the Native Title Act. The respondent was not recognised under the new provisions.

The appellant alleged that the respondent’s ‘unreasonable delay’ in reaching a decision was in breach of its statutory duty under s 202(4) of the Native Title Act and sought an order of review under the Administrative Decisions (Judicial Review) Act s 7(1). The primary judge dismissed (with costs) the application on the grounds that, because the respondent was no longer charged with the functions of a representative body pursuant to the Native Title Act, no useful remedy could be ordered by the Court.

Although not argued at first instance, on appeal, the appellant submitted that s 8 of the Acts Interpretation Act 1901 (Cth) operated to maintain the respondent’s status as a representative body pro tem, thus keeping alive the respondent’s duty under the Native Title Act to make a decision in relation to the appellant’s application for financial assistance. If the respondent’s decision was in favour of the appellants, the Aboriginal and Torres Strait Islander Commission (ATSIC), the ultimate source of finance, could be compelled to grant the money to the respondent pursuant to s 14 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

Held:

1. Prior to its repeal on 1 July 2000, s 203 of the Native Title Act was the sole legislative provision that representative bodies may have relied upon for the purpose of seeking and obtaining grants of money from the ATSIC in order to fulfil their functions under s 202(4) of the Native Title Act:

(a) the ATSIC Act does not, independently of the Native Title Act, recognise the existence of representative bodies and the Native Title Act does not refer to s 14 of the Aboriginal and Torres Strait Islander Commission Act;
(b) s 203(3) of the Native Title Act imposed express limitations on the ATSIC’s power to authorise the provision of grants of money to representative bodies for the purpose of fulfilling their functions under s 202(4) of the Native Title Act.

2. Where such power did not previously exist, the repeal of s 203 of the Native Title Act on 1 July 2000 is not of itself a reason to subsequently interpret s 14 of the Aboriginal and Torres Strait Islander Commission Act as conferring on ATSIC a power to make grants of money to representative bodies to perform their functions pursuant to s 202(4) of the Native Title Act pro tem.

3. Arguments relating to s 8 of the Acts Interpretation Act are unnecessary to decide.

Order

The appeal be dismissed with costs.