Case: Kioa and Others v West and Another [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
In VEAL the Court was concerned with the failure of the Tribunal to inform the appellant of the existence of a letter which could have influenced the decision which it was required to make. In Kioa and Others v West and Another [1985] HCA 81 ; (1985) 159 CLR 550, the Court determined that the decision-maker was required to provide an opportunity to a party to respond to information which was adverse to the interests of that party, and which the decision maker proposes to take into account in making the decision (at 628). 45 Although generally an opportunity should be given to a party whose interests are affected by a decision to deal with adverse information that is ' credible, relevant and significant to the decision to be made ' (see Kioa v West at 629), the allegations influencing the decision of FaCSIA was not information which was credible, relevant and significant to the decision of the Registrar to appoint an administrator. That information ' can and should be put aside from consideration by the decision-maker as not, credible, not relevant, or of little or no significance to the decision to be made.' (see VEAL at [17]). 46 The ground of failure to take into account a relevant consideration similarly does not arise in this instance as this ground is only established if the decision maker fails to take into account a consideration which he or she is bound to take into account in making the decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39; Kioa v West at 630. The Registrar was not obliged to consider the material relied upon by FaCSIA because the Registrar had no power to control FaCSIA's decision making. The Registrar was only concerned with the consequence of the disputed matters between Mutitjulu and FaCSIA, namely that funding had ceased on 30 June 2006 and that Mutitjulu had no source of income from that time. 47 Section 71(2) of the ACA Act provides that the Registrar may appoint an administrator if satisfied that any of the grounds specified in that section have been established. The statute does not require the Registrar to consider matters which were relevant to a separate decision made by FaCSIA. Accordingly the Registrar was not bound to take those matters in to consideration in her decision to appoint an administrator. The impugned allegations are of a kind referred to by Brennan J in Kioa v West where His Honour said at 628: 'Administrative decision making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made' The events which caused FaCSIA to determine that funding should not be continued is not a matter which was relevant and significant to that consideration by the Registrar to appoint the administrator. 48 Further, the Registrar was aware that FaCSIA had provided an opportunity for Mutitjulu to respond and that Mutitjulu had done so. Despite such response, FaCSIA remained unmoved. 50 The Registrar had before her information that was ' credible, relevant and significant ' ( Kioa v West , per Brennan J 628-9) namely that funding to the community had ceased; that Mutitjulu was in debt; and that there was no prospect of any income to support the operations of the community unless an administrator was appointed which justified the issue of the Notice. These were relevant considerations for the Registrar. For the reasons specified above I consider that the Registrar's decision was reached ' by a process of logical reasoning ': see Hill v Green [1999] NSWCA 477 ; (1999) 48 NSWLR 161. I therefore reject Mutitjulu's Wednesbury submissions.