mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: considered
As Weinberg J observed in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 at 587, [577] , s 5(3)(a) of the AD(JR) Act "seems merely to restate the doctrine of jurisdictional fact". Where the material "jurisdictional fact" is a state of administrative satisfaction that does not leave much scope for the operation of s 5(3)(a). When one recalls the impact of the use of the word "considers" in relation to the "second condition" for which s 24CL provides and that it is evident from the Delegate's reasons that she "considered" that the second condition was satisfied, the "particular matter" to which s 5(3)(a) of the AD(JR) Act refers is, in that language of that paragraph, "established". 45 In Australian Retailers Association v Reserve Bank of Australia , Weinberg J also offered (148 FCR at 587, [578]), a succinct summary of the views expressed by Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Coal Mining Ltd v Daniel [1992] FCA 44 ; (1992) 34 FCR 212 in what has become a seminal judgment as to the effect of s 5(3)(b) of the AD(JR) Act. It was there held that s 5(3)(b) could only be satisfied if: &#8226; the decision was "based on" the existence of a "particular fact", meaning a fact that was "critical to the making of the decision"; &#8226; there was no evidence or other material to support the finding of that particular fact; and &#8226; it could be shown that the particular fact did not exist.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: considered
As a matter of construction, the use of the verb "considers" in s 24CL(3) has the effect of placing that subsection within "that category of laws whose operation is made conditional upon the opinion or satisfaction as to certain matters of a designated authority or person, with the consequence that the merits of the matter are not examinable upon judicial review": The Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297 , at 303. As the High Court found in that case (ibid), the word "considers" was used to that end in the legislation then under consideration. Later, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650, [127] et seq, Gummow J, who had been a member of the Full Court which delivered the unanimous joint judgement in The Australian Heritage Commission Case , comprehensively analysed this type of statutory provision and the amenability of decisions made thereunder to judicial review. In the course of that analysis, Gummow J drew attention (at 653-654, [136]) to the following remarks made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 , at 118-119 in relation to the judicial review of a "satisfaction" based decision: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. After citing this passage, Gummow J added (at 654, [137]): 137. This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157
Outcome: considered
A decision to register an agreement which was not an ILUA would be no decision under s 24CJ of the Native Title Act at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615, [51] per Gaudron and Gummow JJ. Contrary to the submission of QWI, a challenge on such a ground is quite different to a challenge on an alleged error of law said to arise in the failure of an administrative decision-maker to find a fact, which is not a "jurisdictional fact", where such a finding was never sought before the decision-maker and where its materiality is asserted for the first time on "appeal" or judicial review. Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at 175-176, [86] [90] and the authorities there discussed by Carr J highlight the difficulty of contending that such a failure is an error of law but such cases are quite different from one where the power to register is only exercisable if what is presented for registration is indeed an ILUA.
Case: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1980-1981) 147 CLR 297
Outcome: applied
The symmetry of language "hold or may hold" in the paragraphs of s 251A and s 24CG(3)(b) is striking, as are the references in s 251A to "authorise" and "indigenous land use agreement". It seems to me that this is one of those cases where the draftsman has made a mistake and that it is permissible to construe the reference in the preamble to s 251A to "persons holding native title" as if it read "persons holding or who may hold native title": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1980-1981) 147 CLR 297. I therefore consider that the assumption made by the Applicants and QWI in relation to s 251A was not misplaced. 61 The findings of fact made by the Delegate were such that para (a) of s 251A of the Native Title Act had no application.
Case: Curragh Queensland Coal Mining Ltd v Daniel [1992] FCA 44 ; (1992) 34 FCR 212
Outcome: applied
In Australian Retailers Association v Reserve Bank of Australia , Weinberg J also offered (148 FCR at 587, [578]), a succinct summary of the views expressed by Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Coal Mining Ltd v Daniel [1992] FCA 44 ; (1992) 34 FCR 212 in what has become a seminal judgment as to the effect of s 5(3)(b) of the AD(JR) Act. It was there held that s 5(3)(b) could only be satisfied if: &#8226; the decision was "based on" the existence of a "particular fact", meaning a fact that was "critical to the making of the decision"; &#8226; there was no evidence or other material to support the finding of that particular fact; and &#8226; it could be shown that the particular fact did not exist. 46 The views expressed in Curragh Queensland Coal Mining in relation to s 5(3)(b) of the AD(JR) Act were cited with approval by various members of the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 210 at 234. [33] per Gleeson CJ; at 257-258, [115] [118] per Kirby J; at 267, [140] per Callinan J. 47 Grounds 1(a), 1(c), 1(e) and 1(f) each seek to challenge the opinion of the Delegate that the "second condition" was met. 48 The Delegate's reasons reveal that she came to consider whether the "second condition" was met under two headings "Were 'all reasonable efforts' made?" and "Authorisation (s 24CG(3)(b)(ii))". In this commendably focussed fashion, the Delegate expressly directed herself to the very subjects consideration of which s 24CL(3) of the Native Title Act required, i.e. whether the twofold requirements of s 24CG(3)(b) were met. Again recalling the impact of the verb "considers" in s 24CL(3) , what that subsection required in this regard was the making of a value judgement by the Delegate on the basis of the material before her.
Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: considered
The Delegate was perfectly entitled, as a matter of good public administration, to reach a preliminary view about whether the agreement presented with the application was an ILUA, but the decision to register the same necessarily carried with it the maintenance of that preliminary view that the agreement was an ILUA. For it was only such an agreement that the Delegate was empowered to register. The only decision which falls to the Registrar (or a delegate) to make under Subdiv C of Div 3 of Pt 3 of the Native Title Act which has the requisite quality of statutory provision and affectation of legal rights to make it a "decision" for the purposes of the AD(JR) Act is a decision under s 24CJ as to whether or not to register an agreement on the Register: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 , at 130-131, [89]. 40 One permissible ground of review under s 5 of the AD(JR) Act is "that the decision was not authorized by the enactment in pursuance of which it was purported to be made" (s 5(1)(d)); another is "that the decision involved an error of law, whether or not the error appears on the record of the decision" (s 5(1)(f)); yet another is "that the decision was otherwise contrary to law" (s 5(1)(j)). Each or any of these grounds would be apt as a ground for the challenging, on the basis that it was not in law an ILUA, of what purported to be a decision by the Registrar under s 24CJ to register an agreement.
Case: Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1
Outcome: considered
In the course of his reasons for judgment in Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at 242-243, [1265] Lindgren J referred with approval to these observations of Stone J in Lawson's case stating: I agree with Stone J's statement in that case that the effect of s 251B is or may be to give the word 'all' in s 61 a more limited effect than it might otherwise have. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61, it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group (Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise (Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' (De Rose FCA/O'Loughlin at [928])." (Internal case citations where not given by his Honour in passage quoted not reproduced).
Case: Lawson on behalf of the 'Pooncarie Barkandji (Paakantyi) People) v Minister for Land &amp; Water Conservation (NSW) [2002] FCA 1517
Outcome: considered
In Lawson on behalf of the 'Pooncarie Barkandji (Paakantyi) People) v Minister for Land &amp; Water Conservation (NSW) [2002] FCA 1517 , Stone J made reference to the unfortunately not uncommon experience of internal disputes in a native title claim group interfering with the progress of a native title claim. She cited examples of this experience drawn from earlier cases. The case before her Honour was one where there was no relevant traditional decision-making process capable of dealing with the decisions that needed to be made to progress the claim and to resolve the problem of who was to represent the native title claim group. At issue in Lawson's case was whether a decision-making process adopted in the absence of a traditional decision-making process had resulted in a valid "authorisation" in terms of s 251B of the Native Title Act . Her Honour made the following observations in relation to s 251B: 25 As indicated above, s 251B specifies what is required to establish that 'all the persons in a native title claim ... authorise a person or persons to make a native title determination application' (original emphasis). The effect of the section is to give the word 'all' a more limited meaning than it might otherwise have. If there is no traditional process of decision-making 'in relation to authorising things of that kind' then, in accordance with s 251B(b) , authorisation in accordance with a process of decision-making 'agreed to and adopted, by the persons in the native title claim group' is sufficient. In s 251B(b) there is no mention of 'all' and, in my opinion the subsection does not require that "all" the members of the relevant claim Group must be involved in making the decision. Still less does it require that the vote be a unanimous vote of every member. Adopting that approach would enable an individual member or members to veto any decision and may make it extremely difficult if not impossible for a claimant group to progress a claim. In my opinion the Act does not require such a technical and pedantic approach. It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process.
Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985-1986) 162 CLR 24
Outcome: applied
The review ground of an improper exercise of a power in the making of a decision for which s 5(1)(e) of the AD(JR) Act provides may, inter alia, be established by the taking of an irrelevant consideration into account in the exercise of that power (s 5(2)(a) AD(JR) Act) or by a failure to take into account in the exercise of that power a relevant consideration (s 5(2)(b) AD(JR) Act). A consideration will be "relevant" or, as the case may be, "irrelevant" if the legislation concerned either expressly or by necessary implication either requires or, as the case may be, forbids it to be taken into account by a administrative decision-maker in the making of a decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39-40. 77 Section 24CL of the Native Title Act makes provision for registration of an agreement only if particular conditions are satisfied, and forbids registration if they are not. The conditions for which s 24CL provides are "relevant considerations". Of those conditions, what is made "relevant", so far as the "second condition" is concerned, is that the Registrar (or a delegate) considers that the requirements of s 24CG(3)(b) are met. In turn, in considering that question, it is s 24CG(4) which supplies matters which are "relevant". For reasons which I have already given when discussing the statutory scheme, whether the requirements of s 24CG(3)(b) were in fact met is not a "relevant consideration" in the exercise of the power to register an area agreement. 78 I have already noted that the conditions in s 24CL are imposed in respect of what is an "agreement" for the purposes of Subdiv C of Div 3 of Pt 2 of the Native Title Act and that it is only such an "agreement" that the Registrar (or a delegate) is empowered under s 24CJ to register. In my opinion, it necessarily follows that whether the application concerns such an "agreement" is also a "relevant consideration".
Case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: considered
A decision to register an agreement which was not an ILUA would be no decision under s 24CJ of the Native Title Act at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615, [51] per Gaudron and Gummow JJ. Contrary to the submission of QWI, a challenge on such a ground is quite different to a challenge on an alleged error of law said to arise in the failure of an administrative decision-maker to find a fact, which is not a "jurisdictional fact", where such a finding was never sought before the decision-maker and where its materiality is asserted for the first time on "appeal" or judicial review. Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at 175-176, [86] [90] and the authorities there discussed by Carr J highlight the difficulty of contending that such a failure is an error of law but such cases are quite different from one where the power to register is only exercisable if what is presented for registration is indeed an ILUA.
Case: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: considered
As a matter of construction, the use of the verb "considers" in s 24CL(3) has the effect of placing that subsection within "that category of laws whose operation is made conditional upon the opinion or satisfaction as to certain matters of a designated authority or person, with the consequence that the merits of the matter are not examinable upon judicial review": The Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297 , at 303. As the High Court found in that case (ibid), the word "considers" was used to that end in the legislation then under consideration. Later, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650, [127] et seq, Gummow J, who had been a member of the Full Court which delivered the unanimous joint judgement in The Australian Heritage Commission Case , comprehensively analysed this type of statutory provision and the amenability of decisions made thereunder to judicial review. In the course of that analysis, Gummow J drew attention (at 653-654, [136]) to the following remarks made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 , at 118-119 in relation to the judicial review of a "satisfaction" based decision: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. After citing this passage, Gummow J added (at 654, [137]): 137. This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: The Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297
Outcome: applied
As a matter of construction, the use of the verb "considers" in s 24CL(3) has the effect of placing that subsection within "that category of laws whose operation is made conditional upon the opinion or satisfaction as to certain matters of a designated authority or person, with the consequence that the merits of the matter are not examinable upon judicial review": The Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297 , at 303. As the High Court found in that case (ibid), the word "considers" was used to that end in the legislation then under consideration. Later, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650, [127] et seq, Gummow J, who had been a member of the Full Court which delivered the unanimous joint judgement in The Australian Heritage Commission Case , comprehensively analysed this type of statutory provision and the amenability of decisions made thereunder to judicial review. In the course of that analysis, Gummow J drew attention (at 653-654, [136]) to the following remarks made by Gibbs J (as his Honour then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 , at 118-119 in relation to the judicial review of a "satisfaction" based decision: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. After citing this passage, Gummow J added (at 654, [137]): 137. This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
Case: Jarrett v Seymour (1993) 46 FCR 557
Outcome: cited
In considering the evidence and dismissing RTI's application, the primary Judge exercised a discretion to be exercised according to settled principle. In seeking leave to appeal from the exercise of that discretion, the considerations are whether in all the circumstances the decision of the primary Judge is attended by sufficient doubt to warrant its being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong ( D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 per Sheppard, Burchett and Heerey JJ; Jarrett v Seymour (1993) 46 FCR 557 at 559 and 560 per Lockhart, Sheppard and Beaumont JJ).