Keane CJ, Lander and Foster JJ
This case concerns administrative law rather than native title law per se. The Registrar of Aboriginal and Torres Strait Islander Corporations had issued to the Dunghutti Elders Council (Aboriginal Corporation) RNTBC a notice requiring the Council to justify (or ‘show cause’) why it should not be put under special administration under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (‘CATSI Act’). The Council challenged the procedure that the Registrar had followed in issuing the notice. The challenge was not directed to the substantive issue of whether the Council should be put under special administration, but was limited to procedural issues. Flick J dismissed the Council’s challenge at first instance, and the present judgment was the appeal of that decision. The appeal, heard by Keane CJ, Lander and Foster JJ, was also dismissed.
The Court rejected the Council’s claim that the Registrar’s delegate had acted in a way which might lead a reasonable observer to conclude that he had already made up his mind about the relevant matters. It was held that the provision authorising the delegate to issue the notice was predicated on the assumption that the delegate would already hold suspicions that special administration may be warranted. It would be absurd if the delegate was barred from issuing a notice by his very belief in the facts which would support the issuing of the notice. The relevant question is whether the delegate’s mind was ‘incapable of alteration, whatever evidence or arguments may be presented’ – the Court found that it was not.
In response to the Council’s claim that they had been denied procedural fairness, the Court held that all that was required was that the notice disclose the substance of the legal and factual concerns being put to the Council. The notice contained sufficient substance, and so the Council had not been denied an adequate opportunity to respond to those concerns. The Court also rejected a contention that the notice had contained statements, relating to the magnitude of the Council’s legal expenditure, which were unsupported by any evidence. Finally, the Court agreed with the trial judge’s conclusions that the two weeks allowed for the Council to respond to the notice was a reasonable period of time, and that the notice was not inconsistent with the requirements of s 487-5 of the CATSI Act.