Siopsis J
In this matter, Siopsis J dismissed an application by the Sullivan Edwards Native Title Claim Group for judicial review of a decision by the Secretary of the Department of the Prime Minister and Cabinet (the department) affirming the Central Desert Native Title Service’s (CDNTS) decision to reject an application for funding assistance by the Sullivan Edwards claim group.
Background
On 15 December 2008, the Yilka claim group filed an application for a determination of native title over an area of land in the Central Desert of Western Australia. The Sullivan Edwards claimants had not been included as members of the Yilka claim group.
Approximately 3 years later, on 27 December 2011, the applicant on behalf of the Sullivan Edwards Native Title Claim Group filed an application for a determination of native title over an area substantially overlapping the subject of the Yilka claim. The two claims were later ordered to be heard together. The present application is in relation to the Sullivan Edwards claim.
The native title representative body for the Central Desert region, CDNTS, represents the applicant in the Yilka native title claim. In the second half of 2012 and early 2013 the Sullivan Edwards application was successful in obtaining assistance from CDNTS and the department in prosecuting specific aspects of its claim.
Power to provide funding and review decisions
Under the Native Title Act 1993 (Cth) (NTA) applicants can obtain assistance for bringing a native title claim by 2 means:
Obtain assistance from the representative body for the region; or
Apply for funding from the Secretary of the department.
The NTA provides for the review of decisions of a representative body in respect of its facilitation and assistance functions. Separately, under s 203FE(1), a native title applicant can apply to the Secretary of the department for funding.
In this case, in March 2013 CDNTS refused an application for assistance by the Sullivan Edwards applicant. An internal review did not alter the decision. In August 2013 the applicant applied to the Secretary of the department for funding and noted that if the application was declined, it sought a review of the CDNTS decision. The department declined the funding application and affirmed the CDNTS decision. The Sullivan Edwards applicant continued to engage lawyers and prepare its claim.
Application for Judicial Review
The application for judicial review was first heard on 31 July 2014. Siopis J dismissed the proceeding on the grounds that there would be no practical utility in conducting a judicial review of the impugned decision when the applicant no longer required assistance to perform the tasks to which the application of 21 March 2013 related, and there was no basis to make an order directing the respondent to grant funding for the legal representation of the applicant from August 2013 to the end of the proceeding.
His Honour subsequently revoked the orders and relisted the application as an alternative order for declarations of 'errors of law and jurisdictional error' in relation to the Secretary's decisions had been overlooked and gave the applicant leave, at [39]:
…to amend the originating application so as to identify specifically the declarations the applicant sought, and gave directions for the filing of any further affidavits and submissions as to whether there was sufficient practical utility to cause the Court, in the exercise of its discretion, to make the declarations sought, if the allegations were otherwise made out.
The applicant argued at [48-50]:
a declaration of invalidity of the Secretary’s decision would allow the Secretary to fund all the applicant’s legal work in prosecuting the Sullivan Edwards claim from August 2013 until the end of proceedings (funding issue);
declarations of errors by the Secretary in relation to the review of CDNTS's decision would increase the likelihood that the applicants funding applications would not be affected by the same errors (application review issue); and
there was a public interest in holding administrative decision makers to fundamental legal standards (public interest issue).
All three grounds were rejected and the application was dismissed.
Reasoning
Siopis J rejected the funding issue on the basis that, at [59]:
…on a proper construction of the Native Title Act, the power of the Secretary under s 203FBA(7)(b) and s 203FBA(2)(b), following a review of [CDNTS’s] decision, is confined to granting funding in respect of the nature and extent of the assistance which was sought in the original application, and which was refused by the decision of [CDNTS] under review.
Siopis J rejected the application review issue, at [70], finding that the applicant did not demonstrate that there would be any utility in making the declarations sought insofar as they may have an effect upon the matter in which the applicant’s August 2014 applications for funding are determined,at [76].
Siopis J rejected the public interest argument as the making of the declarations sought would serve no practical utility, at [80].