Smith v The Hon Andrew Refshauge, MLA, Minister for Aboriginal Affairs and Ors [2001] NSWLEC 271

Smith v The Hon Andrew Refshauge, MLA, Minister for Aboriginal Affairs and Ors [2001] NSWLEC 271

The appointment was valid because each of the disputed conditions in s 57(1)(b), s 57(1)(c) and s 57(1)(e) of the Aboriginal Land Rights Act 1983 was satisfied. The audit certificate was unsatisfactory and received by the Minister, any alleged defect did not invalidate it, the applicant did not displace the presumption that the condition in s 57(1)(b) was satisfied, and a substantial breach under s 57(1)(e) did not have to be continuing at the precise time of appointment.

Jurisdiction
Australia
Judgment Date
12 December 2001
Procedural Posture
Challenge to the Appointment of an Administrator to the Wellington Local Aboriginal Land Council / Judgment on Application for Declarations and an Order
Outcome
Application dismissed; question of costs reserved.
Legal Topics
['local Aboriginal Land Council' 'appointment of Administrator' 'aboriginal Land Rights Act 1983 S 57' 'audit Certificate' 'statutory Construction']
['aboriginal Land Rights' 'administrative Law'] ['local Aboriginal Land Council' 'appointment of Administrator' 'aboriginal Land Rights Act 1983 S 57' 'audit Certificate' 'statutory Construction']

Case Brief

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Procedural Posture

Challenge to the Appointment of an Administrator to the Wellington Local Aboriginal Land Council / Judgment on Application for Declarations and an Order

Legal Issues

  1. 1 ['Whether the condition in s 57(1)(c) of the Aboriginal Land Rights Act 1983 was satisfied by receipt of an unsatisfactory audit certificate by the Minister.' 'Whether the audit certificate was invalid because it did not expressly indicate whether the financial statements complied with s 41B(1) of the Public Finance and Audit Act 1983.' 'Whether the condition in s 57(1)(b) was satisfied by a present failure to comply with s 32 of the Aboriginal Land Rights Act 1983.' 'Whether the condition in s 57(1)(e) was satisfied by a substantial breach of the requirements of the Aboriginal Land Rights Act 1983, the regulations or the rules of the Council.']

Ratio Decidendi

The appointment was valid because each of the disputed conditions in s 57(1)(b), s 57(1)(c) and s 57(1)(e) of the Aboriginal Land Rights Act 1983 was satisfied. The audit certificate was unsatisfactory and received by the Minister, any alleged defect did not invalidate it, the applicant did not displace the presumption that the condition in s 57(1)(b) was satisfied, and a substantial breach under s 57(1)(e) did not have to be continuing at the precise time of appointment.

Court Disposition

Application dismissed; question of costs reserved.

Orders

  • ['The application is dismissed.' 'I reserve the question of costs.' 'The exhibit may be returned.']