In brief

The case of Ahwang v Torres Strait Island Regional Council [2021] QSC 147 concerned an application for a statutory order of review (Review Application) to the Supreme Court of Queensland (Court) under the Judicial Review Act 1991 (Qld) in respect of a decision by the Torres Strait Island Regional Council (Council) under the Torres Strait Islander Land Act 1991 (Qld) (TSI Land Act) to grant a 99 year lease of residential land at St Pauls, Moa Island (Property). 

The Court concluded that the Council failed to ensure that a meritorious decision was made and as a result, the application for a statutory order of review ought to be allowed and the Council's decision set aside.

Background

The Council is the trustee of the St Pauls Deed of Grant in Trust (Deed), which is a grant of land in fee simple that includes the Property. The Deed requires the trustee to "hold the land in trust for the benefit of Islander inhabitants". 

The Applicant occupied the Property and submitted an expression of interest (EOI) to the Council to lease the Property. The son of a previous occupier also submitted an EOI. 

The Council's decision in respect of whether or not to lease trust land is guided by Trustee Policy PO19 (PO19) (adopted by Council resolution on 15 November 2018) and the Queensland Government's Leasing Torres Strait Island Deed of Grant in Trust Land manual (Manual). 

The Manual relevantly stated as follows:

If an EOI is submitted by a second potential lessee after a correctly made EOI has already been received for an area of land, they should be informed that their EOI cannot be considered until a decision has been made on the existing EOI.... 

Trustees should make their own policy about how to respond to a second potential lessee, should they lodge an EOI for an area of land that has already had an EOI lodged for it.

As a result of the unusual circumstances of this case (which involved an EOI from two people in the same extended family), the Council adopted a different method for dealing with the competing EOIs, which involved a private discussion between the family members, a community meeting, and a trustee resolution. 

There were over 60 attendees at the community meeting who voted on whether the Applicant or the previous occupier's son ought to be the lessee. The votes were counted in favour of the previous occupier's son. There was no evidence of any submissions made to the Council from members of the public about the actual merits of either EOI. 

The Council ultimately resolved to grant a 99 year lease in favour of the previous occupier's son. There was no evidence to suggest that any discussion or debate occurred regarding the merits of the decision proposed in the trustee report when the resolution was put. The Applicant filed the Review Application seeking relief in respect of the Council's decision. 

Legislative matrix

Section 85 (Grant of lease by trustee of Torres Strait Island land) of the TSI Land Act relevantly states as follows:

"(1) The trustee of Torres Strait Islander land may grant a lease over all or a part of the land for not more than 99 years.

(2) Without limiting subsection (1), the trustee of Torres Strait Islander land may grant a lease (a home ownership lease) over all or a part of the land for 99 years to any of the following for residential use—

(a) a Torres Strait Islander;

(b) a person who is not a Torres Strait Islander if—

(i) the person is the spouse or former spouse of—

(A) a person mentioned in paragraph (a); or

(B) a person mentioned in paragraph (a) who is deceased; or

(ii) the lease supports another part 8 lease granted to the person."

Section 135 (Decision-making by trustee) of the TSI Land Act relevantly states as follows:

"(1) This section applies if this Act provides that the trustee of Torres Strait Islander land is required to make a decision about the land, including, for example, a decision about any of the following—

(a) the way in which the trustee will consult about the making of a freehold instrument for the land;

(b) whether to grant an interest in the land;

(c) whether to consent to the creation of a mining interest in the land;

(d) whether to enter into an agreement about the land.

(2) The trustee must—

(a) have regard to—

(i) if the Torres Strait Islanders for whom the trustee holds the land have agreed on a decision-making process for decisions of that kind—the process; or

(ii) if subparagraph (i) does not apply—any Island custom, for decisions of that kind, of the Torres Strait Islanders for whom the trustee holds the land; or

(b) if there is no decision-making process mentioned in paragraph (a)(i) or relevant Island custom—make the decision under a process of decision-making agreed to and adopted by the trustee for the decision or for decisions of that kind."

Council's decision-making process had to comply with section 135 of the TSI Land Act

On its own evidence, the Council's decision was made in accordance with section 135 of the TSI Land Act. However, the Council asserted that section 135 of the TSI Land Act did not apply, and as such, the Review Application had to fail. In so asserting, the Council relied on the opening words of section 135(1) of the TSI Land Act which states as follows (emphasis included in [16] of the judgment):

"This section applies if this Act provides that the trustee of Torres Strait Island land is required to make a decision about the land.

The Council asserted that section 135 of the TSI Land Act only applies when the Council is mandated to make a decision about the land. The Council asserted that this was not the case here, because section 85 of the TSI Land Act states that a lease "may" be granted (as opposed to "must").

The Court rejected that interpretation and concluded that section 135 of the TSI Land Act applied to the Council's decision for the following reasons:

  • "An interpretation, plainly open on the ordinary meaning of the section’s language, is that the requirement in s 135(1) goes to the identity of the decision maker, that is, the necessity [sic] it is the trustee which is the entity which makes the decision ('the ordinary meaning interpretation')." (at [23]).
  • "Section 135’s heading, 'Decision-making by trustee', further illustrates the focus of the part is upon the process of decision making. These are powerful contextual indications that s 135 should be read as referring to a situation in which a decision already falls to be made, so that the word 'required' relates not to the need for a decision to be made but to the need for the trustee to be the entity which makes it…" (at [25]).

Council's decision-making process did not comply with section 135 of the TSI Land Act

The Applicant's grounds of review were twofold. 

Firstly, the Applicant asserted that the Council made no enquiry as to whether Torres Strait Islanders, for whom the Council holds the land, have agreed on a decision-making process, and whether any Island custom existed for decisions about whether to grant an interest in land (section 135(2)(a)(i) and (ii) of the TSI Land Act). 

The Court referred to uncontradicted affidavit evidence from a Divisional Councillor that there was no pre-existing Island decision-making process or custom. Furthermore, no evidence was advanced to suggest that there existed a relevant decision-making process or custom. On that basis, the Court rejected the first ground of review. 

Secondly, the Applicant asserted that the decision-making process adopted by the Council was not a "decision-making process" contemplated by section 135(2)(b) of the TSI Land Act. The essence of this complaint was that the Council's decision turned on "popular opinion" without an informed consideration of the underlying merit of the proposed decision. 

The Court concluded that this ground of review warranted setting aside the Council's decision for the following reasons:

  • "…the decision making process called for by s 135(2)(b) is a process allowing the trustee to make a decision which is sufficiently informed as to its merits to be a decision which is for the benefit of Islander inhabitants, that is to say, in the interests of the Islander inhabitants generally." (at [59]).
  • "…matters such as the values attributed to the land by Islanders and their interest in and use of the land would be relevant considerations in the decision making process called for by s 135(2)(b)." (at [62]). 
  • "The trustee report to the Council meeting which made the decision did not analyse the merits of the proposed decision. It merely recited the process which had been followed; a process premised solely upon ascertaining the opinion of some persons in the community.…" (at [64]). 

The Court concluded that the failure to ensure that a meritorious decision was made resulted in an error of law and a concomitant failure by the Council to meet the procedural obligation arising under section 135 of the TSI Land Act. 

Council's decision-making process appears not to comply with PO19

Having found that the Council erred at law, the Court commented on a further issue in respect of the decision-making process that was not argued before it.

In particular, the Court referred to the following paragraph in PO19 (emphasis included in [70] of the judgment):

DOGIT Trustees are not required under the [TSI Land Act] or Aboriginal Land Act 1991 (Qld) to consult with or notify the community when considering an expression of interest to lease trust land. However, each Divisional Councillor must have comprehensive knowledge about the values of, and appropriate uses for, the DOGIT land, existing interests in the land, and community opinion about proposed leases for that DOGIT.

The Court noted that the obligation of each Divisional Councillor to have comprehensive knowledge is a significant requirement. The Court further noted that although there was evidence that the councillors whose vote made the decision have some general knowledge of the values of, appropriate uses for, and existing interests in the Property, there was no evidence to support that they had a "comprehensive knowledge". 

Consequently, although argument was not advanced on this particular issue at the hearing, the Court noted that the Council appears to have not complied with the requirements of decision-making in PO19. 

Application for an extension of time ought to be granted

The Court also considered an application to extend the time to file the Review Application as a result of a 7-month delay in filing the Review Application. The reasons given by the Applicant for the delay were predominantly concerned with the remoteness of Moa Island, the Applicant's limited financial capacity, and the COVID-19 pandemic. 

The Court accepted that these reasons appeared to be "genuine and significant challenges" (at [66]). Furthermore, the Court concluded that given the Review Application had merit, the extension ought to be granted. 

Conclusion

The Court ordered that the application for leave to extend the time to file the amended application for a statutory order of review be granted, that the Council's decision be set aside, and that the EOIs ought to be reconsidered. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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