Costs not to be unnecessary obstacle to First Nations People?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Is the underlying purpose of a costs order compensatory even when costs are awarded on other than a party-party basis?

Question 2: Can it be said that, "although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty"?

Question 3: Should there be "unnecessary obstacles placed in the way of those who identify as First Nations People [such an adverse costs order] in proving what they contend is their rightful status under the Constitution"?

Question 4: Does the fact that the Applicant was cross-examined tend one way or the other on the costs discretion?

Question 5: Can it be said that "the fact that the Minister’s costs come from public funds is a factor which supports the making of a costs order" against the Minister?

Question 6: Can it be said that the fact that a non-citizen's "legal representation was provided on a conditional basis with recoverable fees limited to any amount of costs paid by the respondent pursuant to an order of the Court tends neither for nor against the exercise of discretion [to award costs] in this case"?

Question 7: Is there a "usual practice" according to which no costs orders are made against interveners, even if the intervention is in support of a party which is ultimately unsuccessful?

Question 8: Can it be said that "there may well be an ongoing role for organisations in the position of mtwAC in proceedings which raise the issue of whether a person is an alien, or an Aboriginal Australian"?

The FCA answered those questions as follows: