Amoonguna Community Inc v Northern Territory of Australia

[2008] HCATrans 254

[2008] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2008

B e t w e e n -

AMOONGUNA COMMUNITY INC

Plaintiff

and

NORTHERN TERRITORY OF AUSTRALIA

Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 24 JUNE 2008, AT 2.14 PM

Copyright in the High Court of Australia

MR P.V. SLATTERY, QC:   May it please the Court, I appear with MR P.F. McINTYRE and MR A.L. TOKLEY, for the plaintiff.  (instructed by Midena Lawyers)

MR M.P. GRANT, QC, (Solicitor-General for the Northern Territory):   May it please the Court, I appear with MS S.L. BROWNHILL for the defendant in these proceedings and the respondent to this application.  (instructed by Solicitor for the Northern Territory)

HIS HONOUR:   Yes, Mr Slattery. 

MR SLATTERY:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Slattery, I have of course spent some time looking at the papers.  It is your application on the summons of 17 June, is that right?

MR SLATTERY:   Yes that is correct, your Honour.

HIS HONOUR:   Can I just sort out what the state of the evidence is.  There is an affidavit of Mr Byerley of 16 June.

MR SLATTERY:   That is correct, your Honour, we read that affidavit and further affidavit of Roseanne Philomena Ellis of 20 June.

HIS HONOUR:   Yes.  Affidavits also of Rowan Richard Hodge of 18 June and Richard Stanislaw Lesiak of 20 June, is that right?

MR SLATTERY:   Yes thank you, your Honour.  We read those affidavits as well.

HIS HONOUR:   Now, is there any other evidence on your side of the record?

MR SLATTERY:   No, thank you, your Honour.  All we will need to do though is to notify your Honour in relation to the amended statement of claim which has been delivered to the other side, and a copy I think has been delivered to your Honour’s associate.

HIS HONOUR:   Yes.

MR SLATTERY:   We also would deliver to your Honour a further draft minutes of order in relation to the matter which – I would only do this now because it does change the approach to an extent that we have taken in our application.

HIS HONOUR:   Yes.  If you would hand up those draft minutes, that would be of assistance.

MR SLATTERY:   Could I hand those up, please, to your Honour?

HIS HONOUR:   Have you seen these, Mr Solicitor?

MR GRANT:   Yes, your Honour.

HIS HONOUR:   Well, just before we come to those, is there any objection to my receiving any of the affidavits that have been read, Mr Solicitor?

MR GRANT:   No, there is not, your Honour.

HIS HONOUR:   Yes, thank you.

MR SLATTERY:   I take your Honour to paragraph 5.

HIS HONOUR:   Yes.

MR SLATTERY:   Those are the orders that we will be seeking.

HIS HONOUR:   Just in terms of paragraph 5, is that right?

MR SLATTERY:   No.  Paragraph 5 is the amended paragraph, your Honour.

HIS HONOUR:   I see, yes.

MR SLATTERY:   And that is why I bring it to your Honour’s attention.

HIS HONOUR:   Yes, thank you.

MR SLATTERY:   I apologise.  It should be underlined but it is not.  The intention is not to prevent the implementation of the Act, but it is an injunction to restrain, giving effect to that Act in relation to the plaintiff to the proceedings.

HIS HONOUR:   Yes.

MR SLATTERY:   Has your Honour had a chance to read the affidavit material?

HIS HONOUR:   Yes.

MR SLATTERY:   Can I assume that your Honour has also had a chance to read the outlines of submission filed by the parties?

HIS HONOUR:   Yes.

MR SLATTERY:   Thank you.  Your Honour, there are two principal issues in the proceedings before your Honour and before I go to those issues can I perhaps ask that your Honour has received a suite of material in relation to the legislation?

HIS HONOUR:   Yes.  I think I have got it all.

MR SLATTERY:   I say suite advisedly, your Honour, because there is a fair bit here and I will need to work through that, and I apologise for that.  What I will do is work through the respondent’s materials because it is in a bundle in a folder.  Can I perhaps just very quickly identify the relevant material.  The first is the Northern Territory (Self-Government Act), and the provisions we will be taking your Honour to are section 6 and section 50 of that Act, which your Honour is I think well familiar with.

HIS HONOUR:   Yes.

MR SLATTERY:   The Aboriginal Land Rights (Northern Territory) Act, and in particular section 19 and section 71. We will be commenting upon those in reply. The Racial Discrimination Act, the Northern Territory National Emergency Response Act 2007, and we will perhaps stay with that for a moment and inform your Honour that we will be drawing to your Honour’s attention the content of section 34 of that Act. What is not before your Honour is that section 31 of the Act which is that provision which provides for the five‑year lease provisions. I think your Honour is well familiar with that. Our contention in relation to section 34 and section 37 are that those provisions are then to be read with section 50, which is the operation of the federal law which preserves, as we say – and I will come to this in detail in a moment – the interest in the land notwithstanding any law of the Northern Territory. Now, your Honour, I do not know if you have a copy of section 50 of the Act.

HIS HONOUR:   No.

MR SLATTERY:   Could I then hand up a separate page to your Honour, please?

HIS HONOUR:   The simplest will be if I send for the whole Act, Mr Slattery.  You go on.  I will get my copy of the whole Act.

MR SLATTERY:   Yes, thank you.  The next, the Lands Acquisition Act, I will not tarry with that.  Then could I come then to tab 13 which is the Local Government Act (NT), which was the Act as in force as at 11 September 2007.  The next is tab 14, the Local Government Act 2008 (No 12 of 2008) which has been proclaimed only in one respect. That is to come into force on 1 July 2008, but the one respect is section 257, which is on page 122 of the copy before your Honour.

HIS HONOUR:   Yes.

MR SLATTERY: Can I ask your Honour to note that and also the next full page, page 125, which is the content of what will become section 262 of the Act and the relevant provisions of that are – in particular, we will be drawing your Honour’s attention to the dissolution of my client, details of which you have already seen in the respondent’s outline.

Your Honour, the first contention from our client’s point of view is this.  Your Honour will be aware from the affidavit material of the business of my client and my client being an Aboriginal organisation, the occupation of buildings and the conduct of enterprise on those buildings in and about the Amoonguna Community.  Our principal contention first of all is an interest in land, and that ‑ ‑ ‑

HIS HONOUR:   What is an interest in land?

MR SLATTERY:   That right of occupation.

HIS HONOUR:   Right derived how and from whom?

MR SLATTERY: We say, first of all, it is a right on traditional Aboriginal land. It is a right, therefore, given by the traditional owners of that land. The context, your Honour, is that all that is required for the purposes of section 71 of the Aboriginal Land Rights Act, as I will call it, is that there be an entitlement:

to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal group –

It will be our contention, your Honour, that there are two forms of interest involved here and they are the interests of traditional Aboriginal owners and, your Honour, we have identified those within our affidavit material, those persons, and one of the affidavits has come forward from one of them, but also the second group of interests are those persons who claim traditional interests in the land.  So we have those two groups.  The structure is, of course, the Land Trust, the Land Council and those who use and occupy the land and in the context of our case, Amoonguna, or ACI as I will call it, is an occupier of those lands under its traditional interests.

HIS HONOUR:   Let me just understand that because I am not sure that I am yet grasping it. Under the Land Rights Act – leave aside for the moment the grant of fee simple to the Land Trust, that is effected, but leave that to one side – section 71 recognises traditional rights to use and occupy original land.

MR SLATTERY:   Yes, that is right.

HIS HONOUR:   That is step one, is it not?

MR SLATTERY:   Yes, that is right.

HIS HONOUR:   That is a recognition by section 71 of an entitlement in an Aboriginal or group of Aboriginals to enter, use or occupy to the extent that entry, occupation or use is in accordance with Aboriginal tradition?

MR SLATTERY:   That is right.

HIS HONOUR:   Now, how does the incorporated association fit with that right?

MR SLATTERY:   Because the incorporated association fits within that description of the group of Aboriginals.

HIS HONOUR:   Why?

MR SLATTERY:   Because it was necessary ‑ ‑ ‑

HIS HONOUR:   Because it is not a group.  The association is not a group, the association is a body corporate.

MR SLATTERY: It is a body corporate, your Honour, and we do not tarry with that, in a sense, but it is that interest, we say, it is the entity which occupies the land under the provisions of section 71. Of course, what we say as well, in answer to the case put by the respondent, is that the section 19 interests are more in the nature of an alienation of rights interest to, for example, outsiders. Those are the rights, that is, the alienation of those interests and the dealings with those interests, are those which require the obtaining of the consent of Ministers, for example. Our case will be that that is more in the nature of an alienation, for example, to a third party, an outsider, as I will call it, whereas we say the specific provisions of section 71 permit the occupation of those lands by these parties having that interest which is the traditional interest which Amoonguna have.

Now, your Honour, the question of the incorporation of that association is no more, we say, than the gathering of those groups of individuals because that is the way in which it had to be done, and in our case, will be. That is the way in which those interests had to be gathered together for the purposes of regularity. So, your Honour, our first contention is that that is an interest which is then protected under the federal legislation. If I can then take your Honour to that. That is the Emergency Response Act. Can I take your Honour first to section ‑ ‑ ‑

HIS HONOUR:   I understand the rights, titles and interests are preserved. I understand also that there is the lease to the Commonwealth. Be it so. Assume for the purposes of debate that what has occurred with the association is in some way, some relevant way, an engagement of section 71 of the Land Rights Act. Where do we go from there?

MR SLATTERY:   We then go to the preservation of that interest under the national emergency response legislation in tab 10.

HIS HONOUR:   Assume that that is so, where to from there?  I am just anxious to understand the path you are going.  We may need to go back to understand steps along the way, but can I just understand the destination.

MR SLATTERY: Yes, your Honour. First of all, your Honour, those rights, titles and interests are preserved under section 34, that is, our right, title and interest is preserved under section 34. It is that interest which existed immediately before the time that the five‑year lease took effect. That provision, that is section 34, falls within Division 1 and 2 of the Part for section 50 of that Act, and that preservation of right exists despite the effect of any law of the Northern Territory. So that whatever right existed as at August 2007, when the emergency response legislation was enacted, is a right which is preserved under that legislation despite any law of the Northern Territory.

That being so, no law of the Northern Territory, we say, can interfere with that right effectively here by the dissolution of our client and the assumption by a shire council or somebody else of whatever entitlements and interests our client had in those buildings. Your Honour might be aware, for example, that we operated the medical centre. It is slightly contentious in relation to the last exhibit that your Honour might have seen in the respondent’s affidavits, but leave that aside, the medical centre is in operation and has been in operation. It occupies a building which we have built on the land, which is the traditional land, with the permission of the traditional owners. That interest is preserved by the federal Act and no Act inconsistent from the Territory can interfere with that interest and we say that is the very interest which is destroyed by section 257 together with what is to become section 262.

HIS HONOUR:   Why is that interest destroyed?

MR SLATTERY: Because we are destroying it, we being the association which owns the interest which is being dissolved. Section 262, as will be enacted, as will come into force, dissolves my client. What is left from section 262 for my client apparently is that somebody with an interest, an individual with an interest, must take an application in the court to annul the dissolution and then take some form of application under section 257, which exists now, for damages to the extent of any injustice, which we say of course is not just terms.

So that what happens, this device which we say has been created by this legislation, is that by destroying my client, the existence of my client, it also destroys with it the interests of my client.  But more than that, your Honour, as the respondent’s submissions show and assumed, it will be assumed that those interests will be subsumed into the shire council, that is, that it is something that the shire council may or may not do, depending upon its whim.

HIS HONOUR:   But the argument, if I understand it correctly, treats the expression “group of Aboriginals” in section 71(1) of the Land Rights Act as apposite to encompass the incorporated association, is that right?

MR SLATTERY: I think there are two arguments, your Honour. The first is that there is an argument that section 19 does not necessarily or at all apply to traditional owners granting an interest to members of the group who have a traditional interest in the land. That is really the first point. That is borne out with, we say, that the intent of the section 19 approach is really to prevent the alienation of those interests, recognised as traditional Aboriginal owners’ interests, to third parties. Rather, it is the preservation within that Aboriginal interest, if I can call it, of that property.

HIS HONOUR:   Yes, that is a view of section 19 which would have, I suspect, to accommodate the explicit terms of section 19(2) which expressly contemplate:

With consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to an Aboriginal . . . 

(a)for use for residential purposes:

(i)the Aboriginal and his or her family –

Now, the drawing of distinctions between Aboriginals and others is rather difficult, I would have thought, in the face of the express terms of 19(2). I am anxious that I understand the argument. Step one is section 19 of the Land Rights Act has the effect that without any formality of the kind there described, a Land Trust can create an interest in, and has here created an interest in, the incorporated association. That is step one, is it?

MR SLATTERY:   Yes, your Honour.

HIS HONOUR:   Step two, which is either cumulative or alternative, and you would say for your purposes it does not matter which, is that section 71 would permit the incorporated association because it should be seen as a group of Aboriginals to enter, use and occupy.

MR SLATTERY:   Yes.  We would probably prefer a vehicle for that group, your Honour, is the expression.

HIS HONOUR:   Yes, at some point you have to come and grapple with the words, have you not, Mr Slattery?

MR SLATTERY:   Yes, your Honour.

HIS HONOUR:   And the words are, as the Court has now been saying for some 10 years, important.  But it is an entitlement under 71 to enter, use and occupy.

MR SLATTERY:   Yes, that is right, your Honour.

HIS HONOUR:   Now, the argument then proceeds, does it, to section 50 of the Emergency Response Act, preserves right, title and interest, and Northern Territory law cannot cut down. This is a right, title or interest.

MR SLATTERY: Yes, that is right. With section 34, your Honour, which preserves ‑ ‑ ‑

HIS HONOUR:   With 34.  Yes.

MR SLATTERY:   Your Honour, the second aspect then becomes the question whether or not, in light of that, that the Local Government Act (NT) can authorise the acquisition of land, in particular, in the circumstances in which exist under the scheme as promulgated under this Act.  To explain that, can I take your Honour through ‑ ‑ ‑

HIS HONOUR:   What land is being acquired here?

MR SLATTERY:   I am sorry.  I apologise.

HIS HONOUR:   No, no.

MR SLATTERY:   Acquire assets.

HIS HONOUR:   Local Government Acts commonly permit the acquisition of assets, I would have thought.

MR SLATTERY:   Yes, but under the scheme, under this scheme.

HIS HONOUR:   Why cannot a Local Government Act permit the acquisition of assets?

MR SLATTERY: Or property. It may do so and, as your Honour rightly says, does so in many circumstances. But it may not do so, we say, under the scheme of section 257, as it now exists, under the Act.

HIS HONOUR:   And why is that?

MR SLATTERY:   Because the just terms guarantee which exists is not fulfilled by that provision.

HIS HONOUR:   And why not?

MR SLATTERY:   Can your Honour take up the legislation first and can I perhaps explain some of the history of the way in which this matter has come about.  Can I ask your Honour to take up first the Local Government Act in force as at 11 September 2007 at tab 13 of the volume?

HIS HONOUR:   Yes, I was tending to work off the amendments that were made in 2007.  Simply they rather isolated what was happening, but by all means, let us go to tab 13.

MR SLATTERY: Page 29, your Honour, is the first relevant page. I have to first of all introduce your Honour to the scheme of – this is the way it all happened. We had the ACI as a local government association. In 1996 it commenced receiving funding to carry on local government activities. Now, what happened under section 28A was that a decision was made by the relevant Minister to – this is the eighth exhibit to the affidavit of Mr Byerley – restructure the system of local government in the Territory and by doing so he made a decision to restructure the local government authorities or the associations, one of which was my client. Your Honour, the scheme of the Act was to, first of all, in section 28A allow the Minister to make a restructuring order. That restructuring order allowed the Minister to do those things set out in subsection (2).

Part of that as well, your Honour, is subsection (2)(p)(i), (ii) and (iii), which is on page 30 of the copy, and allows the Minister to make apportionment as between councils or prospective councils.  So that what the Minister was doing here was effectively amalgamating, or planning to amalgamate, existing types of local government functioning entities, including, for example, my client, into municipal shire councils.  Those respective councils are recognised in section 28C.  What occurred was the subsumption of the assets and property – I will use the word “property” – of the existing entities, including my client, into these proposed prospective councils.  That, if I can put it, is the enabling provisions.

If I can then ask your Honour to move forward to section 114C of that Act at page 70.  This is the other side of the coin, so to speak, your Honour.  This is the provision that allows the conversion of local governing associations, my clients, into community governing councils and there is a transition date and the transition date here is 16 and 17 October 2007.  What also happened on that day was that the constitution of my client was completely changed.  So my client’s existence as an incorporated association in respect of everything it had been doing up to and including that date of transition was now completely changed.

HIS HONOUR:   Well, account has to be taken of 114F(1)(a)(ii).

MR SLATTERY:   Yes.

HIS HONOUR:   But, yes, there were the changes that you have identified.

MR SLATTERY:   That is right.  But that is, we say, a strange provision.  It is more a commentary than a piece of legislation.  But, of course, that is what has not happened at all.  This provision, of course, under the new Act is completely done away with and what is to occur in respect of my client is that it is to be completely dissolved and its assets to fall into the new shire council.  So there seems little operation in F(2)(a) in those circumstances.  What has occurred, your Honour, is that those very things have now occurred and notices have been issued.  If I can ask your Honour to take up Mr Byerley’s affidavit and to pick up the sixth exhibit to his affidavit.

HIS HONOUR:   That is the restructuring order itself, yes.

MR SLATTERY:   That is correct, your Honour.  This is the restructuring order for the MacDonnell Shire Council and it gives the prospective council power to do the things set out in paragraph 5, to assume the functions, and then to “make use of any facilities, equipment or property of a constituent council” and then to “exercise a power of direction and control over a constituent council”, and it does so under Part 3 through a manager and the manager is Ms Martin, and the schedule of constituent councils is then the next.

So what has happened here is that on 16 October 2007, “Re-Structuring Order No 1.4” has been made.  Essentially, we say, it removes from us the power to completely control all of our assets, facilities, equipment and property.

HIS HONOUR:   Well, there is intrinsic ambiguity in saying “removes from us”.  We have a group of corporators of the association, we have the association.  We have the association as affected – I use that deliberately neutrally – by the restructuring order and the altered constitution and I suspect but do not yet know that we may need to be very careful to identify precisely what we are talking about at each stage of the debate.  If you once assume that the corporators equal the association and remain unchanged, I rather suspect you are on a set of tram lines which you would have me take to a particular terminus, and I am not sure that one can do that.

MR SLATTERY:   No, I do not intend to.  I am only intent on highlighting that which has been done to the corporation.

HIS HONOUR:   The changes are dramatic.

MR SLATTERY:   Yes.

HIS HONOUR:   I need little persuasion of that.

MR SLATTERY:   Yes, and that, we say, they constitute an acquisition of property.

HIS HONOUR:   What property is acquired?

MR SLATTERY: The answer to that falls into two categories, and that is for this reason. I will need to take you to section 257 and section 262 to answer that. But that is really the second category. The first category is this. If your Honour would look at Part 3, which is the second page of that document, that restructuring order:

The powers and functions of the prospective council are to be exercised or performed by a manager –

and Ms Martin is the manager of the prospective MacDonnell Shire Council.  The next page shows the constituent councils that fall into MacDonnell Shire, namely, our incorporated association.  So that Ms Martin has the power in respect of that prospective council to assume local governing functions of my client with or without our agreement, make use of our facilities, equipment or property with or without our agreement and, finally, exercise a power of direction and control over us.  So we say we are in the context of what I call pens and pencils, picks and shovels.  We are not in the context of the property itself, and that is a point made against us in the submissions and I will come back to that, but it is in the context of “your property is ours for the purposes of our whim as long as our purpose is, of course, for the establishment and maintenance of the prospective council which will come into life on 1 July 2008”.

HIS HONOUR:   Now, assume again for the purposes of debate that there is either that form of acquisition or that there are other forms of acquisition of either that property or other property. As I understand the submission against you, it is said that if section 269 of the 2007 Act is not an answer, then the provision of the 2008 Act that deals with acquisitions is itself a complete answer to a complaint founded on want of just terms?

MR SLATTERY:   Yes, and we say that cannot possibly be right on any view.

HIS HONOUR:   Why not?

MR SLATTERY:   Can I take you to that.  It is tab 14, page 122.

HIS HONOUR:   Yes.

MR SLATTERY:   I will take you first, your Honour, to 262 before I go in detail through 257 because 262 informs, we say, 257.

HIS HONOUR:   It has the dissolution.

MR SLATTERY: Yes, the dissolution provision. It means we are dissolved on that day. Section 257(3) requires that if we are to obtain just terms, we have to satisfy the Supreme Court of that which is set out in subsection (3) and ask the court to exercise its discretion. So (3)(a) and (3)(b) assume that we can do so. We then ask the court to exercise its discretion to annul the dissolution. Your Honour, that cannot be done by a body which is dissolved. It cannot be done by an entity which does not exist any more. It can only be done by an interested individual. So we need an interested individual to put their hand up, as it were, for the risk of costs and say “Yes, I am prepared to take on the task of asking the court to annul this dissolution”.

Once that occurs, your Honour, we then move backwards to section 257 itself. Your Honour, first of all, 257 starts out with a question:

If a person acquires property by operation of the relevant legislation –

so there is not even an acknowledgment, we say, of acquisition, nor, of course, has there ever been an offer of just terms in these circumstances by –

an administrative act . . . that would not (apart from this subsection) be just –

and, of course, no terms we say have been offered –

the person from whom the property is acquired is entitled to compensation, sufficient to remedy the injustice –

If I can stay there just for a moment, your Honour.  In our written submissions we have set out our comments in relation to that, but there is a decision to be made as to whether there has been an injustice that required remedy.  Your Honour, that is a delayed process, and we say that is not an acquisition on just terms by its very nature.  We say that was settled as long ago as the Bank Nationalisation Case.  I will come back to that in a moment.

Secondly, your Honour, the compensation is to be sought from the person who acquired the property and in this instance it is the MacDonnell Shire Council.  The MacDonnell Shire Council itself has absolutely no interest, of course, in losing any of its assets for the purposes of its operations and there is no recognition here that that entity which sets up the MacDonnell Shire Council becomes responsible to pay the compensation equal in just terms.  Can I take your Honour then to the Bank Nationalisation Case.  Can I assume that your Honour is familiar with the facts of that matter?

HIS HONOUR:   Yes.

MR SLATTERY:   We have asked your Honour to note pages 349 through 350.  Of course, the scheme there in the Bank Nationalisation Case was the seizure, as it were, of the shares and the business of the private banks leaving the corporate entity, which was those banks, bereft, as we say as precisely occurred here.  Different from this case and what we say makes this case worse.  In that case there was no dissolution, there was no order for dissolution of the private banks, the corporate entities of those banks.  We have that here.  We are dissolved.  But what happened there was that there was then a right to seek compensation in respect of the acquisition of any property.  Can I ask your Honour to pick up at the very top of page 349 the sentence commencing “But that” and, in particular, can I ask your Honour to note the sentence:

The company and its shareholders are in a real sense, although not formally, stripped of the possession and control of the entire undertaking.

This corporate entity, and those who would have benefited from its continued operation are stripped of the entire operation.  His Honour Justice Dixon then deals with the question of profits.  Can I then ask you to come up about six lines from the bottom of that paragraph, the sentence commencing:

It is as if an intending purchaser were enabled to put a receiver in possession of an estate and also to take a power of sale in –

et cetera.  We say that is essentially what is occurring here.  Our entity, that is the incorporated association, is dissolved and, as the respondent says in its submissions, all of those assets fall into the new MacDonnell Shire Council.  Justice Dixon describes that style of arrangement at the commencement of the next paragraph:

this is but a circuitous device to acquire indirectly the substance of a proprietary interest without at once –

and these are the words we would ask your Honour to note –

providing the just terms . . . when that is done.

We say, your Honour, that those words must have some work to do, “when that is done”.  What his Honour Justice Dixon there is identifying is that it can never be in the context of an acquisition on just terms, that, for example, what you would do here is to say “We will take everything of yours and leave you to seek some sort of remedy by way of a payment of compensation”.

HIS HONOUR:   Is that not the scheme of common form acquisitions of Land Act, namely, the land vests on publication of the relevant notice and you are left to whatever compensation is later fixed according to the elaborated processes of Acquisition of Lands Acts?

MR SLATTERY:   Yes.  The answer is plainly yes, except this ‑ ‑ ‑

HIS HONOUR:   What then is different between this scheme and the Acquisition of Lands Act scheme?

MR SLATTERY:   In no other scheme will you find the entity which is the beneficiary of the right being dissolved.

HIS HONOUR:   But where provision is made in 257(3) for reinstatement in a form which at least is capable of being read that if conditions (3)(a) and (3)(b) are met the court must annul, that is, it might be a finance facilities‑type provision, I would have thought, that if conditions (a) and (b) are met, then the court has no discretion but to annul, where lies the difficulty?  Reinstatement of companies is a daily occurrence.

MR SLATTERY:   Reinstatement of companies is a discretionary matter.

HIS HONOUR:   Just so, and if this is truly a finance facilities provision, this would not be.  We looked at this in connection with other Territory legislation.  Was it Lynch, criminal case, re-sentencing of life sentence offenders?  If condition (a) and condition (b) are met, then the expression “the court may” is to be read as “the court has the power to (and shall exercise the power)”.

MR SLATTERY:   As well as that though, your Honour, in this matter the court – there is perhaps a contraindication to that suggestion and that is that what follows is that the court may annul and then may make further provisions that may be necessary to secure the continued existence of the body corporate or to facilitate the claim.

HIS HONOUR:   It is a long time since I have done a reinstatement of a company.  They were once meet and drink and the company’s list and that is at least probably 15 years ago for me, but I thought that what one ordinarily had to do was reinstate but then make some provision for who was going to manage the reinstated entity and it was the trick for young players that reinstatement never quite got you there.  You had to say who was going to control the entity that you had put back on the register.  I assumed that was what was there in mind.  But there is nothing more dangerous than the half‑remembered judicial memory, let alone one that is 15 years old, Mr Slattery, so for goodness sake correct it.

MR SLATTERY:   It is that and the fact of the capacity of the company to do something at the time it is re-enlivened.  So there are two aspects of that test.  But, of course, in this respect we are not told.  What is suggested from the respondent’s point of view was, well, the MacDonnell Shire Council, for example, might make some provision in relation to it, but no assistance is given to the court as to who it is is to make that further provision and from what source it is to make and how long it is, for example, that there is to be this continued existence of the corporation.  In other words, rather than the fact, it is how much is sufficient to sustain that entity for the purposes of this claim for compensation?

HIS HONOUR:   Can I put the point as tendentiously as I may so that you may answer it?  As I read the respondent’s submissions, they can be summarised as saying the legislature has evidently tried to do something about a just terms problem.  Why would you read it in a way that made it misfire?  Now, that is the nub of the point against you.  What is the answer you make to it?

MR SLATTERY: There are probably two things we would say straight away. Section 50 of the Self-Government Act itself reflects section 51(xxxi). If that was the intention of the Parliament, there is simply no explanation why section 257 has used the form that it has. In other words, that it is a claim sufficient to remedy an injustice. The words “on just terms” must have some meaning in that respect. One can only assume, we would respectfully suggest, that there is an intention here not to duplicate, as it were, that test in relation to just terms but, rather, to indicate a different test.

HIS HONOUR:   Yes, the equivalent provision – it is wrong to describe it as the equivalent provision – another form of just terms safety net provision is section 134 of the Emergency Response Act where it hinges about the liability of the Commonwealth to pay “a reasonable amount of compensation”. I interrupted you. I need to understand what the answer is to the proposition, why assume the Parliament misfired? Why assume the legislature misfired?

MR SLATTERY:   The first point is obviously the question of the formation of the words.  The second part of that is that it is left to the person who acquires the property to pay the just terms and, in those circumstances, that requires a significant amount of guesswork as to the capacity of the MacDonnell Shire Council in its infancy to do this or at any time to do that.  In other words, there is no statutory scheme, there is no statutory guarantee, as it were, to satisfy just terms.  Your Honour, then the scheme of dissolution and annulment, we say, strikes at the very heart of the timing aspect that I have adverted to when I have taken your Honour to that second paragraph on page 349 of the judgment of Justice Dixon in the Bank Nationalisation Case.

HIS HONOUR:   Is there any other passage of his Honour’s reasons in Bank Nationalisation that addresses the question of whether the legislation in issue there provided just terms?

MR SLATTERY:   There are several, your Honour, but all come to the same conclusion.  That is the only passage we were able to find in relation to those particular comments.

HIS HONOUR:   Yes, I see, thank you.

MR SLATTERY:   I will ask those assisting me to identify ‑ ‑ ‑
2
HIS HONOUR:   Yes.

MR SLATTERY:   So those are the two principal issues we would put, your Honour, in response to that.

HIS HONOUR:   Now, assume for the purposes of debate that you show a prima facie case in respect of both of those or one of those issues, how would I then assess questions of balance of convenience in the light of what Justice Mason says in Castlemaine Tooheys about the need to recognise the laws in question are the expression of legislative intention until they are held ultra vires.

MR SLATTERY:   There are probably two aspects to that, and that case, of course, turned on this question of public and private interest and the balancing issues that his Honour there dealt with were the question of the environment on the one hand and the private interest of corporations on the other.  Your Honour, we say it is this, and this is the point I made right at the very commencement.  First of all, we do not seek to prevent the implementation of the Act, we simply cannot do that, but we seek to prevent its application to us until such time as we say our interests, that is, our cause, has been litigated.

Our interests do not fall within anything like the type of interest that was identified in Castlemaine Tooheys as being the public interest.  Our interests fall really within private rights, that is, the right for those members of the association to have a view that that association will continue, to use again the medical centre as the example.  It is the combined interests, as it were, of the association to be able to provide those services and the members of the association to be able to enjoy those services.  So it is much different, we say, from the public aspect that Justice Mason dealt with when he balanced interests in relation to the balance of convenience. 

So we say that the obtaining of orders that we seek in this matter does not affect the public interest as would have been affected, for example, in the Castlemaine Tooheys Case because, as your Honour would be aware from the comments within the judgment, there were a series of other brewers sitting behind Castlemaine Tooheys.  Not so here.  There is no suggestion of anybody sitting behind my client.  It is a group of Aboriginals in Central Northern Territory dealing with the issues as they affect them.

So that we say that it does not necessarily fall for consideration in those circumstances because of the much narrower effect, we say, in terms

of the balance.  On the question of the interests of my clients, then, of course, they lose everything.  In six or seven days time they lose it all.  Now, we are told “Well, don’t worry about that because some things, not all, some things might be put into place or will be put into place and, you know, your lack of co-operation may be your greatest enemy”.  Well, not so at all because nothing is set in stone in that respect.  What my clients are saying is we have the financial position and we have the assets and we have the capacity to go on doing what we want to do and, in those circumstances, that is a right that ought to be preserved.

HIS HONOUR:   I also detected, perhaps wrongly, a stream in the argument against you that could be put crudely and bluntly as this is ultimately a fight about money and that it is not fit for injunction because ultimately everything is reducible to money value.  What do you say about that, if that is a stream of argument that is against you?

MR SLATTERY:   Well, first of all, it cannot be so because of our first argument.  Our first argument preserves our interests and we say that the Northern Territory Parliament simply does not have power to do what it does.  So it cannot possibly be about money.  The second thing is, it then becomes a question, what is the fate of the legislation?  What is the fate of the legislation on the arguments that we put and that could never be just about money.  So we would utterly reject that assertion against us.  I am reminded that we have been in existence for 35 years.  It did not happen yesterday, and those things do not happen yesterday.  May it please the Court.

HIS HONOUR:   Yes, thank you, Mr Slattery.  Yes, Mr Solicitor.

MR GRANT:   Your Honour, we say that by way of summary the relief sought by the plaintiff in the matter at this stage is futile, either as framed in the draft minute of order or otherwise fashioned.  We say that the balance of convenience does not favour the grant of the relief claimed at this stage and we say that the plaintiff has utterly failed to satisfy the threshold requirement of some serious question to be tried.

If I could take your Honour first to the draft minute of order. Your Honour, the first two paragraphs of the draft minute of order seek to restrain the defendant and the Minister from exercising certain powers which will cease to subsist as at 1 July 2008 and there is no reasonable ground for any apprehension that those powers will be sought to be exercised between now and 1 July 2008. Paragraphs 3, 4 and 5, your Honour, seek orders restraining various people from exercising or purporting to exercise any powers in respect of an entity which will, after 1 July 2008, cease to exist and, your Honour, that is not remedied by incorporating into paragraph 5 the formulation at line 10 on page 3, which would have the court injunct the relevant parties “from taking any step giving or purporting to give effect in relation to the Plaintiff of” Part 20.2 of the 2008 Act.

Of course, your Honour, that is meaningless in the sense that Part 20.2 will simply have operation to dissolve the plaintiff. There will be no steps that the persons identified there in (a), (b) and (c) will be taken in relation to the plaintiff. All that will happen after 1 July 2008 is that other persons and bodies, including the persons there named in paragraph 5, will be providing various services to the MacDonnell Shire, including that area which is subject to ownership by the Amoonguna Aboriginal Land Trust.

So, your Honour, the relief that is sought is, we say, futile and it focuses attention on the difficulty with the plaintiff’s position generally in this matter.  What it seeks, in effect, is relief which would achieve the ultimate purpose of preventing any body or organisation other than the plaintiff from delivering services to the Amoonguna Community.  Now, your Honour, there are a number of difficulties with attempting to formulate relief of that nature.  The first is a technical one, and that is that after 1 July 2008 there will be a lacuna in terms of the vesting of the property of the plaintiff which will after that time have ceased to exist and there will be a lacuna in terms of the application of that property to the provision of services to the Amoonguna Community.

The second difficulty if it arises, your Honour, is that the relief as framed by the plaintiff in the draft minute of order, although obviously directed to precluding any body or person other than the plaintiff delivering services, cannot have that effect.  It is obvious from the affidavit material before your Honour that the Commonwealth has determined, for example, that healthcare services at the Community will be provided by the Central Australian Aboriginal Congress rather than by the plaintiff, for example.  Now, your Honour, the ability or otherwise, the lawfulness or otherwise of the Commonwealth authorising some other body to provide that service to the Community is not a function of the validity of either the Local Government Amendment Act 2007 or the Local Government Act 2008.

Your Honour, to achieve the purpose the plaintiff seeks one would have to ignore the operation of Part 20.2 of the Local Government Act 2008, proceed on the legal fiction that it somehow still existed and was somehow able to exercise control over property. The plaintiff would then to establish that the Territory and/or the Commonwealth or agents or persons authorised by them intended to enter upon Land Trust land for the purpose of delivering services. It would need to be established that the Land Trust wished to exclude those persons from entering onto Land Trust land for that purpose. It would need to be established that neither the Territory nor the Commonwealth had power, including under the Land Rights Act, to enter onto the land for the purpose of providing services, and then the plaintiff would need to satisfy the Court that it was appropriate to injunct those persons from so doing.

So, your Honour, the thrust of my friend’s argument, as I understand it, is that we want to maintain the status quo so that we can continue to provide services. The response to that is that that is not legally possible given the operation of Part 20.2 of the Local Government Act 2008 and it is not practically possible to achieve that particular purpose without the involvement of the Land Trust and the Commonwealth in these proceedings and an examination of provisions such as section 70 of the Land Rights Act. They are the same reasons, in effect, your Honour, why in the Wurridjal matter, which has come before your Honour on a number of occasions, the relevant Land Trust and the Commonwealth were necessary parties to that proceeding.

HIS HONOUR:   But I suspect the case against you may be rather deeper seated than perhaps some of the submissions may recognise.  As I would understand it, it is that the Community says “We have built up these assets, we have built up these operations over many years.  Those assets and those operations will be taken away from us.  We won’t control them and nobody gives us anything for them.”  That is not putting it in statutory terms, but I rather suspect that is the nub of the complaint that underpins however the lawyers, whether sitting this side of the Bench or the other side of the Bench, dress it up.  Communities built up assets, built up operations over years and “now it is all going to be taken and nobody is going to give us anything for it”.

MR GRANT:   Your Honour, there are two responses to that obviously.  The first is that the members of the Amoonguna Community will have opportunity ultimately in this Court to argue that the legislation is invalid.  If they are successful in that argument, there will be no loss to the Community because they will then be returned to the position that they were in prior to its commencement in terms of its property and its assets.

Secondly, there is a facility for employees to remain – that is, current employees of the plaintiff – in the employ and pay of the Shire and if they are ultimately successful in that application, their employment status will revert to the position prior to the commencement of the legislation.  So the balance of convenience does not require the grant of an injunction at this stage.  In the event that no injunctive relief is granted at this stage, the members of the Community will retain the right to argue that the legislation is invalid and to be placed back in the situation they were prior to the commencement of the Amendment Act 2007.

Your Honour, there will be no loss to the Community in the event that injunctive relief is not granted at this stage because service delivery will continue to be provided in accordance with the arrangements that are deposed to in the affidavit of Evelyn May Robinson sworn on 20 June 2008 until such time as this matter has been resolved.  The plaintiff, as it is presently incorporated, will not be in a position to continue the provision of those services for a legal reason and a practical reason.  The legal reason is that it will be dissolved.  The practical reason is that funding will not be provided to the plaintiff, even were it not dissolved, for the continuation of those services.

HIS HONOUR:   Just apropos of dissolution and the continued capacity of the present plaintiff to maintain the suit in this Court, are you able to say now what attitude the Territory would take to an application to the Supreme Court of the Territory for orders that would permit, whether presumably by annulling the dissolution or otherwise, continuation of the proceedings in this Court?

MR GRANT:   We are, your Honour, in the sense that this is a matter that has come up in negotiations with other communities.  The Territory’s position is that after 1 July 2008 any officeholder or member of the plaintiff prior to the commencement of the Amendment Act 2007 would have standing to continue this application challenging the validity of the legislation, and that is a position that the Territory has indicated to other councils and can indicate to this Court.  The Territory would not seek to argue that that person had only a mere intellectual or emotional concern.

HIS HONOUR:   I understand that, but the individual would – forgive me for being crude – bring his or her wallet to the table with him or her, whereas the body corporate may stand in a different position.  Hence my question about what attitude the Territory would take to annulling the dissolution of the corporate for the purpose of it, the present plaintiff, maintaining process in this Court.

MR GRANT: Well, your Honour, the only power in that respect is the power vested by section 257 which would seem to be limited to the purpose of seeking just terms compensation under that ‑ ‑ ‑

HIS HONOUR:   You are facilitating a claim for compensation.  Anyway, these are ‑ ‑ ‑

MR GRANT:   Matters going to the discretion.

HIS HONOUR:   If you are not in a position to state the position, so be it.  I do not seek to put you in a position of embarrassment, Mr Solicitor.  You proceed.

MR GRANT:   Yes, I do not have instructions in relation to that matter, your Honour.

HIS HONOUR:   I understand that.

MR GRANT:   So, your Honour, for those reasons, the balance of convenience, we say, does not favour the grant of an injunction in these circumstances.  I should say in that respect as well, your Honour, that it would no doubt be possible to find a substitute plaintiff with sufficient standing who may not have a significant body of assets against which any costs order might be pursued in the event that that plaintiff was unsuccessful.

HIS HONOUR:   As I say, there is underneath all of this some Realpolitik of a kind with which Judges should not concern themselves.  I do not.  But it does strike me that it is not unimportant to recognise the nature of the complaint that is made, which I have earlier articulated and when the complaint is “we built up a lot of assets which are taken away from us”, that also bears upon the question of maintenance of the suit.  But I am perhaps diverting argument into paths I should not, Mr Solicitor.  The immediate question before me is only whether I grant interlocutory relief of the kind sought by the plaintiff.

MR GRANT:   Yes.  Your Honour, the strength of the plaintiff’s case is also a matter that goes to the balance of convenience and the establishment of a serious question to be tried.  Your Honour knows obviously from the judgment in Castlemaine Tooheys that in cases where there is an allegation of constitutional invalidity, the test is that the plaintiff establish a probability that it will succeed at trial of the action in the event that the evidence remains the same.

HIS HONOUR:   And in that respect it may perhaps represent a qualification of what the Court has more recently said in Australian Broadcasting Corporation v O’Neill 227 CLR 57 about interlocutory injunction in private law litigation where the prima facie case is to be preferred to serious question to be tried.

MR GRANT:   Yes, public law matters, your Honour, we say that remains the position.  Moreover, where the public interest would be affected by the grant of the injunction, it may be necessary to show a distinct probability of success ‑ ‑ ‑

HIS HONOUR:   What public interest is engaged here?

MR GRANT:   It is twofold, your Honour.  In the broader sense it includes the implementation of the local government reforms for the purposes and benefits that are described in paragraphs 2 to 5 of the Robinson affidavit.  I should, your Honour, formally read and indicate our reliance on the affidavits of Evelyn May Robinson sworn on 20 June 2008 and 23 June 2008.

HIS HONOUR:   Yes, thank you.  I too should have noted that.  Is there any objection to my reading those affidavits?

MR SLATTERY:   No, your Honour.

HIS HONOUR:   Yes, thank you.

MR GRANT:   Your Honour, the public interests that attend the implementation of the scheme are set out there in terms of savings and the provision of service delivery less burdened by administrative cost.  Secondly, your Honour, in the narrower sense the public interest in this case includes the continuation of services to residents of the Amoonguna Community and the grant of the relief sought, your Honour, would be detrimental to that particular narrow public interest, that is, the public interest of that Community, because there would be, your Honour, no body in place to provide those services and there certainly would be no continuing recurrent funding for that body no longer in existence. 

So, your Honour, they are the public interests we say that are enlivened by the application.  If I could deal briefly with the causes of action that are pleaded in the proposed amended statement of claim that we were ‑ ‑ ‑

HIS HONOUR:   Do you oppose the plaintiff having leave to file that amended statement of claim, Mr Solicitor?

MR GRANT:   We do not, your Honour, but it would appear to us, looking at the draft minute of order that we were provided just before your Honour came down to the Bench, that that proposed amended statement of claim will require further amendment in that there may be some application in respect of the operation of the Local Government Act 2008 and, of course, the statement of claim as it is currently framed seeks only to challenge the Amendment Act 2007. But, your Honour, we do not oppose any application for leave to file that document subject to that qualification.

Your Honour, there are five causes of action that are pleaded in that proposed document. The first one is that it is an acquisition of property otherwise than on just terms, and that seems to be the primary focus of the plaintiff’s attack here today. Your Honour, we say that that gives rise to the question whether the legislation infringes the constitutional guarantee in section 50(1) of the Self‑Government Act and no other question. Section 122 of the Constitution is relevant only in the sense that it is the source of the Parliament’s power to make that self‑governing legislation and placitum 51(xxxi) of the Constitution is entirely irrelevant to the question of validity because, as your Honour observed in conjunction with Justice Gummow in Eastman, the exercise of legislative power by the Territory, or a self‑governing Territory, is not an exercise of the Commonwealth Parliament’s legislative power.

Your Honour, as has been observed in argument, at all times from the commencement of the Amendment Act 2007 there was a savings provision in the form of 269 until 23 May 2008 when that was effectively replaced by 257 of the Local Government Act 2008. There is no fetter on the exercise of that entitlement. The power to exercise discretion or control over a constituent council such as the plaintiff was limited to preparing the prospective council, that is, the MacDonnell Shire Council, for its future role as the sole local governing authority and that, of course, your Honour, is apparent from the very plain wording of the restructuring order to which my friend took your Honour and, particularly clauses 4 and 5.

So your Honour should, we say, reject the proposition – it is put in written rather than oral submissions – that the plaintiff had no capacity to bring proceedings pursuant to that section. The fact that it has capacity is evident, we say, from the fact that it has brought these proceedings. Your Honour, clauses of the general type of sections 269 and 257 are unremarkable. If I could just refer your Honour to the joint decision of Chief Justice Black and Justice Gummow in Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151. It is in volume 1 of our materials, your Honour, under tab 4.

Of course, the plaintiff’s complaint seems to be that the “If” at the commencement of section 257 gives rise to some form of conditional entitlement which does not satisfy the requirement for just terms.  If I could take your Honour first to page 165 of those reasons.  I should first, your Honour, draw attention to the first page of the headnote.  At point G the relevant paragraph providing for just terms was set out by the reporter and it was paragraph 20B.11, and of course it starts, notably we say, with the word “If”.  Going to page 167 of those reasons, your Honour, the paragraph starting just above point F through to page 168 at point A.

HIS HONOUR:   Yes, I have read that.

MR GRANT:   Of course, their Honours there hold that that form of provision was sufficient to comply with the constitutional guarantee.  There is some useful history, your Honour, starting at page 165 of those reasons at point G through to point B on the following page and the point made there, your Honour, of course, that Parliament has a discretion in terms of the formulation it adopts for the satisfaction of the constitutional guarantee and so long as the legislation provides just terms, in effect, that is all that is required.  It is not necessary that it replicate the wording of the provision entrenching the constitutional guarantee. 

I also refer your Honour, should your Honour need referral, to the recent decision of the Full Court of this Court in Telstra Corporation v The Commonwealth in which joint reasons were given. Your Honour was a member of that Bench. The media neutral citation is [2008] HCA 7 and the relevant paragraphs are paragraphs 36 to 42, and again the point is made by the Court, your Honour, that provisions in those terms, including provisions starting with “If” and including provisions which have some precondition to the exercise of the Court’s power, are sufficient to satisfy the constitutional guarantee.

Your Honour, the second cause of action disclosed in the proposed amended statement of claim appears at paragraphs 56, 57 and 60.  It is not pursued in oral submission, but we presume that the argument is not abandoned and it is that the Lands Acquisition Act or, in the alternative, 77(4) of the Associations Act, creates something in the nature of a code limiting the Territory’s power to pass legislation which might effect an acquisition of property.  Your Honour, that cause of action is clearly unsustainable for a number of reasons.  Later in specific legislation passed by the Territory, Parliament, pursuant to a legislative power that it has, can in no way be fettered by the operation of earlier legislation. 

Secondly, your Honour, the Lands Acquisition Act and the pre‑acquisition procedures clearly only have application to compulsory acquisitions effected under that legislation.  By way of analogy, your Honour, the Commonwealth obviously has a Lands Acquisition Act in similar terms, but the existence of that legislation does not preclude the Commonwealth from legislating for specific purposes simply because those purposes effect an acquisition of property.  Then, so far as the Associations Act is concerned, your Honour, the provision identified by the plaintiff, that is section 77(4), is limited to windings up effected pursuant to the specific mechanism in that legislation, unless, of course, there is not a winding up under the Associations Act nor does that Act create any sort of code which fetters the Territory’s legislative power.

The third cause of action that is contained in the proposed amended statement of claim, your Honour – and this was pursued in oral submission – is that the restructuring orders and the gazette notices are inconsistent with section 37 of the emergency response legislation. There is a simple answer to that, your Honour. The plaintiff cannot hold an interest under section 71 of the Land Rights Act. The tradition governs the right and the tradition does not encompass incorporation or bodies corporate. Of course, your Honour, “Aboriginal tradition” is defined in section 3 of the Land Rights Act to mean specifically:

the body of traditions, observances, customs and beliefs of Aboriginals or of a community or a group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land –

Nonetheless, the plaintiff submits that, whether by reference to some dicta of Justice Dixon in the Bank of New South Wales Case (1948) 76 CLR 1 at 349 the steps which are necessarily taken to give effect to the scheme provided for by section 257 are such as to deprive the compensation that may thus be achieved of the characteristics of just terms.

The second stream of the plaintiff’s arguments as advanced orally concern, as I have earlier indicated, an alleged intersection between the Emergency Response Act and those provisions of Northern Territory legislation which have effected the changes to local government arrangements that are at issue in these proceedings. Under the Emergency Response Act and, in particular, section 31 of that Act:

(1)A lease of the following land is, by force of this subsection, granted to the Commonwealth by the relevant owner of the land.

The land on which the Amoonguna Community has carried out its activities is the subject of such a lease, which is a lease for a term of five years. Section 34 of the Emergency Response Act provides that, in effect, any “right, title or other interest in land” that existed immediately before the time that the lease provided for by the Emergency Response Act takes effect is preserved as a right, title or interest, as the case requires, in the land after the grant of the lease.

The plaintiff submitted that the use which it made of land in the community for the purposes of providing the services and facilities which it does to the community, gave it a right, title or other interest in that land. The plaintiff further submitted that section 50 of the Emergency Response Act made plain that the preservation of existing right, title or other interest worked by section 34 is to have effect despite any other law of the Commonwealth or the Northern Territory, whether written or unwritten. Thus, so the argument proceeded, section 50 of the Emergency Response Act, in conjunction with section 34 of that Act, preserves for the benefit of the plaintiff the right, title or other interest which it has in the land on which the plaintiff provides the services it does to the Amoonguna Community.

In answer, the defendant pointed to the provisions of the Land Rights Act governing the creation of and disposition of interests in Aboriginal land and, in particular, the provisions made by section 19 of that Act. The defendant submitted that it was not shown that the Land Trust, as distinct from the plaintiff, had dealt with or disposed of any estate or interest in the land vested in it, in the manner permitted by section 19 of the Land Rights Act.

The plaintiff’s riposte to that submission was that by section 71 of the Land Rights Act, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor. The plaintiff submitted that for the purposes of section 71 of the Land Rights Act, the plaintiff was to be equated with one or other of the expressions “an Aboriginal” or “a group of Aboriginals”.

Because this is no more than an interlocutory application it would, as I have already said, be not right to express any concluded view on the issues that thus are joined. It is, however, important to record that argument of the matter on this application did not clearly show the contradiction or contrariety between the provisions of the Emergency Response Act and the Local Government Act upon which the plaintiff’s argument in this respect depends.  In particular, it has not made clear how it can be said that the plaintiff has any right, title or interest in the land that is vested in fee simple in the Land Trust.

In its written submissions in support of its application, the plaintiff made a number of other arguments concerning an alleged intersection between the impugned provisions of the Local Government Act as it stood after the 2007 Amendment Act and the RDA and, in particular, section 10 of that Act.  These points not having been developed at any length in oral submissions, it suffices to say that it is not evident to me that any of the arguments thus foreshadowed in the plaintiff’s written argument would enjoy prospects of success markedly better than the two arguments to which I have directed principal attention in the course of these reasons.

In my opinion, the determinative consideration in relation to the present application is consideration of the balance of convenience.  The balance of convenience in the present case I consider to lie firmly against granting relief of the kind that the plaintiff seeks.  I am not persuaded that there is any sufficiently compelling reason advanced to intercept the application and operation of the relevant provisions which have not yet been held to be invalid.

As was pointed out on behalf of the defendant, it is not unimportant to recognise that on 1 July 2008 the plaintiff will be dissolved.  It is likely, perhaps even inevitable, that in consequence of that dissolution the plaintiff will be unable to continue to provide to its community the services which hitherto it has provided.  That would be so regardless of whether relief of the kind which the plaintiff now seeks were to be granted.  Furthermore, if attention is given to a wider public interest, I am not persuaded that the plaintiff makes a sufficiently compelling case of invalidity of any of the impugned provisions to warrant intercepting now the operation of the provisions which have been enacted in the Territory for substantially general application throughout the Territory.

When it is recalled that the essence of the complaint which the plaintiff would make is, as I have earlier indicated, the complaint that it has built up assets and operations over so many years for the benefit of its community, which it will now cease to control, the complaint which it makes is one which must ultimately devolve to one about questions of acquisition of property and provision of just terms.

In that respect, as I have already indicated, it would be a very large step to say that the evident intention of the Territory legislature, as reflected in section 257 of the Local Government Act 2008, miscarried and that because it did the operation of what that section refers to as the relevant provisions is invalid.

For these reasons, I am of the opinion that the plaintiff’s claim to interlocutory relief fails.  Its summons in that respect should stand dismissed.

Subject to anything that counsel may advance, my present inclination is to say that the costs of the application for interlocutory relief should be costs in the cause and to provide further that the plaintiff’s summons stand adjourned for further directions to a date to be fixed, but in the meantime, that I should give a direction fixing the time by which the plaintiff may have leave to amend its statement of claim and a time by which the defendant may file its defence.

Once those steps have been taken, it would then, it seems to me, be appropriate to bring the matter back on for further directions when consideration can be given to whether the matter should proceed further in this Court or should be remitted for trial of some issues of fact to some other court.  Those conclusions about what directions should be made are, however, subject to anything that counsel would wish to say to the contrary.  Do counsel wish to be heard?

MR GRANT:   Your Honour, we are content with orders in those terms, and we would seek only seven days after filing and service of the amended statement of claim within which to file and serve a defence.

HIS HONOUR:   Yes.  Mr Slattery, what do you say about the directions generally or, more particularly, when you can put on an amended statement of claim?

MR SLATTERY:   We are content to be ordered to file that within seven days, your Honour.  Thank you.

HIS HONOUR:   I am always delighted when counsel say that things will be done within seven days.  It shows commendable application, but I want it to be a real seven not an almost seven.  Is seven realistic, Mr Slattery?  If it is, by all means.  I am delighted to say do it within seven, but I want it a real seven not – forgive me if I say this – counsel’s seven days.

MR SLATTERY:   Mr McIntyre has just assured me that seven is sufficient, your Honour.

HIS HONOUR:   That is called verballing your junior.  Then:

1.Application for interlocutory relief dismissed.

2.Costs of that application and of these directions to be costs in the cause.

3.Direct the plaintiff to file and serve an amended statement of claim on or before 1 July 2008.

4.Direct defendant to file and serve its defence and any demurrer on or before 8 July 2008.

5.Liberty to apply on three days notice in writing.

Mr Solicitor, I am of course conscious of the fact that you said you did not think it was appropriate to demur, but if I give a direction that you may it does not mean that you must.

MR GRANT:   If it please the Court.

HIS HONOUR:   Do counsel wish to be heard about the form of those orders?  No, very well.  Adjourn the Court.

AT 5.08 PM THE MATTER WAS CONCLUDED