Anthony Lagoon Station Pty Ltd v The Honourable Justice Maurice

No judgment structure available for this case.

Re: ANTHONY LAGOON STATION PTY LTD and EVA DOWNS PASTORAL COMPANY PTY LTD.
And: THE HONOURABLE MR JUSTICE MAURICE, ABORIGINAL LAND COMMISSIONER; NORTHERN
LAND COUNCIL and THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
No. NTG7 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Northrop(2) and Ryan(3) JJ.

CATCHWORDS

Administrative Law - Powers of Aboriginal Lands Commissioner when performing his functions under the Aboriginal Land Rights (Northern Territory) Act 1976 - whether Commissioner has power to authorise persons to enter upon leasehold lands - whether Commissioner has power to compel leaseholders to permit persons to enter upon their lands.

Aboriginal Land Rights (Northern Territory) Act 1976, s.51

Administrative Decisions (Judicial Review) Act 1977

HEARING

MELBOURNE

#DATE 15:7:1987

Counsel for the Appellant: Mr D.L. Harper Q.C. Mr G.E. Hiley

Solicitors for the Appellant: Cridland & Bauer

Solicitors for the First Respondent: Australian Government Solicitor

counsel for Second Respondent: Mr D.L. Byrne Q.C. Mr W. Morgan-Payler

Solicitors for Second Respondent: Robert W. Blowes

Counsel for Third Respondent: Mr G.R. Nicholson

Solicitors for the Third Respondent: Solicitor for the Northern Territory

ORDER

The appeal be allowed.

The order appealed from be set aside.

The decision of the Aboriginal Lands Commissioner of 25 August 1986 and the instrument executed by him on that date be quashed.

The Northern Land Council pay the costs of the appellants in respect of the application for the order of review appealed against and in respect of the appeal.

JUDGE1

The Aboriginal Lands Commissioner, the Honourable Mr Justice Maurice, had before him two applications brought by the Northern Land Council ("the Council") under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") in the exercise of the Council's function under the Act to assist aboriginals making a traditional land claim. These applications related to claims referred to as the "Wombaya area claim" and the "Anthony Lagoon area claim" respectively.

The Council desired to obtain access to the land the subject of the Wombaya claim, in order to comply with the general practice directions of the Commissioner, which required it to do a great deal of preparatory work, including the gathering of ethnographic data and site information, before the Commissioner would embark upon the hearing of the claim.
A problem arose from the fact that Wombaya is totally encircled by alienated Crown land which is held under pastoral lease. That land included Anthony Lagoon station, owned by the first named appellant, and Eva Downs station owned by the second named appellant. There is no access to Wombaya by any public road and the appellants refused to give the Council permission to enter and remain upon their land for the purpose of gaining access to Wombaya.
Having heard the appellants after they had been called upon to show cause why he should not do so, the Commissioner executed an instrument in the following terms:

"'ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 IN THE MATTER of the

Wombaya/Anthony Lagoon Land Claim

AND:

IN THE MATTER of an Application for Access

BETWEEN:

THE NORTHERN LAND COUNCIL

Applicant

- and -

ANTHONY LAGOON STATION PTY LTD, and EVA DOWNS PASTORAL COMPANY PTY LTD

Respondents

BEFORE THE HONOURABLE MR JUSTICE MAURICE ABORIGINAL LAND COMMISSIONER THE 25TH DAY OF AUGUST 1986

UPON THE APPLICATION of the Northern Land Council made the 24th day of July 1986 and

UPON HEARING Mr Fitzgerald for the Applicant, Mr Henwood for the Respondents and Mr Gillespie for the Attorney-General for the Northern Territory of Australia

IT IS HEREBY ORDERED that the Applicant by its staff and consultants, together with such Aboriginal informants and claimants as required, is AUTHORISED TO ENTER AND REMAIN UPON the following land areas: ... .'

The description of the land to be entered was then set out and the instrument continued -

'FOR THE PURPOSE OF gathering and recording information necessary to enable the Applicant to comply with certain practice directions published by the Aboriginal Land Commission on 22/5/85 in so far as those directions apply to the traditional land claims known as the Wombaya and Anthony Lagoon Area land claims.

AND THE APPLICANT IS FURTHER AUTHORISED where strictly necessary for the said purpose hereof to cut fences, install gates, and draw water from bores and/or waterholes.

SUBJECT TO the following terms and restrictions: ... .'"

Restrictions were then set out including the giving of notice before entry and the requirement to rectify damage done. Those terms and restrictions included the following:

(x) The Applicant shall be responsible and indemnify the Respondents for any loss or damage caused by the Applicant's entry and remainder upon the Respondents' properties, such damage to be proved to the satisfaction of the Aboriginal Land Commissioner.

(xi) The Applicant shall use its best endeavours to ensure that its staff, consultants and Aboriginal informants and claimants observe all reasonable requirement stipulated by the Respondents for the effective management of the Respondents' property.

The instrument then provided:-

"AND pursuant to powers vested in me under Section 51 of the Aboriginal Land Rights (Northern Territory) Act 1976 I DIRECT ALL PERSONS to whom this Authority is produced to grant the Applicant by its staff and consultants, together with such Aboriginal claimants and informants as required, FREE AND UNRESTRICTED ACCESS to the Respondents' said properties for the purposes specified during the period of this Authority SUBJECT TO the terms and restrictions hereof.

DATED this 25th day of August 1986"

I have had the advantage of reading the reasons for judgment of Northrop J. and of Ryan J., in which are set out in detail the history of the matter, the course of proceedings before the Commissioner and on the application for review before Morling J., who held that the execution of the instrument was within power.
The Commissioner relied upon s.51 of the Act as the source of power for the execution of the instrument. That section provides as follows:

"The Commissioner may do all things necessary or convenient for or in connexion with the performance of his functions".

As Ryan J. has pointed out, the language of the section is of considerable width. Bearing that in mind, I turn to examine what the instrument purported to do. It was expressed in the first place as an order that the Council by its staff and consultants together with such aboriginal informants and claimants as required "is authorised to enter and remain upon" the land areas described for the purposes set out. It went on to "authorise" the cutting of fences, the installation of gates and the drawing of water from bores and waterholes, subject to specified terms and conditions.
These provisions purported to authorise what would otherwise have clearly amounted to trespass, in respect of which, under the common law, the appellants would have been justified in using so much force as was reasonably necessary to expel the intruders.
One of the terms and restrictions set out as paragraph (x) of the instrument purported to make the Council responsible for, and obliged to indemnify the appellants for, any loss or damage caused by its "entry and remainder upon" their properties "such damage to be proved to the satisfaction" of the Commissioner, to whom the parties were given liberty to apply under paragraph (xii).
If this were a valid exercise of power, it produced the result that it was for the Commissioner to determine the extent of the loss or damage suffered by the appellants and the extent to which the Council should indemnify them.
On the assumption of validity, the instrument would have adversely affected the common law rights of the appellants, who would have been deprived of the benefits of the law of trespass and of their right to damages to be assessed by the courts, and of their right to use so much force as was reasonably necessary to expel the intruders. The Commissioner, having purported to abrogate the civil law of trespass, was purporting to create a right to indemnity and clothe himself with power to determine its extent.
The instrument then proceeded to direct all persons to whom it was produced to grant the Council by its staff and consultants, together with such aboriginal claimants and informants as required, free and unrestricted access to the appellants' properties for the purposes and during the period specified and subject to the terms and restrictions set out in the instrument.
This is expressed as a direction but the instrument does not purport to provide any sanction in respect of its breach. The Act by s.53A provides that the Commissioner shall, "in the exercise of his functions as Commissioner, have the same protection and immunity as a Justice of the High Court" but it does not contain any provisions creating the offence of contempt of the Commissioner and providing penalties in respect of it. Nor is there any general provision which creates an offence of disobedience to an order of the Commissioner.
Section 251(1) of the Northern Territory Criminal Code provides that

"(1) Any person who unlawfully damages any property is guilty

of an offence and is liable to imprisonment for 2 years."

If the instrument were effective to render conduct which fell within its terms lawful, it could have been pleaded as an answer to a charge under S.251(1). If it did not render such conduct lawful, it purported to "authorise" breaches of the section. If its effect were uncertain, persons acting in reliance upon it would have been at risk of being held to have committed a criminal offence.
In my opinion, the instrument purported to authorise conduct which would have amounted to a breach of the section.
Consideration of the terms of S.51 and of the purported scope and effect of the instrument has led me to conclude that its execution was not within the power conferred on the Commissioner by the section. In my opinion, had the legislature intended to grant to the Commissioner a power to make orders, give directions and confer authorities of the kind contained in the instrument, it would have expressed that intention "with irresistible clearness" (George Wimpey & Co Ltd v. British Overseas Airways Corporation 1955 AC 169, at p 191 per Lord Reid). It would not have simply relied upon s.51, using a common form of words which evince no intention to "depart from the general system of law" (ibid). On the view which I have taken of its construction, s.51 would not be deprived of effect. It would operate in aid of the Commissioner's functions under the Act, to be performed by him within the framework of the general law.
The conclusion that I have reached is supported by a consideration of ss.54, 54A and 54B of the Act. Section 54 gives the Commissioner power to require persons to answer questions and produce documents, to administer an oath or affirmation to a person required to attend before him and examine the person on oath or affirmation and provides, by sub-sec(6), that -

"a person shall not, without lawful excuse, refuse or fail -

(a) to attend before the Commissioner;

(b) to be sworn or make an affirmation; or

(c) to answer a question or produce a document or record,

when so required in pursuance of this section.

Penalty $1,000".

Section 54A makes similar provisions in respect of a person present at a place where the Commissioner is conducting an enquiry in pursuance of his functions under the Act, who indicates to the Commissioner that he wishes to give information, or to produce documents or other records, relating to the matter the subject of the inquiry.
Section 54B provides that -

"A person shall not-

(a) make a statement to the Commissioner in the course of an examination under section 54 or 54A, being a statement that he knows to be false or misleading in a material particular; or

(b) produce to the Commissioner in the course of an inquiry conducted by the Commissioner in pursuance of his functions under this Act a document or other record that to his knowledge contains information that is false or misleading in a material particular.

Penalty: $1,000".

Each of these sections confers specific powers upon the Commissioner, defines offences against the Act and provides sanctions in respect of defined breaches (See S.41, Acts Interpretation Act (1901)). Charges alleging such offences are to be tried in courts of law.
Section 54 was amended and ss.54A and 54B were inserted in the Act by the Aboriginal Land Rights (Northern Territory) Amendment Act (No 21 of 1978), after the then Commissioner had drawn the attention of the Minister, as he said in his second reading speech (Hansard 8 May, 1464), to "the fact that there are defects in the protection given to him and to voluntary witnesses in hearings before him. He has also pointed out that he cannot administer an oath or affirmation to a voluntary witness. The Bill will seek to remedy these defects and to give the Commissioner the same protection and immunity as a Justice of the High Court".
The legislature evidently considered it was necessary to make express provision to clothe the Commissioner with the powers set out in these three sections, and proceeded on the view, which I think was correct, that they were new powers, which were not available to him under the Act as it then stood, which included s.51.
Had the present Commissioner, when he encountered what he correctly identified as an unusual problem, which, as he said, was not likely to have been anticipated by the legislature, followed a course similar to that taken by his predecessor in 1978, there may well have been a legislative solution to the problem. There may still be such a solution.
It was submitted on behalf of the Council that the existence of Rules of Courts in relation to inspections of property, such as Order 17 of the Federal Court Rules, lent some weight to its contention that the instrument was a valid exercise of power conferred by s.51. In my opinion, the present case falls to be determined upon the construction of the instrument and of s.51, and no useful argument by way of analogy can be based on the existence of such Rules.
I agree with Northrop J. that no order should be made as to the costs of the Attorney General for the Northern Territory.
In my opinion the Court should order that:

1. the appeal be allowed;

2. the order appealed against be set aside;

3. the decision of the Commissioner of 25 August 1986 and the instrument executed by him on that date be quashed;

4. the Council pay the costs of the appellants in respect of the application for the order of review appealed against and in respect of the appeal.

JUDGE2

This appeal raises the question of the nature and extent of the powers of the Aboriginal Land Commissioner conferred by s.51 of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act"). That section provides:-

"51. The Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his functions."

In particular, the question raised is whether, in the exercise of his powers under that section, the Commissioner is empowered to make lawfully enforceable orders binding upon the owners of leasehold land in the Northern Territory authorising other persons to enter and remain upon those leasehold lands without the permission of the owner and requiring the owner to permit those persons to so enter and remain upon those leasehold lands.

The Act creates the office of Aboriginal Land Commissioner; s.49; who is appointed by the Governor-General; s.52; and who must be a Judge of the Supreme Court of the Northern Territory; s.53. It must be remembered, however, that the Commissioner, when performing the functions and exercising the powers conferred upon him by the Act, is acting in an administrative capacity. The Commissioner is not exercising judicial functions nor is the Commissioner exercising judicial power. The Commissioner is exercising executive functions and is not presiding in a court of law even though, in the exercise of his functions, the Commissioner has the same protection and immunity as a Justice of the High Court; s.53A. The general functions of the Commissioner are contained in s.50 of the Act. Primarily, the functions are those set out in paragraph 50(1)(a):-

"50. (1) The functions of the Commissioner are -

(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals -

(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12; ."

Reference is made later in these reasons to sections 54, 54A and 54B.

The Act makes provision for the establishment of Aboriginal Land Councils; s.21. The respondent, Northern Land Council, is established under that section. Under s.22, it is a body corporate. The functions of a Land Council are contained in s.23. For present purposes, the relevant function of the Northern Land Council is contained in paragraph 23(1)(f):-

"23. (1) The functions of a Land Council are -

(a) ...

(f) to assist Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council; ... ."

The respondent, the Honourable Mr Justice Maurice is the Commissioner. He is hearing an application brought by the Northern Land Council on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land, to ascertain whether those Aboriginals or any other Aboriginals are the traditional owners of the land. The land is known as Wombaya. It is situated north of Tennant Creek and east of Newcastle Waters. There is no practical means of access to Wombaya except through land held by the appellants, Anthony Lagoon Station Pty. Ltd. and Eva Downs Pastoral Company Pty. Ltd. respectively. These lands are alienated Crown lands under the Act in which the appellants are the leaseholders for pastoral purposes. In order to be able to present its application properly to the Commissioner, the Northern Land Council requires access to Wombaya and for that purpose requires access over the appellants' land for "its staff and consultants, together with such Aboriginal informants as they require." The appellants refused to give the Northern Land Council permission to enter and remain upon their land for the purpose of gaining access to Wombaya.

Pursuant to the powers conferred upon the Commissioner by s.51 of the Act, the Commissioner has given Practice Directions dated 22 May 1985. The Practice Directions contain procedures to be followed where a request or application is made under sub-section 50(1) of the Act. Under the Practice Directions, material must be provided with respect to the land the subject of the claim. The Northern Land Council cannot provide that material with respect to Wombaya unless it has access to the land itself. It cannot have access, for practical purposes, unless it is permitted to enter and remain upon the land leased to the appellants.
On notice to the appellants, the Northern Land Council made application to the Commissioner for orders enabling it by its staff and consultants together with such Aboriginal informants and claimants as required to enter the appellants' land. The appellants opposed the making of the orders. After hearing the parties to the application for the orders, the Commissioner announced he would grant the order sought. His reasons for decision included the following passages:-

"I am of the view that I ought to grant you the authority which you seek; that is, to enable the Northern Land Council, in particular Mr Avery and the other persons engaged by the council for the purpose of preparing this claim, to enter and remain upon Eva Downs station and Anthony Lagoon station for the purpose of gathering and recording the material necessary to comply with my practice directions published in May of last year and that they ought to be able to take with them such Aboriginal informants and other assistants as they consider necessary.

I am satisfied that I have the power under section 51 to grant that authority, because I consider it to be necessary for the proper discharge by me of my function under section 50 of conducting the inquiry in relation to these two land claim applications; and even if it were not strictly necessary on the basis of the materials I have had put before me, having listened to the submissions which have been made I would consider it to be most expedient and desirable that I make such an order. ...

Here what is proposed is not to do anything that would cause permanent or enduring harm to the leaseholders concerned or indeed to the Crown in right of the Northern Territory, but merely makes lawful an entry upon land which might otherwise be unlawful.

As I have said already, the Aboriginal Land Rights Act does not lay down the procedures which I must follow in conducting my investigation. It leaves me to devise procedures which I consider appropriate for that purpose. On 22 May last year I published general practice directions which required in effect land councils sponsoring particular land claims to perform a great deal of preparatory work before I would undertake to commence an oral hearing or visit a claim area, including the gathering of the sort of ethnographic data and site information that is necessarily a part of the proper presentation of any land claim. I have no doubt, based upon my experience in land claims, that it is necessary for those doing this preparatory work to visit and inspect the sites which are relevant to claim claims in order for them to do so, just as indeed I have said that it is usually desirable, if not essential, for me at some stage to visit some of those sites in company with the claimants for the purpose of taking part of their evidence. I need not elaborate here upon why it is so.

The present case largely arises out of the most unusual circumstance - that the Wombaya claim area, that is the present application, is totally encircled by alienated Crown land; that is, land held under pastoral lease. So far as the researches of everybody concerned have revealed, there are no public roads leading to that area. Perhaps it was not a situation envisaged by those who were responsible for drafting the Land Rights Act when considering what powers they should give to the commissioner to enable him to carry out his functions, or it might be argued that it was precisely for the reason that the sorts of powers he may require could not be foreseen and therefore it was decided to give him the general power contained in section 51 to cover all possible contingencies."

The Commissioner, under his signature as Commissioner, then issued an order. The relevant parts of the order are set out:-

"ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 IN THE MATTER of the Wombaya/Anthony Lagoon Land Claim

AND:

IN THE MATTER of an Application for Access

BETWEEN:

THE NORTHERN LAND COUNCIL

Applicant

- and -

ANTHONY LAGOON STATION PTY LTD, and EVA DOWNS PASTORAL COMPANY PTY LTD

Respondents

BEFORE THE HONOURABLE MR JUSTICE MAURICE ABORIGINAL LAND COMMISSIONER THE 25TH DAY OF AUGUST 1986

UPON THE APPLICATION of the Northern Land Council made the 24th day of July 1986 and

UPON HEARING Mr Fitzgerald for the Applicant, Mr Henwood for the Respondents and Mr Gillespie for the Attorney-General for the Northern Territory of Australia

IT IS HEREBY ORDERED that the Applicant by its staff and consultants, together with such Aboriginal informants and claimants as required, is AUTHORISED TO ENTER AND REMAIN UPON the following land areas: ... ."

There are then set out the details of the land to be entered. The order continues:-

"FOR THE PURPOSE OF gathering and recording information necessary to enable the Applicant to comply with certain practice directions published by the Aboriginal Land Commission on 22/5/85 in so far as those directions apply to the traditional land claims known as the Wombaya and Anthony Lagoon Area land claims.

AND THE APPLICANT IS FURTHER AUTHORISED where strictly necessary for the said purpose hereof to cut fences, install gates, and draw water from bores and/or waterholes.

SUBJECT TO the following terms and restrictions:

... ."

Restrictions are then set out including the giving of notice before entry and the requirement to rectify damage done. The order continues:-

"AND pursuant to powers vested in me under Section 51 of the Aboriginal Land Rights (Northern Territory) Act 1976 I DIRECT ALL PERSONS to whom this Authority is produced to grant the Applicant by its staff and consultants, together with such Aboriginal claimants and informants as required, FREE AND UNRESTRICTED ACCESS to the Respondents' said properties for the purposes specified during the period of this Authority SUBJECT TO the terms and restrictions hereof.

DATED this 25th day of August 1986

(signed) Michael Maurice Aboriginal Land Commissioner."

This decision is hereinafter called "the order and authority." First, it orders that specified persons be "authorised to enter and remain upon" defined lands for specified purposes and in so doing to do certain things, subject to conditions and restrictions. Second, it directs "all persons to whom" the authority is produced "to grant" specified persons "free and unrestricted access" to the defined lands for the purposes specified "during the period of" the authority. No period is expressed in the order and authority.
The question immediately arises, what happens if persons to whom the order and authority is produced refuse to obey the direction? A breach of the peace may occur. The Act imposes no penalty on persons who refuse to comply with the order and direction. If the persons who are authorised to enter and remain upon the land so enter without the consent of the appellants, have they committed a trespass and are they liable at law for that trespass?
The order and authority has all the appearances of an order of a court. It is expressed to be between parties. It was made following a hearing before the Commissioner at which those parties were represented by lawyers. It purports expressly to affect the legal rights of those parties. But the Commissioner was not exercising judicial powers. In reality, in many respects, the order and authority is similar to a "search" warrant issued under s.10 of the Crimes Act 1914 (Cth). It purports to make lawful what otherwise would be unlawful.
By application made under the Administrative Decisions (Judicial Review) Act 1977, the appellants sought an order of review of the order and authority. The substantial ground of the application was that the order and authority was not authorised by the Act; paragraph 5(1)(d) of the Judicial Review Act. If it was authorised, the appellants relied upon the further ground that the order and authority was an improper exercise of the power; paragraph 5(1)(e) of the Judicial Review Act. The Court dismissed that application and the appellants have appealed from that order.
In Noordhof v. Bartlett (1986) 69 ALR 323, consideration was given to warrants issued under the Service and Execution of Process Act 1901 (Cth). At pp 326-7, I said:-

"In general, a warrant, essentially, is an authority or order directed to a person to do some act. In many cases, the doing of that act in the absence of the warrant, would be unlawful. A clear statement of the nature of a warrant is given in Corbett v. R (1932) 47 CLR 317 by Gavan Duffy CJ, Rich and Dixon JJ at p333: 'A warrant is a precept under the hand and seal or hand of a person vested with authority empowering another or others to do an act or perform a function.'

The authority to issue a warrant is often contained in legislation, see for example, s 10 of the Crimes Act 1914 (Cth). A warrant issued under that section is commonly called a search warrant. Legal questions relating to the execution of warrants may arise in many different ways. A question may arise as to whether the warrant relied upon was in fact authorised by the legislation. A question may arise as to whether the warrant was issued validly. A question may arise as to the proper construction of the terms of the warrant. A question may arise as to whether the person executing the warrant was acting outside the powers conferred by the warrant. Many other questions may arise. A reference to just a few of the many cases dealing with warrants illustrates the wide range of questions that do arise: see for example Corbett v R, supra; R. v. Tillett; Ex parte Newton (1969) 14 FLR 101; Crowley v. Murphy (1981) 34 ALR 496; 52 FLR 123; Baker v. Campbell (1983) 153 CLR 52; 49 ALR 385; Arno v. Forsyth (1986) 65 ALR 125 and Parker v Churchill (1986) 65 ALR 107. All these cases indicate that whenever a court is hearing a matter involving a warrant, it is imperative that careful consideration be given to the provisions, statutory or otherwise, which authorise the issuing of the warrant, the terms of the warrant and the facts surrounding the execution of the warrant. It is equally imperative that counsel appearing in cases of this kind give careful consideration to these matters. From their very nature, warrants authorise acts to be done which otherwise are not authorised. Warrants must be scrutinised very carefully."

Those principles should be applied in the present case. In particular, the question is raised as to whether the order and authority was in fact authorised by the Act.

It is realised that the Commissioner, in performing the functions conferred on him by the Act, has to deal with and overcome many difficult problems, many of an unusual nature not present in the course of administering executive functions under normal circumstances. A reference to some of the many cases dealing with the nature of the functions and powers of the Commissioner illustrate these difficult problems. See, for example, R. v. Toohey; Ex parte The Attorney-General for the Northern Territory of Australia (1980) 145 CLR 374; R. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; R. v. Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 CLR 327; R. v. Toohey; Ex parte Stanton and Kenyon (1982) 44 ALR 94; R. v. Kearney; Ex parte Northern Land Council (1984) 158 CLR 365; R. v. Kearney; Ex parte Japanangka (1984) 158 CLR 395; R. v. Kearney; Ex parte Jurlama (1984) 158 CLR 426; Attorney-General for the Northern Territory v. Maurice (1986) 69 ALR 31 and R. v. Maurice; Ex parte Attorney-General for the Northern Territory of Australia, Full Court, Federal Court of Australia, 13 April 1987, unreported. In all these cases, apart from the last which illustrates the understandable frustration arising within the Commissioner from delays occurring in the performance of the functions conferred on him by sub-section 50(1) of the Act, the High Court considered the statutory provisions specifying the functions of the Commissioner and the statutory powers conferred upon the Commissioner to determine whether certain action was lawful or not. It is true to say that the High Court has given a wide meaning to the functions and powers conferred on the Commissioner by the Act. That approach should be adopted in the present case.
The submissions made by counsel for the Northern Land Council were deceptively simple. They contended that the only limitation on the power conferred by s.51 of the Act was that the action taken by the Commissioner must be "necessary or convenient to be done for or in connexion with the performance of his functions." In the present case, the functions being performed by the Commissioner under paragraph 50(1)(a) were to ascertain whether certain Aboriginals were "the traditional owners" of Wombaya and to report his findings to the Minister and, if applicable, to make a recommendation to the Minister. In order to perform those functions, it was said that it was both necessary and convenient that appropriate material be placed before the Commissioner and this could be obtained only if appropriate persons had access to Wombaya. Hence the order and authority was "necessary or convenient" within s.51 of the Act. In support of this contention, counsel relied upon authorities in which powers similar to those conferred by s.51 of the Act were considered. They referred to Kathleen Investments (Australia) Limited v. The Australian Atomic Energy Commission (1977) 139 CLR 117 and Leon Fink Holdings Pty. Ltd. v. Australian Film Commission (1979) 141 CLR 672. They referred to the fact that in some circumstances the Commissioner may make orders affecting rights of property of other persons; see R. v. Kearney; Ex parte Northern Land Council, above; R. v. Kearney; Ex parte Japanangka, above, and R. v. Kearney; Ex parte Jurlama, above. None of those cases are similar to the present case. In none of those cases had the Commissioner issued an authority similar in form to a "search" warrant under s.10 of the Crimes Act.
Counsel contended further that the Commissioner had power under s.51 to establish his own procedures and that Toohey J., when the Aboriginal Land Commissioner, and Maurice J., the present Commissioner, had exercised that power. For present purposes, the procedures applicable are contained in the Practice Directions dated 22 May 1985. Those procedures require the presentation of the material which, in the present case, cannot be obtained unless the Northern Land Council personnel have access over the land leased to the appellants. Counsel referred to a power conferred upon Courts to make orders relating to the inspection of property and for that purpose to authorise persons to enter upon land of another; see, for example, O.17 of the Federal Court Rules. It was on arguments similar to this that the Federal Court refused the application for an order of review of the order and authority and held that it was authorised by the Act.
It is not disputed that the Commissioner has power to regulate the procedures to be followed when exercising his functions under sub-section 50(1) of the Act. The real problem arises with respect to the method of enforcing any orders made by the Commissioner. If he makes a recommendation under sub-paragraph 50(1)(a)(ii) of the Act, any legal results that follow depend upon actions taken by the Minister under s.11 of the Act. See also s.12 of the Act.
The Commissioner, in common with every other citizen, has the right to ask questions but, subject to exceptional circumstances, a person is entitled to refuse to answer those questions. Likewise, the Commissioner, in common with every other citizen, has the right to make or give orders but, subject to exceptional circumstances, a person is entitled to ignore those orders. As was said by O'Connor J. in Huddart, Parker and Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 at p 377:-

"The right to ask questions, which, as was pointed out by this Court in Clough v. Leahy 2 CLR 139, the Executive Government has in common with every other citizen, is of little value unless it has behind it the authority to enforce answers and to compel the discovery and production of documents."

See also Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (1979) 36 FLR 450 per Franki and Northrop JJ. at pp 472.

By parity of reasoning, an order of the nature of the order and authority made by the Commissioner exercising executive powers, is of little, or no, value unless it has behind it the authority to enforce compliance with it. Normally, a statutory provision making non-compliance with such an order a criminal offence is sufficient authority to enforce compliance with it.
The Act itself contains provisions conferring specific powers on the Commissioner with respect to matters of procedure to be applied when the Commissioner is carrying out his functions under the Act. Thus under s.54, the Commissioner is empowered by notice in writing to direct persons to attend to answer questions or to produce documents. A failure to comply with such a notice is a criminal offence and the person concerned is liable to be prosecuted in a Court. Likewise, sections 54A and 54B impose a criminal liability upon persons who fail to comply with the requirements of those sections. There is no similar provision with respect to a failure to comply with the order and authority given in the present case. In passing, the provisions of s.78 of the Act are noted. Under that section, the Governor-General is empowered to make regulations prescribing matters "necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing penalties, not exceeding a fine of $200, for offences against the regulations." No regulations relevant to the present case have been made. I do not s to consider whether any such regulation imposing a penalty for non-observance of an order of the nature of the order and authority in this case, would be valid and if so what effect it would have on the validity and enforceability of the order and authority.
There are many authorities of the highest order which insist that before an administrator has power to interfere with the rights of a person, that power must be given in express and clear terms. This principle is referred to in Noordhof v. Bartlett, above. It has been stated in many decisions of the High Court; see for example Commissioner of Taxation of Australia v. The Australian and New Zealand Banking Group Ltd. (1979) 143 CLR 499; Sorby v. The Commonwealth of Australia (1983) 152 CLR 281; Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 CLR 328; O'Reilly v. Commissioners of the State Bank of Victoria (1983) 153 CLR 1 and Baker v. Campbell (1983) 153 CLR 52.

The Commissioner has no power to enforce the order and authority. There is no statutory provision making it a criminal offence for any person to refuse to obey the order and authority. The order and authority can be ignored with impunity unless it can be enforced. A person may lawfully refuse to answer questions unless the law compels him to answer; cf. sections 54, 54A and 54B of the Act. Those express provisions, when compared with the absence of any similar provision making the non-observance of an order of the nature of the order and authority of the Commissioner, a criminal offence, suggest that the order and authority cannot be enforced. If it cannot be enforced it is a request having no legal effect. In all the circumstances, I am of the opinion that the order and authority was not authorised by s.50 of the Act. The existence of a document that appears to be a legally enforceable order and authority but which, in law, is not legally enforceable, should not be permitted to stand. Having formed this opinion, I do not need to consider the second ground raised by the appellants.
In the result, I would allow the appeal. I would set aside the order appealed from and in lieu thereof order that the decision of the Commissioner made on 25 August 1986 be quashed. I would order that the Northern Land Council pay the appellants' costs of the hearing of the application before the Federal Court and their costs of the appeal. The costs of the Attorney-General for the Northern Territory of Australia need further consideration.
The application by the appellants under the Judicial Review Act named the Commissioner only as respondent but the application was served on the Northern Land Council and the Attorney-General. At the hearing of the application and of the appeal it was announced on behalf of the Commissioner that he would abide by any order made by the Court. At each of the hearings, the Attorney-General made submissions generally supporting the legal contentions made on behalf of the appellants. Although named as a respondent to the appeal, in reality the Attorney-General acted more in the capacity of an appellant. It is not clear whether orders were made at the hearing of the application that he be named as a respondent to the application. In all the circumstances, although the Attorney-General has a real interest in the application of the Act, it is my opinion that he should not be regarded as a true party to the application and to the appeal. He is more like an amicus curiae whose submissions were of assistance to the Court, but this does not mean that he should get his costs from the unsuccessful party to the appeal. In all the circumstances, I would make no order as to the costs of the Attorney-General for the Northern Territory of Australia.

JUDGE3

This is an appeal from a judgment of Morling J. delivered on 9 September 1986 on an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for an order of review of a decision of the Honourable Mr Justice Maurice, in his capacity as Aboriginal Land Commissioner. The decision was given in the course of dealing with applications by the second respondent, the Northern Land Council, on behalf of Aboriginals claiming to have traditional land claims in the Wombaya and Anthony Lagoon areas of the Northern Territory, for determinations of their claims.

The Wombaya area is landlocked in the sense that it is surrounded by alienated Crown Land held under pastoral leases and has no public roads leading to it. One of those leases covers an area of approximately 6257 square kilometres known as Anthony Lagoon Station of which the first appellant ("Anthony Lagoon") is the lessee. Adjoining Anthony Lagoon Station, but not contiguous to the area of the Wombaya claim, is Eva Downs Station, an area of approximately 2802 square kilometres of which the second appellant ("Eva Downs") is the lessee.
The Anthony Lagoon Area Land Claim as amended covers the following five areas:

(i) the Number 1 Bore Stock Reserve associated with the Barkly Stock Route;

(ii) a smaller area due east of (i) and adjacent to the Anthony Lagoon itself;

(iii) the part of the Barkly Stock Route extending from the eastern border of Eva Downs Station to the western border of the Number 1 Bore Stock Reserve;

(iv) the Wendy Bore Stock Reserve approximately due south of

(ii); and

(v) two separate stock routes linking (i) and (iv) and that part of the Barkly Stock Route which traverses Eva Downs Station.

With the exception of the part of the Barkly Stock Route which traverses Eva Downs Station, all five areas are within the boundaries of Anthony Lagoon Station.

The Wombaya Land Claim and the Anthony Lagoon Area Land Claim are both made under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act") which, by s.50(1), entrusts to the Aboriginal Land Commissioner the following functions:

"(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals -

(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12;

(b) to inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and to report to the Minister and to the Administrator of the Northern Territory, from time to time, the results of his inquiries;

(c) to establish and maintain a register of the traditional land claims referred to in paragraph (b);

(d) to advise the Minister in connexion with any other matter relevant to the operation of this Act that is referred to the Commissioner by the Minister; and

(e) to advise the Minister and the Administrator of the Northern Territory in connexion with any other matter relating to land in the Northern Territory that is referred to the Commissioner by the Minister with the concurrence of the Administrator of the Northern Territory."

The Land Rights Act gives statutory recognition to a Land Council by providing in s.22(1)(a) that it is a body corporate with perpetual succession, and by specifying in s.23(1) that its functions are, amongst others:

"(c) to consult with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land;

(d) where the Land Council holds in escrow a deed of grant of land made to a Land Trust under section 12 -

(i) to negotiate with persons having estates or interests in that land with a view to the acquisition of those estates or interests by the Land Trust; and

(ii) until those estates or interests have been so acquired, to negotiate with those persons with a view to the use by Aboriginals of the land in such manner as may be agreed between the Land Council and those persons;

(e) to negotiate, on behalf of traditional Aboriginal owners of land in its area held by a Land Trust and any other Aboriginals interested in the land, with persons desiring to use, occupy or obtain an interest in that land;

(f) to assist Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council."

On 15 July 1986, at the request of the Northern Land Council, Maurice J., as Commissioner, issued a Notice to Show Cause calling on Anthony Lagoon and Eva Downs to show cause:

"... why orders should not be made against them compelling each of them to give the Northern Land Council by its staff and consultants, together with such Aboriginal informants as they may require, access to Anthony Lagoon Station and Eva Downs Station for the purpose of complying with the practice directions issued by the Commis sioner on 22 May 1985 in their operation in relation to the applications made under s.50(1)

(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 known as the Wombaya Land Claim and the Anthony Lagoon Area Land Claim."

The practice directions referred to in the notice to show cause contain a comprehensive indication of the procedural requirements to be observed by applicants claiming to have land claims, and the way in which the Commissioner will thereafter process applications. By cl.6 of the practice directions it is stipulated that:

"A request for an inquiry to commence must be accompanied by -

(a) a set of up-to-date title documents, gazette notices, trust deeds and public plans;

(b) a list of the persons said to be the traditional owners within the meaning of the Act;

(c) a genealogy for each local descent group;

(d) a map or maps showing all sites of spiritual significance which are relied upon in support of the claim;

(e) a site information register;"

The directions also include provision for the application to be notified to persons wishing to establish an interest in any part of the land claimed, or wishing to contest the application, or claiming to be adversely affected thereby. An opportunity is afforded to such persons to give notice in writing of their interest. The directions then provide that, after the time for expressions of interest has expired, the Commissioner will convene a conference or conferences of all interested parties to discuss the further conduct of the inquiry, at the end of which the Commissioner will issue detailed directions.

After reviewing the evidence and hearing submissions from counsel for the Northern Land Council, for Anthony Lagoon and Eva Downs, and for the Attorney-General of the Northern Territory, the Commissioner, on 1 August 1986, announced his decision in these terms:

"I am of the view that I ought to grant you the authority which you seek; that is, to enable the Northern Land Council, in particular Mr Avery and the other persons engaged by the Council for the purpose of preparing this claim, to enter and remain upon Eva Downs station and Anthony Lagoon station for the purpose of gathering and recording the material necessary to comply with my practice directions published in May of last year and that they ought to be able to take with them such Aboriginal informants and other assistants as they consider necessary."

That decision was subsequently reflected in an order which the Commissioner pronounced on 25 August 1986, the operative parts of which were in the followings terms:

"IT IS HEREBY ORDERED that the Applicant by its staff and consultants, together with such Aboriginal informants and claimants as required, is AUTHORISED TO ENTER AND REMAIN UPON the following land areas:

(a) Such areas of Anthony Lagoon and Eva Downs Stations as may be necessary to gain access to that part of the claim area being NT Portion 1099 known as 'Wombaya' via the Barkly Stock Route and the bore road constructed by Anthony Lagoon Station Pty Ltd in the vicinity of the Old Shannon Downs Road.

(b) The No. 1 Bore Stock Reserve on Anthony Lagoon Station via the Barkly Stock Route.

(c) The area formerly set aside as a 'Police Reserve' on Anthony Lagoon Station being NT Portion 1989 via the Barkly Stock Route.

(d) The area formerly set aside as a 'Town Site' on Anthony Lagoon Station being NT Portion 1990 via the Barkly Stock Route.

(e) NT Portion 1535 being the NT Portion commencing at the most westerly corner of NT Portion 1989 via the Barkly Stock Route.

(f) The Barkly Stock Route where it traverses Anthony Lagoon and Eva Downs Stations.

(g) The two stock routes between No. 1 Bore Stock Reserve and the Wendy Bore Stock Reserve.

(h) The Wendy Bore Stock Reserve on Anthony Lagoon Station.

(k) Such areas of Anthony Lagoon and Eva Downs Stations as may contain 'sites of significance' of relevance to and associated with the Wombaya/Anthony Lagoon Land Claim

FOR THE PURPOSE OF gathering and recording information necessary to enable the Applicant to comply with certain practice directions published by the Aboriginal Land Commissioner on 22/5/85 in so far as those directions apply to the traditional land claims known as the Wombaya and Anthony Lagoon Area land claims.

AND THE APPLICANT IS FURTHER AUTHORISED where strictly necessary for the said purpose hereof to cut fences, install gates, and draw water from bores and/or waterholes.

SUBJECT TO the following terms and restrictions:"

Then followed some twelve paragraphs containing stipulations as to such matters as notice of entry on to the specified areas, identification of persons entering, restoration of gates and fences, and an indemnity against any damage which might be caused.

It was in respect of that decision that Anthony Lagoon and Eva Downs applied for an order of review on the following grounds:

"1. That the Respondent (Commissioner) did not have jurisdiction to make the decision.

2. That the decision was not authorised by the enactment in pursuant (sic) of which it was purported to be made, namely s.51 Aboriginal Land Rights (Northern Territory) Act 1976; and

3. That the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made namely s.51 of the Aboriginal Land Rights (Northern Territory) Act 1976."

The application for review was heard by Morling J. on 8 September 1986 and his Honour gave judgment on the following day dismissing the application for review; see Anthony Lagoon Station Pty. Ltd. v. Maurice (1986) 69 ALR 177. At 180 his Honour observed that:

"The central question for determination in the present case is the meaning of s.51 and the extent of the power it confers on the Commissioner. That question must be determined as a matter of construction having regard to the character of the Land Rights Act as a whole and the nature of its provisions - see Morton v. Union Steamship Co. of New Zealand Ltd. (1951) 83 CLR 402 at 410."

After setting out the text of ss.50 and 51 of the Land Rights Act, his Honour concluded, at 181,

"It is obvious that the preparation of an application under s.50 may well require persons to visit the lands under claim. Where, as in the present case, land under claim is difficult of access it may well be necessary or convenient to cross other lands to gain access to the claimed area. Unless such other lands can be crossed, the making of an application and the inquiry by the Commissioner into its validity may be frustrated. In these circumstances, it seems to me that unless there is to be found in the Land Rights Act a clear indication to the contrary, s.51 should be construed as authorising the making of orders of the kind made by the Commissioner in the present case."

His Honour then considered and rejected arguments on behalf of the applicant in support of a more restrictive interpretation of s.51. Those arguments were essentially similar to those relied on by counsel for the appellants on the hearing of the present appeal.

The argument for the appellants on the appeal took as its starting point the proposition enunciated in Semayne's Case (1604) 5 Co. Rep. 91: 77 ER 194 where it was held that "the house of every one is to him as his castle and fortress as well for his defence against injury and violence as for his repose" so that it was no felony for a householder or any of his servants alone or in combination with friends and neighbours to kill any thieves who might come to his house to rob him, or murder. Even if it be accepted as accurately stating of a common law right vested to the present day in the occupier of a dwelling house in Blackfriars, London, it is by no means clear to me that Semayne's Case aptly describes the rights which inhere in a lessee from the Crown in respect of a total area of 6257 square kilometres of pastoral land in the Northern Territory.
However, it is an established principle of statutory interpretation that an enactment is not to be construed as making any change in the existing law beyond what it explicitly declares. See Potter v. Minahan (1908) 7 CLR 277 where O'Connor J. at 304 quotes a passage to that effect from Maxwell on Statutes 4th Edn. p 121. In the 12th Edition of Maxwell the principle is stated somewhat differently, at 116, as follows:

"Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are 'fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.' (George Wimpey & Co., Ltd. v. British Overseas Airways Corporation

(1955) AC 169, per Lord Reid at p 191)"

A cognate principle which seems more apposite to the present case, is expressed by Maxwell, 12th Edn., at 251 in these terms:

"Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted. One aspect of this approach to legislation is the presumption that a statute does not retrospect ively abrogate vested rights; another is the presumption that proprietary rights are not taken away without provision being made for compensation.

'If there is any ambiguity about the extent of

(the) derogation (by a statute from common law rights), the principle is clear that it is to be resolved in favour of maintaining common law rights unless they are clearly taken away.' Re 'Wonderland', Cleethorpes (1965) AC 58, per Viscount Simonds at p.71. 'The well-established presumption is that the legislature does not intend to limit vested rights further than clearly appears from the enactment.' Re Metropolitan Film Studios Application (1962) 1 WLR 1315, per Ungoed-Thomas J. at p.1323."

In the same chapter of that work, there is a separate treatment of the approach to be taken to statutes conferring powers, in which it is observed, at 258:

"Where a statute confers a power, and particularly one which may be used to deprive the subject of proprietary rights, the courts will confine those exercising the power to the strict letter of the statute."

However, that is not to say that the amplitude of a discretionary power conferred in wide and general terms, presumably to enable the grantee to meet any exigency which may arise in seeking to carry out the objects of the legislation, must be read down to avoid any interference at all with private rights. See e.g. Sorby v. The Commonwealth (1983) 152 CLR 281 at 289 and The London, Brighton, and South Coast Railway Co. v. Truman (1886) 11 App Cas 45, where Lord Blackburn observed, at 60:

"I do not think that there can be any doubt that if on the true construction of a statute it appears to be the intention of the legislature that powers should be exercised, the proper exercise of which may occasion a nuisance to the owners of neighbouring land, and that this should be free from liability to an action for damages, or an injunction to prevent the continued proper exercise of these powers, effect must be given to the intention of the legislature."

Of course, where the extent of the power is uncertain because of some ambiguity in the legislation, that construction will be adopted which more preserves common law rights. For example, in The Commonwealth v. The Progress Advertising and Press Agency Co. Pty. Ltd. (1909) 10 CLR 457, Griffith CJ observed, at 460, of a section of the Post and Telegraph Act 1907 which empowered the making of regulations:

"In my opinion the prima facie meaning of the words now in question is limited to matters of internal administration and matters with respect to which the Department comes in direct contact or relationship with the public, and does not extend to acts done by individuals outside the operations of the Department and in which they are not brought into such contact or relation ship. Even if the words could be strained so as to include such acts, I think that the general scheme of the Act, which makes express provision as to such matters, would be sufficient to show that the extended meaning should not be accepted. In case of ambiguity the presumption is always in favour of liberty."

See also Allen v. Thorn Electrical Industries Ltd. (1968) 1 QB 487 at 503, 505 and 509.

An ambiguity may arise from the extreme generality of the words used by the legislature. In Wall v. The King ex parte King Won and Wah On (1927) 39 CLR 245 the majority of the High Court (Knox CJ., Gavan Duffy, Powers, Rich and Starke JJ.) held that s.21 of the Northern Territory Supreme Court Ordinance 1910 which provided that an appeal would lie by leave of the High Court "from any conviction, sentence, judgment, decree or order of the Supreme Court of the Northern Territory whether in Chambers or in Court" did not displace the common law principle that no appeal lies from an order of a competent court for the issue of a writ of habeas corpus discharging a prisoner from custody.
In my opinion, the authorities to which I have just referred require the court to examine the statutory grant of power with a view to ascertaining the limits of the power by reference to the express terms of the section or sections which confer it and any necessary implication from those terms. That examination should be undertaken without any preconception formed by focussing on common law or other rights which the exercise of the power might potentially affect. It is only when the limits of the power shade into uncertainty, or the necessity for a particular implication is doubtful that the interpretation should be adopted which would result in less interference with existing rights.
Section 51 of the Land Rights Act provides that:

"The Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his functions."

The functions referred to in that section are clearly those set out in the immediately preceding s.50. The language of a grant of power to do "all things necessary or convenient to be done for or in connexion with the performance of" an enumerated list of functions is of considerable width. Thus in Leon Fink Holdings Pty. Ltd. v. Australian Film Commission (1979) 141 CLR 672 Mason J. examined s.21(1) of the Australian Film Development Corporation Act 1970 which provided:

"The Corporation has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, has power -

(a) to make loans on such terms and conditions, including conditions as to repayment of principal and payment of interest, as the Corporation thinks fit; ..."

Of the introductory part of that sub-section, his Honour observed, at 679:

"In this case the words 'without limiting the generality of the foregoing' evince an intention that the general power should be given a construction that accords with the width of the language in which it is expressed and that this construction is not to be restricted by reference to the more specific character of that which follows."

Of course, the extent of the power granted when the language in s.51 is used, as it frequently has been by draftsmen of Commonwealth Acts, will vary according to the number and generality of the enumerated functions on which the power is predicated in a given statute. The requirement that what is done must be necessary or convenient for or in connexion with the performance of one of the listed functions, by compelling regard to the circumstances as they exist when the power is sought to be exercised, gives it another dimension of elasticity. Accordingly, any ambiguity or extreme generality which would justify an implied limitation of the kind for which the present appellant contends must be looked for in the functions to which the power generally described in s.51 is ancillary or incidental, and in the circumstances in which the power might conceivably be exercised, rather than in the general descriptive words of s.51 itself.

The functions of the Commissioner as enumerated in s.50(1) of the Land Rights Act are essentially to inquire and report the resultant findings, make recommendations where appropriate in the light of the results of one type of inquiry, and advise. The scope for inquiring, reporting and recommending is then limited by considerable definition of the permissible subjects of inquiry. The function of advising is circumscribed somewhat differently by requiring that advice shall be given only in connexion with any other matter relevant to the operation of the Act that is referred to the Commissioner by the Minister, or any other matter relating to land in the Northern Territory that is referred to the Commissioner by the Minister with the concurrence of the Administrator of the Northern Territory. There is nothing inherently ambiguous in the words which describe those functions if they are given, as authority requires, their full and accurate meaning. Nor is the scope for the performance of the Commissioner's functions so large as to lead one instinctively to doubt that Parliament intended by s.51 to confer on such a statutory officer a power as wide as that imported by the general words of that section.
A related consideration which reinforces the conclusion that the legislature intended its grant of power to the Commissioner to extend as fully as the actual words of the Land Rights Act in their context convey, is that the permissible interference with existing rights which such a construction involves is comparatively slight. It could not reasonably be suggested, for example, that compulsory acquisition of an area of land would be necessary or convenient for or in connexion with the performance of any of the functions enumerated in s.50(1). Nor could s.51 be invoked to justify occupation of land by the Commissioner or any other person for a period longer than reasonably required for investigation of matters relevant to an actual or potential traditional land claim, or to a subject referred to the Commissioner for advice pursuant to s.50(1)(d) or (e).
When it is sought to identify existing rights which might be affected, at least slightly, by an exercise of the power conferred by s.51, those which confer exclusive possession and quiet enjoyment of land in the Northern Territory come easily to mind. Indeed, circumstances are readily conceivable in which the functions described in s.50(1) as elaborated by s.50(3) would become incapable of full or even adequate performance if the Commissioner were not empowered to gain practicable access to land the subject of an actual claim contemplated by s.50(1)(a), a potential claim contemplated by s.50(1)(b) or a reference under s.50(1)(e), and, frequently, to land adjacent to or neighbouring the subject land.
By contrast, it is difficult to envisage how interference with existing rights other than those to the use and enjoyment of land or other property, could ever conduce to the full or adequate performance of the functions entrusted to the Commissioner by s.50(1) of the Land Rights Act. I shall deal more extensively later in these reasons with the privilege against self-incrimination, but the rights protected by the laws of defamation (certainly as affected by the specific protection afforded to the Commissioner by s.53A) false imprisonment, nuisance and negligence do not seem vulnerable to curtailment by any act which could reasonably be regarded as necessary or convenient for or in connexion with the performance of any of the Commissioner's functions. Likewise, contractual rights do not seem capable of being interfered with by any proper exercise of the power granted by s.51.
It was argued on behalf of the appellants, supported by the third respondent, the Attorney-General for the Northern Territory, that the presence in the Land Rights Act of ss.54, 54A and 54B tend to support the absence of any power conferred on the Commissioner by other sections to affect common law rights or privileges. However, in my view those sections are not principally framed as substantive grants of power so as to exclude by implication a wider power which the words of some other section are prima facie apt to confer on the Commissioner. Rather, ss.54, 54A and 54B are mainly concerned with procedural or adjectival matters such as the taking of evidence on oath, the giving of notice to persons required to give evidence and the extension to witnesses before the Commissioner of a defence of absolute privilege against an action in defamation. Insofar as those sections may be thought to go beyond matters of procedure by empowering the Commissioner to compel the attendance of witnesses on pain of a fine of up to $1,000, and by modifying the privilege against self-incrimination, they supplement and do not duplicate the grant of power in s.51. A mere power to inquire does not carry with it the power to compel answers to questions. Thus in Clough v. Leahy (1905) 2 CLR 139, Griffith CJ observed, at 156:

"The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what court can prohibit him from asking them? He cannot compel an answer; and, if he asks a question and gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters the words is liable to the consequences of an unlawful publication of defamatory matter."

Of course, a power to compel answers and administer an oath may render the results of an inquiry more complete or credible but it is far from clear that the doing of those things is necessary or convenient to be done for or in connexion with the performance of a function of inquiry. The presence of ss.54, 54A and 54B in the Land Rights Act does no more, in my view, than acknowledge and seek to overcome that uncertainty. I am encouraged to take that view by some observations of the Minister in the course of his second reading speech when the Bill for the enactment of the Aboriginal Land Rights (Northern Territory) Amendment Act (No. 21 of 1978) which amended s.54 and inserted, amongst others, ss.54A and 54B of the Land Rights Act was being debated in the Senate. At p.1464 of Hansard for 8 May 1978 the Minister is recorded as saying:

"This Bill is intended to give effect to the Government's decisions on the Ranger Uranium Environmental Inquiry as far as they affect Aboriginal land rights. The opportunity is also being taken to seek some machinery amendments to facilitate the administration of the Act and to remedy defects which have been found in the operation of the Act."

Then, at p.1466, the same Minister is reported as saying:

"The Aboriginal Land Commissioner has drawn the Minister's attention to the fact that there are defects in the protection given to him and to voluntary witnesses in hearings before him. He has also pointed out that he cannot administer an oath or affirmation to a voluntary witness. The Bill will seek to remedy these defects and to give the Commissioner the same protection and immunity as a Justice of the High Court."

Where a power to inquire has been supplemented by a statutory provision like that contained in s.54(6) of the Land Rights Act, making it an offence to fail to attend before the Commissioner or to answer a question, the legislation will not be construed as taking away the common law privilege which protects a person from answering questions which tend to incriminate him unless an intention to do so clearly appears. See Sorby v. The Commonwealth (supra) at 289-290. In that case the substitution of a new s.6A in the Royal Commissions Act 1902 was held to manifest such an intention. Sub-section (2) of that new section was in the following terms:

"A person is not entitled to refuse or fail to answer a question that he is required to answer by a member of a Commission on the ground that the answer to the question might tend to incriminate him."

However, although Sorby's Case provides an instructive illustration of the need for a statute creating an offence to make precisely clear whether it abrogates, or modifies, to any and what extent, a common law right or privilege, I do not consider that the discussion there of s.6A of the Royal Commissions Act illuminates the present problem. The provisions of the Royal Commissions Act are entirely procedural or adjectival embodying no substantive grant of power like that contained in s.52 of the Land Rights Act. The Royal Commissions Act contemplates, rather, that the members of each Royal Commission will derive their substantive powers from the Letters Patent requiring or authorising them to make inquiry into and report upon a matter or matters specified in the Letters Patent. It is also significant that in Sorby's Case Gibbs CJ, with whom Mason, Wilson and Dawson JJ in a joint judgment, and Murphy J. in a separate judgment agreed, considered that s.6F(1) of the Royal Commissions Act as amended is not the sole source of power in a Royal Commissioner to inspect documents. That sub-section provides as follows:

"A Commission, a member of a Commission or a person who is an authorized person in relation to a Commission may -

(a) inspect any documents or other things produced before, or delivered to, the Commission;

(b) retain the documents or other things for so long as is reasonably necessary for the purposes of the inquiry to which the documents or other things are relevant; and

(c) in the case of documents produced before, or delivered to, the Commission - make copies of matter contained in the documents being matter that is relevant to a matter into which the Commission is inquiring."

Of it the learned Chief Justice observed, at 303:

"Section 6F of the Royal Commissions Act now gives the Commissioner power to inspect and retain documents or other things produced before or delivered to the Royal Commission. The power of retention is now expressed to be 'for so long as is reasonably necessary for the purposes of the inquiry to which the documents or other things are relevant'. These statutory provisions were not necessary to enable a Commission to inspect documents produced before it which it deemed to be relevant, because a power to inquire necessarily includes a power to have regard to any material relevant to the inquiry. The statutory provisions were however necessary to give the Commission power to retain documents against the will of those entitled to possession of them, and perhaps also a power to make copies."

For recognition that a statute may exclude impliedly, as well as expressly, the privilege against self-incrimination, see also Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 CLR 328 at 341-343. In that case, the High Court examined s.155(7) of the Trade Practices Act 1974 which was in substantially similar terms to s.54(3) of the Land Rights Act, but without the reference to liability for a penalty. The presence of s.155(7) expressly abrogating the privilege against self-incrimination was held not to support the conclusion that a person or corporation remained able to refuse to comply with a notice under s.155 by invoking the cognate common law privilege against exposure to a civil penalty. Similar reasoning leads me to conclude that the express abrogation of the privilege against self-incrimination by s.54 of the Land Rights Act does not impliedly preclude the Commissioner from entering, or authorizing others to enter, privately occupied land where such entry is necessary or convenient for or in connexion with the performance of his functions.

In the same context it was argued on behalf of the Attorney-General for the Northern Territory that the insertion into the Land Rights Act of ss.23A, 23B, 23C and 23D cut down the general power conferred on a Land Council by s.27 of that Act. It was then contended that the presence of s.54 had an analogous effect on s.51 which uses the same form of words, "may do all things necessary or convenient to be done for or in connexion with the performance of his functions", as is used in s.27.
The amendments which inserted ss.23A to 23E into the Land Rights Act were introduced in Parliament as part of a parcel of six Bills designed in part to "adopt strict environmental controls and standards in relation to uranium mining in the Alligator River Region." (See Hansard for 8 May 1978 pp.1453-1467) Another of those six Bills was for the enactment of the Environment Protection (Northern Territory Supreme Court) Act 1978 to which reference is made in ss.23A, 23C and 23E of the Land Rights Act as amended. Seen as part of that parcel of legislation, ss.23A to 23E inclusive of the Land Rights Act constitute, in my opinion, a self-contained code clothing a Land Council with specific investigative powers as an aid to the performance of the function conferred on it by s.4 of the Environment Protection (Northern Territory Supreme Court) Act. The latter section provides in part:

"(1) The Supreme Court of the Northern Territory of Australia has jurisdiction, at the suit of the Director, the Commission or a Land Council, to make orders for or in relation to the enforcement, in relation to uranium mining operations in the Alligator Rivers Region, of any requirement of or having effect under a prescribed instrument, so far as the requirement relates to any matter affecting the environment in that region.

(2) A Land Council is not entitled to maintain a suit by virtue of this section unless the matter in relation to which the requirement is sought to be enforced is a matter affecting the environment in a part of the Alligator Rivers Region that is included in the area for which that Land Council is established and is Aboriginal land within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976."

The functions of a Land Council as described in the Land Rights Act itself are generally to represent, consult with and to negotiate on behalf of Aboriginals in respect of interests in land, to provide administrative assistance to Land Trusts, and to attempt conciliation of disputes between Aboriginals, Land Trusts, Aboriginal Councils, and incorporated Aboriginal groups. By Part IV of the Land Rights Act a Land Council for the area in which a particular parcel of Aboriginal Land is situated is given a number of specific powers in respect of the grant of mining interests (as defined) in that land.

Having regard to the significant differences in functions between a Land Council and the Commissioner, it is clear that the powers conferred on a Land Council, and the Commissioner respectively by the same general words in s.27 and s.51, are by no means co-extensive. Accordingly, I consider that an amendment in 1978 which was concerned to empower a Land Council to perform a new and discrete function does not assist by implication or analogy in construing the extent of the original grant of power to the Commissioner.
As well as in ss.27 and 51, the phrase "necessary or convenient" occurs in s.78 of the Land Rights Act which provides:

"The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing penalties, not exceeding a fine of $200, for offences against the regulations."

It was argued by Mr Harper Q.C., who appeared with Mr Hiley for the appellants, that s.78 of the Land Rights Act confers on the Governor-General a power which is wider than, and different in kind from, that conferred on the Commissioner by s.51. That is self-obviously true since the regulation- making power is exercisable when it is necessary or convenient to prescribe something for carrying out or giving effect to the Act as a whole, and is not to be called in aid only of the performance of the functions of a specific entity like the Commissioner or a Land Council. It was observed in Shanahan v. Scott (1957) 96 CLR 245 at 250 of a power to make regulations conferred in very general terms like those in s.78 that:

"such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."

See also Morton v. The Union Steamship Company of New Zealand Ltd. (1951) 83 CLR 402 at 410 where it was indicated that the ambit of a power to make regulations "prescribing all matters ... as may be necessary or convenient for giving effect to this Act" is wider or narrower according to whether the Act lays down only the main outlines of a policy which it is concerned to effectuate, or itself deals specifically and in detail with the subject matter to which it is addressed.

However, to acknowledge that the regulation - making power conferred by s.78 is wider than the power reposed in the Commissioner by s.51, and to accept that the limits indicated in Shanahan v. Scott and the principles of construction adumbrated in Morton's Case are common to both powers, is to say nothing useful for present purposes about the content of the power conferred by s.51. Even if there be something about the language of s.78 which clearly permits the making of regulations which authorize the Commissioner or anybody else to enter upon privately occupied land, that does not entail the consequence that the Commissioner cannot immediately make, or authorize the making of, such an entry where it is necessary or convenient for or in connexion with the performance of his functions under the Land Rights Act.
It was also submitted on behalf of the appellants that if, contrary to their primary contention, s.51 empowers the Commissioner himself to enter on to privately occupied land without the consent of the occupier, that power does not extend to authorizing other persons to do the same thing. In my view, there is no warrant in the language of the Land Rights Act or the nature of the presumptive power for drawing that inference. The power is incidental or ancillary to the performance of certain statutory functions. Accordingly, even if the inference were arguably available, it would be precluded to a significant extent by the provisions of ss.59 and 60 which expressly contemplate that the Commissioner may require staff and engage consultants to assist him in the performance of those functions.
The fact that the Commissioner's order on its face authorized the Northern Land Council by its staff and consultants to enter and remain upon designated areas of land for the specified purpose of complying with the Commissioner's practice directions does not take it outside the power conferred by s.51 of the Land Rights Act. The promulgation of practice directions itself is clearly within power as Wilson J. recognized in The Queen v. Kearney ex parte Northern Land Council (1984) 158 CLR 365 where his Honour observed, at 382:

"Section 51 authorizes the Commissioner to 'do all things necessary or convenient to be done for or in connexion with the performance of his functions'. If in the exercise of that power he institutes a system for the orderly processing of land claims and that system provides for an application to be made in writing lodged with the Commissioner, then surely the application is made when that is done. How, when and where he proceeds to perform his functions with respect to the application have nothing to do with the making of it."

See also Attorney-General for the Northern Territory v. Maurice (1986) 69 ALR 31 per Mason and Brennan JJ at 37.

It is possible to conceive of a purported exercise of power which is secondary in the sense that it is directed to giving efficacy to some primary exercise of the power like the promulgation of the Commissioner's practice directions. What is done in that secondary way may transcend the boundary between complementing the granted power, which Isaacs J. suggested in Carbines v. Powell (1925) 36 CLR 88 at 92 is permissible, and supplementing it, which is not. For example, the imposition by the Commissioner of a fine for non-compliance with his practice directions probably would be in the latter category, but the order which is the subject of the present appeal clearly is not.
Another indication that the legislature recognized that entry on to land over which common law rights were vested in another might be permissible in aid of the performance of functions under the Land Rights Act is afforded by s.70(1) of that Act. That sub-section provides:

"Except in the performance of functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory, a person shall not enter or remain on Aboriginal land.

Penalty: $1,000."

"Aboriginal land" is defined in s.3(1) as meaning:

"(a) land held by a Land Trust for an estate in fee simple; or

(b) land the subject of a deed of grant held in escrow by a Land Council;"

Had it not been contemplated that the performance of functions under the Act might warrant persons other than the fee simple owner of land to enter or remain on it, the exception contained in the introductory words of s.70(1) would have been unnecessary.

An alternative argument advanced on behalf of the appellants was that the Commissioner, in concluding that it was convenient for or in connexion with the performance of his functions to authorize the National Land Council by its staff and consultants to enter and remain upon the subject land, failed to take account of the convenience of the appellants in the denial of such authorization. In the same context it was argued that entry on to some of the areas in question would only enable the Northern Land Council and its advisers to find out whether there were on that land any "sites of spiritual significance", as that phrase is used in cl.6(d) of the Commissioner's practice directions quoted above. Because there was no evidence before the Commissioner to suggest the existence of any sites of that kind, it was argued that the Commissioner's order, in part, authorized what was no more than a fishing expedition.
There are several answers to this alternative argument. In the first place, in its wider form it goes to the exercise of the Commissioner's discretion to make the order which he did, not to the existence of his power to do so. However, there has been no attempt on the hearing of this appeal, nor, apparently, before Morling J., to demonstrate by examination of the Commissioner's reasons for decision in the light of the facts known at the time that any of the requirements laid down in such well known cases as House v. The King (1936) 55 CLR 499 and Mace v. Murray (1955) 92 CLR 370 for interfering with an exercise of discretion have been satisfied. Nor have the appellants demonstrated that the Commissioner's decision falls within any of the similar categories of "an improper exercise of a power" enumerated in s.5(2) of the ADJR Act. Secondly, it is appropriate, as Mr Byrne Q.C. for the Northern Land Council urged, to have regard to the circumstances in which paragraph (k) was included in the Commissioner's order. By that paragraph he authorized the Northern Land Council by its staff and consultants to enter and remain upon "such areas of Anthony Lagoon and Eva Downs Stations as may contain 'sites of significance' of relevance to and associated with the Wombaya/Anthony Lagoon Land Claim." A form of draft order was apparently prepared by the solicitor for the Northern Land Council embodying, as he considered, the directions and restrictions outlined by the Commissioner in his reasons for decision pronounced on 1 August 1986. That draft was submitted to the solicitors for the appellant who, by letter dated 20 August 1986, commented on paragraph (k) of the draft as follows:

"(d) We note that paragraph (k) of the draft order refers to access to areas of Walhallow Station in addition to Anthony Lagoon and Eva Downs. Walhallow Pastoral Co. Pty. Ltd. was not a respondent to the Notice to Show Cause, and the reference to Walhallow Station should be deleted."

Thereafter, as I infer, a form of order was presented to the Commissioner by the parties which included a paragraph (k) in the form quoted above without the offending reference to Walhallow Station. In these circumstances, the appellants should not be allowed in the exercise of the discretionary jurisdiction conferred by the ADJR Act to succeed in having part of a decision quashed on the basis of an argument which they could have, but did not, put to the decision-maker.

Nor am I persuaded that the strictures so often passed by courts on the use by parties of procedural facilities for fishing purposes are fully applicable to an inquisitorial investigation like that which the Commissioner is required by the Land Rights Act to conduct. It is true that in The Queen v. Kearney ex parte Jurlama (1984) 158 CLR 426 Gibbs CJ, at 434 adopted the observation of Wilson J. in Re Toohey ex parte Stanton (1982) 57 ALJR 73 at 75 that cogent evidence would be required to link to land the subject of a claim a site of spiritual significance which is off the area of claimed land. However, in those passages their Honours were clearly referring to what is required ultimately to substantiate a claim to traditional ownership. Nothing in those observations can be taken, in my view, as suggesting that there is any onus on an applicant to adduce evidence tending to show the existence of sites of significance, before the Commissioner can set in motion inquiries as to whether there are such sites, or before he can issue interlocutory directions to facilitate those inquiries.
For all of these reasons, I would dismiss the appeal and order that the appellants pay the costs of the second respondent.

Citations

Anthony Lagoon Station Pty Ltd v. The Honourable Justice Maurice & Ors [1987] FCA 389

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[1987] FCA 389

15 JULY 1987