Attorney-General for the Northern Territory of Australia v Maurice & Anor; Attorney-General for the Northern Territory of Australia v Maurice & Anor; Banibi v Maurice

[1988] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl39 of 1987

Between-

THE ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE HONOURABLE MICHAEL DAVID

ANDREW MAURICE, ABORIGINAL LAND

COMMISSIONER

First Respondent

and

BILLY BOY FOSTER JAMPIJINPA on his

own behalf and on behalf of the

Claimants in the WARUMUNGU.LAND

CLAIM

Second Respondents

Office of the Registry

Sydney No Sl40 of 1987

Aboriginal

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE HONOURABLE MICHAEL DAVID ANDREW

MAURICE, ABcRIGIN~.L LAND COMMISSIONER

First Respondent

BILLY MPETY.ANE on his own behalf and

on behalf of the Claimmts in TI TREE

STATION LAND CLAIM

Second Respondents

A1T4/l/RB 1 13/5/88

Office of the Registry

Sydney No Sl41 of 1987

B e t w e e n -

BANIBI PTY LIMITED

Applicant

and

THE HONOURABLE MICHAEL DAVID

ANDREW MAURICE, ABORIGINAL LAND

COMMISSIONER

First Respondent

and

THE ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

and

THE NORTHERN LAND COUNCIL

Third Respondent

Applications for special leave to

appeal

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 1988, AT 10.03 AM

Copyright in the High Court of Australia

SlT4/2/RB	2	13/5/88
Aboriginal

MR D.M.J. BENNETT, QC: In the first of those matters, if

Your Honours please, I appear with my learned friend,

MR D.J. BARRETT, for the applicant, the Attorney-

General for the Northern Territory. (instructed by

Freehill, Hollingdale & Page)

SIR M. BYERS, QC: If Your Honours please, in the second I

appear with my learned friend, MR:>A. BENNETT, for

the applicant Banibi. (instructed by Westgarth Baldick)

MR S.P. CHARLES, QC: In each of those matters, if the Court

pleases, I appear with MR R. HOWIE for the respondents.

(instructed by Dawson Waldron and Pigott Stinson)

MASON CJ:  The Registrar of the Court has been advised by

the Australian Government Solicitor in the Northern

Territory who acts on behalf of the first respondent,

His Honour Mr Justice Maurice, that His Honour will not

be represented by counsel and that His Honour submits

to the jurisdiction of the Court and agrees to abide

by any order of the Court save any order as to costs.

Yes, Mr Bennett.

MR BENNETT:	May it please the Court, this is an application arising out of two stated cases by a single judge of
the Federal Court to the Full Federal Court. I do
not know if Your Honours are concerned about the
question of competency in relation to that. It would be
my submission that the application to this Court is
competent for two reasons: first, the Full Court made
an order for costs which is of course an order
directly affecting the rights of parties and which is
part of the appeal; and secondly, the form of the
question asked in this case asked, really, the very
question which was involved in the prohibition and
which was a question involving the determination of the
whole of the matter.  It was not strictly a bare question
of law arising in the matter; it was the whole question.
That appears at page 16 of the application book:

Is the said stock route "land on which there

is a road over which the public has a right

of way" for the purposes of -

the Act, and the answer was "No". The effect of that is
that prohibition would go as a matter of course when the

matter goes back to the judge. We would submit it is

not necessary in those circumstances to go through the

procedure of having that order made, having an appeal

to the Full Court which would be determined as a matter

of course in accordance with the case stated, and then
seeking special leave to apply to this Court.

Your Honours, in relation to the substantive matters on the application, we have prepared an outline

and I hand that to the Court. The outline has a number

SlT4/3/RB	3	13/5/88
Aboriginal

of schedules so that Your Honours will 1::e able to go
to any specific parts Your Honours would wish to go to.

I do not propose, unless Your Honours seek assistance,

to go to all of them. But it deals with the issues

which could arise in the matter.

Your Honours, the central submission which was

made by the applicant at all stages is that the phrase
"land on which there is a road over which the public

has a right of way", which is the,exclusionary phrase

in the LAND RIGHTS ACT, includes a stock route.	The
basic reason put in support of that is a line of

authorities and definitions which holds that what was

in England known as a driftway, which appears to be

something corresponding to a stock route along which

cattle were driven from one part of England to another,

was a species of highway and there are a range of

definitions of "highway" and cases discussing the

meanings of "driftways" in Canada, America, England
and Australia which supported that general proposition.
And that proposition has been accepted by His Honour
Mr Justice Maurice in two land claims in both of which

His Honour has delivered detailed judgments setting out

the reasons.

Now, the Full Court rejected that for four reasons

which are set out on page 1 and the top of page 2 of my

outline of submissions. The first of those was that the

common law meaning of "road" was the meaning of "highway"

rather than road and one could not equate the two and

all I want to say about that is to remind Your Honours of

the decision of this Court in PERMANENT TRUSTEE COMPANY

OF NEW SOUTH WALES V COUNCIL OF THE MUNICIPALITY OF

CAMPBELLTOWN, 105 CLR 401, where two of the Justices of

this Court appear to have equated the concept.

Mr Justice Kitto, at page 412 at about point 7 said:

yet, by the deposit of the plan the other roads

were undoubtedly offered for public use as roads,

and the appellant does not dispute that the use

which has since been made of them has resulted
in their	becoming dedicated highways.

Here, of course, there was an express dedication by

virtue of the legislation and it is used by the public.

At page 420, Mr Justice Windeyer, again at about

point 7, six lines before the end of the paragraph, said:

In my view, therefore, when the Act speaks of

a public road as a road the public are entitled

to use, it means land over which a public right

of way exists - that is to say, a highway in the

common law sense.

So we would submit that is sufficient to enable one to

construe the phrase, "land on which there is a road

over which trhe public has a right of way" - - -

S1T4/4/RB	4	13/5/88
Aboriginal

BRENNAN J:  What do you ..... are the last words of that

definition?

MR BENNETT:  Your Honour, they make clear that the type of

road or highway one is talking about is one of - I

am sorry, they are redundant in so far as it means a

highway, yes, Your Honour.

BRENNAN J: Well, have they any function to perform at all

on your argument?

MR BENNETT:  No, Your Honour. If one treats it the other way,

the phrase "over which there is a public right of way"

really converts the word "road" into a highway. In

other words, there are two way of looking at it. One is to say "road" is a generic word which can, in some circumstances, include a private way but the phrase

"road over which the public have a right of way" means

a highway. That is one way of looking at it. The other

way of looking at it is to say that road and highway

mean exactly the same thing in the context and the
additional words are simply put in for more abundant

caution.

But either way one reaches the result that cases

saying that a driftway is a highway at common law - and

indeed the American and Canadian cases which talk about

the word "road" in that context are sufficient to

bring it within that. That was the first of the four

bases. The second of the four bases was that the

Territory had at the time two separate sets of ordinances, two ordinances. There was an ordinance dealing with stock routes and an ordinance dealing with

roads and it was said that Parliament must have been

aware of the existence of those two ordinances and

therefore used the word "road" in contradistinction to

stock route.

The submissions in relation to that - they are

set out in schedule 2 - and they are briefly this:

first, that while we concede that it is not impermissible

very slender reed in construing legislation of this sort	to look at Territory ordinances for that purpose, it is a
to assume that Parliament had in mind the names of
ordinances and the concepts used in them when it used a
generic word in legislation as important as the LAND
RIGHTS ACT. Secondly, we say that in any event the
distinction is not a bright line distinction because
the word "road" in the Control of Roads Ordinance is wide enough to cover stock routes as well and if the
draftsman had really intended to pick up that
distinction and applied his mind to the problem, he would have done it more specifically and we submit that
that is not something which would result in construing
the Act as having a different meaning to that which
it would otherwise bear.

SlT4/5/RB	5	13/5/88
Aboriginal

The third matter concerned a speech during the debate in the House, but not the second reading speech

itself, in which Mr Viner, the Minister :introducing the

bill, answered two questions which had been asked by

other members of Parliament and in the course of

answering the questions in the middle of a general

speech on the Act he said, in ef feet, there is no

problem about roads through schedule 1 land because the

only roads through it are - and then he named a number

of roads and did not refer to any stock routes.

We will be submitting that is a use which should

not be made of a speech of that nature for a number of

reasons. First of all, the corrnnon sense reason is

fairly obvious as far as its weight is concerned.

Presumably when questions are asked about roads, the

Minister asked the clerk to tell him what roads there

were in the areas; the clerk gave a list of the roads

and interpreted the query as not relating to stock

routes. It would be incredible if that interpretation

placed on it by the assumed clerk is to be treated as

governing the meaning of the word in legislation. It

is one thing to look at a second reading speech, which

is prepared for the purpose of assisting in realtion

to members of Parliament understanding an Act as a

whole and looking at casual references by ministers

in speeches in the House.

Secondly, the questions that the Minister were

asked were questions relating to the problem - to the the subject of land grants - if there were roads along

which tourists could come and interfere with their

privacy in a number of ways. Now, in answering that,

naturally the Minister dealt with roads upon which one

would expect to find tourists driving. The problem in

relation to stock routes is quite a different sort of

problem and it is not one which would have been

necessary to refer to in answer to those questions.

Thirdly and most importantly, it betrays what we

would respectfully submit is an incorrect approach to

looking at parliamentary materials. The question is

not what Parliament would have thought if the hypothetical

officious bystander had said to Parliament, "Just a

moment, do you intend to include stock routes within

the word 'roads'"? If one assumes, as seems to be

likely, that no one thought of the issue of stock

routes at the time, because if someone had thought of

it no doubt it would have been referred to one way or

the other - if one assumes that, one does not answer

the question as to the meaning of "road" by ascertaining

whether, if asked the hypothetical question, Parliament

or the Minister would have said, "Oh, I don't mean

stock routes" or "I do mean stock routes". The question

is, what does the phrase mean, the phrase "land on

which there is a road over which there is a public

S1T4/6/RB	6	13/5/88
Aboriginal

right of way"? And to attempt to ascertain parliamentary

intention by asking the question that comes before a

court years later and say, "How would it have answered

that question?" is, we would submit with respect, an

impermissible approach.

Finally, we would say there is insufficient

ambiguity or obscurity to justify referring to

parliamentary material.

The fourth and last of the four bases was that

some recent legislation in 1987, long since this

dispute arose, has dealt in a particular way with

stock routes.	The relevant part of that legislation
has not been proclaimed.	Part of it has and part of

it has not, but in that legislation there are specific

reference to stock routes and roads and it was said,

"This shows that Parliament regarded the concepts as

distinct". I will deal in a moment with the question

whether the recent legislation makes this ussue moot,

and we will be submitting it does not. But leaving

that aside for the moment, it is my submission that

that is not a permissible use of other legislation.

It is true that Mr Justice Dixon, as he then was,

in the DUNMUNKLE case referred to the possibility of

looking at an amending Act for the purpose of seeing

what Parliament intended in an earlier Act. There are

other cases suggesting that is not a permissible method of construction and we would submit it certainly is not a permissible method here where part of the purpose of

the legislation was an attempted resolution of doubt

and it was enacted while this litigation was pending.

The other matter, of course, is that part of it

has not been proclaimed. So the submission is, on the

substantive issu~ that none of those four matters are

matters which detract from the normal meaning of the

words and the nature of stock routes is such that they

are land on which there are roads over which the public

has a right of way and accordingly that the Act should

be construed in that way.

BRENNAN J: What makes land a stock route, Mr Bennett?

MR BENNETT:  Under the Stock Routes and Travelling Stock

Ordinance of the Northern Territory there is a proclamation procedure and that took place - that and

the CROWN LANDS ACT - and that took place relevantly

in about 1933.

BRENNAN J:	Can a stock route cease to be a stock route?
MR BENNETT:	Yes, Your Honour, there is provision for that.

If land is alienated, for example to a pastoralist,

ther.e are provisions pursuant to which travelling stock

SlT4/7/RB	7	13/5/88
Aboriginal

can still pass over it although it has been alienated.

If it becomes the subject of a grant it would seem to

be clear, subject to one arguable possibility, that

it no longer is a stock route and no longer can be used

as such.

BRENNAN J:	So the public rights then cease, do they?
MR BENNETT:	If it becomes the subject of a grant, yes, Your Honour,

subject to an argument I will be putting in a moment,

which is that if I am right in my arguments to this

Court that it is a road over which the public has a

right of way, contrary to the submission upheld by the Full Court, there is power in the Supreme Court of the

Northern Territory to declare it to be a road and to

permit public access under a specific procedure in the

LAND RIGHTS ACT. But that would not be available in

the light of the Full Court decision which holds that it

does not fall within those words.

I should briefly take Your Honours to the

importance - - -

BRENNAN J:  Can I just delay you for a moment. How then is the

last element of the definition of "road" made out in

the case of stock routes?

MR BENNETT:  Because the public has a right of way over the stock route for the purpose of driving stock.

BRENNAN J: A right or?

MR BENNETT:  A right, Your Honour. There is a provision about

permits but that is a formal procedure a lot easier

than obtaining a driver's licence which is needed to

proceed on, for example, a highway which is prohibited

to pedestrians. There was an argument raised below

which the Full Court did not refer to that, because of

the permit system and because it was a right to drove

cattle along the road, it was not something over which
the public had a right of way.	The contrary conclusion

was reached by Mr Justice Maurice and that was not

interfered with by the Full Court. The argument is that

it is no different to, for example, the main carriageway

of the harbour bridge over which one cannot walk; one

cannot go unless one is in a vehicle; one cannot

propel a vehicle across unless both the vehicle and

the driver are licensed and one has to pay a toll.

But that does not stop it being a public road. Obviously

there are other example of that type of thing.

BRENNAN J: But, at the same time, the harbour bridge cannot

be given to a private owner.

MR BENNETT:  Yes, Your Honour, by statute it could be. By

statute the road could be -

S1T4/8/RB	8	13/5/88
Aboriginal

BRENNAN J:  But it is not statute in this case, the case of a

grant of - - -

MR BENNETT: It is, Your Honour - well, it is regulation.

Your Honours, the importance of the matter is referred

to in schedule 5 to my submissions, the last two pages,

and there are two aspects to it. The first is that

stock routes are a traditional and useful feature of

rural Australian life.	They have existed in most
states and the Territory for many years.	I make the

obvious comment that they provide a means of moving

stock. It is true they have not been used in the

Territory except on rare occasions for some years.

But the evidence shows that was due to restrictions on

the moving of stock caused by stock disease control
regulations and it may well be revived in the future.

That has been said by Mr Justice Maurice in the

CHILLA WELL LAND CLAIM and by Mr Justice Toohey in

the WALPIRI LAND CLAIM. There is, we would submit,

therefore, a possibility of there being revived once

stock diseases which prevent the moving of stock are

brought under contol.

Indeed, as Your Honours would no doubt know, there

is a well-publicized use of some stock routes at the

moment as part of the bicentennary celebrations.

It is also true that certain stock routes have

been cut. Now, might I invite Your Honours to look at

the map attached to the rear of the supplementary

application book. There are two maps and it is the one

with the colours on it showing stock routes.

Your Honours will see there the stock route system in the

Northern Territory. The stock routes concerned in the

two application in which I presently appear are those in the orange rectangles, the two lower of the orange

rectangles. At the top, Your Honours - - -

MASON CJ:  Ours are pink, Mr Bennett.

MR BENNETT:  Do Your Honours see about two inches above Alice

Springs "Ti Tree" with the number "38".

MASON CJ: Yes.

MR BENNETT: That is the part of the stock route involved in the

Ti Tree claim. If Your Honours go up a bit,

Your Honours will see the word "Barkly" near the word

"Tennant Creek" and the stock routes around there are

the ones involved in the Warumungu Land Claim and at
the very top of the page Your Honours see, about

two inches to the north east of Katherine is the

number 69 and to the left of that Mataranka. That is

in general terms the stock route involved in the case

in which my learned friend, Sir Maurice Byers, appears.

Your Honours can just see the reference to Elsey Station

for whose proprietor he appears there.

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Aboriginal

The evidence is that - and this appears at

page 8 of the application book:

there are twenty-seven (27) land claims

that comprise stock routes and reserves.

That is land claims just for stock routes and reserves.

If Your Honours go to the other map - I will return to this one in a moment - if Your Honours go to the large map - this is a map that shows all land claimed and

land granted to date and Your Honours will see a large

number of little strips. Those strips are land claims

where there is a claim just to a stock route and that

can be read with the other system.

There are also a further 16 land claims which

relate in part to land comprising a stock route. I

should say in fairness, in relation to some of those

that they are stock routes passing through what is

already Aboriginal land or what is land owned by or

on behalf of Aboriginals which is in a different category

under the LAND RIGHTS ACT.

There were then 36 properties which would be

cut into two or more parts if stock routes through them

were to be the subject of grants. Your Honours can

see that very clearly on the smaller map if Your Honours

look just above the legend on the left top of that

rectangle. Your Honours will see that Numery station

and Indiana station and Jinka station are neatly

bisected or trisected by stock routes and, as I said,

there are 36 of those. Now, if grants were to be made

of those stock routes, it would be unlawful for a

pastoralist or his employees to cross from one part of

the station to the other without obtaining a permit.

One matter that was put below in relation to this

when it was discussed was - and it has been put in

affidavits - the breaking of stock routes by alienation

to leasees. That is the blue sections on the smaller

map but, as I have indicated, it is not a problem because

under the legislation in the Northern Territory, where

a stock route becomes alienated there is still a right

to drove stock across it. That does not apply, and it

has been held not to apply by Mr Justice Kearney, in

relation to land granted under the LAND RIGHTS ACT.

There are also minor breaks in two of the stock routes which are shown on the map by virtue of actual

grants. The evidence is ..... very early in the history

of land rights before the problem was appreciated. The

evidence in relation to those is that it is possible to

get round those sections by using a road or by using
other means of getting cattle from one point to the
other and therefore those breaks have not destroyed the

utility of those stock routes.

SlT4/10/RB	10	13/5/88
Aboriginal

Also, if the present decision is reversed, there

is the possibility of an application under sections 12,

12AB and 12AC of the LAND RIGHTS ACT, permitting

application to be made to the Northern Territory Supreme
Court under that.

The final matter I want to deal with is the

question of the recent legislation. That does two
things: first of all, it permits a claim to be made to
a stock route where it is adjacent on its longer

boundary to Aboriginal land and that it is a matter to

be dealt with as a question of detriment and so on.

The other amendments which have been made are amendments

which prohibit the grant of non-adjacent stock routes,

that is stock routes where the longer boundaries go
through pastoral properties or the like. That has not

been proclaimed and, in any event, does not apply to
pending land claims and Your Honours have seen from the

maps I have shown Your Honours that virtually everything

is in that position.

MASON CJ:  To what extent does this recent legislation convert

this issue now being debated in this case into a matter

that is particular and not of general importance?

:MR BENNETT:  That is what I am dealing with at the moment,

Your Honour. We would submit it does not, for a number

of reasons: first, the fact that it has not been

proclaimed and it is significant that it has not been

proclaimed 10 months after enactment and, on my

instructions, there is a serious possibility that the

relevant part of it will not be proclaimed. There are

obvious political questions involved in that. But we

would submit that where it is suggested that legislation

makes a matter moot as to the future, that bit of

legislation which has not after 10 months been

proclaimed and may never be proclaimed would not be

put in that category.

The second aspect is that that part of the

legislation permitting grants of land contiguous to

Aboriginal land does not apply to most of the areas of

concern with which we have dealt. We are concerned

basically with non-contiguous land and I have not gone

through and isolated how many of the 36 are in each

category but most of the areas are concerned with

continguous rather than non-contiguous land and that

is the part that has not been proclaimed.

We would submit that for that reason it is

important. In many cases, of course, grants may be

made before the legislation is proclaimed, even if it

is going to be proclaimed.

SlT4/ll/RB 11 13/5/88

Aboriginal

BRENNAN J:  Mr Bennett, what stage have these claims reached?

MR BENNETT: All at different stages, Your Honour; some are cases where the Commissioner has commenced hearing

them or has embarked on the hearing, the inquiry; in

those cases the new legislation would not apply. In
cases where the inquiry has not commenced it would
apply. There will be a question as to how one defines

the phrase used in the Act which is, "The Commissioner

has commenced an inquiry". Has he commenced an inquiry,

for example, if he has received a claim and has had a

directions hearing, or if he has not had a directions

hearing but has written a letter? So they are

difficult questions. It is not possible to answer

precisely.

BRENNAN J: What is the relief sought if you should succeed?

MR BENNETT: Prohibition, Your Honour.

BRENNAN J: Against the Commissioner?

MR BENNETT:	Yes, Your Honour.
BRENNAN J:	Doing anything.
MR BENNETT:	Doing anything in - making a recommendation in

relation to land the subject of stock routes on the
basis that it is not unalienated Crown land because of
the exclusions and the relevant provisions of the Act;

the definition of "road".

BRENNAN J: Although the definition of "road" comes in at a

later stage, does it not; at the stage of the

recommendation of grant based on a Commissioner's

recommendation?

MR BENNETT:  Yes, it comes in section 12 and section 13,

Your Honour.

BRENNAN J:	Why is the Commissioner then involved in this exercise?
MR BENNETT:	Your Honour, I should say in one case the Land

Council has sought prohibition and in the other case -

sorry, sought judicial review, and in the other case

we have sought prohibition because the Commissioner

had indicated a determination in our favour. We sought

prohibition because he still sought to investigate the balance of the claim, notwithstanding his view that it

was not land which fell within the words I have described

and hence the two applications which were heard together

in the Full Federal Court.

BRENNAN J:	I am still not clear, Mr Bennett.
MR BENNETT:	I have not answered Your Honour's question?

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Aboriginal

BRENNAN J:  No.

MR BENNETT: Section 12(3) provides that a deed of grant

shall be expressed to exclude from the grant -

any land on which there is, at the time of

execution ... a road over which the public has

a right of way;

and section 11(3), which is the provision dealing with

the reconnnendation,says that:

A reference in sub-section (1), (lAB) or (lAD)

to land shall be read as not including a

reference to any land on which there is a road

over which the public has a right of way.

That subsection (1) is the section which refers to
the Connnissioner making a reconnnendation and the

Minister being satisfied of matters pursuant to his

reconnnendation. The submission is that once the

Minister has no power to make a grant in relation to it,
the Connnissioner may not embark on an inquiry and may
not make a reconnnendation in relation to that land.

That is a subsidiary jurisdiction or part of the ultimate

argument.

BRENNAN J:  So that prohibition is directed solely to the stock routes aspect of any application?

MR BENNETT:  Oh yes, Your Honour, solely to that. In the one

in which the Land· ,Council connnenced the proceedings

and sought judicial review, it did so in relation to

the Connnissioner's determination in our favour that a stock route fell within those exclusionary words. So
that was how the two matters arose. The matter in

which Sir Maurice appears, I think, has come up by

another route which can explain how that application

is dealt with.

So we would submit for those reasons that the matter is of public importance, there is serious doubt

about the correctness of the decision of the Full Court,

particularly in the way in which it used parliamentary

debates, subsequent Acts and Northern Territory

ordinances, and that the importance to large numbers
of pastoralists in the Territory - both because of the
possibility of che stock route system being used in

the future and because of the division of properties -

is a matter of great importance and we would seek

special leave.

MASON CJ: Thank you, Mr Bennett. Yes, Sir Maurice.

SIR MAURICE:  Your Honours, there are two, perhaps three points

I wish to make. First of all, we wish to say that the

issue.before the Full Federal Court and before the

SlTS/2/RB	13	13/5/88
Aboriginal

learned judge at first instance from whom the present

applicants sought a prohibition was whether the

expression - that is the whole expression - "road

over which the public has a right of way" extended to

include a stock route over which, being land, the law

of the Northern Territory had given the right to pass

and repass with cattle. The relevant provision in the

CROWN LANDS ORDINANCE is set out, Your Honours, in the

application book at page 26, about line 6, where it

empowers the Minister:

The Minister may, by notification in the

Gazette, declare routes, not exceeding one

mile in width, through any land held under

lease or licence, to be routes for the passage

of travelling stock.

Then they go on that:

Any route defined in pursuance of the last preceding subsection shall be deemed to be

a "recognized route" for the purpose of .....

the STOCK DISEASES ORDINANCE ..... and the

provisions of that section shall apply to

persons driving or conducting stock along

the route.

So hence you had the area of land which, by the

legislation and the relevant proclamations which are
later referred to, enabled persons to drive stock along

the way. And the question, and the only question, was

is that a road over which the public have a right of

way.

MASON CJ: It is a road one mile wide?

SIR MAURICE:  A road one mile wide, quice, and the question,

Your Honour, is whether that is embraced within the

expression. The question is not whether "road" has

a particular or indefinite meaning; the question is

v-kiat doesthat expression comprise? It obviously

comprises highways. One could not dispute that it

did. Obviously a highway is a road over which the

public has a right of way. That is obvious. That is

of the essence of a highway. It is the public right

of passage that makes the highway.

Their Honours never approached that question.

They never even considered it because what they did

was to say, "Oh well, what we are concerned with is

the word 'road'.	It is true that 'highway' has a
definite meaning but 'road' is indefinite."	And

therefore Their Honours said, and Their Honours cite

large passages of authority to say - - -

MASON CJ:  They treated "road" as a road in the general road system in the Territory.

SlTS/3/RB	14	SIR M. BYERS, QC 13/5/88
Aboriginal

SIR MAURICE:  That is right, and they said this is a road in a

general road system and therefore they treated the

expression in the Commonwealth statute as meaning a

road in the general road system although, of course,

if one uses the word in its normal connotation or
denotation - I always get mixed up - it would extend
to a passageway, however made up, where there is a

right of passage by the public, either alone or with stock. Now, that is the normal meaning of ''road': My

friend has referred to this decision in - I think it

is the House of Lords - which just repeats that sort

of notion.

So the first thing we say is that Their Honours below just never approached the question. They never

even considered it. So therefore we say they are

wrong because they never considered the question.

The next thing we say is that according to the

natural meaning of the expression a road over which you

can pass with cattle is a road over which you have the

right of way within the meaning of the expression in section 11(3). You get the right of way because the

statute gives it to you and no more is needed. So

therefore, as a matter of ordinary English, it falls

within the expression and the only question is, "Can

you read it down?" Now, that is what Their Honours

did. Their Honours read it down and the question is

whether they were entitled to do so. Of course,

Their Honours did so by eliding the words "over which

the public has a right of way" out of the matter for

consideration. They just directed their attention to

''h:ighway", on the one side, which does not appear, and

"road" which, admittedly, does appear. But in that

sense, in our respectful submission, Their Honours

never faced the question.

MASON CJ:  But it might be said that the notion of a road one

mile wide almost disqualifies it from the description

of being a road.

SIR MAURICE:  Not if the public have a right of way over it,

Your Honour. It depends what you use the road for.

We are talking about roads in the Northern Territory

where they may be made up, they may not be made up.

The critical point is not whether the road is made up; the critical point is, is there a right of passage

over it. That is the whole point about a road, in the

ordinary signification of the word, and I can refer

Your Honour, I think, to a statement of

Mr Justice Windeyer to that effect. But it is in any

event obvious enough. I think the passage is

PERMANENT TRUSTEE CO V CAMPBELLTOWN CORPORATION,

105 CLR 401 at 420 where His Honour says that. It does

not matter about the form of the road, what matters is

the right of way, right of passage, right to use it.

SlT5/4/RB	15	SIR M. BYERS, QC 13/5/88
Aboriginal

And that is what this phrase selects. So it says,

"Very well, we will take out of grant those things

which we will call roads,in relation to which the

public have a right of way or passage". Now,

Your Honours, the effect of that, the effect of giving a public right of passage is that at least the public

have something in the nature of an easement. I do

not say it is an easement because it is a public

right and has no dominant or servient tenement but,

again as Sir Victor Windeyer said, the right that you

get to use a road is analogous to an easement or when

you dedicate land for public use, you create something

in the nature of a public trust.

So that the right of the public subsists. Now,

it is not to the point to say - and there we differ

from my learned friend - "Oh well, if you make a

grant under section 11(3) the public right is

extinguished." There are no provisions in the Act,

amended or unamended, which says that. The only

provision which could bear on it would be section 70
of the Act and what that does, Your Honours - it is
section 68 which says you cannot open a road, which

does not matter, and section 70(1) says:

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.

So the question is whether you could say of this right given by the CROWN LANDS ORDINANCE that the right of

passage is a right, when it is exercised - sorry, is

the performance of a function under a law of the

Northern Territory. Now, Your Honours, there may be

some difficulty in the use of the word "function".

That is so, but the effect is, if there is a difficulty

in the use of the word "function", that the public right

is said to be extinguished and the public trust denied

by virtue of section 70.

We submit, with respect, that one cannot get that

by a sidewind and we submit that the amendments made by

the Act, Act No. 40 of 1987, tell against it. Can I

just take Your Honours to two of those amendments,

there being only two that bear upon this topic - - -

DEANE J: Sir Maurice, what right has a person to go over a

stock route without stock?

SIR MAURICE:  You have not got a right to go over it without

stock.

DEANE J:	So the rights of the public are limited to driving stock with a permit which applies to the particular
stock· and the particular journey?

SlTS/5/RB	16	SIR M. BYERS, QC 13/5/88
Aboriginal

SIR MAURICE: Yes, a way-bill, it is called now, I think,

Your Honours. So he can show it to - the amended

provisions to which Their Honours make passing

reference substitute a way-bill - which is, I presume,

a document title - they make passing reference to it

at page 30 of the application book. But what the

person gets now is a way-bill - if that is the

appropriate expression - and the drover must take it

with him and he must produce it to the various people

who have properties along the way.

DEANE J: And nothing to do with the application, but what does

driving stock or the prohibition of driving stock on

the hoof mean?

SIR MAURICE:  Your Honour would be far more qualified to

answer that question than I am, Your Honour, but I

suppose one would just drive it along - - -

DEANE J: Perhaps you are supposed to carry them.

SIR MAURICE:  I must say, Your Honour, I have some difficulty.

Any rate, those provisions which Their Honours set
out in the judgment and which thereafter they desert
in any event, Your Honour, so it is obviously a matter
that did not bear upon them, although perhaps it might

have a significance than Their Honours gave to it, but

I was going to say something - - -

MASON CJ:	Does a way-bill issue as of course?
SIR MAURICE:	The legislation suggests that. Unfortunately,

Your Honour, I did not bring up the legislation - I left

it in my chambers.

BRENNAN J: It is a permit under the DISEASES STOCK ACT, is it

not?

SIR MAURICE:  So you say you are not carrying diseased stock;

that is the notion, and you show it to the various

stock owners, property owners, along the way so they
can say, "You are not carrying disease to me" and
regulating the use of the route for the passage of

stock.

BRENNAN J: It is a health control mechanism.

SIR MAURICE:  A health control measure. It is like, I suppose,

making you put unleaded petrol in your motor car;

analogous to that. And we would say, Your Honour, one

would get it as of right provided one had stock that

were not diseased and the object would seem to be to

protect the stock of the various owners whose land

abuts the way. Now, Your Honours, the way the

legislation in No 40 of 1987 approached this was, we

respectfully submit, consistent, and only consistent,

with the meaning we were submitting that subsection (3)

bore.

SlTS/6/RB	17	SIR M. BYERS, QC 13/5/88
Aboriginal

sure that Your Honours remember - but section 3(5) Perhaps I just might mention - I am not quite

says that in relation to schedule land - - -

BRENNAN J: What Act are we looking at?

SIR MAURICE:  I beg Your Honours' pardon. The ABORIGINAL LAND

RIGHTS (NORTHERN TERRITORY) ACT.

MASON CJ: Which number, though, in 1987?

SIR MAURICE:  Could I just go back to the one, Your Honour, in

1976 for a moment.

MASON CJ: Yes.

SIR MAURICE:  This is just to remind Your Honours of the

content. If Your Honours go to section 3(5) Your Honours

will see that it says that:

A description of land in Schedule 1 shall

be deemed not to include -

well, I suppose that means "does not include" -

any land on which there is, at the

connnencement of this section, a road

over which the public has a right of

way.

And schedule 1 land is the Aboriginal reserve land

that is described in the schedule and that is subject

to a grant under section 12. Then, Your Honours, section 11, again in the 1976 Act, section 11(3) says:

A reference in sub-section (1), (lAB) or (lAD)

to land shall be read as not including a

reference to any land on which there is a road

over which the public has a right of way.

The same expression, and section 12 - so the function

of that, Your Honours, is that the Minister may not
reconnnend the grant by the Governor-General of an

estate of that land. And 12(3) takes it out - says

any deed must exclude it. So section 3(5), section 11(3),

section 12(3) says "land" does not mean land over which

the public has a right of way. That is excluded from

land wherever it appears, including the definition of

Crown land and unalienated Crown land - just taken out.

Now, that meant, as we submitted, that, well,

when you approach the question of the Connnissioner's

jurisdiction and you find it described in reference to

Crown land an application that related only to a road

over.which the public had a right of way was clearly

not within his jurisdiction to entertain and we said

SlT5/7/RB	18	SIR M. BYERS, QC 13/5/88
Aboriginal

the application in our case being one confined

substantially - I think there might have been a

couple of square yards was not stock routes, but all

the rest were stock routes, so you had this long

snakey area that is the subject of the claim. So

tha::the submission was, and we submit supported by

the legislation on its proper interpretation, that there

was no jurisdiction - certainly no jurisdiction to

recol1llilend the grant of land over which there was a

right of way and that extended to a right of passage

even while only driving stock and even while only

driving healthy stock. Now, the way they dealt with

it in the amendment - that is in Act No 40 of 1987 in

section 7, if Your Honours have it - if Your Honours

go to (lAF), the way they amend it, they say - and

they are directing their attention to section 11 - that

is the recol1llilendation section - and they say:

Where land that is contiguous to Aboriginal land would have been the subject of a

recol1llilendation by the Minister under sub-

section (1), (lAB), (lAD) or (lAE) but for

the existence on that land of -

(a) a road over which the public has a right

of way; or

(b) a stock route (other than a stock route to

which sub-section 50(2E) applies),

then

(c) in a case where paragraph (a) applies -

if there no longer exists on that land a road

over which the public has a right of way; or

(d) in a case where paragraph (b) applies - if

the land ceases to be a stock route,

the Minister may, on the application ..... recol1llilend

to the Governor-General that a grant of an

estate in fee simple in that land -

So the assumption is that the fetter on recol1llilendation was the existence of a stock route. True it is, and

a road as well, and they picked out the expression.

What we submit, Your Honour, that that supports the

view we would suggest that section 11, which is

unamended,presently retains. And what it does do is

to enable the Minister, where the stock route ceases

to exist or the road ceases to exist, to recol1llilend.

Before that he never could. He never could. Even if the

road did cease to exist, he could not recol1llilend.

So what that did then was to, by reference to

two disparate types of public use, public dedication, to enable a recol1llilendation to be made but only if the

SlTS/8/RB	19	SIR M. BYERS, QC 13/5/88
Aboriginal

right to the public had ceased. Therefore, as one
would expect, the right of the public was not

defeated by a particular section of the community.

And the way they dealt with section 50, which is in

section 25 of Act No 40 of l987, in(2D) was to say:

Where -

(a) an application ..... has been made to a Commissioner .....

and -

the whole or part of the land to which the

application relates was reserved, dedicated

or otherwise set aside under a law ..... as a

stock route or stock reserve; and

(c) if the application was made before the

commencement of this sub-section - the

Commissioner had not ..... commenced an inquiry

the Commissioner shall not perform, or continue

to perform, a function -

so he cannot, if he has not commenced an inquiry, go
on. He is held short. Which, again, supports the

view we would submit. And, Your Honours, it does not

bear on the present case because it leaves untouched

both section 11(3) and and it leaves untouched also

what is to happen if an inquiry has begun. It does

not say, "Well, you can go ahead with - you can

continue your inquiry", it just leaves the situation

TS	in the air.
So, what we submit, Your Honours, is that the amendments to the section do not touch the problem;
they do not make it a particular problem. They leave
the problem at large. And the only exception to that,
perhaps, may be those cases to which the amendments
made to section 50 apply.

Your Honours, we therefore submit that there

being a case of clear error, that Your Honours should

grant special leave.

MASON CJ: Thank you, Sir Maurice.

The Court is of opinion that the conclusion

of the Full Court of the Federal Court is not
attended with sufficient doubt to justify the grant of
special leave to appeal. The application is therefore
refused.

SlT6/l/RB	20	13/5/88
Aboriginal

MR CHARLES:  I ask for costs, if the Court pleases.

MASON CJ: You cannot resist that, Mr Bennett; Sir Maurice?

The applications are refused with costs.

MR CHARLES: If the Court pleases.

AT 12.02PM THE MATTER WAS ADJOURNED SINE DIE

SlT6/2/RB	21	13/5/88
Aboriginal