Attorney-General for the Northern Territory of Australia v Minister for Aboriginal Affairs

[1988] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S89 of 1987

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

MINISTER FOR ABORIGINAL AFFAIRS

First Respondent

and

GEORGE BROWN JUNGARRAYI and

LAWRENCE KELLY JAKAMARRA

Second Respondents

Application for special leave to

appeal

Northern

MASON CJ

WILSON J

BRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 1988, AT 10.03 AM

Copyright in the High Court of Australia

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MR D.M.J. BENNETT, QC:  May it please the Court, I appear

for the applicant with my learned friend, MR D. BARRETT.

(instructed by the Solicitor for the Northern Territory)

MR G. DOWNES, QC: If the Court pleases, I appear with my

learned friend, MR G. FLICK, for the first respondent.

(instructed by the Australian Government Solicitor)

MR T. ROBERTSON: If the Court pleases, I appear for

George Jungarrayi and Lawrence Jakamarra who are jointly

the second respondents in the application. (instructed

by the Central Land Council)

MASON CJ:  Mr Bennett.

MR BENNETT: If Your Honour pleases. Your Honours, I hand up

an outline of the applicant's submissions.

MASON CJ: Yes, Mr Bennett?

MR BENNETT: If Your Honours please. Your Honours, the importance

of this case arises not out of any general proposition of

law but out of the specific importance because it

concerns the water supply to Tennant Creek. What has

occurred is that there has been a grant without any

excision and that grant covers land - I am sorry, not

a grant - a recommendation for a grant, without any

excision of any relevant land in the Tennant Creek

water control district. Detriment was referred to by

the Commissioner in his report and appears to have been

accepted by the Minister and the Minister has, we

submit, constructively failed to take that detriment

into account.

The importance to the future of the town of

Tennant Creek of the water supply, we would submit,

is clearly of general importance, whether one regards

that as being significant under section 35A(l) of the

JUDICIARY ACT or section 3SA(b). In addition, on the

question of importance, there are a number of other

land claims in the Northern Territory as to which similar

questions may arise. Indeed, in one of them, in the

T---i-Tree claim, the Minister has expressly stated that he is awaiting the result of these proceedings before

making his final determination. That appears in one of

the annexures to Mr Joyce's affidavit which has been

filed. It is TJ2 where, in the Minister's notice of

decision, he says he has:

deferred a decision in respect of the -

water district part of the land -

pending the outcome of -

this litigation.

WILSON J:	Mr Bennett, what is the precise responsibility of the Minister with respect to detriment? In a case
Northern

SlT2/2/PLC 2 22/4/88

where the Land Commissioner draws his attention to

possible matters of detriment, what do you say, as

a matter of law, the Minister's duty is?

MR BENNETT: It is merely, Your Honour, to take it into

account.

WILSON J: What do you mean, by "take it into account"? To

consider it?

MR BENNETT:  Yes, Your Honour, to weigh it as one of the

factors. If the Minister had said in his decision,

"I take into account the detriment to Tennant Creek

and to the Northern Territory in relation to water

supply but bearing in mind the importance of making

a grant to these claimants, I consider that their

interests override that" I would have had nothing that

I could have said. But what the Minister has done is

to give four reasons why he has made the grant

notwithstanding and none of those four, we would
submit, stand up to analysis, either because they are
relevant considerations or because they contain errors

of law or because there was no evidence on which he

could be satisfied. And what Mr Justice Neaves, the
dissenting judge below, held - - -

WILSON J: But he does not have to be satisfied that the detriment can be removed as long as he considers

it.

MR BENNETT:  Yes, Your Honour. But if he considers it by

saying, "Notwithstanding detriment, I propose to make a grant because I regard detriment as being

sufficiently reduced or vitiated by these factors",

if those factors go because they are errors of law,

irrelevant considerations or matters of that sort,

then, we submit, there is a constructive failure to
take detriment into account because the duty we would
otherwise have had is - I mean, to take the extreme

case, if he commits a simple error of law and says,

"That solves the detriment issue", we would submit

that that vitiates the finding in relation to that.

Whether one characterizes that as being then error

of law or failure to give proper weight to a relevant

consideration perhaps does not matter very much. That

is a matter of which pigeon-hole one slots it into.

But we would submit that that is what has occurred

here.

There were four respects in which,we submit,

the Minister erred and they are the sole four matters

which he stated that he took into account in relation

to detriment. The first was - and this is on page 3

of my outline, the last paragraph - the possibility

of future amendment of the LAND RIGHTS ACT. Now, we

submit that it is a clear principle of law that one

may not take into account possible future changes to

the law in making this sort of decision. Decision

makers and courts must apply the law as it is and, in

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Northern

fact, the amendments which have been made, for a number

of reasons which I need not trouble Your Honours with

on this application, do not assist. One of the amendments

had not been made at the time of the proceedings although

it has since been made but has still not been proclaimed

and that amendment, we would be submitting, does not

solve the problem. The other amendment deals with one aspect of the problem but would not be of any value in this case; it merely authorizes an agreement prior to the making of a grant but, of course, in this case

there was not one. So, we submit, first the Minister

has erred by taking into account future legislation.

Secondly, we say he erred, as a matter of law in holding

that existing legislation was sufficient. There were

a number of problems in relation to the construction of

facilities for water supply on Aboriginal land. The

major problem is that there is a prohibition which prevents

the Territory acquiring Aboriginal land for Territory

purposes and, indeed, the Commonwealth, under the

LANDS ACQUISITION ACT, cannot acquire Aboriginal land

for Territory purposes, so there can be no actual

acquisition.

Your Honours will recall in DALZIEL's case it

was held that if one acquires the use of land by

building extensive structures on it and thereby

occupying it under a right or eminent domain,

that, in effect, is regarded as an acquisition.	So
the ABORIGINAL LAND RIGHTS ACT does not enable

that to take place. That problem is referred to

Mr Justice Toohey in''Seven Years On". It is referred

to in a number of the reports and we would submit

the Minister could not have been satisfied in relation to

that matter.

The third matter is that satisfactory arrangements could be made between the Central Land Council and the

Northern Territory. The short answer to that is that

no arrangement can be made prior to a grant which
would bind the traditional owners or the Land Council

once the grant is made. And that proposition is clearly

referred to in a number of plaees and we would submit	that to the extent that the contrary is suggested in
the Minister's letters, there is an error of law.

BRENNAN J: Is that a conveyancing problem, _that you say

it cannot be done?

MR BENNETT: Well, the real problem, Your Honour, is that the

entity which has to regrant does not exist because

under the Act one simultaneously creates the entity

and makes the grant to it when a grant is made. Therefore,

prior to that, there is no way that entity can agree

to grant it back. It simply doesrot exist.

BRENNAN J: That is the land trust you are speaking of?

MR BENNETT:  Yes, Your Honour.

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Northern

WILSON J:  But did not the Minister at one point, at any

rate, in the correspondence, contemplate the entry

into an agreement immediately the grant was made?

MR BENNETT:  Yes, Your Honour, he did.

WILSON J: You still say there was error of law?

MR BENNETT: Yes, Your Honour. And, in any event, as

Mr Justice Neaves pointed out, there were a number of

difficulties with that. First of all, what was

offered to us -as to which there was evidence - did
not solve the problem, it merely affirmed the existing
state of the law and did not give us the right that

we would need under the CONTROL OF WATERS ACT to

be able to do what we needed to do. And secondly - - -

BRENNAN J: I do not quite follow that, Mr Bennett. You say

did not give you the right under the CONTROL OF WATERS

ACT. Do you mean - - -?

MR BENNETT:  Your Honour, what was - if I can take Your Honours

to that. If Your Honours go first to page 110 of

the application book, line 28, Your Honours see in

paragraph 126 of Mr Justice Toohey's report there is a

discussion of water rights and the final sentence is

that the Act:

would not authorise the construction of

permanent facilities to draw water and

pipe it to places outside the claim area.

Now, on page 115 -

WILSON J: The CONTROL OF WATERS ACT is an Act of the Northern

Territory, is it?

MR BENNETT: Yes, Your Honour.

BRENNAN J: And is the ABORIGINAL LAND ACT to which His Honour

is referring there also an Act of the Northern Territory?

MR BENNETT:  No, Your Honour, that is a Commonwealth - the

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT is a

Commonwealth Act.

BRENNAN J:  I appreciate that but His Honour, at page 110, is

speaking of "Section 6 of the ABORIGINAL LAND ACT".	Is
that a shorthand form?

MR BENNETT: That is a Northern Territory Act. Yes, that is a

separate Act.

BRENNAN J: Well, then, the remedy lies within the power of the

Northern Territory.

MR BENNETT:  No, Your Honour. It is prohibited by the LAND RIGHTS

ACT from making any law which would result in the

acquisition of land.

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Northern

BRENNAN J:  I appreciate that but, as I understand it, you

say that there is a difficult here with respect to the

construction of permanent facilities.

MR BENNETT:  Yes, Your Honour.

BRENNAN J: Where does that difficulty arise from?

MR BRENNAN:  It arises from the provision of the LAND RIGHTS

ACT which prohibits an acquisition of Aboriginal land.

MASON CJ: What section is it, Mr Bennett?

MR BENNETT: Section 67, Your Honour.

BRENNAN J: Is there anything in the LAND RIGHTS ACT which

prevents the according contractually of the right to

draw water and pipe it to places outside the claim area?

MR BENNETT:  No, Your Honour.

BRENNAN J: Then what would there be to prevent, as a matter of

fact and practice, an arrangement being made prior to

the grant being made but ready for execution on the
grant being made, the execution of the right being
effected by those who are intended to be appointed as
the trustees?

MR BENNETT: Two things, Your Honour: first, that what they were in fact willing to do did not go far enough and,

secondly, that in any event they could not bind the

land trust in that way to proceed with that matter
immediately afterwards, prior to the grant.

BRENNAN J: Well, I appreciate the second which seems to me to be, perhaps so far as the Minister is concerned,

of more a technical than a realistic problem. At least

the Minister may be entitled to take that view. So

far as the former of those propositions are concerned,

why is the Minister not entitled to take the view

"this can be negotiated, it ought to be negotiated and

it can be given affect to"? Your proposition is

that the Minister cannot say because the consultation

just did not lead to that result?

MR BENNETT: Yes, Your Honour, and there was no evidence -

as Mr Justice Neaves put it, there was no evidence

on which he could be satisfied that it would lead to

that result. So, he could not simply say, "I assume
that it could be successfully negotiated" when there

was no evidence before him the people were willing to

negotiate or that there was any desire on the part of

anyone to achieve the necessary result. It was simply

a conclusion in the air, in other words.

WILSON J:  When you speak of the willingness of people to negotiate,

the only party unwilling, as I read the papers, was your

client.

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Northern

1'1R. BENNETT:  No, Your Honour, with respect. There was no

evidence of willingness to go beyond a statement that

the - it is page 114.

WILSON J: These were the negotiations the Minister was anxious

should be undertaken between the Central Land Council,

was it, and the Government?

1'1R. BENNETT:  Yes. If Your Honour goes to page 115 Your Honour

will see what the Central Land Council was prepared to

offer and that was:

The CONTROL OF WATERS ACT ..... and regulations

..... shall continue to apply to the said

lands concurrently with the LAND RIGHTS ACT

provided that the Northern Territory

exercises its powers ..... to preserve the reasonable

water resource requirements of the traditional

owners -

there is no problem with that -

and provided nothing herein permits any

resumption or acquisition of an interest in

the said lands.

And that, we would submit, prevents the very thing we

need to do.

BRENNAN J: What?

1'1R. BENNETT:  Which is building permanent facilities.

BRENNAN J:  That is talking of resumption or acquisition.

1'1R. BENNETT: Well, that is an acquisition under DALZIEL's case

which would be prohibited by the exclusion.

BRENNAN J: That is a compulsory acquisition.

1'1R. BENNETT:  No, Your Honour. Yes, but we would submit that

it would be - to construct permanent facilities would

constitute an acquisition within the meaning of

this exclusion.

BRENNAN J: Even if done consensually?

1'1R. BENNETT:  Yes, Your Honour. Your Honour, the agreement

does not expressly permit that type of acquisition. It

simply says the CONTROL OF WATERS ACT shall apply. He

talks about us exercising our powers and then says that

we cannot exercise our powers in such a way as amount to

an acquisition and under DALZIEL's case that is the very

thing we need to do.

BRENNAN J:  DALZIEL was a case of acquisition under the compulsory

powers of the Connnonwealth, was it not?

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Northern

:MR BENNETT:  Yes, Your Honour, it was.

Your Honour, the fourth of the matters was the suggestion that the Territory Government failed to

enter into negotiations with the Land Council. There

is an issue of fact which depends on the reading of
correspondence,which I will not take Your Honours to

on this application, as to whether or not there was

such a failure. But even if there was, we would submit

that is hardly a basis, when one is dealing with questions

of the public interest of the type involved in this case,

to say, "Well, one, in effect, punishes the people of

Tennant Creek because the Territory Government has failed

in the Commonwealth's view satisfactorily to negotiate".

And in my respectful submission, for that reason, that

is an irrelevant consideration.

Now, what we then say is this: if any one of those submissions is correct, the Minister's decision is

vitiated because he has either taken into account

irrelevant considerations or committed an error of law.

But if one has all four, of course, one has the additional

matter that Mr Justice Neaves refers to which is the

constructive failure to take detriment into account

at all because he has referred to it, acknowledged it is

something that must be taken into account and then said,

"But for these four reasons, it is outweighed".

MASON CJ:  I do not quite follow that proposition, Mr Bennett.

It is obvious that detriment was to the forefront of the decision-making process otherwise the decision

maker would not have applied his mind to these possible

solutions, these possible answers to it.

:MR BENNETT:  Yes.

MASON CJ: So, how can one say, in those circumstances, that

he gave no place to detriment? I can understand the

proposition that he made an error in evaluating the
possible solutions but how does one convert the making

of an error in evaluating the possible solutions into

a failure to take account of detriment when he was

q.ensidering the solutions as an answer to detriment?

:MR BENNETT:  Your Honour, it depends on how the error occurs.

If a person says, "I must take into account factor X.

In weighing factor XI give it reduced weight or no

weight because of factor Y. If factor Y is an error of

law or an irrelevant consideration then, in my respectful

submission, one is entitled to say that he has failed in

his duty to consider factor X". I do not need to go that

far in this case because it is sufficient if I can show

that he has applied, in the decision-making process,

an error of law or an irrelevant consideration. But

here it goes further, we say, because each of the

four grounds is vitiated and therefore nothing is left.

What is left is a failure to weigh the detriment properly

so called against the factors in favour of making a grant.

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MASON CJ:	Yes.	On that view you have got to establish that

no weight at all was given to detriment; not enough

to say that the Minister gave insufficient weight

to detriment?

MR BENNETT:  Yes, Your Honour. But it is important to note,

Your Honour, that the Minister never says that "I weigh

this detriment against the benefit or I weigh what is

left of this detriment against the benefit and I come
to a conclusion". What he always says is, "This is the
detriment alleged; here are the reasons why - here

are the answers to it", in effect, and he sets that out

in the two letters which are in the judgment.	I will not
take Your Honours to it.

BRENNAN J:	Mr Bennett, does the proposition go to this extent, that if a decision maker,who is bound to take a factor
into account in exercising a discretionary power, makes an error of law in evaluating the weight of the factor,
then the decision is void?
MR BENNETT:	Yes, Your Honour.

BRENNAN J: Is there any case which goes to that extent?

T2 MR BENNETT: Well, Your Honour, it follows, we would submit,

from the construction of section 5 of the JUDICIAL REVIEW

legislation because there is an error of law and once it is shown that the error of law affects the result,

one does not need to go any further. If- part of the

process, one of the steps in the process involves an

error of law - - -

BRENNAN J: Well, the problem may be - and I leave out of

account now the final step in the reasoning of

Justice Neaves - that the error of law does not affect the result in the sense that let it be assumed that -

to take this case - there are four grounds that he

thinks will relieve against any detriment. Three of

them he makes an error of law; in the fourth, he does

not.	Now, it may be that the fourth would have been
sufficient in any case, in his view, to justify the
decision.	How can one say then that the error of law

is causative of the decision?

MR BENNETT:  We would submit the onus is the other way.

BRENNAN J: Yes.

MR BENNETT:  What one would do in that situation, unless the

respondent party could show that the fourth one would
have been sufficient, for example, if the Minister

said "Any one of these four would be sufficient in my

view", then one would have to destroy all four to

succeed in a challenge. If he did not say that, one

would have to send the matter back to the Minister with,

in effect, the direction, "You can't look at 1, 2 and 3.

You've now got to decide if 4 is sufficient."

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Northern

BRENNAN J: Well, that is treating the exercise of a discretionary

power as an exercise of judicial power of a statement

of reasons, is it not?

MR BENNETT: Well, Your Honour, one has to look somewhere to

find the error. I suppose one could prove it

aliunde but in the normal case that would be the way one

would prove it, where the reasons are there. And, of

course, that is one of the reasons section 13 of the

Act provides a procedure under which one can obtain reasons

where they are not given, so that one can indulge in

that very sort of process.

BRENNAN J: Well, in some such process.

MR BENNETT:  Yes. I am conscious of what Your Honour said in

OSMOND's case about reasons but nevertheless, in my

submission, under the JUDICIAL REVIEW legislation,

that is not an incorrect approach to adopt.

I am reminded that in paragraphs 207 and 208 of

"Seven Years On" there is a more detailed discussion of

the problems arising in relation to water.

We had prepared for Your Honours a volume which

sets out the relevant parts of "Seven Years On" and the

whole of Mr Joyce's affidavit in convenient form.	I have
not handed that up but perhaps I should hand that to Your Honours now.

But, Your Honours, it is quite clear, we would

submit, that the problem of water in relation to

Aboriginal land is ·a serious one. It is one which has

agitated successive conn:nissioners in numerous report

and in "Seven Years On". The legislation is

unsatisfactory in relation to it and we would submit

that the issue is one of great public importance, not

only to Tennant Creek but also, as I have said, in

relation to certain other land claims and it is not an

appeal which would involve any detailed analysis of

facts. The evidence is all documentary, and it is in

a fairly short compass and, indeed, there would be little

reason for the appeal book to contain very much more

than the application book contains, apart from a

few formal documents because correspondence upon which

we rely is all set out in the judgments and it is really

a matter of construing that in the light of the

arguments I have put. So, we would submit it is an

important matter; it certainly would not take more

than a day to argue and, in my respectful

submission, there are serious grounds for doubting the

decision below.

WILSON J:  Mr Bennett, before you sit down can I just seek

a little more assistance from you? The critical

question is how you characterize these four matters

that you referred to. Are they really questions of law
involving errors in the conclusion or the weight given

to them by the Minister or are they simply matters ~hich

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the Minister, in the course of his considering detriment,

apprehended as means to assuage the detriment following

the grant? Now, if it was the latter, whether some or
all of them are unattainable would not falsify the

exercise of discretion, would it?

MR BENNETT:  We would submit it would, Your Honour. We put

it on the first basis but if the Court were against me

on that, on the second basis we would submit

that it would vitiate it because if one says, "I take

into account in making my decision five factors in

favour and five factors against and I find that the factors
in favour outweigh the factors against", if one of the

factors against is a total error of law or an

irrelevant consideration, that the applicant has green

eyes or one of the traditional irrelevant considerations

then, in my respectful submission, an applicant is entitled

to say, "One of the grounds in section 5 is made out",
and unless the decision maker has said that he would

have reached the same decision notwithstanding the

elimination of that factor it must go back to him to be

redetermined or unless the court can reach the

conclusion that he would have come to the same

result notwithstanding that factor. But unless one can

do that the discretion must have miscarried and it has

miscarried because of the error of law or irrelevant

consideration or whatever it is.

In relation to each of the four, we characterize

them this way:  the first one - this is the bottom of

page 3 of my submissions - is, we submit, an irrelevant

consideration and it is an error of law to take it into

account - that is the future legislation. (ii) is an

error of law; (iii) is an error of law because of the -

it is, in part, an error of law and, in part, a no-evidence

point; and (iv) is, we would submit, an irrelevant

consideration and ultimately we would probably submit,

on the documents, that one would .not come to that

conclusion but I do not need to do that. It is simply

an irrelevant consideration.

Your Honour Mr Justice Wilson asked me about at page 129 Mr Justice Neaves referred to the factor which where he says at line 15:

The evidence does not establish that this is a

case in which the first respondent formed a

different view from either Toohey J. or the

Northern Territory as to the seriousness of

the detriment that would attend the grants in

the absence of reasonably adequate protection

for the present and future requirements of the

township of Tennant Creek. Nor does it seem

to me that this is a case in which, weighing

up the relevant considerations, the first

respondent gave greater weight to one factor

than other minds might do. That would, of

course, be a matter for the first respondent

S1T3/3/PLC	11
Northern

and would provide no basis for the Court's

intervention. It is a matter for the first

respondent to determine how those conflicting

interests are to be resolved. But, in my
opinion, the first respondent has not

properly assayed the task committed to him -

for the reasons which were given earlier.	May it
please the Court.

MASON CJ: Thank you. Yes, Mr Downes?

MR DOWNES:  Your Honour, we oppose the grant of leave on the

following grounds which I will enumerate and then

return to, if I may. The first ground is that the

judgments of the majority below were manifestly

correct or certainly not attended with sufficient

doubt to justify the grant of leave by this Court. Secondly, Your Honours, we say that no question of

law arises in this case, let alone a question of

general importance. Thirdly, we say to the extent

to which, I think, Mr Bennett recognizes that and seeks

to place the argument for the grant of leave not upon
the importance of questions of law but on the importance
of the matter, so to speak, to the peoples of the
Territory generally and the people of Tennant Creek
in particular that if leave is granted, we say, that
the decision of this Court will not resolve any of the

questions of construction which give rise to the

problems, that is, questions of construction of the

ABORIGINAL LANDS ACT and of the Northern Territory CONTROL OF WATERS ACT. Next, Your Honours, we say

that whatever happens, if leave is granted, the Court

will not be determining anything to do with the water

needs of the people of the Northern Territory or how

they should be satisfied and, finally, we say that

this case will not assist in connection with other

land grant applications of the kind that Mr Bennett

initially referred to, either because they will be

determined upon their own merits or because amendments

of the legislation in the interim mean that they do not

~epend upon the result in this case.

Your Honours, so far as the first of our grounds

is concerned, namely, that the judgment below is

correct, it is our respectful submission that at the

end of the day, really, all grounds relied upon come

back to the question of detriment and, as I think one

of Your Honours said, detriment was undoubtedly at

the forefront of the mind of the Minister at all

relevant times. I do not want to take Your Honours

to the references but I was able - - -

MASON CJ: Well, you do not have to. We are aware of them.

MR DOWNES:  Yes. I was able, readily, to isolate eight references

in both Mr Justice Neaves' judgment and,not even

overlapping, another eight in the majority judgement.

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MASON CJ:  I think you are pushing at an open door in relation

to that. That was not the way Mr Bennett put his

argument. He was saying there was a constructive failure

to take into account detriment.

MR DOWNES:  Yes.

MASON CJ: You need to meet that if you are going to

assist us.

MR DOWNES:  Yes. Well, Your Honour, can I meet that by

taking Your Honours to the ultimate letter which, as

Your Honours will have noticed, is really no more

than a concluding letter in a line of correspondence.

I should tell Your Honours this - Your Honours

are probably aware of the fact - but, underscore, so

to speak, the fact that there never was any request

for reasons under section 13 and, Your Honours, in

the letter at page 12, which is the letter primarily relied upon, are not looking at statement of reasons

under section 13 but merely the last in a long line

of correspondence. And I would wish to take Your Honours,

if I may, to the middle long paragraph on page 12

which I think is at the centre of the case, and to read it to Your Honours. There the Minister says:

I have noted the Territory Government's

continued support for the grant of the

Warlmanpa and Kaytej land claims with

exception of the area designated as a

Water Control District under the CONTROL

OF WATERS ACT. As you know legislation

is proposed which will substantially

accommodate the Northern Territory's

position concerning the operation of the

CONTROL OF WATERS ACT, and concerning future

claims on designated public purpose lands.

I am, however -

and this is, I think, the most important part of the

reasoning as it appears from this letter -

satisfied that any potential detriment

for the Northern Territory Government

arising from a grant of all of the land

in the claim area can be satisfactorily

mitigated through -

1 -

the existing provisions of ·the LAND RIGHTS

ACT and -

2 -

co-operation with the Central Land Council.

Now, the Minister is there recognizing the

detriment issue an4 as at the date of the letter,

taking into account what are two means which, together

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or separately, he takes the view, will satisfactorily

mitigate the detriment. But what the Minister is

doing, we would respectfully submit, is not unlike

that which Mr Bennett said if he had done his

decision would be protected. He recognizes the detriment

and he considers that in so far as that detriment has

such importance - evaluating it-to stand in the wa~

that he may have considered that its importance was

not great in the circumstances, he comes to the

conclusion that that detriment, after a valuation by

him, can be satisfactorily mitigated by two matters:

the existing provisions and co-operation.

Your Honours, that aspect of the decision-making

process of the Minister, so far as I am aware, has not

previously been sought to be challenged. I do not

understand that either before Mr Justice Wilcox,

where a particular range of grounds were relied upon, and before the Full Court, where a slightly differen't

range of grounds were relied upon - I do not understand

that before this Court, notwithstanding the grounds
that were relied upon below, that before the matters

come from this Court, that any argument has been raised that

in relying upon existing provisions and relying upon

possible co-operation in the future - I do not

understand, as I have been putting to Your Honours, that

that as a ground of error has previously been raised.

Then if I may go on: he then refers to agreement and

then concludes -and I would respectfully submit this

final sentence is almost directly applicable to the

concession made by Mr Bennett:

I do not regard the seriousness of potential

detriment to be such to warrant holding up

the grant in the absence of such an

agreement.

Now, that,	I would submit, is more or less exactly
what Mr Bennett said:	if the Minister had acted upon,

that the decision would be incapable of challenge.

MASON CJ: What follows seems to be by way of either exemplification

O"f the two matters earlier stated or drawing the attention of the Minister to matters that Mr Holding considered

relevant, having regard to the history of the matter.

MR DOWNES:  When Your Honour says, "what follows", does

Your Honour mean in the subsequent paragraphs?

MASON CJ: Yes, I was thinking particularly of the subsequent

paragraph.

MR DOWNES: Well, Your Honour, as I think judges below have all

held, one has to see this correspondence in the
totality of it. For example, His Honour Mr Justice Wilcox,

I think, one could say, ultimately came to the view that really where these two parties were at issue was on a

proposition that had never been agitated before

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His Honour Mr Justice Toohey namely, on the part of

the Northern Territory Government that what are

described as "public purposes land" should be exempted

from grants. In truth, a full reading of the

correspondence shows that whilst there are other

matters adverted to, the Northern Territory returns
again and again to that proposition and I think that

some of the material in the subsequent part of the

letter, which did give rise to, for example, an

argument before Mr Justice Wilcox that has not been

persisted in in subsequent appeals - but one has to

read the correspondence, not as a section 13 statement

Your Honour, I take Your Honour's point but I just	but as just a final letter. So that, in answer to
add that qualification,if I may.

Now, Your Honours, could I just take Your Honours

very briefly - and it appears from His Honour

Mr Justice Toohey's reasoning as Land Commissioner in

the judgment of Mr Justice Neaves at page 110, to

what, in fact, it was that Mr Justice Toohey had said. It

appears at the very bottom about line 53 of page 110,

about the detriment:

In these circumstances, it must be a matter

for the Minister to consider whether he is

satisfied that there should be a grant of the

land recommended, at any rate of the north-eastern

portion•, unless satisfactory arrangements can be

made to ensure the supply of water -

so His Honour Mr Justice Toohey was recognizing - and

this was what was before one of the things that

presumably was at least available to the Minister:

firstly, there was a matter for the Minister to decide

whether the detriment affected the grant at all and

secondly, whether, if he did, it could be resolved

by what are there described as "arrangements", not

"agreements" or something necessarily binding, but

"arrangements" and - - -

MASON CJ: And your point is that the Minister thought that

satisfactory arrangements could be made.

MR DOWNES: Yes, Your Honour. And contrary to submissions

Mr Bennett put, he did have material before him, one

assumes, because he had said on previous occasions -

and I think this appears at page 112, lines 19 and 25 -

it is apparent that he had reason to believe, and

in the absence of the plaintiff exploring,by section 13
reasons or by some other means, exactly what was

before the Minister, it is apparent that the Minister

had reason to believe that the local owners were anxious

to come to some arrangement which would be satisfactory.

And so far as the document that my learned friend,

Mr Bennett, attacks. is concerned, that was so to speak,

as I recollect it, a kind of gratuitous offer of an

agreement made on the part of the Land Council which

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received no response from the Territory. The Territory

never took the approach of saying, "Well, we'd be happy

with the document amended in the following way" and,

in truth, for the reason that there was this undercurrent

of attitude"public purpose lands ought to be totally

excluded from land grants".

MASON CJ:  Mr Downes, I do not think we need trouble you further.

MR DOWNES: If Your Honour pleases.

MASON CJ: And that means we need not call on Mr Robertson

either.

MR ROBERTSON: If Your Honour pleases.

MASON CJ:  Mr Bennett.

MR BENNETT: If Your Honour pleases. In relation to the letter

at page 12 we simply submit that the passage my learned

friend read identifies fairly clearly categories (i), (ii)

and (iii) of my four headings of the Minister's errors.

(i) is at line 27; (ii) is at line 33; and (iii) is at

line 35, and the statement at the end of that paragraph,

"I do not regard the seriousness" is clearly in the light

of those three matters.

So far as my learned friend's second point is

concerned, the question of the arrangements that could
be put into train, might I remind Your Honours of two

passages of Mr Justice Neaves' judgment which explain

that. The first is page 128, line 10, at the end of

the line:

Nor, was there material before the first

respondent upon which he could be satisfied

that arrangements ensuring the future water

supply ..... could be put in place. Apart from

the suggested covenants to which reference has

been made, covenants which on any view were

entirely inappropriate and insufficient,

there was no relevant material. It has not

been shown that the first respondent had more

than a hope or expectation that satisfactory

arrangements could be put in place. He had

betore him no definitive proposals as to the

sutficiency of which he could form an opinion.

And on page 124 he explains, commencing at line 13,

the reasons for the difficulty in negotiating or in

reaching any conclusion. He says the:

government, however, took the view that no

satisfactory arrangements could be made

and that legislation on the part of the
Commonwealth was necessary if the future

water supply for the township were to be

protected. In the light of the shortcomings

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of the existing legislation adverted to

by Toohey J. and the form of the covenants

proposed by the Central Land Council, this
can hardly be said to have been an
unreasonable approach. There is no

evidence before the Court to establish that

the first respondent ..... had before him

material upon which he could be satisfied

that satisfactory arrangements could be

negotiated or what the nature of those

arrangements would be.

MASON CJ: Why is not an expectation good enough? If you

assume that the Minister had a genuine expectation

that satisfactory arrangements could be made, why

would that not be good enough?

MR BENNETT:  Because he has to have some basis for having

that, Your Honour, not merely the expectation that 11 I
think the people are probably going to be reasonable

and there's probably going to be a sensible agreement

reached if they negotiate". That, we would submit, is

insufficient. He must act on something more than that.

WILSON J: But he is not obliged to satisfy himself that there

would be no detriment.

MR BENNETT:  No, Your Honour, no, he is not.

WILSON J: And I notice Mr Justice Neaves uses the word

"satisfied". There was no material before him upon which

he could be satisfied that arrangements ensuring the

future water supply could be put in place.	It was mt
necessary for him to be satisfied.

MR BENNETT:  No, it was not, Your Honour, but the word

"satisfied", of course, comes from the Minister's

own statement. He says, "I am satisfied that 11 , and

in attacking that what His Honour says is that,

well, he could not have been satisfied on what was

before him. At most, he could have had an expectation.

But, Your Honours, the ultimate submission is,

if any of the four are established, the exercise of

discretion is vitiated because it is based, in part,

on an error of law or an irrelevant consideration

and while I appreciate the way in which my learned

friend has dealt with is the strongest of the four,

and against me, it is my submission that I would

succeed on that, but even if I would not, the others

are sufficient to justify the finding of an error in

the reasoning. May it please the Court.

MASON CJ: In this matter the Court has come to the conclusion that the decision 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.

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MR DOWNES:  We would ask for costs, Your Honour.

MASON CJ: You cannot resist it, Mr Bennett. With costs.

It is refused with costs.

AT 10.49 AM THE MATTER WAS ADJOURNED SINE DIE

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