Attorney-General for the Northern Territory of Australia v Olney

[1989] HCATrans 208

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S82 of 1989

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE HONOURABLE HOWARD WILLIA.M OLNEY,

ABORIGINAL LAND COMMISSIONER

First Respondent

and

THE NORTHERN LAND COUNCIL

Second Resryondent

Application for snecial leave to

ap!)eal

MASON CJ
GAUDRON J

McHUGH J

§_1Tl4/l/PLC 1 15/9/89

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 1989, AT 3.12 PM

Copyright in the High Court of Australia

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

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

(instructed by Freehill, Hollingdale & Page)

MR F.X. COSTIGANd ~C:  If the Court pleases, I appear with my

learne riend, MR K.R. HOWIE, for the second

respondent. (instructed by Pigott Stinson)

MR BENNETT:	Your Honours, I hand up an outline of submissions.
MASON CJ:	Thank you. There is something to be said for lodging

detailed submissions of this kind in advance of the

actual hearing of the special leave application,

Mr Bennett, so that the Court can, as it were, have time

to assimilate them under consideration or

in an atmosphere of consideration before the

conmJ.encement of oral submissions.

MR BENNETT:	Yes.
MASON CJ:	I am not criticising you for handing them up but I

am rather indicating that they, in effect, supplement

the basis of the special leave application as stated

in the affidavit in support of the application.

MR BENNETT:  Yes. I am indebted to Your Honour. I had assumed

that would not be permissible but I will certainly

bear that in mind in future.

Your Honours will see from

the index to submissions that I propvse to deal with

the application, really, in four sections; the first

very briefly, and I will not reread what appears in

the document, to remind Your Honours of what I have
called the "non-legal importance" of the case;
secondly, to take Your Honours through the legal

questions which arise in the case and show Your Honours

how they arise, their importance and where, we submit,

the Full Court went wrong in relation to them;
thirdly, I have to face the problem arising out

of a statement in the judgment of the ConmJ.issioner

as to the sole reason of the regulations and I will	seek to demonstrate that that finding is really one
which subsumes within it a rejection of the other
propositions of law and what it is really saying is
"Well, for these reasons of law I reject the others
and what is left is the sole reason". That is the
construction I will be seeking to put on that and I
will show Your Honours how, looked at as a whole,
the judgment must have that meaning. Finally, we raise a number of issues by way of correctness of
KENBI No 1 , first as to direct correctness and,
secondly, as to qualifications to it which, of course, are separate and distinct from the other matters in the appeal. They would require leave to be raised in
any event. If Your Honours were with me on the balance
but against me on that it would, of course, be open to Your Honours simply not to grant that leave but to

SlT14/2/PLC 2 15/9/89

grant leave generally. But there are a number of

matters which I should remind Your Honours of in

that section of my submissions.

The non-legal importance of the matter arises in two ways: the first is, as we have submitted in

the first paragraph, that so far as we can ascertain

this is the first case in Australia or the Commonwealth

in which there has actually been an overturning of a
delegated legislative power - that is as opposed to

an executive action - by the Queen's representative on the advice of the Executive Council, a fortiori,

of course, when it is regulations which are subsequently

laid before Parliament, on the basis of improper

purpose or absence of proper purpose.

We submit that it is a matter of importance to the Government and the people of the Northern Territory

that delegated legislation of a public nature, enacted

by the Queen's representative, on the advice of the

Executive Council, has been overturned on that basis.

Secondly, and I do not propose to reread to

Your Honours the next two and a quarter pages, but we have set out on pages 2 to 4 a number of matters

culled from the evidence and the affidavit which

demonstrate the importance to the Northern Territory

of the issue in this case. Substantially, the issue concerns the Cox Peninsula. The area is, of course, a larger area but the bulk of the rest of the

area is either freehold or leasehold - not all of it -

and really - - -

MASON CJ: Yes, well that really covers potential for future development and I think we are all seized of that,

Mr Bennett.

MR BENNETT:  Yes, if Your Honour pleases. And we remind

Your Honours of the figures in subparagraph vi on page 3.

Now, may I turn to the legal matters? The first

issue - and I ask Your Honours if Your Honours are

prepared to do it in this way, to put out of

Your Honours' minds for the moment the sole purpose

finding while I go through these submissions because

that, really, is a separate issue which I have to

address. First, on the question of timing: the

question here is a very simple one. If one makes a

decision to exercise a statutory power, may one

implement that decision by exercising it earlier

than would have been the case but for and in order
to prevent an event which would frustrate or impede

the decision?

SlT14/3/PLC 3 15/9/89

Now, LYNCH's case is a decision which went to the Full Court of New South Wales. It was a case

where a council acquired land as soon as it heard

that there was to be a building application - I

will not need to take Your Honours to any part of it -

to build a very expensive structure on the land -

and the case for the council was it intended in the

long term to use this land for a particular council

institution but it had acted long before it would

normally have acted because if it held back there

would be development on the land which would make it
much more expensive to acquire. It was said, "That's

an improper purpose, you haven't got the right to

acquire land to prevent the construction of a building.",

and the court held that it was a proper purpose,

it was proper to acquire in advance of normal

requirements in order to facilitate the proper

purpose of acquisition.

There are similar references in this Court in a

case called ESTATES DEVELOPMENT V STATE OF WESTERN

AUSTRALIA. I will not take Your Honours to that but

the passage I have cited, we would submit, amply

demonstrates that proposition.

Now, the way that arose, if Your Honours go to

page 48, in the judgment of the Cormnissioner, at

line 44, Your Honours will see an answer put by

Mr Perron:

No. The object of the exercise was two-fold.

The principle object of declaring planning

boundaries around Darwin was to enable a plan

for rural Darwin to be brought into effect.

The suggestion that a land claim may be lodged over Cox Peninsula at any time made

the declaration of such boundaries more

urgent.

And that, in a sense, encapsulated what was a large

part of the case put by the Territory.

On page 49, line 45, the same answer is given.

And in the Full Court that is referred to and appears to be accepted in two places; the first is a long

answer but at page 84, at lines 44 to 50, in the middle

of that summary, what I have referred to is described

and it is described again at page 85, line 14.

Now, Mr Perren's evidence was accepted. What His Honour

said about Mr Perren's evidence appears at page 42

and at line 25 His Honour said:

I am able to take judicial knowledge

of the fact that Mr Perron is at present

Chief Minister of the Northern Territory,

and that he has had considerable political

experience.

S1Tl4/4/PLC	4	15/9/89
NLC

One assumes that is not a finding

to his discredit.

Having heard him testify, my impression

is that he is a man who is very knowledgeable

about the affairs of the Northern Territory.

In giving his evidence he was at all times

straight-forward and made no attempt to

avoid difficult questions. He did not hesitate

to give answers which on their face may have

been thought to be contrary to the interest

he represented.

And that, we submit, is an acceptance of his evidence.

It is accepted by the Full Court, and by us, and by

everyone at this stage of the litigation that it is

his purposes which are relevant for the purpose of

applying the test.

Now, the second aspect concerns what we have

called"specificity" and the question there is should

the permitted purpose under a statute be regarded as

the overall purpose of that statute, or is it

confined to the detailed methods of implementation

provided for in the statute? This is, we would submit,

the most important of the questions of law arising in
the case. If one is judging it on the traditional
test of how important and how general is the application
of the question of law, this is the major one. It

arose this way: under the TOWN PLANNING ACT there

was a provision under which the relevant regulation

was made under which the governor could declare that

land was to be treated as if it was land in a town

by simply enacting regulations to that effect. The

effect of that under the Act was very limited. It meant

one could ask the town planning board to prepare a

planning scheme; there were certain controls if one

did have the planning scheme, and there were a number

of small detailed matters like that.

What we submitted was that one was entitled to

make a declaration if it was within the general purpose

of the statute which was town planning and, on one view,

planning in a slightly more - - -

GAUDRON J: But does that not run two ideas together if it was

within the general purpose? If its purpose could be

given the same description as the purpose of the

statute, is that not what you have to say?

MR BENNETT:  Not quite, Your Honour. The way the test was

put - - -

GAUDRON J: Otherwise, you assert the question in issue, I think.

MR BENNETT:  Your Honour, the question really is, is the

purpose those three specific activities or is the
purpose town planning or planning generally? That is

the issue thrown up by this question. Does one look

S1Tl4/5/PLC 5 15/9/89

at the broad purpose of the statute or does one look

at the specific manner of implementation?

If Your Honours go to page 103 Your Honours see

the statement of the test by Lord Pearce in

McELDOWNEY V FORDE at line 35:

Even where such wide words are used as

'may make such regulations as he may

think fit,' the subjective power is
limited to such things as the general

context of the statute shows to be its

objectives.

Now, we submit that does not involve saying, "Well,

where's your plan to have a planning scheme?" because
what was really said here was, as I will show

Your Honours, "Look, you didn't have in your mind

enacting a planning scheme under this legislation
innnediately or even in the more distant future pursuant

to this proclamation". We said, "Well, we had purposes

which were planning purposes in mind" and the decision
was, "That is insufficient".

The phrase used in the WATER CONSERVATION case -

I will not take Your Honours to it, it is referred to at line 15 on that page. And the phrase was

"the nature or subject-matter of the statute". And

we submit it is a question of importance whether one

looks to, as we submit, the nature or purpose, the

subject-matter of the statute, or one looks to the
specific effects under the statute and says it is

limited to that.

May I give this example: suppose there had been

a question of whether some small place in the Territory,

say, Humpty Doo, should have a declaration made in
relation to it, and suppose one factor which strongly
motivated the Minister was that he had in mind that at

some-time in the future Humpty Doo ought to become a

town in the colloquial sense of the word "town"; that

if he made the declaration it would increase civic

pride, it would enable it to have a mayor which would	cause civic pride to develop in the town - a football
team. It would be able to join football competitions
as a town and, generally, it would promote the welfare
of the area so that ultimately people would come to it,
it would develop and,among other things, there would be a need for town planning. Now, would one say that is
not a purpose under the TOWN PLANNING ACT because one
does not specifically have in mind at this stage a town
planning scheme? Or would one say that general
purpose is a town planning purpose and that is
sufficient?

We submit that the authorities and the law requires

the broader test and the court has applied against us

the narrower test.

S1Tl4/6/PLC 6 15/9/89

McHUGH J:  But was it ever found that you actually ever had a

purpose of any relevant kind?

MR BENNETT:  Yes, Your Honour.

McHUGH J: Did not Justice Olney find that there never was any

intention the town planning scheme be adopted or even

proposed for the Darwin planning area, that what you

had in mind was something, perhaps, by the options,

was a regional plan?

MR BENNETT: Your Honour, I am going to come to that. That is

one of the other questions I will come to: the question

of regional planning or town planning. We submit on

that that it is quite clear from the way the Act sets

out the powers that the development of areas around
towns or the development of overall planning of large
cities is well within the contemplation of the statute.

His Honour took the view it was not. That is one of the questions of law. It is, I think, the only one which is a minor question of law not of itself of

importance but which does arise in the case.	It is not
of importance because that Act has been repealed.	It is

of importance in so far as it affects the result in
this case. I was not going to spend a great deal
of time on that aspect but, certainly, that is one of

the matters we seek to challenge in our notice.

Your Honours, the specific findings in relation

to this aspect appear at three main places. At the

bottom of page 103 the Full Court dealt with the

argument this way, it said:

To the extent that the making of the

regulations was motivated by a desire

to facilitate regional planning, as

distinct from invoking the planning

controls within a "town" -

they -

were not prescribed for the purpose

of "carrying out or giving effect to"

the TOWN PLANNING ACT.

It is our submission that, ultimately, what one has to

look at is what were the purposes found by the

Commissioner and one can only find them by looking at

Mr Perren's detailed evidence and the acceptance of

it.

What Mr Perron had said was that his dream for the area since he had been a child had involved a

series of discrete towns around Port Darwin, reaching

Cox Peninsula when the population reached a high figure, and
that was a very long-term plan. And there was evidence

from town planners about what period of time one was

talking about and there was some conflicts about that.

S1Tl4/7/PLC 7 15/9/89

But the approach taken against us was, "Well, because
you weren't looking at a town planning scheme at the
time and didn't have a town planning scheme in mind -
what you had in mind was some general planning

and one day there would be a town planning scheme,

perhaps", that was insufficient for this purpose

and that is what we have called the "specificity

argument".

I would only say one other thing about it before

I leave it and that is that - and I have referred to

this half-way down page 5 - in KENBI No 1, one of the

arguments which the Court rejected was what was called

the "inutility argument". In that case, what was
discussed was not so much the TOWN PLANNING ACT but

the later PLANNING ACT which, in the light of

subsequent decisions of this Court, became irrelevant

because it was after the lodging of the land claim.

But one of the arguments that was made in relation

to the regulations under the PLANNING ACT was that

under that Act you could declare land to be treated

as if it were part of a town, thus picking up the

phrase in the ABORIGINAL LAND RIGHTS ACT, but nothing

flowed from that. There was no particular consequence -

no statutory consequence of making such a regulation

except, of course, the one that flowed under the

federal legislation. It was argued that any

declaration under that provision was invalid because

there was not utility and this Court rejected that

argument. And I have given Your Honours the passages.

In a sense, the rejection of that argument

fits with the assertion of the argument I am putting

on "specificity" because one does not look to the

particular thing one can do under the statute to see

whether the regulation satisfies the purpose, one

looks, rather, to the general purpose of the Act.

There is also a reference to that at page 138

of the application book at line ZS. His Honour says:

At this stage my concern is with the claimants' submission that the regulation	is invalid unless it can be shown to have
a connection with the general policy of the
TOWN PLANNING ACT, a policy said to be
one of securing the proper development and
use of land existing as a town or likely to be required in the foreseeable future for
development as a town. Whatever validity
those contentions may have in regard to a
regulation relying for its force and effect
upon the general language of s. 73 -

that was the general regulation-making power -

they cannot destroy the operation of

s. 5.

S1Tl4/8/PLC 8 15/9/89

So, it was not merely this Court but the Commissioner

also, Mr Justice Toohey, who rejected that argument.

The third of the approaches, the third question is another basis on which the Commissioner appears to have held that the power was not properly exercised. What

had happened was this: as at December 1978 there was

in existence and had been for some years the TOWN PLANNING

ACT. That Act had a lot of defects. For a number of

reasons it was a fairly primitive form of development

legislation. The government was, at the time,

considering various forms of amendment which were
going to take place by means of a new Act which

would repeal it and streamline the whole process of town planning and that Act, in fact, came in as the PLANNING ACT in August 1979, some eight months later.

One of the criticisms made of us and one of the

reasons why it was said that our sole purpose was

defeat of a land claim was that it was said, "Look,
you never intended to bring in any town planning

scheme under the old Act. What you intended to do

was to hold to the position and then bring it in

under the new Act." And what we submit is, assuming

that to be correct, that is not a foreign purpose.

If the existing legislation - and we have put the

question this way: in the exercise of a statutory

power, is it permissible to exercise that power under

current legislation; consistently with the scope
and purpose of that legislation but intending to
introduce new, broader legislation, not intending to

take steps under the exercised power pursuant to the

current legislation because it will be unnecessary

to do so, but rather intending to achieve the same
objective by implementing the provisions of the new
legislation but making the regulation now so as to

preserve the ability to take the necessary steps

when the new legislation is enacted?

Now, that is one of the ways it was put against

us and we submit very simply that is not foreign

to a power. Your Honours can find that most conveniently

at page 55, line 47 - this is a passage which I will

need to come back to later on.- the Commissioner says:

Indeed it was the unsuitability of the

TOWN PLANNING ACT to facilitate that

type of planning in that and other

similar areas which was one of the reasons for requiring new planning

legislation. It must follow from the

conclusions I have expressed that the

Town Planning Regulations were not

made for the purpose of carrying out or giving effect to the TOWN PLANNING ACT. On the evidence I find ..... the regulations

S1Tl4/9/PLC 9 15/9/89

were planned and implemented, from start to

finish, to ensure that no Aboriginal land

claim could be made to the areas specified.

That was the sole reason for making the

regulations.

That is the passage I will have to come· back to.

The question of planning controls had to

abide the passing of the new legislation.

Mr Perron's evidence makes it quite clear

that what he had in mind was a rural plan

and not a town planning scheme, that he was

aware that the TOWN PLANNING ACT was an

inappropriate vehicle whereby he could

implement a rural plan, and that it was

the innninent prospect that a claim

would be made under the LAND RIGHTS ACT

to Cox Peninsula that motivated the activity
that led to the Town Planning Regulations being

made. Much of Mr Perren's evidence ..... suggests

that the primary purpose of the regulations

was to do with planning, and to some extent

I can accept that planning considerations were

involved. What I cannot accept is that

the regulations were made for the purpose of

carrying out or giving effect to the TOWN

PLANNING ACT. Quite the contrary. The

TOWN PLANNING ACT had no role to play in

what was contemplated -

and that is the argument I have just put, that it was

going to be done under the new Act. This was merely

a holding operation, therefore it was ineffective.

Fourthly, there is the question of consequential

purpose. I do not need to deal with this at length

because my argument was accepted by the Full Court but

it is important because we will be submitting that

the Connnissioner must have rejected this argument

and used the rejection in reaching the conclusion he

reached. The argument is very briefly this, that

if one has a legitimate purpose, one may have all sorts

of consequential purposes, of steps which have to

be taken on the way to achieve that purpose,and even

though those might, on their own, be outside the

legislation, nevertheless they are permissible if they

are leading towards the objective. And the classic

example, I suppose, is the LYNCH example I gave

Your Honours. There is no power to acquire land to

prevent a building going up. That is clearly an

improper purpose on its own. But if one says, "No,

the reason I want to stop the building going up is not

I object to buildings, but I want to be able to acquire this land more cheaply for my long-term purpose", then

it becomes permissible. The prevention of the erection

of the building is a consquential purpose.

S1Tl4/10/PLC	10	15/9/89
NLC

That argument was, as I say, accepted by the Full Court.

It is discussed at some length - the only case that discusses it directly, an Irish case, I have referred to there and I will not, on the leave application, take Your Honours to that or to the facts in it.

But it is significant that in this case we said that

the purpose which Mr Perron had was a consequential

purpose. What he said was, "I have a plan for the Cox Peninsula. I've always had a plan for the Cox

Peninsula; that is, that in the long term it will

become part of Darwin. If the land claim is permitted

to go ahead that will frustrate my purpose and therefore

one of the reasons I accelerate activity I would

otherwise engage in, namely, taking a preliminary

step for town planning, is to prevent that purpose

frustrating my proper planning purpose.

Now, that appears most clearly at 99 point 36 where the Full Court accepts:

His objectives were the avoidance of any

restriction or inhibition, in the Government's

regional or rural planning -

I will return to those words -

flowing from the existence of a land claim.

Now, that is, leaving aside "regional or rural"

which I will return to, we submit, the finding which

establishes that if the consequential purpose test

is accepted as a matter of law, that we had a

legitimate purpose.

GAUDRON J:  But you keep equating "regional or rural

planning", do you not, with the words that are used

by the Connnissioner at pages 55 and 56, "the purpose

of carrying out or giving effect to the Act"?

MR BENNETT:	Yes, Your Honour.
GAUDRON J: You equate them at all stages?
MR BENNETT:	Yes. The Act as a whole - well, the purposes of

Act, Your Honour.

GAUDRON J:	The relevant provision, the regulation-making power, was for the purpose of carrying out or giving effect
to the Act?
MR BENNETT:	No, Your Honour. That is the regulation-making power

at the end of the Act. We do not need to rely on that.

Section 5 contains an independent regulation-making power.

Do Your Honours have the - we have a legislation
booklet for Your Honours. If Your Honours go to page 7

Your Honours will see that regulation 5 - it is 5(b)

that is relevant:

S1Tl5/l/PLC 11 15/9/89

5. The regulations may prescribe that a

specified area of land .....

(b) being land adjacent to a town, shall be

subject to the provisions of this

Ordinance ..... as if it were part of that

town.

If one goes back to the short title the short title

is:

An Ordinance relating to the planning and

developing of towns and the use of land in

or near towns.

GAUDRON J: That is subordinate to the general regulation-making

power, is it not?

MR BENNETT: We would submit not, Your Honour. That is really

the specificity question which arises in this case.

The regulation-making power is section 73 which

provides that:

The Administrator in Council may make

regulations, not inconsistent with this

Ordinance, prescribing all matters
required or permitted to be prescribed,
or necessary or convenient to be prescribed,

for carrying out or giving effect to this

Ordinance.

GAUDRON J: And including therein those in section 5.

MR BENNETT:  Yes, Your Honour, but we submit it is an independent

power. We submit there are two powers, the one in

section 5 and the one in section 73, but that even if

one relies on the power in section 73 it is

convenient to be prescribed for giving effect to the

ordinance that one may take a step which may lead
an area to be developed so that one day it will need

a planning scheme. One does not have, we would

submit, to have in mind a specific intention to

bring into existence an immediate planning scheme

in order to have the required purpose under section 73.

That is the specificity argument.

MASON CJ:  Buy why, really, is that so, Mr Bennett? Why

should regulation 5 as with regulation 73

not be read as subject to the scope and purposes	of the Act? What is the point of prescribing an
area of land unless that area of land which is to
be treated as if it were a town is to have subjected
to it the very regime for which the statute itself
provides?

MR BENNETT:  Your Honour, that states v~ecisely the

specificity question. The answer, we submit, is

this: the test laid down in the WATER CONSERVATION

S1Tl5/2/PLC	12	15/9/89
NLC

case and in the other two cases I have referred to,

talk about the general purposes of the Act, not

the specific provisions of the Act. The general

purpose of the Act appears, perhaps, most conveniently

from the short title. It is:

relating to the planning and developing

of towns and the use of land in or near

towns.

It is planning, planning in and around towns. If one

says - and my "Humpty Doo" example is the clearest one

I can think of that is not this case.

MASON CJ:  Yes, you have given us that example.

MR BENNETT: Well, Your Honour, I submit that is something

within the scope and purpose of the Act although it is not for an immediate purpose of doing one of the

things the Act permits one to do once it is a town.

McHUGH J:  It is not for the effect of carrying out any purpose

of this Act, is it?

MR BENNETT:	Your Honour, ultimately it is in that eventually , no doubt, there will be a town planning scheme for
the area but - - -

McHUGH J:  But not for the purpose of this Act. It might be done

under a town planning ordinance which bears no

relationship whatever to this one. All you are doing

is just freezing a parcel of land, are you not?

MR BENNETT:  Yes, Your Honour, and if one is doing that for a town planning purpose, we submit, ~ the -~ ·

WATER CONSERVATION test and on the McELDOWNEY test,

we are doing it for the broad purposes of the Act.

MASON CJ:  But are you? Are you not really doing it for the

broad purposes of a statute that you intend to

introduce at a later stage?

MR BENNETT: 

Your Honour, that is what I put in the argument

numbered (c). The mere fact that one intends to
introduce legislation which will make it unnecessary

to take the next step under this Act does not

detract from having the proper purpose under this
Act.

McHUGH J: That is what distinguishes this case from cases like

LYNCH. The purpose was always to do something under

the LOCAL GOVERNMENT ACT of New South Wales but
there was never any intention to carry out the purposes

or to give effect to this Act.

MR BENNETT: Well, may I put this example to Your Honours?

Suppose under land acquisition legislation there is

SlTlS/3/PLC 13 15/9/89

power to acquire land and it involves a two-step
process; of doing one thing, then doing a second thing,

and everyone in the acquiring department knows that

there is an Act going through Parliament which is

replacing the present Act and that there is a

transitional provision in that new Act which will say

all things that are half-way through may be completed,

and the minister embarking on step one has not the

slightest intention of doing step two under the

existing Act because he knows that by the time he gets

to step two he will be doing it under a new Act which

has a provision which continues what he has done. Now,

does one say he does not have the purpose of the first

Act and therefore his Act is invalid, he had an

improper purpose or an external purpose? In my submission,

one cannot. It may be that one could say, in one sense,

"Well, he may have an intention if the t does not go

through to do something" but he may be so certain it is

going through that that just does not enter his head.

MASON CJ: Well, can we put that hypothetical question here?

If the contemplated future legislation did not go

through, what purpose did Mr Perron have in mind under

the existing Act?

MR BENNETT:  Your Honour, there is no evidence because he was not

asked that question. The inference would be that he

would have done everything he could have done under

this Act and one then gets into the question of law as

to how far he could have gone under this Act. We say

he could have done it under this Act and my friend says

he could not.

The evidence which was accepted was that, in a

sense, it did not arise because he knew that by
the time he got to that stage there would be a new

Act in force. That is then used against him and to

say, "Well, therefore you have no purpose of doing it

under this Act" but, in a sense, that does not follow.

He certainly was not asked the question, "Had the new

Act not gone through, would you have attempted,

ultimately, to implement controls under this Act?"

He was never asked that question.and, of course, there

was no finding as to that either way.	The finding simply
was that he knew he was going to pass the new Act.	He
was the person who had the ability to pass it as the Minister in charge of that section of the government.

He knew that would happen and he planned for it to happen

but he needed to hold the position in the meantime.

We would submit it is an important question because

if what was said below is right, every~· one has a change of law, a person who does the first step of an administrative Act in anticipation, knowing that he

is going to complete it under the new Act, has an
improper purpose and that, we respectfully submit, cannot

be right.

SlTlS/4/PLC	14	15/9/89
NLC

The scope of KENBI No 1 I will come to when I

get to the third section.	Now, I should deal with
this "sole reason" question.	I have shown Your Honours

the passage .at page 55 to 56 and the one sentence

is set out there. At first sight, bearing in mind

that these are judicial review proceedings in which

I cannot challenge the facts, that might seem to be

fatal to my case. What we submit is that it is

clear from the other findings of the Connnissioner

and the Full Court that the "sole reason" finding

is dependent on the adverse determination of the

questions of law I have referred to. I may just

demonstrate that very briefly. There are a series of

findings which simply cannot stand with the "sole

reason" finding if what is meant by the "sole reason"

finding is that there was no other purpose and that

was the sole purpose.

The line of reasoning appears to have been, "I

reject each of these other purposes because they are

not matters I can take into account" and therefore

the sole purpose is the improper purpose. It may be
the simple answer, a simple explanation of the

inconsistencies I am now going to show Your Honours,

is simply that His Honour did not accept the

consequential purposes argument, that he said, "If you

acted so as to prevent a land claim proceeding

to this land, even though your purpose in preventing

a land claim was to enable yourself assume fully
to have a town planning scheme under this Act

immediately", if His Honour was saying that would still be an improper purpose because you have got

your sole immediate purpose as the frustration of the

land claim, then that would explain totally why

this sentence appears there. Whether that is so

depends upon construction of the judgment as a whole.

May I just show Your Honours these passages,

and I will be very brief about it. I have taken

Your Honours to the passage at page 42 about credit.

At page 55, line 41, His Honour says:

What seems to have been under contemplation

was something in the nature of a regional

plan, and no one has suggested that such a

plan could fit the description ..... Indeed

it was the unsuitability of the TOWN PLANNING

ACT to facilitate -

it and so on. Therefore, it was:

not made for the purpose of carrying out

or giving effect to the TOWN PLANNING ACT.

The reasoning of those sentences is a simple rejection of

my statutory amendment argument and saying, "Well, the

S1Tl5/5/PLC 15 15/9/89

purpose of holding, because you're going to do it
under the new Act, not the old Act, is insufficient".

That leads him to say almost inunediately his sentence

about "sole reason". And the following sentence

makes that even clearer because, line 15:

The question of planning controls had to

abide the passing of the new legislation.

In other words,''The reason I find that you didn't have

the purpose was that you intended to do it under the

new Act, not this Act."

McHUGH J:  No, not that "you intended" but that perhaps somebody

intended to do.

MR BENNETT: Well, nowh~re in the judgment - certainly, all

this part of the judgment is there any suggestion

one is looking at anyone else's purpose.

McHUGH J: No, no, but long term. Is not the idea of

Mr Perron that the land would be available long term?

MR BENNETT: 

Yes. Well, it does not matter whether he intends

to do it himself. A government may do something so
that a future government may act under it. A
government i1, a continuum in that sense.

McHUGH J: 

But it does tend to throw up how difficult it is

for you to maintain that he was exercising his

purpose under the Act. Supposing a policeman, who has

got some power to detain somebody under an Act,

says, ''Well, I will detain that person so

some policemer from overseas will arrive and interview

him." He could not possibly be said to be exercising

the power under the Act.

MR BENNETT:  No, he could not, Your Honour. But if he was

detaining him for a permissible purpose, the situation

might be different. Arrest, of course, involves

a number of other special questions. Our main

case below and, really, our case throughout has

been this was a case of consequential purposes.

This was a case of blocking a land claim so as to

plan Darwin and develop Darwin. "We are entitled

to plan Darwin and develop Darwin, therefore, we

are entitled to do something which is merely a step

to doing that". That is the way it was put and that
is the way Mr Perron put it. The statement here about
"sole reason" is really in the context, as the

surrounding sentences make clear that, "Your sole

reason for making this regulation under this Act

was preventing the land claim because you were going

to plan under the future Act." The way we put it,

that if the arguments of law I have put earlier

succeed or one of them succeeds, this finding simply
cannot stand.

More importantly, if Your Honours go to some of the passages from Mr Perron's evidence which seem

S1Tl5/6/PLC 16 15/9/89

to have been accepted both by Mr Justice Olney and

the Full Court. If Your Honours go first to

page 73, line 31, Your Honours see:

The material before the Cormnissioner -

had -

the following.

And then there is a whole series of facts found about

the prior history and the planning reports and

discussions about expansion to Cox Peninsula and so

on. I will not take Your Honours through that.

But at page 75, line 54:

Mr Perron said that he contemplated the

utilisation of a portion of the peninsula

for urban purposes by the time the

population of the city reached approximately

500,000. He saw this development as part of

a series of discrete towns, reaching from the

existing urban area around the foresqores

of Port Darwin.

Then at page 76, line 23:

there was a need to implement a rural plan
to cover the whole region of potentially

settlable land, including Cox Peninsula.

At page 84.point 26:

In the course of this evidence he said that, although he did not then have a short-term intention of implementing a Town Plan for the

Cox Peninsula, he did envisage urban

development of part of the peninsula in the

future; development in the form of discrete

towns as already described.

Page 85 point 12 is the other plan, and so on. And	all these passages, we submit, show quite clearly -
once the Connnissioner has said, as he clearly did,
that he accepted Mr Perron, that when he said "the
sole purpose was the defeat of the land claim", he
must have meant"the sole immediate purpose" because
he rejected the consequential purpose argument,
the statutory repeal argument, the specificity
argument, the .rural· or regional argument; and having
rejected all those, not on the facts but as matters
which were proper purposes, he said, "What I'm left
with under this Act is only an improper purpose" and that is the sole reason. Otherwise, one simply has
inconsistencies between all those passages and the "sole reason" finding.

S1Tl5/71PLC 17 15/9/89

So, we submit it involves an anterior finding

of law dependent either on a rejection of the
consequential purpose approach or rejection of one
or more of those prior arguments.

I should say that it is quite clear from the finding of the court that there was no suggestion

that what was done was done because of some

general objection to the principle underlying the

LAND RIGHTS ACT. There was no finding of that sort.

Indeed, the Full Court, at page 98 said this, at

line 35:

In our opinion, the findings of the

Commissioner are clear. He did not suggest

that the regulations were made out of prejudice or spite or because of some general objection to the principle underlying

the LAND RIGHTS ACT.

And then he goes on to discuss the"sole reason"

principle.

So, it is not that sort of case. It is a case

where one has to say, "Is this reason one which

vitiates in some way the underlying long-term purpose?",

and one then has to look at the specific arguments I

have put.

Now, the correctness of KENBI No 1, I only want

to say some brief things about because since that case

there has been a decision of the Supreme Court of

Canada in THORNE's case which I do want to remind

Your Honours of very briefly which may suggest

that KENBI No 1 goes further than otherwise - well,

certainly, than the Supreme Court of Canada has.

There is no authority, apart from KENBI, that we are

aware of for the proposition that the motives of

the Queen and counsel or her representative can be

examined when enacting subordinate legislation.

That is as distinct from the FAI-type of case where

it is a specific matter affecting

individuals.· And there is an analysis

of the Australian Commonwealth authorities by

Mr Justice Aickin in KENBI which really sets out

the law as at that stage.

Mr Justice Toohey's view appears at page 141

of the application book and at line 17 His Honour

expressed this view - and this, of course, was

reversed in KENBI:

A line of authorities beginning with

DUNCAN V THEODORE and continuing at

least until NSW MINING has established

that the courts will not inquire into

the reason why the Crown or its

S1Tl5/8/PLC 18 15/9/89

representative exercised a particular

regulation-making power and that bad faith

may not be imputed to them.

He refers to the authorities.

While motive is irrelevant, the

purpose of a regulation may be material

even when that regulation has been made

by the Goveroor-in-Council. The distinction

between motive and purpose is not always

an easy one to draw, yet it must be drawn -

and that is discussed.

However, where a general legislative making

power is being exercised, it is only if the

delegated legislation was not made in good

faith that the courts will intervene, and

then not in the case of the Crown or its

representative.

And he refers to authority for that. The earlier

line of cases which we have referred to on page 10

make that reasonably clear.

THORNE's case is the one case I should remind Your Honours of, and I hand up three copies. It is THORNE'S HARDWARE V THE QUEEN, (1983) 1 SCR 106.

This was a case where there was a challenge to the raising of some harbour dues and the passage commences at page 111. The court starts by saying:

The mere fact that a statutory power is

vested in the Governor in Council does not

mean that it is beyond judicial review.

I have no doubt as to the right of the courts
to act in the event that statutorily prescribed

conditions have not been met and where there

is therefore fatal jurisdictional defect.

And that is discussed.

Decisions made by the Governor in Council

in matters of public convenience and general

policy are final and not reviewable in

legal proceedings. Although, as I have

indicated, the possibility of striking down

an order in council on jurisdictional

or other compelling grounds remains open,

it would taken an agregious case to warrant

such action. This is not such a case.

That suggests that there is a limitation on the KENBI

doctrine where one is dealing with a legislative, a

more general governmental power rather than a specific

one. If that passage is correct, it may be that this

Court would wish to have the opportunity of reconsidering

the strength of the ratio of KENBI.

SlTlS/9/PLC	19	15/9/89
MASON CJ:	Why, Mr Bennett?	We do not reconsider decisions

because appellate courts in other countries have

come to a different conclusion on a point.

MR BENNETT:  No, of course not, Your Honour but, in my

respectful submission, what was said in KENBI was

the law is developing in a certain direction and

a step was taken. If that step appears to have

been considered and subsequently rejected elsewhere

in the Cormnonwealth, that is a relevant question

for the Court to consider. The matter is one of

enormous importance. In a sense, it is one of the

most important questions the Court has to consider,

the extent to which it will strike down Acts of

government which are legislative in their nature.

Your Honour will recall that in a decision about

two years ago in PEKO-WALLSEND (No 2),

Mr Justice Beaumont pronounced an injunction against

the Cormnonwealth Government from making an application

to the World Heritage Council under a treaty that a

certain area in Kakadu would be treated as part of

the World Heritage area. That was reversed by the
Full Federal Court on appeal and the Full Federal

Court took the view that where a foreign policy was involved the courts did not interfere with Acts under

the prerogative which, of course, is clearly correct.

But it is an indication of the difficulties the courts

have had in drawing the line in this type of area

and we would submit, in a question of this degree of

importance, the Court might wish to have the
opportunity eight years later or ten years later of
reconsidering the matter and we simply bring the

Court's attention to THORNE's case and leave that

possibility open.

MASON CJ: Yes. You do not suggest, do you, that the reasoning

in TOOHEY depended on the Court's view of

Canadian cases?

MR BENNETT:  No, Your Honour, no. We have suggested at page 11

and page 12 a number of possible limitations. One is

to distinguish delegated legislation as opposed to

executive action; that is (g)(l) on page 11; another

is general delegated legislation as opposed to

specific executive power, ie, affecting individual

rights and the alternative approach on page 12 is to

confine it to cases where a statutory prescribed

condition has not been met or where the purpose is

''wholly alien" which was a phrase used in some of

the cases.

Your Honours, the case is a difficult one to

summarize in a short period. There are a number of

issues in it but, we submit, the overwhelming importance
to the Government and people of the Northern Territory

of the matters involved in this case, combined with

SlTlS/10/PLC 20 15/9/89

the importance of the issues to which I have

referred, make it desirable that this Court

grant special leave to appeal.

I have not been able, of course, in the

course of the time to take Your Honours to all

the transcript matters which would assist the

submission that the Commissioner could not have

intended, by that finding of "sole reason" , to

use those words in their normal sense, but that
he must have used them in some such way as I

have indicated and, Your Honours, it is my

submission that, for those reasons, this is a case

in which special leave to appeal should be granted.

May it please the Court.

MASON CJ: Yes, thank you, Mr Bennett. The Court will take a

short adjournment in order to consider the course

that it will take in this matter.

AT 4.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.19 PM:

MASON CJ:  The Court need not trouble you, Mr Costigan.

The Court has reached the conclusion that

doubt to justify the grant of special leave to appeal. The application is therefore refused.

the actual decision of the Full Court of the

MR BENNETT: If the Court pleases.

MR COSTIGAN:	We ask for costs, if Your Honour pleases.
MASON CJ: You do not oppose that, Mr Bennett? The application

is refused with costs.

AT 4.20 PM THE MATTER WAS ADJOURNED SINE DIE

SlTlS/11/PLC	21	15/9/89
NLC