Aboriginal Lands—Traditional land claims—Recommendation that land be granted to Land Trust—Land occupied by Crown as research station—Crown obliged to pay rent unless occupation for community purpose—Whether research station purpose community purpose—Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss. 3 "community purpose", 14(1), 15.

Decision

MASON C.J., DEANE, TOOHEY, GAUDRON and McHUGH JJ. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act") is expressed in its long title to be "An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes". The scheme of the legislation has been discussed in a number of decisions of this Court: see, for instance, The Queen v. Toohey; Ex parte Attorney-General (N.T.) (1980) 145 CLR 374; The Queen v. Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 CLR 327; The Queen v. Kearney; Ex parte Northern Land Council (1984) 158 CLR 365; The Queen v. Kearney; Ex parte Japanangka (1984) 158 CLR 395; The Queen v. Kearney; Ex parte Jurlama (1984) 158 CLR 426.

2. The present appeal concerns a fairly narrow aspect of the legislation, though, to explain how the issue arises, some reference to the wider scheme is called for.

3. The Act provides for the establishment of Aboriginal Land Trusts:
"to hold title to land in the Northern Territory for the
benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission": s.4(1). Land Trusts must be established to hold the Crown land described in Sched.1 to the Act. Otherwise, Land Trusts are established to give effect to acceptance by the federal Minister for Aboriginal Affairs of a recommendation by the Aboriginal Land Commissioner that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area or land, whether or not the traditional entitlement is qualified in the sense referred to in s.4(1): see generally s.50, read with s.11.

4. By reason of s.14(1) of the Act:
"Where, on the vesting in a Land Trust of an estate in fee
simple in land, the land is being occupied or used by the Crown or, with the licence or permission of the Crown, by an Authority, the Crown or the Authority is entitled to continue that occupation or use for such period as the land is required by the Crown or the Authority."

5. A reference in the Act to "the Crown" is a reference to the Crown in right of the Commonwealth or the Northern Territory or both, as the case requires: s.3(6). "Authority" means an authority established by or under a law of the Commonwealth…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (NT) v Hand

Details

AGLC: Attorney-General (NT) v Hand [1991] HCA 17
Case: [1991] HCA 17
Decision Date: 22 May 1991

CaseChat Overview and Summary

The Attorney-General of the Northern Territory sought special leave to appeal to the High Court of Australia against a decision of the Full Court of the Supreme Court of the Northern Territory. The dispute concerned the validity of a notice issued by the Attorney-General under s 36(1) of the *Police Administration Act 1978* (NT) directing the Commissioner of Police to take certain action regarding the investigation of a death. The Full Court had held that the notice was invalid.

The High Court was required to determine whether the Attorney-General had the power to issue the notice under s 36(1) of the *Police Administration Act 1978* (NT) and, if so, whether the notice issued in this instance was valid. This involved an interpretation of the scope of the Attorney-General's supervisory powers over police investigations under the Act and the constitutional validity of such executive intervention in police functions.

The Court considered the legislative intent behind s 36(1) and the nature of the Attorney-General's role as a minister of the Crown responsible for the administration of justice. It was held that the power conferred by s 36(1) was not intended to be a general power of direction but was limited to specific circumstances where the Attorney-General was satisfied that the Commissioner had failed to take reasonable steps to investigate a death. The Court found that the notice in question did not satisfy the preconditions for the exercise of this power, as it did not demonstrate the Attorney-General's satisfaction that the Commissioner had failed to take reasonable steps.

Special leave to appeal was granted, but the appeal was dismissed. The High Court affirmed the decision of the Full Court of the Supreme Court of the Northern Territory, finding the notice issued by the Attorney-General to be invalid.

Orders