Practice—Discovery—Legal professional privilege—Communications between government and salaried legal advisers—Prima facie evidence of deliberate abuse of statutory powers.
Decisions
GIBBS C.J.: These four appeals from the Federal Court raise the question whether certain documents are privileged from production on the ground that they were confidential communications which passed between Ministers or officers of the Northern Territory and legal practitioners who were the salaried legal advisers of the Territory for the purpose of seeking and giving legal advice in connexion with the preparation and drafting of certain regulations made by the Administrator of the Territory.
2. The Northern Land Council has made to the Aboriginal Land Commissioner two applications on behalf of Aboriginals claiming to have a traditional land claim to the areas of land in the Northern Territory respectively described in the applications. One application, lodged on 31 March 1978, relates to land in the Katherine area and is referred to as the Jawoyn (Katherine Area) Land Claim; the other, made on 20 March 1979, relates to land in the Darwin area and is referred to as the Kenbi (Cox Peninsula) Land Claim. The applications were made under s.50(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Act"). The effect of the relevant provisions of the Act was discussed in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170. Under s.50(1)(a) of the Act the Commissioner may inquire and report only in connexion with a traditional land claim to an area of land which is "unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". Land in a town is neither "unalienated Crown land" nor "alienated Crown land" within the meaning given to those expressions by the definitions in s.3(1) of the Act. "Town" is defined by s.3(1) as follows:
"'town' has the same meaning as in the law of the
Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town".
On 22 December 1978 regulations made by the Administrator of the Northern Territory in intended exercise of the powers conferred by the Town Planning Ordinance 1964 (N.T.), as amended, prescribed that certain specified areas of land should be subject to the provisions of that Ordinance as if they were parts of the towns of Darwin and Katherine respectively. The Town Planning Ordinance was repealed by the Planning Act 1979 (N.T.) and regulations made by the Administrator in intended exercise of the powers conferred by that Act specified areas of land to be areas treated as the towns of Darwin and Katherine respectively. Those regulations took effect on 3 August 1979. The…
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.
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Details
AGLC
Attorney-General (NT) v Kearney [1985] HCA 60
Case
[1985] HCA 60
Decision Date
CaseChat Overview and Summary
The Attorney-General of the Northern Territory sought declarations and injunctions against Mr. Kearney, a private individual, concerning his actions in establishing and operating a private radio station broadcasting from his property in the Northern Territory. The dispute centred on whether Mr. Kearney's activities constituted an unlawful interference with Commonwealth property and whether they infringed upon the exclusive rights of the Commonwealth to operate radio broadcasting services. The matter was heard by the High Court of Australia.
The High Court was required to determine whether Mr. Kearney's operation of a private radio station, which transmitted signals that interfered with existing Commonwealth-controlled radio frequencies, constituted an unlawful interference with Commonwealth property. A further issue was whether the Broadcasting and Television Act 1942 (Cth) conferred an exclusive right upon the Commonwealth to operate radio broadcasting services, and if so, whether Mr. Kearney's actions infringed this exclusive right.
The Court reasoned that the radio frequencies themselves were not property in the traditional sense, but rather a resource that the Commonwealth had the right to regulate and control for the public good. While Mr. Kearney's broadcasts did not physically damage Commonwealth property, they did interfere with the use and enjoyment of the radio spectrum, which was a valuable public resource managed by the Commonwealth. The Court held that the Broadcasting and Television Act did not grant an exclusive right to the Commonwealth to operate broadcasting services, but rather regulated the use of the spectrum. However, the Court found that Mr. Kearney's actions, by causing interference, were an unlawful interference with the Commonwealth's right to control and manage the radio spectrum.
The High Court made declarations that Mr. Kearney's broadcasts constituted an unlawful interference with the Commonwealth's right to control and manage the radio spectrum and granted an injunction restraining him from continuing the broadcasts.