Bropho v The State of Western Australia

[1990] HCATrans 26

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P34 of 1989

B e t w e e n -

ROBERT BROPHO

Appellant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

and

WESTERN AUSTRALIAN DEVELOPMENT

COMMISSION

Second Respondent

MASON CJ
BRENNAN J

Bropho(3)

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 MARCH 1990, AT 2. 4 9 PM

Copyright in the High Court of Australia

ClT 2/1/FK 1 1/3/90

MR G. McINTYRE:  If it please the Court, I appear with my learned

friend, MRS. CHURCHES, for the appellant .. (instructed

by Aboriginal Legal Service of Western Australia)

MR J.R. McKECHNIE, QC:  If Your Honours please, with my learned

friend, MISS	C. WHEELER, I appear for	the first
respondent.	(instructed by the Crown	Solicitor for
the State of	Western Australia)

MR D. MARTINO:  If Your Honours please, I appear on behalf of the second respondent. (instructed by Robinson Cox)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If

the Court pleases, I appear with my learned friends,

MR D. ROSE and MISS M. SLOSS, to seek leave to appear

for the Attorney General of the Commonwealth.

(instructed by the Australian Government Solicitor)

We seek leave on the basis it is a point of general importance involving a point of constitutional law

in which the Commonwealth has an obvious interest.

MASON CJ: Yes. What attitude to the parties take to your

application for leave to intervene?

MR GRIFFITH: Well, Your Honour, I have not canvassed them about

it, but -

MASON CJ: Is there any opposition to it?

MR McINTYRE:	Not from our point of view, no.
MASON CJ:	You may have leave to intervene, gr Solicitor.

MR J.J. DOYLE, QC, Solicitor-General for South Australia: If the

Court pleases, I appear with my learned friend,

MR B. SELWAY, for the Attorney-General for the State

of South Australia. (instructed by the Crown Solicitor

for South Australia). We make a similar application to

that made by the Solicitor for the Commonwealth.

MASON CJ:  I take it there is no opposition. You have leave,

Mr Solicitor.

MR K. MASON, QC, Solicitor-General for New South Wales: If the

Court pleases, I appear with my learned friend,

MR L.S. KATZ, for the Attorney-General for New South

Wales.	(instructed by the Crown Solicitor for New
South Wales)	We make a similar application.

MASON CJ: And likewise it is granted, Mr Solicitor.

MR G.K. DAVIES, QC, Solicitor-General for Queensland: May it please

the Court, I appear with my learned friend,

MR E.D. O'DONNELL, for the Attorney-General for the

State of Queensland. (instructed by the Crown Solicitor

for Queensland) . We make a similar application.

ClT2/2/FK 2 1/3/90

Bropho(3) (Continued on page 2A)

MASON CJ: Yes, Mr Solicitor, it is granted. Mr Solicitor,

perhaps I ought to ask, are all the Solicitors

appearing in the same interest in this matter?

MR DAVIES:	Yes, Your Honour.
MASON CJ:	And, what is that, to support the respondent?
MR DAVIES:	Yes, Your Honour, to maintain the existing rule.

MASON CJ: Thank you. Yes, Mr McIntyre.

(Continued on page 3)

ClT2/3/FK	2A	1/3/90
Bropho(3)
MR McINTYRE:	Thank you, Your Honour.	Your Honours, this matter

is quite conveniently introduced in the outline -

firstly, I should say that I understand Your Honours

all have an outline of the submissions which was

provided in advance of today. It is really, as you

can see, set out in four paragraphs with some

subparagraphs, and the first three of those paragraphs
really deal with the question of the rule in the
PROVINCE OF BOMBAY case and what, in fact, it is

and, if it does exist as set out in the authorities,

how it applies to the fact situation in this case and

whether or not pursuant to that rule, however it is

formed or framed, the Crown in right of the State of

Western Australia is, in fact, bound by that piece

of legislation, the ABORIGINAL HERITAGE ACT.

The fourth argument which will, in fact, be

presented to Your Honours by my learned friend,

Mr Churches, in which he has, in fact, assisted

Your Honours with a detailed written submission on,

and he will speak to that written submission,

attacks whether or not the rule in BOMBAY is a good

rule or is, in fact, one which is properly applicable

in this case or, indeed, in others and, of course,

requires Your Honours to consider the lines of

authority which have preceded and come after the

BOMBAY case.

The factual situation of this particular case is conveniently

summarized in the second respondent's outline of

submissions which I have a copy of and in which it

is set out that:

The appellant commenced proceedings in the

Supreme Court of Western Australia alleging

that land known as the Swan Brewery site
was an Aboriginal site, that the first

respondent, through the agency of the second

respondent, the Western Australian Development

Corporation, had commenced to carry out

extensive tunnelling and excavation and	to erect buildings, roadways and a car-park
on the site and to alter the lie of the land
and ffiat these activities were carried out
without the authority of the trustees of the Museum of Western Australia, or the consent of the Minister for Aboriginal
Affairs.

By the action which the appellants launched, they sought an injunction restraining the respondents

from carrying out those activites and the appellant

now seeks orders to set aside the order made by the
supreme court on an application of the second respondent
striking out the statement of claim and dismissing the
action as against both the first and the second

respondents.

ClT3/l/HS	3	1/3/90
Bropho(3)

BRENNAN J:  I am having some difficulty in understanding the

claims of reference having regard to the text of the

statute. Am I right in thinking that it is

common ground that section 5 applies to all places

throughout Western Australia?

MR McINTYRE:  Yes, that is certainly our argument, Your Honour.

BRENNAN J: Is it challenged, do you know?

MR McINTYRE:  No, it is not challenged.

BRENNAN J: Now,the next one is section 17, is that right?

MR McINTYRE:  Section 17 is certainly the offence section which

sets out the nature of what is prohibited, yes, and
that was the basis for the injunctive application.

It is not said, of course, that the Crown can be penalized pursuant to section 17 but it is - - -

BRENNAN J:  I am trying to understand. Section 17 says that

persons cannot excavate, destroy, et cetera.

MR McINTYRE:	Yes.
BRENNAN J:	So if any person goes on there and excavates and

destroys then they are caught by section 17.

MR McINTYRE:  Yes, that is right.

BRENNAN J: Well, where does this problem about binding the

Crown arise because the question is simply whether

or not the Crown can dispense from the terms of section 17

the individual offence which is thereby created?

MR McINTYRE: Well, it is, of course, the Crown who is seeking to

excavate - - -

BRENNAN J:  The Crown has not got picks. It is individuals who

have ·picks.

MR McINTYRE:  Yes, but of course the presumption purports to apply

- to the various public servants and statutory authorities

who act on behalf of the Crown and so it is - - -

BRENNAN J: Is it? That the Crown can authorize its servants to act

contrary to statutory injunctions ? Is that what the

BOMBAY case is?

MR McINTYRE: 

It says that the Crown is not bound by legislation.

BRENNAN J: 

I can understand that when it is talking about Crown

commercial transactions, for example, but when the relevant
provision is one that you shall not dig, it is directed to

he who digs.

ClT4/l/LW	4	1/3/90
Bropho(3)

MR McINTYRE:  Yes. Well, the argument, of course, is

about the question of whether if person, A, digs

and he does so as an agent of the Crown then, is he

comm.itting an offence under section 17 or is he

otherwise bound by this legislation? And, the

position adopted by the Crown and the finding of

the ll"aster of the supreme court was that, in fact,
this legislation did not bind the Crown or its
servants or agents. The injunctive relief was
to prevent the Crown or its servants or agents,
including the second respondent who is a statutory

corporation of the Crown and is said to have all

the Crown's - by its own legislation - immunities

and privileges.

BRENNAN J:  Perhaps I should make the point clear.

'	I can understand how the argument can arise with
regard to some statutory provisions.

MR McINTYRE:	Yes.
BRENNAN J:	I am at a loss at the moment to understand how

the argument arises in the context of section 17

because if ENTICK V CARRINGTON still has any force,

then the Crown cannot authorize any person to commit

that which is prohibited.

MR McINTYRE:	Yes. Well I suppose that is another basis for finding that, in fact, the decision of the master
was wrong in striking out the statement of claim and
I suppose the problem that we might have with that
position is that we ought to have, perhaps, joined
the individual public servant who was about to drive the bulldozer or, in fact, the contractor and, in
fact, we have as best we can:- we have enjoined the
West Australian Development Corporation which is a
statutory corporation carrying out the wishes of the
State Government through its servants, agents and
contractors to excavate and alter the site.

DAWSON J: Is Perhaps the argument that the Act, if it does not

bind the Crown, cannot impede the Crown in the use

of its own land, Crown landY · 'Ibat may riot be an

argument tnat you put.

(Continued on page 6)

ClTS/1/JH	5	1/3/90
Bropho(3)

MR McINTYRE:  Yes, that is certainly another way of looking

at the matter.

McHUGH J:  In paragraph 4 of your statement of claim you

allege that the first defendant, which is the -

MR McINTYRE: State of Western Australian.

McHUGH J:  - - - through the agency of the second defendant,

which is the Western Australian Development Corporation

has commenced extensive tunnelling and so on.

MR McINTYRE:  Yes, that is so, and that is the basis upon which

the defendants then came to the Court and sought to

have that allegation struck out because they said

that ne~ther the State of Western Australia nor the

Western Australian Development Corporation, which

by statute has any immunities or privileges which

flow to the Crown, was entitled to be bound by that

legislation.

DEANE J: If you look at page 39 of the book,

Mr Justice Brinsden's judgment certainly turned on

the notion that the question was whether the Act

bound the Crown and its servants which is, I think,

what Justice Dawson raised with you.

MR McINTYRE:  Yes. Certainly he makes a finding that not only

does it not bind the Crown but it does not apply to

a servant of the Crown so that we would say that

that finding is wrong, for a variety of reasons

including, perhaps, the one which Your Honour

Mr Justice Brennan suggested; that is, that the

Crown could not authorize one of its servants

to commit an offence against the Act but we,

of course, go a little further than that and

say that the Act does bind the Crown and, in
the first two or three arguments, we say that
it does because of the nature of the legislation;
because of the manifest intention of the legislation

and because the rule in the BOMBAY case as applied

by the Court of Appeal was applied incorrectly

Court~found himself bound by the dicta in the BOMBAY case went far beyond what the position of the law is in Western Australia in relation to any rule concerning the presumption against the Crown being bound.

and that the way in which, in particular, the

C1T6/1/SH	6	1/3/90
Bropho(3)

McHUGH J: Is the first defendant a necessary party in

these proceedings?

MR McINTYRE: Well, it is arguable that they are not, except

to the extent that it is alleged that they are, in

fact, giving direction to the WESTERN AUSTRALIAN

DEVELOPMENT CORPORATION. As alleged in the statement

of claim, it said that --they of course own the land

and they, as the landowner, have authorized the

statutory corporation of the State to carry out

certain works on its behalf. It probably is correct

to say that they are a necessary defendant, because,
of course, the terminology of section 18 of the

ABORIGINAL HERITAGE ACT suggests that the application

to be exempted, if you like, from the provisions of

section 17 must be made by the owner of the land. It then goes on in section 18(1) add to that, but the basic concept in section 18 is that the owner

of the land makes the application to the trustees

of the museum, who then make a recommendation to the

minister responsible under the ABORIGINAL HERITAGE ACT,

which is called the Minister for Aboriginal Affairs,

and that minister then decides whether or not to give

consent to the owner of the land to carry out the

development which is proposed, so that we would say

that it was the State of Western Australia as the

owner of the land who was the appropriate applicant

under section 18.

TOOHEY J: That is your submission, is it, Mr McIntyre, that

if the Act binds the e~own, then the crown must seek the authority or consent of the minister in order to

avoid prosecution for a breach of

section 177

MR McINTYRE:  Yes, that is so. We say that the Crown has

knowingly and intentionally set up a mechanism by which to protect Aboriginal sites. It has set up

an authority,that is the trustees of the museum, to
deal with possible breaches of section 17 or to deal

with the questions relating to the protection of those

sites and that it is appropriate that all persons,

including the Crown, make an application to the trustees

of the museum, as a properly delegated body, with

the appropriate expertise to make the recommendation to

the minister of the Crown as to whether or not that

development ought to proceed.

(Continued on page 8)

ClT7/l/CM	7	1/3/90
Bropho(3)

MR McINTYRE (continuing):  If I can take Your Honours to

the Act, we say that all of that flows, of course,

from the terms of the legislation and you start

with the long title to the Act which, of course,

says that it is:

An Act to make provision for the
preservation on behalf of the
community of places and objects

customarily used by or traditional

to the original inhabitants of

Australia or their descendants,

or associated therewith, and for

other purposes incidental thereto.

Incidentally, we say that these plaintiffs come here

because they have some special rights, although

whilst the long title to the Act says that the

Act is made "on behalf of the community" it also,

in sections 7 and 8 acknowledges the special interest

of the plaintiff in this matter - as section 7(1) says:

a person of Aboriginal descent who

usually lives subject to Aboriginal

customary law, or in relation to any

group of such persons -

that their rights, as it says in subparagraph (a),

shall not be taken away or restricted, and any:

interest held or enjoyed in respect to

any place or object to which this Act

applies, in so far as that right or

interest is exercised in a manner that

has been approved by the Aboriginal

possessor or custodian -

et cetera. In section 8 it gives a power to the

trustees where they:

are satisfied that a representative body

of persons of Aboriginal descent who

usually live subject to Aboriginal

customary law has an interest in a place

or object to which this Act applies that

is of traditional and current importance

to it, and which is in the custody or control of the Trustees, the Trustees shall make that place or object available

to that body as and whenever required for

purposes sanctioned by the Aboriginal

tradition relevant to that place or object.

We say that those rights flow to persons so described,

no matter in whose ownership the land is or whomever,

including the Crown, may seek to impinge upon that

site or that object.

ClT8/l/HS	8	1/3/90
Bropho(3)

In particular, we say that section 19, for

instance, of the Act, makes that relatively clear,
and particularly section 19(6). Section 19 deals with
protected sites. It is not said that this is a site

which has been subject to the relevant declaration

under this section, but it goes to the question of

the intention of the legislation to bind the Crown.

It says that:

Where the Trustees recommend to the

Minister that an Aboriginal site is of

outstanding importance and that it
appears to them that the Aboriginal

site should be declared a protected

area the Minister shall give notice in

writing of the recommendation -

and then it goes on to say how that should be done.

Then at subsection (6) it says:

An Aboriginal site may be declared to be

a protected area whether or. not it is

on land that is in the ownership or

possession of any person or is reserved

for any public purpose.

It is said for the appellants that the words

"reserved for any public purpose", whilst not

specifically, impliedly refer to the LAND ACT and

the powers under the LAND ACT for Crown lands to be

reserved for public purposes. So that it is assumed

in section 19· that a protected area might be

protected even though it may be Crown land and it must

follow that the Crown would then be bound by any

order for protection if that is to have any

significant effect.

(Continued on page 10)

ClT8/2/HS	9	1/3/90
Bropho(3)

MR McINTYRE (continuing): It was, of course, argued in lower

jurisdictions and it was a part of what His Honour

Mr Justice Wallis adverted to when he delivered

his dissenting judgment that a substantial part

of the State of Western Australia is, of course,

Crown land so that it would be the case that there was a strong likelihood and it must have been a

matter in the contemplation of the legislature

that many protected area declarations would relate

to lands which were held by the Crown.

TOOHEY J:  I am not sure where that argument takes you,

Mr McIntyre, the argument based on subsection (6)

of section 19. Is the proposition that land

reserved for any public purposes is synonymous

with Crown land?

MR McINTYRE:  Yes, it is,on the basis that whilst that concept

is not apparently defined in this legislation

it appears by implication to rely on the usual kinds

of statutory provisions which apply in Western
Australia and other States, that is, that land which

circumstances remains Crown land and therefore in order for the protection to apply it must bind the Crown as the owner of that land.

is reserved for a public purpose remains Crown land. ordinary

TOOHEY J:  But what about the converse of that proposition?

It is one thing to say, perhaps, that land reserved

for any public purpose is Crown land. It does not

follow automatically that Crown land is land reserved

for any public purpose.

MR McINTYRE:  No, that only relates to a limited part of the

total of 6rown lands.

TOOHEY J: That is what I am not clear about. On the submission

that you are putting to us in relation to subsection (6),

is there an area of land being Crown land not reserved

for any public purpose to which the subsection does not

relate?

MR McINTYRE: Possibly not. Of course, subsection (6) relates

to two types of land: that which is reserved for

a public purpose and that which is 'in the ownership

or poss-ession of any person'.'. I suppose one then

needs to look to the question of who is any person

as used in that subsection and determine whether or
not that includes the Crown. There have been varying

dicta on the question of whether any person includes

the Crown. I seem to recall that Sir Garfield Barwick

in CHINA OCEAN SHIPPING V SOUTH AUSTRALIA, 145 CLR 172,

is prepared to accept that'any persorr'may include the

Crown in relation to the legislation that he was dealing

with in that case. So it is certainly arguable that

ClT9/l/LW	10	1/3/90
Bropho(3)

that phrase "any person" would include Crown land

which is not reserved for a public purpose.

Perhaps it would be appropriate to look to

section 18(1) of the ABORIGINAL HERITAGE ACT

because that was a matter which seemed to have an

effect upon the decision which Mr Justice Malcolm,

the Chief Justice of the &upreme court, made in

this case before it came to this Court.	He looked
to section 18(1) which reads:

For the purposes of this section, the expression

"the owner of any land" includes a lessee from

the Crown, and the holder of any mining
tenement or mining privilege, or of any right or

privilege under the PETROLEUM ACT 1967, in

relation to the land.

(Continued on page 12)

C1T9/l/LW	11	1/3/90
Bropho(3)

MR McINTYRE (continuing):  It is at page 11 of the appeal book,

in his judgment he refers to that and says at about

the middle of page 11,- he quotes the section and says:

Section 18(2) and the following sub-sections

set out a procedure for obtaining the

consent of the Minister where "the owner of

any land" gives to the Trustees notice that

he requires to use the land for a purpose

which would be likely to result in a breach

of section 17.

Towards the bottom of the page, he says:

In my opinion the provisions of

section 18(1) are a clear indicatation that the Act was not intended to bind the Crown, notwithstanding that it purported to deal
generally with Crown land, and expressly
included a lessee of Crown land or the

holder of a mining tenement or of any

right or privilege under the PETROLEUM ACT 1967.

It does not follow from the facts that the

Act applies generally to Crown land and binds a lessee or other holder from the Crown that

the Act was intended to bind the Crown.

It is our submission, in relation to that, that one

does not necessarily draw that inference from that

subsection. All that subsection is intended to do

is to allow for the difficulty which would otherwise

arise if those who held leases either under the

petroleum legislation or under some mining tenement or

Crown lease were to set about with the development

because, of course, subsection (2) merely talks of

the owner and, of course, the owner of all Crown land,

whether it be subject to the MINING ACT, the

PETROLEUM ACT or the LAND ACT and is the subject of

any lease, would be the Crown. So that, unless

subsection (1) was in the legislation, every time a

pastoral leaseholder, for instance, wished to turn his

property into a tourist operation or to carry out

some develo.pment on what was an Aboriginal site, it

would not be he who would make the application under

subsection (2), it would have to be the Crown, So that

section 18(1) merely rectifies what would otherwise

be that problem, that the lessee is de~med to be the owner and thus is empowered to make the application

under section 18(2).

TOOHEY J:  Mr McIntyre, what exactly is the status of the land?

I know it is referred to as Crown land and there is

some reference in the statement of claim to a reserve

by number without any indication of what sort of

reserve it is. If I went to the titles office and

searched this piece of land, what would you find?

ClTl0/1/JH	12	1/3/90
Bropho(3)

MR McINTYRE:  You would find that it had been removed from

the operation of the TRANSFER OF LAND ACT, revested

in the Crown and reserved for government purposes.

TOOHEY J:  Do you mean that is the precise language that is

used?

MR McINTYRE:	I think that is so, yes. Yes, I think the phrase, "government purposes" is the purpose set out
in the reservation.
TOOHEY J:	And, does that language have its counterpart in

the LAND ACT?

MR McINTYRE:  It probably is one of the headings which is set

out in one of the early sections of the LAND ACT
as being a public purpose.

TOOHEY J:	Thank you.
DEANE J:	If you go to the bottom of page 12 of the appeal book,

you see three categories of land which add up to

100 per cent. Into which category does this fall?

MR McINTYRE:	It would have to fall into (c) because it is not land which is the subject of any lease or licence
and it is not freehold.  It had previously been
freehold and it is now no longer.

(Continued on page 14)

ClTl0/2/JH	13	1/3/90
Bropho(3)

MR McINTYRE (continuing): If I can take you back again to

- the ABORIGINAL HERITAGE ACT and put this argument

to you.that it is our submission that it is the

intention of the Act to govern all land within the

State in the sense that it is intended to protect

all places, all sites and all objects as defined

in section 5 of the Act and if you look to section 5

of the Act it uses these words:

This Act applies to -

(a) any place of importance and significance

where persons of Aboriginal descent have,

or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the

traditional cultural life of the Aboriginal

people, past or present;

and also -

(b) any sacred, ritual or ceremonial site,

which is of importance and special significance

to persons of Aboriginal descent;

(c) any place which, in the opinion of the Trustees, is or was associated with the Aboriginal people -

et cetera. So that it is our submission that the

primary purpose of the Act is to protect each site and

each place and each object and that from that you

start towards the conclusion that the Crown must be

bound if each of those sites and each of those places

and objects is to be protected because, if it were not,

then the protection given to each of those by this Act

would not be affected.

TOOHEY J: What are ·the consequences of declaring an area to

be a protected area, or perhaps more accurately, in

terms of subsection (6), declaring an Aboriginal site

to be a protected area?

MR McINTYRE:	If it is an Aboriginal site, then you go to section r? and that sets out the - - -
TOOHEY J: Section 17 does not require that a	site be a

declared area, does it?

MR McINTYRE:  No, that is so.

TOOHEY J: It may be that the declaration does no more than, as

it were, establish the boundaries of the area and

identification beyond doubt, I do not know.

MR McINTYRE:  Yes, that is right. Or it may establish that it

is a site. Section 5 really - the factual situations

ClTll/1/CM	14
Bropho(3)	1/3/90

which commonly arise are that there are many sites

known which are not declared. Is Your Honour talking

about section 19? It is really only section 19 which

talks about declaration and it - - -

TOOHEY J:  Yes, I was looking at section 19 ( 6) and vrcts then going

on to ask you what the significance is of including

in subsection (6) reference to land that is

reserved for a public purpose. If the existence of

the site does not depend upon a declaration," declaration'

then has some other consequences and Justice Deane has

just drawn my attention to section 23, but putting

that to one side, what is the significance of

including land reserved for a public purpose in the
declaration provision in section 19, if, and I am not

sure about this, there is no other reference in the

• Act to land being reserved for public purpose?

(Continued on page 16)

ClTll/2/CM	15	1/3/90
Bropho(3)

MR McINTYRE: It may be that the legislature thought that

there was some possible conflict between use
of land for public purposes - land reserved

for public purposes - and the declaration of them

as protected areas and so as to make that clear

that the two things could co-exist perhaps they thought that it was necessary to recite that in

subsection (6),because I suppose if land is set aside,

for instance, for recreational purposes and it is

also set aside as a protected area with the

consequences which flow under this legislation,

unless there was some specific provision which said

that those two purposes, or those two designations of the area could co-exist,then it be assumed that they did not.

But it is the case that section 5 really does

leave it quite open as to what is an Aboriginal site

and, of course, the definition of Aboriginal site
is much broader than the concept of a protected
area. Obviously, a protected area would form a minority
of those places which might come within the definition

of section 5 as places, or sites, under either

paragraphs (a) or (b) of section 5.

That flows, of course, from a full reading of the legislation because whilst there is a

protection for those who do not know about the

existence of sacred sites as a defence to any

offence against section 17, so it is contemplated

that there will be some sites which are sites but

perhaps nobody knows, perhaps no non-Aboriginal
person or any non-custodian may not know that that

site is an Aboriginal site and might otherwise

connnit an offence under section 17 if that

protection were not there.

DEANE J: Is not the real purpose that if it is declared

underl9(6) the trustees can do under 23 things

that they could otherwise only do under section 12

by agreement with the person owning or in

possession?

MR McINTYRE:  I think that is probably right, yes. I really,

perhaps, drew Your Honours attention to section 19
for a peripheral purpose other than its general

operation to indicate that there was some contemplation

of Crown land set aside for purlic purposes in that

subsection and we say that that is one of the small

indications that, perhaps, it was intended that this

legislation does bind the Crown.

It is, perhaps, also useful to advert to what His Honour Mr Justice Brinsden discussed at pages

40 to 41 of the appeal book.	The second-last line
commences with the sentence:

ClT12/l/JL	16	1/3/90
Bropho(3)

With respect, in my view, that argument

tended to concentrate far too much on sites,

whereas the Act protects not only sites but also objects. When one looks at both these

factors, it seems to me the Act has

considerable application even if the Crown

is not bound by it.

Now he is there adverting to the argument that the

Act might be frustrated by the fact that it applied

to land and that substantial portions of the land
belonged to the Crown and he was there saying, "Well
all right, perhaps the Crown does own a large
proportion of the land in Western Australia, but

if the Crown is not bound there will be a large

number of objects which will be protected bx the

legislation, even if the Crown is not bound.'.

(Continued on page 18)

ClT12/2/JL	17	1/3/90
Bropho(3)

MR McINTYRE (continuing):  Now, our submission in relation

to that is that the Crown also needs to be bound

in relation to objects, in relation to their

protection. For instance, if this presumption

against the Crown being bound is taken to its usual length, that is, that it binds not only the Crown and the Crown's - that is, Her Majesty

the Queen and her various. representatives but

also her executive government and the various

statutory corporations, you would have the

situation where, for instance, as might be the

case or is known to me, there is a joint venture

in Broome, in the north west of the State involving

the Western Australian Development Corporation

and Lord McAlpine, a large property developer

in that part of the State. They engage in a

large development of a piece of land and they

come across a number of Aboriginal objects or

perhaps either Lord McAlpine or one of his
servants comes across that, all of that group

would be protected by this legislation and

any object which they found upon the land would

not be protected by the legislation.	They would
be protected by the presumption.	The legislation

would not protect the object and we would say

contrary to the purport and intention of the

legislation, and that it would be open for

Lord McAlpine to do what is contrary to the

Act which, at section 41 says that the objects

are to be placed into the custody of the trustees

of the museum and that they are to identify what

they are and - I will just take Your Honours

to that section.

Section 41 says that:

(1) A person who has in his custody or

under his control any object of a kind

classified as Aboriginal cultural material

shall forthwith send notice in writing

to the Trustees giving a description of

that object and of the manner in which

it ~ame to be in his custody or under his
control, unless he has reasonable cause
to believe that information to be already
known to the Trustees.

It then goes on to give the trustees powers to

deal with that object and to require its production

and to inspect and take possession of it.

Now, if that section did not apply to the

Crown, then for instance it would be open for the Minister for Works, if such an object was

found on the site in question in this case, to

C lTl 3 /1 /SH	18	1/3/90
Bropho(3)

take it home and put it on her mantelpiece or

even perhaps to take it to an extreme, the governor

of the State, not being bound, would be able
to take custody of this object, avoid the statutory

provisions which have been set up to allow for

its proper protection by the trustees and go

away ignoring the legislation.

So, it is our submission that the legislature

had in mind an intention to set up appropri?te

machinery for dealing with land and objects and

to bind everybody, including the Crown, its servants

and agents and representatives and that there

is no great difficulty for the Crown in complying

with that kind of statutory formula and, of course,

it is open for the Crown, if it does feel overly

burdened by the strictures of the legislation,

to make an application under section 18 of the

legislation and, of course, then there is a

discretion in the Minister for Aboriginal Affairs

to take account of what the public interest is and

if there is some higher public interest in

excavating, altering or otherwise destroying

an Aboriginal site or an object, then it is open

for the Minister for Aboriginal Affairs to consent

to that, thereby avoiding any prohibitions under

section 17 of the Act.

So, that also in our submissions sets

out a·statutory formula or a set of machinery

which is meant to be all inclusive. It does

allow for the Crown to exercise its discretion

and to take into account other matters and to,

if you like, through the statutory process, avoid

the specific prohibitions which are set out in
the legislation and not to be unduly fettered
by it and, therefore, that in our submission
tends to sug~est an intention on the part of

the legislature that the Crown would be bound.

(Continued on page 20)

C1Tl3/2/SH	19	1/3/90
Bropho(3)

MR McINTYRE (continuing):  If I could turn to perhaps a

slightly different point and that is the question

of what the appropriate test is when one determines

whether or not the Crown is bound. If I can turn,

in particular, to page 19 of the appeal book and
at the bottom of the page, the last paragraph

commencing at the bottom of page 19 where the

Chief Justice, Mr Justice Malcolm said:

In my view the evidence shows that

the purposes of the Act would be at

least significantly frustrated if

not substantially impaired if the Act

does not bind the Crown. This is

unfortunate, having regard to the

extent of vacant Crown land in respect

of which the Crown would not be bound.

The evidence also shows, however,

that the purposes of the Act would not

be wholly frustrated if the Act were

held not to bind the Crown. It follows
that the provisions of the Act do not
make "manifest" any intention to bind

the Crown by necessary implication.

For these reasons, I consider that

the appeal should be dismissed.

Now, it is our submission that His Honour

Mr Justice Malcolm felt himself constrained by a

particular formulation of the tests in the BOMBAY

case in coming to that view. It would appear that he

felt constrained to adopt the phrase "wholly frustrated"

as though it were a rule of law or a necessary part

of the presumption which is ordinarily regarded as

part of the BOMBAY rule and he then drew fine

distinctions and, we would say, distinctions which were

too fine, in determining whether or not the necessary

implication could be drawn as to whether this Act

bound the Crown or not.

If I can take you firstly to the BOMBAY case,

(1947) AC_58. That test which the Chief Justice

Mr Justice Malcolm was referring to really emerges

from page 63 of that report, about two-thirds of
the way down where the Privy Council says:

T~~ir Lordships prefer to say that the apparent purpose of the statute is one element, and may be an important element,

to be considered when an intention to

bind the Crown is alleged. If it can
be affirmed that, at the time when the

statute was passed and received the

royal sanction, it was apparent from its

terms that its beneficent purpose must be

ClT14/l/HS	20	1/3/90
Bropho(3)

wholly frustrated unless the Crown were bound, then it may be inferred that the

Crown has agreed to be bound.

That is where, of course, the words "wholly

frustrated" were drawn from. It is our submission

that that formulation is not set in concrete and is

not necessarily the appropriate rubric to apply
when determining what the presumption is which

one.applies to the interpretation of legislation

when considering whether the Crown is bound.

(Continued on page 22)

ClT14/2/HS	21	1/3/90
Bropho(3)

MR McINTYRE (continuing):  I could take you, for instance,

·to the decision in DOWNS V WILLIAMS, 126 CLR 61

and in particular to page 94 and you will see

about two-thirds of the way down the page,

His Honour Mr Justice Gibbs, as he then was, refers

to the case of PROVINCE OF BOMBAY V MUNICIPAL

CORPORATION OF BOMBAY and says:

It cannot be said in the present case

that it is apparent from the terms of the

Act that its beneficent purpose will be

frustrated if the Crown is not bound.

Now, obviously, that picks up in part what was said in the BOMBAY case itself but you will note that it

does not use the word "wholly" frustrated so that there
is no adverb in front of the word "frustrated" and

His Honour Mr Justice Gibbs is content to state the

test in that way. So that it is our submission that

perhaps Mr Justice Malcolm was overly concerned to

commence with the concept that he must make a finding

as to whether the legislation was wholly frustrated

and to try and determine what that word "wholly" meant

and to then apply that as a principle.

If I could just take you to some of the other

judgments in DOWNS V WILLIAMS, at pages 87 and 88,

Mr Justice Windeyer. He does recite the same terminology

starting at the last line on page 87 and	over to
page 88 but then goes on, having recited	what is in
BOMBAY, that is:

it was apparent from its terms that its

beneficent purpose must be wholly frustrated

unless the Crown were bound, then it may be

inferred that the Crown has agreed to be

bound."

He then goes on to apply that and says:

In the present case it seems to me that the

"beneficent purpose 11 manifest in

section 27 of the Act is that all persons who

work in factories in New South Wales are to

be protected against specified dangers there.

Of course, he is the dissenting Judge in that case.

It is our submission that the rule is, in fact, a

little more fluid than Chief Justice Mr Justice Malcolm

apparently appeared to feel that he should adopt.

For instance, again, in DOWNS V WILLIAMS, if one goes

to page 93, again referring to His Honour

Mr Justice Gibbs, at the bottom of that page, he

refers us in turn to dicta of Sir Garfield Barwick in

the case of THE COMMONWEALTH V RHIND and he says that:

C1Tl5/l/JH	22	1/3/90
Bropho(3)

"In my opinion, the rule to be applied

universally as of this time in the

construction of statutes, is that the

Crown is not included in the operation of

a statute unless by express rords or by

necessary implication. Where the Crown is

not expressly mentioned, the implication

will be found, if at all, by consideration

of the subject matter and of the terms of

the particular statute."

(Continued on page 24)

ClTlS/2/JH	23	1/3/90
Bropho(3)

MR McINTYRE (continuing):  So that it would appear that

Sir Garfield Barwick, in that case, is adopting

the conventional rule, without going on to then

say, "Well the appropriate tests for finding a

necessary implication is the question of whether

the statute would be wholly frustrated if the

Crown were not bound'.'. If I can go perhaps then to

BRADKEN V BHP,(1979) 145 CLR and,for instance, in

the judgment of the then Acting Chief Justice

Mr Justice Gibbs at page 116 of that report, right at the top of the page, he again refers to the rule

in the PROVINCE OF BOMBAY V MUNICIPAL CORPORATION

OF BOMBAY and speaks of:

necessary implication -

being -

manifest from the very terms of the statute -

and in -

the intention of the legislature.

But does not go on to refer to this concept of frustration or even the concept of beneficent

purpose. So that it is the contention of the

appellants that whilst, on some occasions, it may

be appropriate in determining what the necessary

implication is to go to some other guides or some other conceptual frameworks such as questions of frustration,of the objects and purposes of the

legislation, it is a danger to determine or to take

the view that in fact there is a subsidiary rule, if

you like, upon the original rule in BOMBAY, which

judges are bound by in determining whether or not

a necessary implication can be drawn and that in some

circumstances it would not be appropriate at all to

use the beneficent purpose test or the wholly

frustrated test and if one were to do that one would

not necessarily be bound to draw such fine distinctions

as the Chief Justice Mr Justice Malcolm drew in

determining whether the legislation would be wholly

frustrated or merely substantially impaired.

It is our submission that having found, as

Mr Justice Malcolm did, that the object and purpose

of the legislation was substantially impaired, then

he ought to have found that that was sufficient for

him to draw the necessary implication that the

legislation did bind the Crown. If I could just take

you to some other cases which deal with that. In

BRISBANE CITY COUNCIL V GROUP PROJECTS PTY LTD,145 CLR

at page 167, the judgment of Sir Ronald Wilson, with

whom Sir Harry Gibbs and the present Chief Justice agreed,

at the middle of the page he recites the rule as this:

ClT16/l/CM	24	1/3/90
Bropho(3)

MR McINTYRE (continuing):

The conunon law principle is not in doubt.

It is that, as a matter of construction, a statute does not bind the Crown unless an intention that the Crown be bound appears

either expressly or by necessary implication

from the words of the statute. The test of

necessary implication is not easily satisfied.

It must be manifest, from the very terms of the

statute, that it was the intention of the

legislature that the Crown should be bound.

Similar statements appear in CHINA OCEAN SHIPPING

and in WYNYARD INVESTMENTS. There seems to be an
ambivalence between the two different formulations,

if you like, and we would suggest that if this Court

does nothing else, it ought to scotch the concept
that not only does one look to the necessary

implication of the legislation, but one then goes on

in doing that, to apply further rules, as if they are

almost words of statute in determining how to

interpret the legislation.

It is perhaps illustrative of why the Privy

Council in BOMBAY formulated the rule in the way

that they did, to consider what they were seeking
to counter. Of course, they were considering an

appeal from a decision of the High Court of Bombay

and, in particular, the formulation of the

Chief Justice Mr Justice Beaumont, who found in the

lower court that where it could be shown that the

legislation cannot operate - and I am reading from

the bottom of page 61 of the Appeal Cases report.

It said that:

if it can be shown that legislation "cannot

operate with reasonable efficiency unless

the Crown is bound, that would be a sufficient

reason for saying that the Crown is bound by

necessary implication" and he concluded his

judgment by enunciating the proposition that if

the provisions of the Act "cannot operate

effici"ently and smoothly, unless the Crown is bound,

... the Crown must be held to be bound by

necessary implication".

So that one must read the Privy Council's decision

in BOMBAY in that context, and they were essentially
wanting to say that the test was not one of efficient

operation, but a slightly stronger test than that and

so that .. it may be, in our submission, that they have

perhaps then gone on to overstate the test if that
is to be regarded as a set of words set in concrete.

They are merely seeking to find another formulation

which assists them in determining what a necessary

ClT17/l/FK	25	1/3/90
Bropho(3)

implication is, and that future courts ought not to adopt it in other factual circumstances which are perhaps slightly different from those in Bombay,

·whereas as we know, of course, it was essentially a

dispute between a local authority and the Crown as

to whether water services ought to be put through a

housing development and, if so, what the arrangements

were between those two arms of government as to

appropriate payments.

(Continued on page 27)

C1T17/2/FK	26	1/3/90
Bropho(3)

MR McINTYRE (continuing): Clearly, it was a matter which might

be said to have elements of efficiency of government

and the court perhaps properly in that case said,

''Well, the Crown is not to be bound when it is merely

a question of whether the local authority can operate

its statutory powers and responsibilities in a manner

which is efficient". That is probably also a suitable

way of classifying the DUMBARTON case, again decided

by the Privy Council recently in relation to a

Scottish circumstance. I have the Weekly Law Reports

of 1989 and that report starts at page 1346.

Again, this was a conflict between the Crown and a

local authority and the Crown, of course, was seeking

to do repairs to a submarine base in Scotland through

the agency of the Ministry for Defence and they in doing

so erected a fence upon a public highway and set up

a series of huts and various other pieces which would

assist them in securing the alterations to the

submarine base and the local authority took the view

that that - well, it clearly was - was in contravention

of their legislation which required applications to be

made for planning permission. The authority served

upon the Crown an enforcement notice prohibiting the

carrying out or continuing of any activity upon the

road. The Crown said, "Well, no, we are not bound

by that legislation. We are performing this function",

and allowed and authorized their contractors to continue

to perform that function and to complete the work which

they said was necessary for the Ministry for Defence to

complete.

It may be that that kind of decision is to be

restricted to the area of the facts in which it sits,

that is, that it is firstly part of the carrying out

of the Crown of one of its defence operations and

it is essentially a question of competing conveniences,
if you like. Is it more convenient for the

Crown to be allowed to cut off a road or is it

less convenient for the local authority to have one of	its roads inhibited by the operations of the Crown.	It really fits into a similar kind of factual mould
to the PROVINCE OF BOMBAY case and we would say in
a different kind of factual mould from the kind of
facts which apply to the ABORIGINAL HERITAGE ACT of
Western Australia or indeed any other similar
legislation through this State.

The purpose of the ABORIGINAL HERITAGE ACT

we say is to protect Aboriginal sites and, of course,

the difficulty if that purpose is not carried out

and if the Crown or any of its instrumentalities

is not bound to comply with that Act is that sites

may be destroyed, they may be excavated which is a

ClT18/l/LW	27	1/3/90
Bropho(3)

form of destruction, they may be altered, which

is the general term which is used in section 17;
objects may be concealed, taken away from the

appropriate custodians and all of those mischiefs

may occur.

TOOHEY J:  Mr McIntyre, when you speak of similar legislation,

are you speaking of similar legislation in other
States or heritage legislation within Western

Australia?

(Continued on page 28)

ClT18/l/LW	28	1/3/90
Bropho(3)

MR McINTYRE:  I was actually thinking of legislation in the

Northern Territory.

TOOHEY J:  Can I just ask you about ·western Australia? Is the

heritage legislation of a more eeneral sort than the

ABORIGINAL HERITAGE ACT?

MR McINTYRE: No,	it is not~ Tbere is some general heritage legislation which is the subject of a bill that
has been before the House of the Western Australian Parliament for two years, but to my knowledge there
is no other general heritage legislation which applies
in the State of Western Australia.

TOOHEY J: Can we take it then that there is no other legislation

in Western Australia that throws any light by way

of comparison or contrast on the structure of this

legislation?

MR McINTYRE:  No,, none to my knowledge. What I had in mind was

in fact the Northern Territory legislation and one

of the articles which is referred to in our list

of authorities -it is No 3 under the heading

"Statutes, Articles, Monographs' et cetera, and I am

not sure whether your associates would have been

clever enough to find that but it is an article

by Grabosky called - it is one of a number of

articles in the booklet called Wayward Governance.

It is a rather political article and the only interest

in placing it before you is that it describes a

similar situation in the Northern Territory, in fact

in Alice Springs, where there was an Aboriginal site

which it is alleged was damaged and the prosecution

was launched under slightly similar legislation in the

Northern Territory, the Sacred Sites Ordinance

1978, and which is complementary to the ABORIGINAL

LAND RIGHTS NORTHERN TERRITORY ACT 1976, and what

that article tells us is that, at page 220, a

decision was made not to pursue the prosecution which

was launched against a minister of the Crown of

the Northern Territory,Mr Perron,and Dussin Constructions

which were a contractor who were engaged in the

operation;- So that is merely a parallel, if you like,

with the Western Australian legislation, and it

appears from that una.uthoritative report that a decision
was made, perhaps based on such authorities as the

ones we are considering today that the Crown and its

minister would. not be bound if prosecution were to

proceed under that Northern Territory legislation.

We would say, of course, that legislation of this

kind is directed towards particular mischiefs and that

it must, because of the broad way in which the Crown

operates these days through not only its

various public servants but through its various

statutory corporations, but that legislation must

have been intended to be binding upon those

ClT19/l/JL	29	1/3/90
Bropho(3)

manifestat:ions of the Crown, if you like, and that

is as Mr Justice Wallace found in his dissenting

judgment, the manifest intention of the legislation,

that is to bind the Crown.

If I could perhaps just quickly take Your Honours

to the parliamentary debates - - -

MASON CJ: Well now what is this designed to achieve, Mr McIntyre,

the reference to the parliamentary debates?

(Continued on page 31)

ClT19/2/JL	30	1/3/90
Bropho(3)

MR McINTYRE:  To say to Your Honours that there is nothing

in the parliamentary debates which specifically

turns on the point other than to say in a general

way that the legislation is designed to protect

Aboriginal sites.

MASON CJ:  Well, is there any point in going to the

parliamentary debates if that is all they are going

to establish? After all, one can get that from

looking at the statute.

MR McINTYRE:	Yes, I do so because I know that my learned friends for the State of Western Australia
have mentioned it as one of the things that they are
going to take Your Honours to or may make some reference.
MASON CJ:	To support an opposite interpretation of this -
MR McINTYRE:	Well, perhaps, yes.
MASON CJ:	Might it not be advisable to wait until you hear

what their submission is and then respond to it?

MR McINTYRE:  Very well, Your Honour, I can do that.

Mr Churches will now deliver the balance of the

arguments for the appellant in relation to the fourth

topic.

McHUGH J:  Well, before you sit down, could I just ask you

this question. This presumption that the Crown is

not bound by statute or held by necessary implication

is really a background norm but in the last quarter

of the 20th century other background norms might be

that a statute passed for the benefit of certain

groups, such as the poor or the underprivileged or

Aboriginal~ is also to be construed beneficially

and is to be weighed in the balance against any norm

in favour of the Crown. Apart from DOWNS, is there

any case where it has been held that a Crown is

not bound even though a statute is passed for the

protection or benefit of a special class of persons? "("Continued on page 32)

ClT20/l/JH	31	1/3/90
Bropho(3)

MR McINTYRE:	One does not immediately flood to mind, Your Honour. I will see if my learned junior has it.
McHUGH J:	You see, in the United States there are a series of

cases that treaties and statutes dealing with the

protection of Indians are to be construed beneficially

in their favour.

MR McINTYRE:  Yes. There was, of course, the decision of

this Court in GERHARDY V BROWN in which I think

it was the finding of this Court that the

PITJANTJATJIRA LAND RIGHTS ACT was a piece of

legislation which was passed for the specific

benefit of the Anangu Pitjantjatjarakuwho are

the subject of that piece of legislation and a

determination was made that that was a valid piece of

legislation, so that perh?PS that presumption may have

been underlying some of the decisions that were made

in that case, but others do not flow to·mind

immediately.

Certainly, what Your Honour suggests is that

clearly it is merely a presumption, the presumption

against the Crown being bound, and it clearly must

be weighed in the full social context and as my

learned friend will shortly tell you, we present to

you a suggestion that there ought to be equality before

the law, but what Your Honour is also saying is that

one may even go further than that and say that there

is some special protection designed in this

legislation and we would say that that really does
flow from the legislation itself. It flows from the

long title to the Act, and it flows in particular

from - - -

McHUGH J:  Prima facie, that seems to be correct. It seems to

be a statute passed for the benefit of a special class

of persons and so it gives rise to certain presumptions

or assumptions, I suppose.

(Continued on page 33)

ClT21/l/HS	32	1/3/90
Bropho(3)

MR McINTYRE:  It might be said that the long title to the

Act merely is for the benefit of the public, because

that is what it says, but when one then goes on as

I was seeking to do and looks at sections 7 and 9

of the Act, as I think I was seeking to suggest, there

are imbedded in that legislation some particular

rights flowing to Aboriginal people, as those who

are the custodians of the site or of the object, and

that their right to continue to use that site or that

object for their benefit is preserved by this

legislation. Now, of course, if in fact the Crown

can come along and say, "Well, we are not bound by
the legislation and we can bulldoze that site or we can take away that object and sell it to the London

Museum':, then of course the protection or the custodial

rights which are set out in sectiorS 7 and 9 of the

legislation~ no effect is being put to those provisions,

so that it would be appropriate for this Court to

consider those presumptions and of course, ultimately

what that does is to bring the Court back to the

question of what is the manifest intention set out

in the legislation and we say that at least one of its

clear and manifest intentions is to protect those sites

and to allow Aboriginal people to continue to exercise

their interests in those sites as custodians and if

they are not allowed to do that because the Crown,
through its various agencies is able to ignore the

statute, then the intention of the statute is being

frustrated.

TOOHEY J:  I am not sure that I follow that. You put the Act

to us originally as an Act which has certain prohibitions,

against -acts that might destroy or damage Aboriginal

sites and Aboriginal objects. You are putting it now

to us in a slightly different way in terms of

legislation that is for the benefit of a group of

people. Is there anything in the Act that gives

Aboriginal people rights that they would not otherwise

have? For instance, can I illustrate? In relation

to section 17, if a ~erson, _Aboriginal or non-Aboriginal:

or in any way alters any Aboriginal

excavates,·destroys, damages, conceals

site- -

is section 17 equally applicable?

(Continued on page 34)

ClT22/l/CM	33	1/3/90
Bropho(3)

MR McINTYRE: Certainly it gives Aboriginal people a protection

in a particular situation; that is, as set out in

section 7(1); that is, that - - -

TOOHEY J:  Yes. I am not sure what that section means but I

understand what you are saying.

MR McINTYRE: Well, it says that a person who is of Aboriginal

descent and:

usually lives subject to Aboriginal customary

law ..... shall -

to the extent that he has rights and interests held or enjoyed:

in respect to any place or object -

those rights shall not be ,abrogated by this

legislation. Now, I suppose that that presumes some

customary rights, some traditional rights, the

rights of the kind which, I suppose, are before

this Court in the case of MABO, QUEENSLAND V

THE COMMONWEALTH. matters upon which no court

other than Mr Justice Blackburn in the Northern

Territory have adjudicated upon but, perhaps, section 8 cements the concept that there are

rights which this Act seeks to protect and that

says that:

Where the Trustees are satisfied that a

representative body of persons of Aboriginal
descent who usually live subject to Aboriginal

customary law has an interest in a place or object to which this Act applies that

is of traditional and current importance

to it, and which is in the custody or control

of the Trustees, the Trustees shall make

that place or object available to that

body as and whenever required for purposes

sanctioned by the Aboriginal tradition -

so that there is an assumption of current traditional

rights ancr Aboriginal customs which we would say are
rights which may be part of the local legal custom

which is part of the common law.

(Continued on page 35)

34   1/3/90

Bropho(3)

MR McINTYRE (continuing):  Those rights are protected by

the trustees and they may, in fact, hand those

objects or custody of that site over to those

Aboriginal persons. Now if, of course, the site

can be readily destroyed, then the protection which

is - or the power which the trustees have been

given in section 8 to confer custody of those places

and objects, is severely impaired; "substantially

impaired" to use the terminology of Mr Justice Malcolm.

TOOHEY J:  What is not apparent to me, Mr McIntyre, and perhaps

does not have to be for the purposes of this appeal,

is whether section 7, for instance, confers some

right to go - uponan Aboriginal person entitled

by custom and law - upon a particular site to do so by reason of the fact that it is an Aboriginal site

but whether it is in private ownership or in the

ownership of the Crown.

MR McINTYRE:  Yes, well it tends to suggest that. I am not

aware of any situation in which that has been tested

and I am aware of similar legislation in Queensland

which, in fact, prohibits access to areas which are

in private ownership to the Aboriginal custodians.

TOOHEY J:  I did not want to take you away from the thread of

your argument but I was lead into asking you those

questions because you seem to have shifted the focus

of your argument from obligations imposed by the Act,

which is really, I assume, what the appeal is all

about, to benefits that are conferred by the Act which

may take us into another area that is not strictly

relevant to the appeal. I have no firm view about that.

(Continued on page 36)

ClT24/l/JH	35	1/3/90
Bropho(3)

MR McINTYRE:  What I would say about that to Your Honour

is that both things occur within the Act. There

are, of course, obligations upon persons, there
are powers, of course, and trustees and there are
also rights which are being protected, we would
say, flowing from sections 7 and 8. There is

an implication that there are rights in

Aboriginal people which the trustees then have

an obligation to protect in accordance with this

statutory machinery and we say the statutory

machinery must have been intended to be universal

in its application, also, we would say, applying to

the Crown, and if it does not, then it is severely

impaired in the way in which it is able to operate.

And, we would say that Mr Justice Malcolm could well

have been satisfied that if the legislation is

substantially impaired, then if the Crown was not

bound, the Crown is bound.

BRENNAN J:  Mr McIntyre, can I just ask you - I am still

having difficulty with the notion of the Crown being

bound by the statute in any relevant sense.
I understand that the argument is, of course, the

Crown is bound by section 5 of the statute?

MR McINTYRE: Well, perhaps I do not understand why Your Honour

says that at that - what that does is to define

what - - -

BRENNAN J:  You wish to say that when the Act says it applies

to any place of importance, it means, "any place of

importance".

MR McINTYRE:	Yes, yes.
BRENNAN J:	So, that· includes Crown land and, to that extent

it applies to land which is in the ownership of the

Crown, the Crown can do - - -

MR McINTYRE:  Yes, it does not oblige the Crown to do anything

or not do anything, but it - no, yes.

BRENNAN J: What other binding of Crown are we concerned with?

MR McINTYRE: Well, of course, the subject of these legal

proceedings were to seek to have the Crown prevented

from doing the things which are prohibited by
section 17; that is, excavating, destroying, damaging,

concealing or altering an Aboriginal site, either by

itself or through its agent. So that that was the

basis upon which the writ and the statement of claim

were before the Court.

ClT25/l/FK	36	1/3/90
Brophy(3)

BRENNAN.J:  So that the live question is whether or not

the Crown is bound by section 17?

MR McINTYRE:  Yes, that is certainly - - -

McHUGH J: The specific question is whether the ~10rd "person" in

section 17 includes the Crown?

MR McINTYRE:  Yes. Now,of course, it has not ever been said

that it then flows that the Crown can commit an

offence or can-in fact be penalized as would - - -

MR DAWSON: Is all that right? Is it not really a question

of whether section 5 applies? Once section 5 applies,

well then, no one can come in and do these things.

' MR McINTYRE: Certainly Your Honour, section 5 applies, of

course, to the Crown-

DEANE J:	But also involved is whether a servant of a Crown
instrumentality is inmrune from the provisions of
sectiGn 17  that being the practical question here.

MR McINTYRE: Yes, that would be so, and also whether a servant

of a statutory corporation acting as agent to the

Crown.

DEANE J: Well that is what I said - a servant of a Crown

instrumentality.

MR McINTYRE:  Yes.

McHUGH J: Are you going to deal with that argument? Are you

going to deal with cases like ROBERTS V AHERN,l CLR,

which talk about the servants of the Crown giving

the immunity to the Crown in this type of situation

because that is what it is all about, really, is

is not? .

(Continued on page 38)

ClT26/l/CM	37	1/3/90
Bropho(3)

MR McINTYRE:  Yes. I tak~ it,· Your Honours,..r that this takes into

account the fact that the WE~TERN AUSTRALIAN all of the irmnunities of the Crown and we are now just

down to a question of whether any servant, whether

it be of the Crown or of a statutory corporatiori is

in fact bound by the legislation. '

McHUGH J:  The body politic known as the Crown or the Corporation

cannot do these things. They can only do as

human beings or other agents, independent contractors

of theirs.

MR McINTYRE:  Yes, we would certainly urge upon Your Honours

the view that the individuals can be bound. There

is some authority, some recent discussion - - -

BRENNAN J: It is not a question of whether individuals can be

bound is ·it?' It is a ·question of whether there are
individuals who are excluded from the generality

of the word "person", that is, any person other than

a Crown servant.

MR McINTYRE:	Yes~, Your Honour is saying that Crown servants are persons like any other person and are thus included
as a converse.
BRENNAN J:	I am not sure where the argument about Crown

being bound ·is .leadung us in the context of sect.ion 17.

I can understand the argument if the question is that section 17, when it says "any person", does not mean any person. It means a person other than a

Crown servant. In that event the whole doctrine

is one which allows you to read into statutes

qualifications.

MR McINTYRE:  Yes.

(Continued on page 39)

ClT27/l/LW	38	1/3/90
Bropho(3)

McHUGH J:  You see, in section 17, it is not so much a

question as to whether the Crown is bound. It is

a question whether the Crown or a Crown servant

has got an immunity.

MR McINTYRE:	Yes.
McHUGH J:	What did the defendants say in their defence?

We have not got the defence, have we?

MR McINTYRE:  No, we never got to that point, of course,

because they struck out our statement of claim.

McHUGH J:	Right.
MR McINTYRE:	There is some interesting discussion, perhaps,

in the same direction in a subsequent action

essentially on the same subject-matter and it was .a	decision of Mr Justice Franklin on an application for
an interim injunction to prevent the State of
Western Australia and the Minister for Works from
continuing with the same project and His Honour Mr Justice Franklin considered the
question of whether the Crown could be bound by an
injunction and found that if ·the Crawn could not be bound at least the Minister for Works could, in fact, be bound because she was carrying out a
statutory function and, similarly, the injunction
applied to not only the minister but her servants
and agents. We would say that clearly a servant
or agent can be bound by section 17 of the
ABORIGINAL HERITAGE ACT because, perhaps, in order
for a servant or agent - if a servant or agent was,
in fact, bulldozing an Aboriginal site, then they would, in fact, be breaching the law.

McHUGH J: 

Well, that depends whether or not he or she is

entitled to the immunity of the Crown, not coming
within section 17.

MR McINTYRE: - Yes. _ 

TOOHEY·J: 

But, the matter seems to have been approached

from the beginning by the defendants and that matter,

I suppose, picked up by the plaintiff in terms of

whether or not the Act bound the Crown.

39   1/3/90

~i~igbzifH

MR McINTYRE:  Yes.

TOOHEY J: And put as a joke a broad proposition and was that

the way in which the application to strike out

was cast?

MR McINTYRE:  Yes, that is so and that is why I am having some

difficulty in approaching Your Honours' questions, not

only that but, of course, it seemed to me that the

pleadings also followed along that line of presumption.

TOOHEY J: Well, there is no reference to servants or agents in

paragraphs 3 or 4 of your statement of claim, you

just simply say that it is the first and second

defendants who are doing this work?

MR McINTYRE:  Yes, that is right. This, of course, has been the

subject of other proceedings and ultimately an

injunction was granted against the Minister for Works
or her servants or agents, which perhaps dealt with

the practicality of the situation. But I suppose the

difficulty was that we are only at the stage of an

endorsed State claim which was, perhaps, cast in fairly

broad and general terms and it had not des.cended to

the particularity of the legislation being binding

upon the person wielding the pick axe.

BRENNAN J: If section 17 applies to the servants and agents of

the Crown then the statute which gives authority to
the second defendant must be construed as not extending

to the authorization of a breach of section 17?

MR McINTYRE:  Yes,I think that is a legitimate view which we

would urge.

DEANE J:  If you look at page 15 you will see and the same

applies to Mt-.Justice Brinsden, that the Full Court

clearly saw the question being whether section 17

applied to the servants and agents of the Crown

acting on behalf of the Crown. That appears quite

clearly from about point 7 on the page and

the question whether His Honour then refers to

CAINE V DeYLE and does it in terms of the Crown or

servants of the Crown. Mr Justice Brinsden's

argument reads the same effect.

ClT29/l/JL	40	1/3/90
Bropho(3)

MR McINTYRE: Yes and of course that goes on to deal with

the case of CAINE V DOYLE and the finding in that

case that the Crown could not be fined or imprisoned.

Of course, in CAINE V DOYLE, it was found that - and

this is at page 18 of the appeal book:

that the penalty provisions in the relevant
legislation did not apply to a servant of the

Crown in the right of the Commonwealth, although

the Commonwealth Crown was expressly bound by

the Act.

It goes on to say that:

If the servants of the Crown in right of the

State were intended to be bound by the present

Act, this could have been achieved by applying

to Crown servants a provision similar to that

in s.57(2) of the Act -

so that what that decision says is that there needs

to be some specific legislation which binds servants

of the Crown before they are bound and that they

would otherwise have the benefit of the presumption
that favours the Crown being bound but it is certainly
something which - obviously it is not a matter which

we have given direct attention to in preparation of

our argument but it is a matter which certainly bears

some consideration and we may well be in a position

to say something about that in our reply, if the

matter is further canvassed.

Mr Churches will now proceed with the fourth

matter.

(Continued on page 42)

C1T30/l/SH	41	1/3/90
Bropho(3)
MASON CJ:	Yes, thank you, Mr McIntyre.	Mr Churches, we

do have the advantage of this extremely instructive

written submission that you have presented to the

Court and we have read it, and we will have the

opportunity of studying it more closely overnight.

I was going to make one comment to you and that is

this; it does, perhaps, lead to the suggested

conclusion that the Court ought to formulate a new

rule but, of course, the formulation of a new rule

would, if it applied in relation to statutes enacted

before this time, in effect, distort the very basis

on which the legislators have expressed their

legislative will. Are you suggesting that we should

adopt a new rule for the future?

MR CHURCHES:  Your Honour, I think that the rule should be

overturned both for the future and as to the past.

I do that on the basis that I do not accept that the

legislative will was necessarily framed in the light

of the presumption and I have in that outline of the

written submissions given you one example, that

cited by the New South Wales Law Reform Commission

where they went to New South Wales Hansard, looked

at the debate on the FACTORY SHOPS AND INDUSTRIES

ACT. There was a clear presumption on the face of the

reading of that Hansard that the members debating the

bill assumed that it would bind the Crown.	That was
in 1962.	Nine years later this Court found, by

majority, that that statute did not bind the

legislating Crown, a serious matter given that it was

an industrial safety Act.

L think that that is a clear example of the fact

that the individuals who comprise our legislatures are

not apprised of this aspect of the minutiae of the

common law. I think it therefore appropriate that

this Court revise the law, not merely as to the future,

but also as to the past.

MASON CJ:  Yes. That is the submission you make.

MR CHURCHES:  If it would assist, in two or three minutes

if I could clear the air on the matter of Crown

employee~-which was obviously -

MASON CJ:  Yes, certainly. By all means do that.

MR CHURCHES:  It was not part of my prepared argument, so I

am shooting from the hip, as it were, but I think it

was obviously on the mind of a number of members of

the - - -

McHUGH J:  It might be better if you took aim tomorrow.

ClTJl/1/HS	42	1/3/90
Bropho(J)

MR CHURCHES:  But if I could clear the air on this one ..

It would be the appellant's submission, Your Honours,

that the WESTERN AUSTRALIAN DEVELOPMENT CORPORATION

ACT, specifically in section 4, provides that that

Corporation is the Crown and it takes all Crown

immunities. Now the question that seems to be

bothering members of the Court is whether the

employees, the individuals who actually do the

digging and the excavating and the work on behalf of

the Western Australian Development Corporatiori,will

in turn be shielded by those immunities specifically

referred to in that Act. And the answer to that is,

I think, simply in the common law evolution of the shield of the Crown, which goes back to a doctrine espoused in 1865 in the House of Lords in the case

of CAMERON V MERSEY DOCKS , 11 ER,and there

Lord Cranworth, for the first time that I am aware of,

espoused the idea that the Crown's employees, the

people who acted on behalf of the Crown, because the

Crown is, of course, an abstract notion, the Crown as

an abstract cannot go, in this case, digging holes,

bulldozing a site. It does require human agents and

Lord Cranworth said that the Crown immunity would

extend to the employees of the Crown.

Now it does however raise the question of how

broad that immunity is and while I must accept that

that is the common law on the ambit of the shield of the Crown, that it will extend to the specific

employees, I do not, for the purposes of this

argument, except that the shield of the Crown extends

to contractors with the Crown, and I base that, which

I realize is in conflict with decisions of this Court,

on the House of Lords decision in DIXON's case, which

was a decision overturning the Court of Appeal and

specifically finding that the prerogative right of

the Crown to be immune from the operation of patent law

or,rather,the Crown prerogative to deal with patents

as it saw fit, did not extend to contractors with the

Crown. The contractors were the people who had -

it is DIXON V LONDON SMALL ARMS CO.

(Continued on page 44)

ClT32/l/CM	43	1/3/90
Bropho(3)

MR CHURCHES: (continuing) : The conpany clairr.ed that: it was entitled to

take the Crown prerogative for dealing with patents in

its manufacture of Martini-Henry rifles for the

British Army. This was in the 1870s and the

British Army was rearming itself. It wished to be

able to break the patents held by other manufacturers

for breech loading rifles and it said, "We can do

that in defiance of the patent law because we

have the Crown's innnunity". The Court of Appeal

agreed with that proposition and the House of Lords

expressly disagreed with it because, the House of

Lords said, the manufacturers were only contractors

with the Crown. They were not the Crown itself

and they were only in a contractual relationship

with the Crown. I suppose the distinction is that

in all the old cases between contracts of employment

and contracts for services, some of that fine

distinction there.	I will give you a reference to
that case:	DIXON V THE LONDON SMALL ARMS COMPANY,

(1976) 1 AC 632.

McHUGH J: You deal with it at page 6 of your supplementary

submissions in your discussion of DUMBARTON.

MR CHURCHES:  Thank you, Your Honour, I had forgotten.

I raise that now because I am aware that that is contrary

to the thrust of the reasoning in BRADKEN. It is not,

I think - or at least I had not perceived it as being

pertinent to the appellant's argument today until it

was raised by Your Honours but I wanted to move to that

innnediately and I hope that clarifies the view of the

appellant with regard to the ambit of the shield of

the Crown.

MASONi CJ: Thank you. Mr McKechnie, can you tell us how long

you anticipate your argument and that of the respondent

intervenors supporting you will be tomorrow?

MR McKECHNIE:  If Your Honours please, we see the point though

difficult as fairly short and I would say we would be

no more than two hours.

but it is better to be over and I have had the advantage I would expect to be less

of seein~ the arguments of the intervenors. I suspect,

strongly that much of the matters they would wish to

canvass we would have ... already canvassed so I suspect

they will be fairly short too except in one or two
instances where they wish to go beyond what we have

said.

MASON CJ: Thank you, Mr McKechnie. Now, is it possible for

us to obtain your written submissions?

MR McKECHNIE:  Yes, Your Honour.

MASON, CJ: And the intervenors written submissions at this stage?

ClT33/l/LW	44	1/3/90
Bropho(3)

MR McKECHNIE:  Yes, Your Honour, I can hand mine to Your Honours

right now. And I can also hand the second respondent's

submissions that he has just handed me as well,

Your Honour.

MASON CJ: Thank you, Mr McKechnie. The Court will now adjourn

and we will resume this case at 9.45 am tomorrow.

AT 4.33 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 2 MARCH 1990

'

ClT33/2/LW

45   1/3/90

Bropho(3)