Foster, Lansen & Ors v NT of Australia

[2000] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D12 of 1999

B e t w e e n -

LESLIE FOSTER, BARBARA NELSON, ROSIE CASSON, MICK SAMBO, JIMMY JONES and BRIAN TENNYSON

Applicants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE CONSERVATION LAND CORPORTION

Second Respondent

THE HON. JUSTICE H.W. OLNEY, ABORIGINAL LAND COMMISSIONER

Third Respondent

Office of the Registry

Darwin  No D3 of 2000

B e t w e e n -

HARRY LANSEN, GORDON LANSEN and FREDDY RAGGATT

Applicants

and

THE HON. JUSTICE H.W. OLNEY (acting as Aboriginal Land Commissioner

First Respondent

THE NORTHERN TERRITORY LAND CORPORATION

Second Respondent

THE NORTHERN TERRITORY OF AUSTRALIA

Third Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO SYDNEY

ON FRIDAY, 14 APRIL 2000, AT 9.33 AM

Copyright in the High Court of Australia

_________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned
friend, MR N.J. WILLIAMS, for the applicant in each matter.  (instructed by David H Avery) and (Northern Land Council)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:  If the Court pleases, I appear with my learned friend, MS R.J. WEBB, for the Northern Territory in each of the matters.  (instructed by Solicitor for the Northern Territory)

MR G.E. HILEY, QC:   If the Court pleases, I appears in each case for the second respondent, the relevant Corporation.  (instructed by Cridlands Lawyers) and (Clayton Utz)

GLEESON CJ:   Thank you, Mr Jackson.  Is it convenient for the parties if these two matters be heard together?

MR JACKSON:   Yes, your Honour, so far as we are concerned.

GLEESON CJ:   Does that suit you, Mr Pauling and Mr Hiley?

MR PAULING:   Yes, your Honour, it suits me.

MR HILEY:   Yes, your Honour.

GLEESON CJ:   Very well.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, there are three questions; one is common to each application, each also involves a separate question.  The common question is whether the Court should reconsider an aspect of a decision of a Court of five Justices in The Queen v Kearney; Ex Parte Japanangka (1984) 158 CLR 395. The relevant part of the decision was that in which it was held that land held by the Conservation Land Corporation as it was then known was immune from claim under the Aboriginal Land Rights (Northern Territory) Act.

Could I pause to say, your Honours, there are two bodies holding land in the Northern Territory to which the decision is relevantly applicable.  One is the Conservation Land Corporation in the case of Foster; the other is the Northern Territory Land Corporation in Lansen.  The legislation is relevantly identical.  Your Honours, may I come to the particular part of the judgment in just a moment, but could I take your Honours to ‑ ‑ ‑

GLEESON CJ:   The particular question being whether land held by those bodies is unalienated Crown land?

MR JACKSON:   Yes, your Honour, yes, and, your Honours, that turns fundamentally on the question whether those Corporations are the Crown.  There are various ways of putting it and that is the second question in one of the matters, but that is fundamentally the question. 

Your Honours, the history of the establishment of the bodies can be seen in application book in Foster at page 55, paragraphs 2.1 and 2.2, and what was done, in effect, was, leaving aside land in towns, the unalienated Crown land was then land which was vested in one or other of the two Corporations.

The management of the land was then by the same legislation to be under the control of, in the case of the non‑conservation land if I can put it that way, the Minister and in the case of the conservation land the Conservation Land Commission.  Your Honours, the consequence of that and the importance of the present issue may be seen from the matters referred to in our summary of argument in Foster in two places:  first, at the same page, paragraph 2.3 and, secondly, paragraph 4.1, at page 60.

GLEESON CJ:   Just before you go any further, Mr Jackson, I should have mentioned that the Deputy Registrar has provided a certificate that the Australian Government Solicitor has filed an appearance on behalf of the third respondent, the Honourable Justice Olney, submitting to the jurisdiction of the Court save as to costs.

MR JACKSON:   Your Honours, could I commence then with the central part of the argument and it is this ‑ your Honours will see it summarised in Foster at page 57 paragraph 3.2.  Essentially the point we would seek to make is that claims under the Land Rights Act are claims which are made, not under an enactment of the Territory, but under an enactment of the Commonwealth.  The relevant definition is that of “unalienated Crown land” which your Honours will see in that same volume at page 33, paragraph 6 in the reasons of the Full Court.  That definition of “unalienated Crown land” picks up the definition of “Crown land”, which is on the same page, and, in particular, it refers to:

land.....that has not been alienated from the Crown by a grant of an estate in fee simple.

Now, your Honours, could I come then to Japanangka and may I before taking your Honours to the relevant passages in two of the reasons say that the case decided two matters of potential importance. One was that the reference in the definition of “Crown land” at page 33 to:

land set apart for, or dedicated to, a public purpose under an Act –

was held to be held a reference only to enactments of the Commonwealth.  The Land Rights Act contains no exception, if I could use that expression, permitting the Northern Territory Parliament to immunise or exempt land from claims under the Act by setting it aside for a public purpose under the Northern Territory statute.  The second aspect, your Honours, is that which it is sought to challenge, namely, whether the Corporation in each of the cases is a person other than the Crown for the purposes of the definition.

GLEESON CJ:   And when you say it is sought to challenge that aspect of the decision, is persuading the Court to reopen that decision essential to your success?

MR JACKSON:   On this point, your Honour, yes.

GLEESON CJ:   When you say “on this point”, I am not sure what you mean.

MR JACKSON:   No, I am sorry, your Honour.  I said to your Honour there was one issue common to both cases and an issue which was distinct from that in each of the cases.  When I say “on this point”, I am referring to the first of those points, the one common to both cases.

GLEESON CJ:   But do you have to succeed on that issue in both cases?

MR JACKSON:   No, your Honour, I have to succeed on that issue in relation – I am sorry, may I put it this way.  In the Lansen Case there is another distinct and separate point.

GUMMOW J:   Which would outflank it.

MR JACKSON:   Yes, your Honour.  In the other case, one view of it would be that the separate point is one which is a different way of putting the first point.  That is the one on which I would need leave.  Your Honour, it is perhaps possible to parse and analyse it differently but it is related to it, I would have to say.  Now, your Honours, the aspect to which I would wish to refer now and the point on which we would seek to invite the Court to reconsider Japanangka 158 CLR 395 is one which is referred to specifically in two passages in that case. Your Honours, I think the case is No 2 in the bundle of materials provided by the Northern Territory.

Now, your Honours, the reasons of Chief Justice Gibbs dealing with this point appear at page 404 about point 6 on the page and your Honours will see the paragraph commencing “For these reasons” and could I then go to the second sentence, five lines into that paragraph:

A question arose as to an area known as the Devils Marbles Conservation Reserve.....which was vested.....by s 5 –

and your Honours will see then the argument in relation to that set out and, in particular, section 29 of the Act ‑ I will take your Honours more specifically to the Act in a moment – and then at the top of page 405.  Now, your Honours, the passage to which I wish to refer goes through to the end of the paragraph about halfway down page 405 and what ‑ ‑ ‑

GUMMOW J:   In a way it turns on section 29.

MR JACKSON:   Indeed, your Honour, but I was just about to say, with respect, in the sense that I was going to say your Honours will see at about point 3 or 4 on that page what his Honour says is:

Quite clearly the Corporation is not the Crown ‑ the intention expressed by s 29 is decisive –

and he refers to Townsville Hospitals Board v Townsville City Council, which, of course, was a case where the legislation of the same legislature and which one had no supremacy over the other.  Your Honours will see that a similar approach was taken by the other member of the Court who dealt with the issue, that is Justice Wilson, at page 411 about point 8 on the page, the last paragraph, and it goes through to the end of the paragraph on page 412 and could I refer particularly, your Honours, to the last sentence of that paragraph.  As to the other members of the Court in the case, Justice Murphy did not deal with the question specifically but joined in the orders of the Court; Justice Brennan agreed with the Chief Justice’s reasons; Justice Deane agreed with Justice Brennan’s reasons.

Now, your Honours, could I then go to the substance of the issue and which we have endeavoured to encapsulate in the submissions in reply in Lansen at page 148 of the application book, paragraphs 1 to 4.  Now, your Honours will see, in effect, in paragraph 1, something I have said I think already in the course of our submissions, but in paragraphs 2 to 4 on page 149 essentially what we seek to say is that if one looks at the position under the Land Rights Act, that is an enactment of the Commonwealth, the question is always whether it is the Crown in terms of that enactment.

Now, no doubt, your Honours, one looks to see the terms of the State or Territory enactment in question in determining whether a State body is or is not the Crown for the purposes of a Commonwealth enactment, but the mere fact that one of the provisions is a declaration by the enacting legislature, whilst relevant, cannot, in our submission, be decision and what we would seek to say in particular is something that is referred to in paragraph 3 of the submissions on page 149 and that is a reference, your Honours, to Deputy Commissioner of Taxation v State Bank of New South Wales 174 CLR 219, which your Honours should have amongst the materials provided by the applicants.

It will not be in that book I think, your Honours.  It will be the one provided separately.  The particular reference, your Honours, is at page 230 of that decision and, your Honours, I wanted to refer to the whole of the paragraph commencing at about point 2 or 3 on the page but, your Honours, in the end one comes to the last five or six lines, or the last 10 lines perhaps, where it was said:

Indeed, the legislature could explicitly endow a private corporation carrying on business for private purposes with the privileges and immunities of the Crown, yet that private corporation would not answer the description of “a State” for constitutional purposes.

Could I pause to say, your Honours, this is not constitutional, of course, but one is speaking about the enactment of a different legislature and one relevantly superior.  Your Honours will then see the members of the Court saying:

The question which arises here is not to be answered by reference to a doctrine which has evolved with the object of answering questions of a different kind.

And that is as between enactments of the same legislature.  So, your Honours, the approach taken and which seems to lie at the heart of what was said by Chief Justice Gibbs in the earlier case is one which, in our submission, does not accord with the approach taken later in the Court in that case.  Your Honours, could I just go then ‑ ‑ ‑

GUMMOW J:   What then would be the operation of section 29?

MR JACKSON:   Well, the operation of section 29, your Honour, would be that it would be a provision which so far as the law of the Northern Territory was concerned said that body was not entitled perhaps so far as the Northern Territory is concerned to the privileges, immunities, however one cares to describe it, which would be attracted by a corporation which could be described as a corporation which is or represents the Crown.  What that might mean, your Honour, would be that in circumstances where another enactment of the Territory did refer to the Crown, then one treats the section 29 as something akin to a definition section saying that unless the contrary intention appears it is not to be treated as ‑ ‑ ‑

GLEESON CJ:   Section 29(2) goes beyond that, does it not?

MR JACKSON:   Yes, it does, your Honour, in a sense.  I am sorry, your Honour.  There are two things really.  One is the definitional aspect of it.  The other is dealing with how it is to be administered in terms of its status as between the Crown and the Minister.  Could I just say, your Honours, however, this is not the only provision of the Act.  In fact, there are not really very many relevant provisions.

If one does look at the enactment, it is apparent, in our submission, that what it is doing is to provide for a public body which owns the public lands of the Northern Territory; they are to be dealt with by public bodies which are themselves the Crown and for the purposes of the Commonwealth enactment of a particular type, making land available for claim, then, in our submission, the inference would be drawn, looking at the whole of the enactment – and I will take your Honours very briefly to it in a moment – that it is the Crown for relevant purposes.

GLEESON CJ:   When the Act says:

The Corporation is not subject to the control and direction of the Minister or the Crown –

where does its control and direction come from?

MR JACKSON:   Your Honour, there is no positive statement of that apart from the establishment of a corporation in section 27 of the Act; the fact that there are no fewer than two persons by section 30 who are to be members of it; the members are appointed by the Minister and, your Honour, it is from there one goes to derive inferences.  One sees inferences from section 39, which is the provision which gives any function to the activities of the Commission and that is that it provides that its function:

is to acquire, hold and dispose of real property –

but the moneys for that to occur are to be provided by another Commission which is subject to direction of the Crown, moneys payable to the Corporation go to that Commission and the Commission in section 39(6), not the Corporation:

has the care, control and management of all land acquired by the Corporation.

So that it sits there, your Honour, as a body which is a body corporate which is to acquire land in accordance with the Act.  The only purpose that one might gather for the acquisition is really from two things, one being the long title to the Act, your Honour, which describes it as an Act to establish a commission, not the corporation, but a body which is to manage, in effect, parks and things, and one goes to the functions of the Commission itself, which are to:

promote the conservation and protection of the natural environment –

and so on and, your Honours, if one looks at the enactment, one sees the Corporation as purely a corporation established by the statute to hold land for no purpose which can be identified other than purposes are governmental in the broad sense of “governmental” and in those circumstances, your Honours, it would be our submission that that is something which in terms of the definition in the Aboriginal Land Rights Act is something which is held by the Crown.

GLEESON CJ:   Now, what is the point in the second case that ‑ ‑ ‑

MR JACKSON:   Your Honour, the additional question is - your Honour, at first it seems a pure question of amendment but it goes beyond that because it concerns an amendment which the applicant sought to make in Lansen.  The amendment your Honours will see at pages 81 to 82 of that application book and it is referred to in paragraph 66 of the reasons for judgment.  Now, it is sought to attack, to put it shortly, the transfer of the land or the lease, transfer the land to make it not land which was held by the Crown.

Your Honours, the contention was that the transfer of the lease of the property from the Northern Territory to the Land Corporation was invalid because it was attended by an improper purpose.  That went, your Honours, to the jurisdiction of the Land Rights Commissioner because, if it were correct, the transfer would not have vested an estate or interest in the Corporation so it would not be land in which any person other than the Crown held an estate or interest.  The argument in support of the application, your Honours, appears at page 149, paragraphs 5 and 6.

GLEESON CJ:   But on page 83 one of the reasons given for not allowing the amendment was that it would still be open to the applicants to pursue this question in other proceedings.

MR JACKSON:   Well, your Honour, what one has to bear in mind is that this was a case – and I was going to take your Honours to pages 82 and 83, particularly paragraph 68 – this is not a case where the Full Court was sitting on appeal or anything of this kind. This was a case where the Full Court was exercising the original jurisdiction of the Federal Court and it was a case where, as section 79 of the Constitution says, Parliament can choose how many judges are to exercise original jurisdiction. Parliament said three in cases like this because of Justice Olney’s position.

Now, your Honours, in circumstances of that kind, the view taken in paragraph 68 seems to have been that a point that was perfectly open to be taken – I will give your Honours two reasons for that in just a moment – the point that was perfectly open to be taken should not be dealt with by the court exercising original jurisdiction because it would require a court of three to hear it.  Your Honours, I see the time has expired.  May I have a moment to complete what I am about to say?

GLEESON CJ:   Yes.

MR JACKSON:   And, your Honours, that, with respect, is something that simply should not be permitted.  The court has jurisdiction.  It is the court, court of three, to hear this kind of case.  That is one aspect of it.  The second thing is that one of the parts of the proceedings before the court was under the Administrative Decisions (Judicial Review) Act and section 11(6) of that Act says that:

The applicant for an order of review is not limited to the grounds set out in the application but, if he or she wishes to rely on a ground not so set out, the Court may direct that the application be amended to specify that ground.

GLEESON CJ:   What is the order that you would seek if you succeeded on this point alone?

MR JACKSON:   Your Honour, on this point alone two possibilities:  the matter could be remitted to the Full Court to be dealt with according to law; secondly, the Court itself could decide that – no doubt would decide in the course of doing it that the amendment should be made.  Perhaps the Court would direct that the amendment be made.  The case would then, your Honour, proceed in the Full Court and that we might succeed; we might not; but, your Honour, it was a part of the case that should have been dealt with.

The other point, your Honours, is that it did go, the question whether the land fell within section 50(1)(a) of the Act is a jurisdictional issue and we were seeking to have before the Full Court material to show that there was not a jurisdiction.

GLEESON CJ:   Thank you.  Yes, Mr Pauling.

MR PAULING:   Your Honours, may it please the Court. Can I deal with the last point first? Your Honours, in our submission, the order made refusing the amendment was purely an exercise of discretion and there is no point put forward as to a principle that should guide the Court to want to grant special leave to appeal from such an exercise of discretion. Section 11(6) of the Administrative Decisions (Judicial Review) Act is not, in our submission, directed to a new cause of action but, rather, to add grounds of review because the material shows that ground is available, so that we say that there is no point of principle arising in respect of the second point.

In relation to the decision in Japanangka, it is our submission that special leave ought be refused because it is unlikely that the Court would intervene and overturn the decision.  The reason we say that, your Honours, all arise out of the principles expressed in John v Federal Commissioner of Taxation.  In the applicants’ own submissions there are 60 parcels of land at the least, or 60 parcels of land under claim, where the Northern Territory has acted on the correctness of the decision in Japanangka.  There has been no inconvenience in relation to the way it has come about.  It is no 16 years since the decision was made and the decision, in our submission, is plainly correct.

GUMMOW J:   Well, does it not turn in a way, Mr Solicitor, on the provisions in the Federal Act referring to “Crown” and “Crown land”?

MR PAULING:   Yes, your Honour, but only in this way, that the Federal Act directs the Commissioner to determine whether or not land is held by the Crown.  The Crown in the Aboriginal Land Rights Act appears not to have any other definition or meaning than that to be found in other pieces of legislation.  We are not dealing with different Crowns for relevant purposes.  In fact, the Crown in terms of the Land Rights Act can either be the Crown in right of the Commonwealth or the Crown in right of the Northern Territory or both.

GUMMOW J:   Well, that has to be your central submission, does it not?

MR PAULING:   Well, in this way, your Honour ‑ ‑ ‑

GUMMOW J:   You may be right, but is that not essential for the working of the Act in accordance with the way you say it works because:

“Crown Land” means land in the Northern Territory that has not been alienated from the Crown –

Well, in 1976 when the Federal Act was passed that was the Commonwealth, but thereafter as a result of the self‑government legislation alienations in the Northern Territory are by the Territory Government, are they not?

MR PAULING:   That is right.

GUMMOW J:   And that you would have to say the Act has an ambulatory operation otherwise today it would only apply to Commonwealth land in the Northern Territory, which cannot be right.

MR PAULING:   …..result.

GUMMOW J:   Yes.

MR PAULING:   But, your Honours, we wanted to say this, that the submissions that are made by Mr Jackson, at least in writing, seem to indicate some different approach based on the proposition the Townsville Hospitals Board concerning two pieces of potentially conflicting legislation from the same legislature and we say no different principle arises but what one does plainly is to look at the attributes of the land‑holding body and to see whether in ordinary meaning it has the attributes of the Crown and it is not whether the Crown retains any interest in the land, that is not the question that was addressed in Japanangka, the question, rather, is whether someone other than the Crown has an interest, an estate or interest.

Our submission is that the decision in Townsville Hospitals Board followed a long line of decisions, including the dicta of Justice Dixon in the Bank Case, where it was made quite plain that it is within the competence of a legislature to endow even a private body with matters pertaining to the Crown, whether…..with the authority of the Crown, the point being in the most recent Bank Case that what that did not do was create the body into a State for constitutional purposes, so that the capacity of the ‑ ‑ ‑

GUMMOW J:   Well, Mr Jackson’s argument looks at it from the other side where in substance what has happened is that this statutory body has been endowed with various Executive Government functions but then it is said, “And by the way, we are not intending to make it Crown.”  And the question then is whether that section, 29 here, overcomes what would otherwise as matters of substance follow from the rest of the Act.  Do you see what I mean?

MR PAULING:   I can understand what your Honour is saying, but what we are saying is that it is within the competence of the legislature to arrive at that position, that section 29 cannot be ignored, and, indeed, that is the conclusion that the Court came to in Japanangka.  You simply cannot ignore that.  That is not to say that the meaning of Crown in the Aboriginal Land Rights Act undergoes some transmogrification but, rather, in the proper way one looks at the statutory attributes and determines it is not the Crown.

So we rely on each case on the common point, as Mr Jackson would put it, on our written submissions and say that it is a well‑settled principle of statutory construction that courts are not free to ignore the clear words of the legislature and our submissions are replete with references that support that proposition and the Townsville Hospitals Board decision, in our submission, is clearly correct and applicable here.  In those circumstances, your Honour, special leave ought to be refused.

May I say in relation to the written submission that what might be held by the Corporation might not be an estate or interest in land, but those submissions proceed on the false premise that an essential requisite of such a right, title or interest in land is that it be assignable.  I only draw your attention to Meneling where Justice Mason cites National Provincial Bank v Ainsworth, the concept being that interest be capable in its nature of assumption by third parties and when one runs through the interests held in this case by the Corporations, they are clearly identifiable.  They are clearly definable, identifiable by third parties, capable in its nature of assumption by third parties and have some degree of permanence or stability.

So that the references then to Yanner v Eaton, for example, which were not developed by Mr Jackson but are in the written documents are dealing with a quite different concept of proprietary and there is no doubt that the Corporations hold an estate or interest, something that was properly conceded in Japanangka itself.  So that, in our submission, it would be contrary to established principle in this case, there being no conflict of judicial opinion, there being nothing that has happened in the last 16 years that has changed anything for the Court to consider that it might overturn Japanangka and, as Mr Jackson concedes, in relation to the common point, unless the Court is of the opinion that Japanangka would be overturned, it ought not grant special leave.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Hiley.

MR HILEY: Thank you, your Honour. Firstly, perhaps to address your Honour Justice Gummow’s question about the Crown. Section 3(6) of the Land Rights Act actually does state that “the Crown” should be read in reference to either Crown, as the case may be. So it does have that ambulatory effect and operation. Secondly, your Honours, this point about whether or not the Northern Territory definition of “Crown” should be read down in the light of the Land Rights Act was raised in Japanangka’s Case and if I could refer the Court to page 412, 412 at about point 2, and this is part of the judgment of Justice Wilson and at about the fifth line appears the sentence:

Mr Castan argues that in holding that property the Corporation holds it for the Crown and that the Court should hold that it remains Crown land for the purposes of the Land Rights Act.

And his Honour then went on to express the view that that should fail for the same reason.  So it was obliquely raised but the main point that I make there is that it is really not a new point or not necessarily a new point that was not before the High Court in Japanangka.  Thirdly, your Honours ‑ ‑ ‑

GUMMOW J:   Section 3A was added at some stage after the self‑government legislation I think.

MR HILEY: Yes, your Honour, yes, and presumably that definition of “Crown” in section 3(6).

GUMMOW J:   Yes.

MR HILEY:   Thirdly, your Honours, our learned opponents are not only asking in this Court to depart from Japanangka on matters of principle, that is as to whether or not these Corporations or their predecessors are emanations of the Crown and, secondly, whether in the case of the Devil’s Marbles, that is the Foster Case, the vesting provisions confer an estate or interest, but in the case of the Foster Case we are talking about the very same parcel of land, so it is even more fundamentally a case where it goes further than that:  we are dealing with the same very parcel of Devil’s Marbles Reserve.

Fourthly, and that perhaps goes with that point, is that there is no new relevant evidence, so it is not as though some other relevant event has occurred in relation to the Devil’s Marbles Reserve or in the case of Lansen in the case of land held generally by that Land Corporation such as would warrant the Court reconsidering the status of those Corporations.  Your Honours, in relation to the estate or interest point that Mr Pauling alluded to and that is in Mr Jackson’s written submissions, could I simply add that there are provisions in the Territory Parks and Wildlife

Conservation Ordinance of 1976 which also lead to the inference to the effect that the Corporation does, in fact, hold an estate or interest in land and they are, your Honours – and I need not take the Court to them – but they are sections 15(2), which is a section that empowers the Registrar General to deal with and give effect to a copy of a notice such as the kind that was made in the Devil’s Marbles case as if it were a grant, conveyance, memorandum or instrument of transfer of the land.

So that is one subsection that we submit indicates that the legislature contemplated that it would be an estate or interest in the land that the Registrar General could treat as being an estate or interest for the purpose of registration.  Secondly, your Honours, section 16(2) empowers the Commission – and I said the Corporation a moment ago, but at this stage we are talking about the Commission because in the earlier days this title was vested in the Commission.  It was subsequently then transferred to the Corporation, but section 16(2), your Honours, says that it enables the Commission to grant leases or licences in respect of land in the park or reserve in accordance with the plan of management.

So, again, our respectful submission is that that is also consistent with an intention to vest in the Commission as it was then or later on to hand on through the later legislation interests in land.  Finally, your Honours, in relation to the amendment point in Lansen, our learned friends argue that it may not have been necessary for them to amend their statement of claim and we submit that even if that were the case, the fact was that the appellants or applicants before the Full Court did not argue these points before the Full Court and understandably so because, as the reasons for decision indicate, there are numerous factual inquiries to be made before anyone would have been in a position to do that and so it is not as though the appellant sought to argue the improper purpose point and was refused permission to do that, rather, the whole matter was run on the basis that, “Well, if we do not get the amendment to the statement of claim, we cannot argue it at this stage.”  If the Court pleases.

GLEESON CJ:   Thank you, Mr Hiley.  Yes, Mr Jackson.

CALLINAN J:   Mr Jackson, is there any limitations point in relation to an argument that you might want to present in relation to bad faith?

MR JACKSON:   Your Honour, may I just check on that?  We do not think so, your Honour.

CALLINAN J:   So you would, in fact, be able to pursue that in another action if you ‑ ‑ ‑

MR JACKSON:   Well, we would endeavour to, your Honour.  We do not think that there is any particular ‑ ‑ ‑

CALLINAN J:   No, but it maybe would put a different complexion on it if, in fact, you were statute barred elsewhere.  That is all.

MR JACKSON:   Yes. Well, I think the answer is, no, your Honour, we are not. Could I say three things? The first of them relates to that area and it has two aspects. One is, your Honours, that our learned friends say, my learned friends for the Northern Territory say, the ambit of section 11(6) of the AD(JR) Act does not go as far as that and does not let you do that but, your Honours, that itself, in our submission, is a question of importance:  what is the ambit of that provision of the Act?  That it is that argument in response itself emphasises that an issue of importance.

The second thing, your Honours, is that it is true that the issue in terms of the substance of it has not yet been dealt with by the Full Court but that is because (a) we have not been permitted to raise the issue and (b) it was agreed that the substance of it be deferred until the determination of the other matters, assuming that we are otherwise able to raise it. Your Honours, the second point I would seek to make is this, that our learned friend referred to section 3(6) of the Aboriginal Land Rights (Northern Territory) Act and what it says is that “the Crown” refers both to “the Commonwealth” and “the Crown in right of the Northern Territory” but, of course, the question is whether by the Commonwealth Act the bodies in question are or are not the Crown in right of the Northern Territory and that is the issue, your Honours, that remains.

Our learned friends – and this is the third point – referred also to the Foster Case being the same land, the Devil’s Marbles area.  Well, your Honours, all we would seek to say about that is that it is not uncommon for reopening cases to relate to the same subject matter.  If one goes back to one of the earlier ones, earlier modern ones, as it were, Queensland v The Commonwealth in 1977, I think, that related to exactly the same legislation as had been the subject of the earlier decision only a relatively short time before.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

MR JACKSON:   Your Honours, could I just say one thing, I am sorry?  Apparently we are statute barred from making a further claim in respect of
the land, there being an overall sunset clause, and perhaps it is unclear

whether we can have the claim dealt with by Justice Olney if we able to establish improper purpose.

AT 10.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.14 AM

GLEESON CJ:   Yes, we are back, Mr Solicitor.

MR PAULING:   We have no sound this end, your Honour.

GUMMOW J:   You have now.

GLEESON CJ:   We have sound.  We can hear what you are saying.

MR PAULING:   We have you back again, thank you, your Honour.

GLEESON CJ:   One of the functions of the Aboriginal Land Commissioner, appointed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is to report on applications made by and on behalf of Aboriginals claiming to have a traditional land claim to an area which is within the meaning of section 50(1)(a), “unalienated Crown land”.

The Commissioner, Justice Olney, declined to proceed with the applications in question, in both of these cases, on the ground that the land was not unalienated Crown land.  His Honour applied the decision of this Court in Reg v Kearney; Ex parte Japanangka (1984) 158 CLR 395.

Applications, which were then made to the Federal Court for judicial review, were heard by benches comprising Justices French, Tamberlin and Sackville.  Their Honours applied Japanangka.  In addition, they dealt with other issues of law which, if decided in favour of the present applicants, may have outflanked the decision in Japanangka.  Further, in the Lansen matter, there was an unsuccessful amendment application to raise what appeared to their Honours to be substantial factual issues going to the jurisdiction of the Commission. 

The matters which the applicants seek to have this Court entertain if special leave were granted are largely issues of law.  The Court is not persuaded that there is any real prospect of success in having Japanangka reopened.  The other issues were dealt with comprehensively in the judgments in the Federal Court.  We see no reasonable prospects of success in overturning the conclusions reached by their Honours.

The decision in relation to the amendment was a discretionary decision that turned on the application of well-established principles.  In both of these matters, special leave to appeal is refused. 

Can you resist an order for costs, Mr Jackson?

MR JACKSON:   No, your Honour.

GLEESON CJ:   Special leave will be refused with costs.

MR HILEY:   If the Court pleases.

MR PAULING:   If the Court pleases.

GLEESON CJ:   We will adjourn for a short time to enable the video link with Hobart to be established.

AT 10.17 AM THE MATTER WAS CONCLUDED