French v Gray

Case [2013] FCA 263

FEDERAL COURT OF AUSTRALIA

French v Gray, Special Minister of State [2013] FCA 263

Citation: French v Gray, Special Minister of State [2013] FCA 263
Parties: GRAHAM FRENCH v THE SPECIAL MINISTER OF STATE MR GARY GRAY
File number: SAD 126 of 2012
Judge: BESANKO J
Date of judgment: 27 March 2013
Corrigendum: 22 May 2014
Catchwords:

ADMINISTRATIVE LAW – application for judicial review under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) – applicant seeking relief under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act1903 (Cth).

NATIVE TITLE – application by applicant for a Pre-Acquisition Declaration made by the respondent under s 22 of the Lands Acquisition Act 1989 (Cth) to be declared invalid and quashed – where respondent made Pre-Acquisition Declaration with respect to land to be provided as consideration under an Indigenous Land Use Agreement to a Native Title Claim Group – applicant claims the respondent did not have jurisdiction to make the decision, the decision was not authorised by the Lands Acquisition Act 1989 (Cth), the decision was an improper exercise of the power conferred by the Lands Acquisition Act 1989 (Cth) and was contrary to law by reason of “breaches” of ss 9(1) and 12(1)(e) of the Racial Discrimination Act 1975 (Cth), s 19 of the Pastoral Land Management and Conservation Act 1989 (SA) and s 121 of the Lands Acquisition Act 1989 (Cth) – whether “use” for a “public purpose” is limited to physical use of the land.

Held: The Pre-Acquisition Declaration is declared invalid. The Pre-Acquisition Declaration be quashed. The Respondent be restrained from taking further steps for acquisition of the land.

Legislation: Aboriginal Land Rights Act 1983 (NSW)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6, 16
Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PD, 46PF, 46PH
Judiciary Act 1903 (Cth) 1901 ss 39B, 78B
Lands Acquisition Act 1989 (Cth) ss 6, 10, 22, 26, 27(3), 31, 41, 121
Racial Discrimination Act 1975 (Cth) ss 8, 9(1), 12(1)(e), 18, 81
Pastoral Land Management and Conservation Act 1989 (SA) s 19
Native Title Act 1993 (Cth) ss 10, 11(1), 24AB, 24AO, 24CD, 24CE, 24EB, 233
Commonwealth of Australia Constitution Act  ss 51, 75
Human Rights and Equal Opportunity Commission Act1986 (Cth)
Human Rights Legislation Amendment Act (No 1) 1999 No 133 of 1999
Trade Practices Act 1974 (Cth) s 4D
Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510, cited
Attorney-General of the Commonwealth v Schmidt (1961) 105 CLR 361, cited
Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 285 ALR 27, cited
Bropho v The State of Western Australia [2004] FCA 1209, cited
Clunies-Ross v Commonwealth of Australia (1984) 155 CLR 193, cited
Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96…

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French v Gray [2013] FCA 263
Case
[2013] FCA 263
Decision Date

CaseChat Overview and Summary

French v Gray was a legal dispute between the Commonwealth and French regarding the acquisition of land for defence purposes and the proposed use of the land for Indigenous Land Use Agreement (ILUA) with Barngarla Native Title Claim Group. The case was heard in the Federal Court of Australia. The primary legal issues in the case involved the validity of the Pre-Acquisition Declaration under the Lands Acquisition Act 1989 (Cth) and the proposed use of the land for an ILUA with the Barngarla Native Title Claim Group.

The court found that the Pre-Acquisition Declaration was invalid as it did not comply with the Lands Acquisition Act. The court held that the public purpose of conferring interests in land on Aboriginal people was not a valid public purpose under the Act. The court also found that the proposed use of the land for an ILUA with the Barngarla Native Title Claim Group was not a valid use under the Act as it involved the disposal of the land to a third party. The court held that the respondent was restrained from taking any further steps in, or for the purposes of, the acquisition of the subject land under or pursuant to the Pre-Acquisition Declaration.

The court's decision was based on its interpretation of the Lands Acquisition Act and the public purposes and uses permitted under the Act. The court found that the proposed use of the land for an ILUA with the Barngarla Native Title Claim Group was not a valid use under the Act as it involved the disposal of the land to a third party. The court also found that the public purpose of conferring interests in land on Aboriginal people was not a valid public purpose under the Act. The court's decision was based on a strict interpretation of the Act and the need to ensure that the acquisition of land for public purposes was carried out in a lawful and transparent manner.

The final orders of the court included a declaration that the Pre-Acquisition Declaration was invalid and of no effect, an order that the Pre-Acquisition Declaration be quashed, and an order that the respondent be restrained from taking any further steps in, or for the purposes of, the acquisition of the subject land under or pursuant to the Pre-Acquisition Declaration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Finally, reference should to be made to s 121 of the Lands Acquisition Act. That section relevantly provides:(1)Where:(a)an acquiring authority acquired an interest in land by the vesting of the interest in the acquiring authority by paragraph 41(4)(a) of this Act or paragraph 10(4)(a) of the Lands Acquisition Act 1955;(b)the acquiring authority has not made substantial improvements to the land;(c)the Minister proposes to authorise the disposal of the interest; and(d)if authorised, the disposal would be likely to occur before the end of 7 years after the acquisition of the interest by the acquiring authority;the Minister shall, in authorising the disposal, have regard to the general principle that the interest should, if practicable, be first offered for sale to the former owner at the market value of the interest at the time the offer is made.(2)An offer shall be made by the Minister by written notice given to the former owner and shall specify the amount that, in the opinion of the Minister, represents the market value of the interest at the time of the offer.(3)The acquiring authority shall not dispose of the interest to a person other than the former owner within 28 eight days after the day on which the offer is made.…(9)The validity of the disposal of an interest in land is not affected by a failure to comply with this section.THE FACTSThe Pre-Acquisition Declaration Since 1954 the Commonwealth has progressively acquired and subsequently owned and occupied land known as the “Cultana Training Area” comprising 502 square kilometres near Whyalla on the Eyre Peninsula in the State of South Australia. The Commonwealth uses the Cultana Training Area for defence training purposes. Since 2005 the Commonwealth has wished to expand the area of the Cultana Training Area by the acquisition of land adjoining the Cultana Training Area (“Cultana Expansion Area”). The area of the Cultana Expansion Area is approximately 2,090 square kilometres. The Commonwealth’s intention was announced by press release on 23 June 2005. The Commonwealth wishes to use the Cultana Expansion Area in conjunction with the Cultana Training Area for defence training purposes, primarily by the 7th Battalion, Royal Australian Regiment of the First Brigade of the Australian Army and certain other sub-units of the First Brigade based in Adelaide, as their primary training area all year round, and by those First Brigade units that are based in the Northern Territory during the Northern Territory wet season. The First Brigade is of high importance to the Army because it is one of only three multi-role combat brigades and contains a significant proportion of the Army’s regular units and a high proportion of the Army’s combat power. The Cultana Training Area, in the absence of the Cultana Expansion Area, is not large enough to support the training needs of the First Brigade. The Commonwealth had a deadline for the acquisition of the Cultana Expansion Area of January 2011 to coincide with the relocation of the 7th Battalion, Royal Australian Regiment of the First Brigade to Adelaide in January 2011. The Commonwealth therefore wishes to acquire the Cultana Expansion Area as quickly as possible.

Evidence

Evidence Before The Court

The negotiations for the ILUA with the registered claimants for the Barngarla Native Title Claim were complicated as a result of the need, as advised to the Commonwealth by South Australian Native Title Services, for the ILUA to be authorised by three other indigenous groups – the Kokatha people, the Kuyani people and the Nukunu people. These three groups may also have native title interests in the land, although they have not sought registration of any such interest. On this basis, even if the ILUA was agreed between the Commonwealth, the State of South Australia and the registered claimants for the Barngarla Native Title Claim, it would not be able to be certified by South Australian Native Title Services and thereby registered by the Native Title Registrar under the Native Title Act unless it had also been authorised by those three other groups. As a result, in effect, the arrangements for the ILUA constitute a network of agreements which require the authorisation of all four indigenous groups, and this has significantly complicated and prolonged the negotiations for the ILUA.The Applicant’s Evidence The applicant swore an affidavit which was received into evidence. He was not required for cross-examination. The applicant’s family have been pastoralists in South Australia for over 100 years. The family are one of the longest running pastoral families in South Australia. His grandfather, Walter French, owned land in Quorn and, following his marriage to Agnus Greenfields, moved to Southgap Station. Walter French and the Greenfields family then purchased the adjoining station to Southgap, Pernatty Station, and in 1927 Walter French moved on to Pernatty Station with his wife and family, including his son, Walter Jnr. It was the French family who started Pernatty Station. Pernatty Station was later transferred to Walter Jnr who had two sons, Colin French and the applicant. The applicant was born on 19 June 1946. He married his wife Margaret in 1967 and they had two children. Brenton was born in 1971 and Karen was born in 1973. In 1977 Corunna Station was purchased as part of the succession planning of the French family. The applicant has lived at Corunna Station with his family and worked it as a pastoral property ever since then. Brenton and Karen were born when the family was at Pernatty Station and they were raised at Pernatty and then Corunna Station from 1977. Brenton attended school at the Iron Knob Primary School which is about five kilometres from Corunna Station. Brenton left school at age 15 to help the applicant operate Corunna Station. In 1994, Brenton married Jo-Anne and they moved into the second house on Corunna Station which is approximately 200 metres from the main homestead where the applicant, his wife Margaret and daughter Karen continue to live. The homestead area is located on the western portion of the station. Brenton and Jo-Anne spent about two years renovating the second house themselves. They have three children, daughters Jessica (born in 1995), Chloe (born in 1996) and a son Bailey (born in 1998). All three of the applicant’s grandchildren have been raised on Corunna Station and all have been taught how to muster sheep and cattle, to ride horses, “tail” lambs, muster goats and fix pipelines as well as other normal station duties. They have a close relationship with the applicant and his wife. They have spent their life on Corunna Station apart from attending boarding school.

Decision

Reasons for decision

I am addressing this argument on the assumption that my conclusion with respect to the stated public purposes is wrong. In other words, it is assumed for the purposes of this argument that the subject land can be acquired for the purpose of providing it as consideration under an ILUA. On that assumption, it is very difficult to see how the applicant’s argument can succeed. It seems very odd to say that the respondent can acquire land for the purposes of disposing of it to a third party, but that at the same time the respondent must consider transferring it back to the former owner. Counsel for the applicant was disposed to accept this difficulty and to deploy s 121 only on the construction argument concerning public purpose and use.CONCLUSIONS I will make a declaration that the Pre-Acquisition Declaration is invalid and of no effect. I will make an order that the Pre-Acquisition Declaration be quashed. I will also make an order that the respondent be restrained from taking any further steps in, or for the purposes of, the acquisition of the subject land under or pursuant to the Pre-Acquisition Declaration.

Ratio Decidendi

Legal Principle Established

The structure of these reasons is as follows. First, I will summarise the Pre-Acquisition Declaration, and I will set out the provisions of the Lands Acquisition Act which are relevant to the issues in this case. Secondly, I will set out my findings of fact. The facts were, by and large, agreed and are set out in two documents which were received into evidence, a statement of agreed facts and documents and a supplementary statement of agreed facts and documents. There was also evidence by way of affidavit, but none of the deponents were required for cross-examination. Thirdly, I will examine the issues starting with the main issues under the Lands Acquisition Act and then the issues arising on the applicant’s case of alleged contraventions of, and failures to comply with, the legislative provisions identified. Finally, I will set out my conclusions.THE PRE-ACQUISITION DECLARATION AND THE RELEVANT PROVISIONS OF THE LANDS ACQUISITION ACT The Pre-Acquisition Declaration purports to follow the terms of s 22 of the Lands Acquisition Act which is set out below (at [18]). The Pre-Acquisition Declaration commences with a statement by the Minister that he was considering the acquisition of the interests in land specified in the declaration and for the public purpose described in the declaration. The Minister states that the Commonwealth of Australia was the acquiring authority. The land which is the subject of the declaration is the land identified as pieces 3, 4, 5, 7 and 8 on Deposited Plan DP37564 and the land identified as piece 84 on Plan D85852 (approved by, but not yet deposited in the South Australian Land Title Registration Office). Deposited Plan DP37564 and Plan D85852 are Part 1 of the Schedule to the Pre-Acquisition Declaration. As I have said, the land is described as part of the land contained in Crown Lease Pastoral No. 2215. It is approximately 576 square kilometres in area and is located in the State of South Australia. A plan showing the approximate location of the land is Part 2 of the Schedule to the Pre-Acquisition Declaration. I will refer to the land which is the subject of the Pre-Acquisition Declaration as the subject land. The interests to be acquired are said to be all the interests in the subject land and the public purposes are stated to be as follows:A public purpose of the acquisition is the conferral of interests in land on Aboriginal people (being people of a particular race)An additional, separate public purpose of the acquisition is defence. The Pre-Acquisition Declaration contains a statement that the subject land appears to be suitable for use by the Commonwealth of Australia for public purposes. The Pre-Acquisition Declaration contains a statement or particulars of the proposed use. It provides that the subject land “together with certain other land” is proposed to be the subject of a pastoral lease for conservation purposes. The pastoral lease is to be granted to a company established to represent the interests of the Barngarla Native Title Claim Group in relation to the Barngarla Native Title Claim. It provides that the grant of the pastoral lease will mean that the company and the members of the Barngarla Native Title Claim Group may use the land as pastoral lessee. The statement also contains a description of how the proposed use is to be achieved. After the Commonwealth acquires all interests in the subject land the pastoral lease will be surrendered to the State of South Australia. The State of South Australia will then grant a pastoral lease for conservation purposes to the company and that will enable the company and the members of the Barngarla Native Title Claim Group to use the subject land as pastoral lessee for the benefit of the Barngarla Native Title Claim Group. The grant of the pastoral lease to the company is also proposed to be provided as consideration under the Indigenous Land Use Agreement within the meaning of the Native Title Act 1993 (Cth) that is proposed to be entered into with the applicants for the Barngarla Native Title Claim, the registered native title claimants for the land, in return for the applicants for the Barngarla Native Title Claim providing three things. First, they will provide their consent to certain land adjacent to the subject land being used for defence training purposes by the Commonwealth of Australia as an expansion of the existing Cultana Training Area. Secondly, they will provide their consent to the acts to achieve this use, including the grant of one or more leases for defence purposes by the State of South Australia to the Commonwealth of Australia over that land. Thirdly, they will agree to release and discharge the Commonwealth from all claims related to the impairment of their traditional rights and interests arising from this use or these acts, and not to take any action to challenge or delay this use or these acts. There is a statement that the grant of the pastoral lease to the company will compensate and benefit the Barngarla Native Title Claim Group for the effect on their claimed native title rights of this proposed use and these proposed acts to achieve this proposed use.