In the matter of the Kenbi (Cox Peninsula) Land Claim The Attorney-General for the Northern Territory of Australia v The Honourable H.W. Olney, Aboriginal Land Commissioner

[1989] FCA 325

Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE HONOURABLE HOWARD WILLIAM OLNEY, ABORIGINAL LAND COMMISSIONER
and THE NORTHERN LAND COUNCIL
No. NG 1439 of 1988
FED No. 325
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Wilcox(1) and Von Doussa(1) JJ.

CATCHWORDS

Administrative Law - Aboriginal land rights - Land available for claim - "Unalienated Crown land" - Regulations extending defined "towns" under Town Planning Act 1964 (NT) - Effect of regulations to exclude land from a land claim - Validity of regulations - Purpose for which regulations made - Distinction between primary purpose and secondary, or consequential, purpose - Proper analysis of Aboriginal Land Commissioner's findings as to purpose - Whether regional planning was a purpose within the scope and purpose of the Town Planning Act - Whether control of rural lands was such a purpose.

Aboriginal Land Rights (Northern Territory) Act 1976 ss.3, 50.

Town Planning Act 1964 (NT) ss.5, 73.

HEARING

SYDNEY

#DATE 28:6:1989

Counsel for the Applicant: Mr D M J Bennett QC with Mr D Barrett

Solicitors for the Applicant: Freehill, Hollingdale & Page

No appearance for the First Respondent

Counsel for the Second Respondent: Mr F X Costigan QC with Mr R Howie

Solicitor for the Second Respondent: Mr I Gray, Northern Land Council

ORDER

The Application be dismissed.

The applicant pay to the second respondent its costs of the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application, brought by the Attorney-General for the Northern Territory of Australia pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The application seeks review of a decision made by the first respondent, Olney J, sitting as the Aboriginal Land Commissioner appointed under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"), and concerning the validity of certain regulations made by the Administrator of the Northern Territory in reliance upon the provisions of the Town Planning Act 1964 (NT) ("the Town Planning Act"). The Northern Land Council, the applicant before the Commissioner, is the second respondent in the present proceeding. Pursuant to s.20(2) of the Federal Court of Australia Act 1976, the jurisdiction of this Court under the Judicial Review Act is being exercised by a Full Court. An application for prerogative relief has been joined with the application under the Judicial Review Act.

Background

1. On 20 March 1979 the Northern Land Council, on behalf of certain Aboriginals, made a claim under the Land Rights Act to a significant part of the Cox Peninsula, near Darwin, in the Northern Territory. That claim has become known as the Kenbi (Cox Peninsula) Land Claim. Its determination has been delayed by many vicissitudes, including litigation on preliminary matters: see The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500; R v Maurice; Ex parte Attorney-General for the Northern Territory (1987) 73 ALR 123. It is unnecessary to refer to the history of the claim. It is sufficient to say that in October and November 1988 the Commissioner (who had succeeded other occupants of the office who had dealt with the application under the Land Rights Act prior to his appointment) embarked upon the hearing of the claim. The Commissioner was requested by counsel for the Council and for the Attorney-General to decide, as a preliminary question, whether a large part of the land which was the subject of the claim was land in a "town", within the meaning of the Land Rights Act. It was common ground that, if it was, it was not available to be claimed as "unalienated Crown land" under s.50(1)(a) of that Act.

2. Section 50(1)(a) provides as follows:
   

"(1) The functions of the Commissioner are--

(a)on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals--

(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12."

1. "Unalienated Crown land" is defined by s.3(1) of the Land Rights Act so as not to include land in a town. In the same section the word "town" is defined as follows:
   

"'town' has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town."

1. At the date upon which the subject regulations were gazetted the Town Planning Act was still in force; it was repealed during the following year upon the commencement of the Planning Act 1979 (NT) ("the Planning Act"). Under the Town Planning Act the Administrator had power to make regulations, not inconsistent with the Act, prescribing, inter alia, all matters necessary or convenient to be prescribed for carrying out or giving effect to the Act (s.73). Section 5(b) of the Act provided that regulations might be made prescribing that a specified area of land "being land adjacent to a town, shall be subject to the provisions of the Act" (certain provisions excepted) "as if it were part of that town".

2. The subject regulations, which were made in reliance upon the power conferred by s.73, were made by the Administrator on 22 December 1978 and notified in the Northern Territory Government Gazette on 29 December 1978. Regulation 3 provided:
   

"Each area of land specified in Schedule 1, being adjacent to the town specified in respect of that area of land in that Schedule, is prescribed under section 5(b) of the Act to be subject to the provisions of the Act (section 8(4) and (5) and section 11(2) excepted) as if it were part of that town."

Schedule 1 to the regulations contained four paragraphs, each divided into two sub-paragraphs (a) and (b). In each case, sub-para.(a) was entitled "Town to which area is adjacent" and contained a reference to the name of a town. Sub-paragraph (b) was entitled "Description of Area" and contained a general description of the locality of the land, a statement as to its area and a detailed description of the boundaries of the land. The four towns referred to in the Schedule were: Darwin (area 4350 sq km); Alice Springs (area 295 sq km); Tennant Creek (area 710 sq km) and Katherine (area 4690 sq km).

1. During argument before the Commissioner upon the preliminary point it was common ground between the parties that, if they were validly made, the regulations of 22 December 1978 had the effect that all land falling within the described areas was within a "town" within the meaning of s.3 of the Land Rights Act, so that the land failed to answer the description of "unalienated Crown land" and was not available for claim under that Act. But the question was whether the regulations were valid. The case put on behalf of the Northern Land Council was that the regulations were invalid because they were made for a purpose not authorized by the Town Planning Act. It was contended that the real purpose for which the regulations were made was to frustrate claims under the Land Rights Act by bringing the lands the subject of likely claims within the confines of a "town" and thus depriving the Commissioner of jurisdiction to hear and determine the claims; in particular the Kenbi (Cox Peninsula) Land Claim.

2. On the other hand, counsel for the Attorney-General contended that the purpose for which the regulations were made was to facilitate the future planning of large areas of land adjacent to existing towns in the Northern Territory. One such area, so it was said, was the Cox Peninsula which was said to be adjacent to the town of Darwin.

3. In support of his contention counsel for the Attorney-General called evidence at the inquiry to establish, inter alia, that the Cox Peninsula had been the subject of planning interest and consideration for a number of years prior to the making of the regulations. In particular, the Attorney-General relied on the evidence of Mr Marshall Perron, who is currently the Chief Minister of the Northern Territory. In December 1978 Mr Perron was the Minister for Lands. In that capacity he had executive responsibility for the administration of the Town Planning Act. It was common ground between the parties before the Commissioner that Mr Perron's mind was the dominant mind in the making of the regulations and that his purpose (whatever it was) should also be ascribed to the other members of the Executive Council who attended the meeting on 22 December 1978 at which the Administrator made the regulations. The critical issue between the parties was the nature of that purpose. As to that, Mr Perron said that, although the timing of the making of the regulations was governed by his desire to prevent the Cox Peninsula becoming the subject of a claim under the Lands Right Act, the frustration of the claim was not his purpose in proposing that the regulations be made.

4. The Commissioner held that the regulations were invalid. It followed that the Cox Peninsula was not, at the time when the claim was lodged with the Aboriginal Land Commissioner, land within a "town" within the meaning of that term in the Land Rights Act and was therefore not excluded from the scope of the definition of "unalienated Crown land" in that Act. The Attorney-General for the Northern Territory seeks review of that decision by this Court.
   The evidence before the Commissioner

5. The Commissioner based his decision upon a large volume of evidence from which he drew an inference as to the true purpose for which the regulations were made. His determination of the purpose for which the regulations were made was a determination of fact: cf Samrein v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 at p 469. If different inferences as to purpose were reasonably open on the evidence, the selection of the correct inference was also a question of fact: see Federal Commissioner of Taxation v Broken Hill South Limited (1941) 65 CLR 150 at 160. It is not for this Court, in proceedings under the Judicial Review Act or in considering an application for prerogative orders, to interfere with any finding of fact made by the Commissioner, or with the process of reasoning by which he drew an inference from found facts, unless it can be demonstrated that the finding or the reasoning was attended with legal error.

6. The material before the Commissioner to which he was entitled to have regard in deciding what was the purpose for which the regulations were made included the following:
   

1. In 1978 the population of Darwin was about 50,000. Prior to 22 December 1978 the "town", as defined for the purposes of the Town Planning Act, comprised an area of about 142 sq km.

2. The Cox Peninsula contains an area of about 800 sq km. It is substantially undeveloped and uncleared. The Peninsula is situate west and south-west of the city of Darwin, being separated from the existing urban area by the waters of Port Darwin. The nearest point of the Peninsula is only about 6 km from the city of Darwin by water; but the distance by road is about 120 km, and access is difficult.

3. During the period in which the Northern Territory was under the direct control of the Commonwealth Government, that is in the period before the achievement of self-government, several studies were undertaken relating to the future expansion of the town of Darwin. Some of these studies were undertaken by planners employed by the Government, others by consultants. Each of the studies included discussion about the desirability of extending the urban area into the Cox Peninsula. The detail of the various studies was before the Commissioner. It is enough for us to note that most of the studies saw this course as a feasible option; in some reports it was an option strongly favoured.

4. In a report dated May 1974, Pak-Poy Associates, town planning consultants, identified Gunn Point, to the north east of the existing urban area, and the Cox Peninsula as areas having "highest potential for urban development". The consultants preferred Gunn Point to the Cox Peninsula, subject to further research. The report also discussed the possibility of village style development of the peninsula, particularly for tourism and recreational purposes. In their final report, of May 1975, Pak-Poy Associates repeated these views and they recommended the adoption of a development plan in order to manage growth beyond the then subdivided areas.

5. In two subsequent reports, made in July 1975 and in February 1976, Dr A Comar, a senior Government town planner, argued that Pak-Poy Associates were in error in preferring Gunn Point to the Cox Peninsula. The choice, he said, "for Cox Peninsula as one of the next areas to be developed, should not be argued any more". However, despite the plethora of reports, no decision was made, prior to self-government, as to the desirability of the eventual expansion of the urban area of Darwin into the peninsula.

6. Mr Perron became a member of the Town Planning Board, as a citizens' representative, in 1973. He remained on the Board until 30 April 1976. During his period of service he became aware of the debate in planning circles concerning the expansion of Darwin. He gave evidence to the Commissioner of views which he himself formed at about that time. Mr Perron said that he contemplated the utilisation of a portion of the peninsula for urban purposes by the time the population of the city reached approximately 500,000. He saw this development as part of a series of discrete towns, reaching from the existing urban area around the foreshores of Port Darwin.

7. After Cyclone Tracy in December 1974 many people moved from the city of Darwin into surrounding rural areas, which were not subject to any planning control. According to Mr Perron, it then appeared to him that there was a need to implement a rural plan to cover the whole region of potentially settlable land, including Cox Peninsula.

8. On 21 September 1976 the Northern Land Council wrote to the Secretary of the Department of Northern Territory in the Commonwealth Government enclosing a map showing certain areas of land on the Cox Peninsula and on nearby islands which were claimed by Aboriginals. In September 1977 and March 1978 the Northern Land Council wrote to the Lands Branch of the Department indicating that claims were made to vacant land on the Cox Peninsula, and asking that this land not be alienated until the matter was determined by the Commissioner. The claims were not formal claims under the Land Rights Act.

9. Mr Perron became Treasurer and Minister for Lands on 1 July 1978 at the advent of self-government in the Territory. In his capacity as Minister for Lands he was responsible for planning. He was aware of the need for a new planning Act, following upon the termination of the Darwin Reconstruction Commission which had been established under Commonwealth legislation enacted shortly after Cyclone Tracy.

10. On 21 July 1978 Mr Perron, in his capacity as Minister for Lands, sent a memorandum to the Secretary of his Department requesting that action be taken to expedite the acquisition of land for a road reserve to Cox Peninsula. His memorandum included the following comment: "The reason, I believe, work should proceed on planning this road is that it will probably be some time before the exercise is completed and we should be in a position to start constructing the road by the time that Cox Peninsula is looked upon as an area for further development, I don't think this is very far away."

11. On 9 November 1978 a land claim was made in respect of land near the town of Tennant Creek.

12. The lodgment of the Tennant Creek claim apparently gave rise to concern, within the Northern Territory Government, at the possibility of other claims relating to areas near existing towns. A meeting was held on 28 November 1978 in the office of Mr R A Fountain, Secretary of the Department of Lands and Housing. Mr Fountain was, at that time, also the Chairman of the Town Planning Board. The meeting was attended by Mr Fountain, the Director of Serviced Land Administration Branch of the Department of Lands and Housing, Mr T R Lawler, the Crown Conveyancer, Ms Juliet Shields, and the Registrar General, Mr P Wells.

13. Following that meeting Ms Shields prepared a memorandum addressed to the Solicitor General, Mr I Barker QC. This memorandum was headed, simply, "Aboriginal Land Rights (Northern Territory) Act". It opened by referring to Mr Barker's "request that I examine further the methods by which certain lands in the Northern Territory may be taken out of the definition of 'unalienated Crown land' within the meaning of Section 3 of the Aboriginal Land Rights (Northern Territory) Act". Ms Shields then proceeded to argue the possibility of proclaiming land within the "32 square mile area" -- an area of freehold land south-east of Darwin which was compulsorily acquired in 1973: see Albany v Commonwealth of Australia

(1976) 12 ALR 201 -- and the Cox Peninsula as a town pursuant to s.111 of the Crown Lands Act. Ms Shields commented: "The Town Planning Act will of course apply to such towns but it seems that the Town Planning Board is not required to consider town planning schemes for such towns -- it may do so if it wishes".

Ms Shields then discussed an alternative course which, according to the memorandum, Mr Barker had asked her to consider: "that the lands be vested in the Northern Territory Development Corporation (or some such body) which would simply hold the lands until they are to be utilized properly". Ms Shields indicated several difficulties about that course.

15. A further meeting was held upon the following day. This meeting was attended by Mr Barker, Ms Shields, Mr Lawler and Mr Wells. On that same day Ms Shields had discussions with the Legislative Draftsman, Mr S Mason.

15. On the following day, 30 November 1978, Mr Fountain placed before Mr Perron a memorandum, prepared by Mr Lawler, which Mr Perron endorsed with his approval. The memorandum was in the following terms: "PROTECTION OF URBAN ENVIRONS AGAINST CLAIMS UNDER THE ABORIGINAL LAND RIGHTS

(NT) ACT

This issue has arisen following the lodging on 9 November 1978 of an Aboriginal Land Claim over all vacant Crown land adjacent to the town of Tennant Creek thus preventing the allocation of a suitable site for an abattoir.

2. At a meeting convened in my office on 28 November with the Surveyor-General and representatives of the Planning Unit, Land Development and Serviced Land Administration Branches, options were canvassed, particularly in relation to protection for the 32 square mile acquisition area, Cox Peninsular (sic) and appropriate corridor areas.

3. It was initially considered that declaration of specified areas as 'towns' pursuant to Section 111 of the Crown Lands Act would achieve the purpose and this could still be effected for areas not specifically claimed under the Aboriginal Land Rights (NT) Act. Such an action would cause some confusion as far as land parcel identification is concerned and there may be complications in relation to mining tenures.

4. An alternative proposal using regulatory powers under the Town Planning Ordinance would enable land, adjacent to urban areas to be set aside in such a way that the land would be treated as a 'town' according the definition of such an entity in the Aboriginal Land Rights

(NT) Act.

5. I instructed Messrs P. Wells and T. Lawler to clear the legal aspects with the Solicitor-General. This was done in consultation with him and Ms Juliet Shields who both agree that the proposal is the neatest solution to the problem.

6. The definition of 'town' in the Aboriginal Land Rights (NT) Act is as follows--

'"town" has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area, that by virtue of regulations in force under that law is to be treated as a town;'

7. It would appear that the relevant Section of the law of the Northern Territory referred to was Section 5 of the Town Planning Ordinance which is as follows:

'5.The regulations may prescribe that a specified area of land -

(a)shall be subject to the provisions of this Ordinance, but not including the provisions of sub-section (4) or (5) of Section 8 or sub-section (2) of Section 11 of this Ordinance, as if it were a town and may be referred to as a town by such name as is prescribed; or

(b)(which is not relevant).'

8. The Sub-sections referred to above relate to appointment of members of the Town Planning Board and are not limiting in use of the Section as proposed. Implementation of the proposal requires promulgation of regulations by the Administrator after appropriate Government approval. Preparation of the regulations by the Parliamentary Drafting Officers requires an instruction from you and the necessary papers are appended for your signature if you so agree.

9. In the conference with Mr. Barker, the desirability of carrying out the same exercise for each of the main urban centres was discussed and Mr Barker is of the opinion that it could be done irrespective of the lodgement of land claims, since no alienation is involved. If this exercise was applied to the Tennant Creek area it would effectively eliminate the problem of finding a site for the abattoir.

10. It is accordingly proposed that adequate areas outside the town boundaries of all the major centres be specified in order to protect urban water supply sources and allow for ordered planning for such as rural living leases and other ancillary development as required.

11. It is considered that the proposal would be politically more acceptable, since it was specifically provided for in the Aboriginal Land Rights (NT) Act. There may need to be consideration of the inclusion of saving clauses in the new Northern Territory of Australian (sic) Planning Bill both to ensure that the proposed regulations continue to be effective and to comply with the definition of 'town' in the Aboriginal Land Rights (NT) Act.

12. If further information is required it may be obtained from Mr. T.R. Lawler, Director, Serviced Land Administration Branch, telephone 89 7190 (office). Recommendation

13. It is recommended that you sign the request to the Legislative Draftsman. Note:

Proclamation for all towns mentioned to be on same day."

16. Also on 30 November 1978 Mr Perron signed a letter to Mr Mason. The letter was in the following terms: "REGULATIONS UNDER THE TOWN PLANNING ACT Would you please draft regulations under the Town Planning Act prescribing specified areas listed at the foot hereof in accordance with Section 5 of that Act. Technical descriptions of the areas of these areas are being prepared and will be forwarded to you as soon as they are available, but in preparing the regulations, two points must be borne in mind. These are, firstly that the areas concerned are generally outside but adjacent to the proclaimed boundaries of the towns, and secondly, for this course of action to be effective, the areas in question must be recognisable as towns for the purposes of the Aboriginal Land Rights Act (refer the definition of 'town' in Section 3 of that Act). I would appreciate your urgent attention to this request. The list is as follows--

Areas adjacent to Darwin, Alice Springs, Tennant Creek and Katherine. Would you please contact Mr T.R. Lawler, Director, Serviced Land Administration Branch, if any further information is required."

17. Mr Perron left Darwin to travel overseas on 30 November 1978, returning in the early hours of 21 December 1978. During his absence Mr P A Everingham, the then Chief Minister, acted as Minister for Lands. Whilst Mr Perron was overseas Mr Lawler prepared the descriptions of the lands which were to be affected by the proposed new regulations. In preparing these descriptions Mr Lawler referred to Mr Wells in connection with one matter, the southern boundary of the area near Darwin. However, except for that consultation, Mr Lawler was the only person involved in the selection of the four areas to be included within the new regulations. In particular, there was no consultation with any of the numerous town planners then in the employment of the Northern Territory Government, nor with the Town Planning Board. Mr Lawler was not given any directions by Mr Perron, nor by any town planner, as to the appropriate boundaries of the lands to be subjected to the new regulations. Mr Lawler is an agronomist. He is not a qualified town planner, although he was at the time the Vice-Chairman of the Town Planning Board.

18. On 22 December 1978 the Town Planning regulations were made by the Administrator in Council.

19. Mr Perron gave evidence regarding his motivation in proposing the new regulations. In the course of this evidence he said that, although he did not then have a short-term intention of implementing a Town Plan for the Cox Peninsula, he did envisage urban development of part of the peninsula in the future; development in the form of discrete towns as already described. Mr Perron said that his primary motivation in extending the town boundaries was to implement planning controls where they were deemed necessary and that the suggestion that there may be a land claim on Cox Peninsula merely made more urgent in his mind the necessity to extend the town boundaries which he would have implemented in any event. Mr Perron agreed that in the period October-November 1978 he had seen an indication that the Northern Land Council intended, or proposed, to lodge a land claim over Cox Peninsula. However, he denied that the object of the exercise, in making the regulations on 22 December, was to frustrate claims under the Land Rights Act. He said in evidence to the Commissioner that "the principal object of declaring planning boundaries around Darwin was to enable a plan for rural Darwin to be brought into effect. The suggestion that a land claim may be lodged over Cox Peninsula at any time made the declaration of such boundaries more urgent." Mr Perron said that he did not himself consider what areas should be included in the regulations, that he left it to his Department "to prepare what they considered to be reasonable proclamations".

20. During the years 1977 and 1978 the Town Planning Board was actively engaged in the preparation of a new Darwin Town Plan. A draft plan was published in December 1977. During 1978 the Board considered objections to that draft plan, and sought and obtained the advice of Government town planners in connection with it. The new Darwin Town Plan was approved by the Town Planning Board on 20 December 1978 and by the Administrator on 19 January 1979. This Town Plan included zonings of "non-urban land", "future urban land", "rural land" and "agricultural land". The Plan did not extend the boundaries of the zoned land. In particular it did not affect any land on the Cox Peninsula. The possibility of extending the zoned areas to include land within the Cox Peninsula was never considered by the Town Planning Board.

21. During 1978 action was taken in connection with a rural plan for the environs of Darwin. As was appreciated at the time, this plan could not be gazetted until after the enactment of the new legislation, the Planning Act. Under the Town Planning Act, only land within "towns" could be zoned. The rural plan was eventually gazetted, under the Planning Act, on 9 January 1981. Pursuant to that plan the Cox Peninsula was zoned as "Rural Living 2".

22. In May 1979 the regulations made on 22 December 1978 were amended in relation to the towns of Tennant Creek and Katherine. By the amendments the areas of land made subject to the new regulations were significantly reduced, to 650 sq km and 240 sq km respectively. Mr Perron gave evidence that these amendments occurred at his direction because he was of the opinion that the boundaries specified by the regulations of 22 December 1978 "were out of all proportion to any sensible planning considerations". At that same time he reconsidered the boundaries of the areas defined in the regulations for Darwin and Alice Springs; but he took the view that there was no justification for an alteration of those boundaries.

1. The evidence before the Commission was voluminous. The above references constitute no more than a summary of the more significant material which the Commissioner had to consider in deciding what was the purpose for which the regulations were made.
   The Commissioner's decision

2. The Commissioner was of the view that a fair reading of the memorandum of 30 November 1978 and the drafting instruction which accompanied it led to the conclusions that the lodging on 9 November 1978 of the Aboriginal land claim over all vacant Crown land adjacent to Tennant Creek was the catalyst for the action referred to in the memo of 30 November, that the issue of primary concern to the Government was the protection against claims under the Aboriginal Lands Right Act of, inter alia, the Cox Peninsula, that the intention of the author of the memorandum was to take action so that the land in question would no longer be available to be claimed under the Land Rights Act and that no identified areas of land adjacent to the four major centres were considered by Mr Perron. He was further of the view that the memorandum and the drafting instruction did not suggest that any of the purposes of the Town Planning Act were under contemplation at the time. He thought that the documents demonstrated that the proposal to make the regulations was a course of conduct embarked upon as "the neatest solution to the problem" of protecting urban environs against claims under the Land Rights Act. The critical findings of the Commissioner, on purpose, were expressed in the following terms:
   

"I have not the slightest hesitation in concluding from the evidence including the contemporaneous documents and the evidence given by Mr Perron, both in affidavit form and by way of cross-examination, that following the lodging of the Tennant Creek land claim on 9 November 1978 it became apparent to Mr Perron that the planning options then being considered for the rural area in and around Darwin, including Cox Peninsula, could be affected by a successful Aboriginal land claim being made to the land in question, and he embarked upon a course of conduct designed for the purpose of ensuring that the land could not be made the subject of a land claim. The end result of that course of conduct was the making of the Town Planning Regulations. Their preparation was initially authorised by Mr Perron on 30 November 1978 and their making was sponsored by him in Cabinet on 22 December 1978 and in the Executive Council on the same day. There was never any intention that a town planning scheme under the Town Planning Act be adopted, or even proposed for the Darwin regulation area. And in particular, despite numerous reports over many years in which the various options for urban development to the west in the Cox Peninsula area and to the east in the Gunn Point area were canvassed, there is no evidence to suggest that the Town Planning Regulations were made with a view to proposing a town planning scheme for any part of the Darwin regulation area. Nor is there the slightest suggestion that there was a need to further control the subdivision of freehold land or the execution of 'major works' in that area. What seems to have been under contemplation was something in the nature of a regional plan, and no one has suggested that such a plan could fit the description of a town planning scheme. Indeed it was the unsuitability of the Town Planning Act to facilitate that type of planning in that and other similar areas which was one of the reasons for requiring new planning legislation. It must follow from the conclusions I have expressed that the Town Planning Regulations were not made for the purpose of carrying out or giving effect to the Town Planning Act. On the evidence I find as a fact that the regulations were planned and implemented, from start to finish, to ensure that no Aboriginal land claim could be made to the areas specified. That was the sole reason for making the regulations. The question of planning controls had to abide the passing of the new legislation. Mr Perron's evidence makes it quite clear that what he had in mind was a rural plan and not a town planning scheme, that he was aware that the Town Planning Act was an inappropriate vehicle whereby he could implement a rural plan, and that it was the imminent prospect that a claim would be made under the Land Rights Act to Cox Peninsula that motivated the activity that led to the Town Planning Regulations being made. Much of Mr Perron's evidence given in cross-examination suggests that the primary purpose of the regulations was to do with planning, and to some extent I can accept that planning considerations were involved. What I cannot accept is that the regulations were made for the purpose of carrying out or giving effect to the Town Planning Act. Quite the contrary. The Town Planning Act had no role to play in what was contemplated for the Darwin regulation area. The regulations were made in an attempt to ensure that the authority of the Northern Territory legislature and executive government over the Darwin regulation area would not be diminished or otherwise inhibited by the making of an Aboriginal land claim in respect of that land. And whether the test be expressed in terms of an improper or ulterior purpose or a purpose entirely alien to the legislation under which the regulations were made, the result must be the same."

1. Before considering counsel's criticisms of this passage we pause to observe that the Commissioner's principal finding, that the regulations were made "to ensure that no Aboriginal land claim could be made to the areas specified" was a finding which was well open to him upon the evidence. In that connection four aspects of the evidence appear to us to be particularly significant. We refer, firstly, to the non-involvement of the Town Planning Board and of the Government's town planning staff in the making of the regulations. The ostensible purpose of the regulations was to extend significantly the areas of land, around each of the four principal towns in the Territory, which would become subject to the possibility of control under the Town Planning Act. Under that Act the Town Planning Board has important responsibilities, in relation to lands within a "town", both in connection with the preparation of town planning schemes and subdivision control. It might have been expected that there would have been some consultation with the Board before such major extensions of its areas of responsibility. It might also have been expected that there would be some advice from Government town planners as to the need for these additional controls. Yet there was no discussion with, or report from, either the Board or any town planner. Although Mr Lawler held the position of Vice-Chairman of the Board, he made no use of the expertise of the Board. Although he was not himself a qualified town planner, he made no effort to obtain professional advice.

2. Secondly, we think that the contemporaneous documents are illuminating. It is true that the ultimate question was the purpose of Mr Perron, and so the Northern Territory Government, rather than the purpose of those public servants who were involved in the planning and framing of the regulations. But light may be cast upon Mr Perron's purpose by considering the approach taken by those public servants with whom he had consulted, and their understanding of the object of the exercise. There is no doubt that the relevant public servants thought that the purpose of the regulations was to frustrate Aboriginal land claims. Ms Shields' memorandum of 29 November 1978 was an examination of methods of taking the subject lands out of the definition of "unalienated Crown land" in s.3 of the Land Rights Act; the possibilities even extending to the vesting of the lands in the Northern Territory Development Corporation. There was no mention of any planning purpose. Similarly, Mr Lawler headed the memorandum of 30 November 1978 "Protection of Urban Environs Against Claims under the Aboriginal Land Rights (NT) Act".

3. The content of the memorandum is a discussion of the best means of achieving that objective; the making of regulations under s.5 of the Town Planning Act being merely one of the options canvassed. It became the favoured option (para.11), not because of a desire to extend planning controls over the subject area but because it was thought to be "politically more acceptable". Mr Perron signed this memorandum.

4. Thirdly, we find it remarkable, if the exercise was related to town planning, that the task of determining the areas to be included in the extended "town" should have been left entirely to Mr Lawler. Not only did Mr Lawler lack any directions as to the areas to be included, or even the criteria by which he would select those areas; apparently, no one else, certainly no Minister, considered the reasonableness of the areas which he chose to select. This leads to the fourth notable aspect of the case; the massive reductions of the areas selected for the extensions of Katherine and Tennant Creek. It was open to the Commissioner to treat these reductions as an implicit concession that the original areas were not determined on any rational town planning basis.
   The contentions of counsel

5. It is not contended by counsel for the applicant that the conclusions reached by the Commissioner were not open to him, as a matter of law. But counsel submit that, in reaching those conclusions, the Commissioner fell into three errors of law, any one of which would require this Court to set aside the Commissioner's finding on the preliminary matter. It is necessary to deal separately with each of the three matters raised.

6. First, it is said by counsel that the Commissioner failed to advert to the distinction between a direct purpose and a consequential purpose. The present case, say counsel, is not an example of mixed primary purposes (a legitimate purpose of planning Darwin and an illegitimate purpose of defeating a land claim), in which case it would be necessary to determine which was the predominant or substantial purpose. This is a case, counsel argue, of a single primary, or direct, purpose, the proper planning of Darwin, combined with the consequential purpose of preventing the disruption to the primary purpose which would occur if the land were granted under the Land Rights Act. Counsel point out that it is commonplace, when a person has the purpose of achieving a particular result, that he or she undertake subsidiary steps to achieve that purpose; but, they say, it is not a correct use of language to describe the fulfillment of a subsidiary step as the "purpose" of any necessary action. Counsel cite as an example a person who, wishing to drive to the city, first opens his car door. The reason for opening the door is so that the driver may obtain access to the car in order to drive to the city. Although the door is deliberately opened, counsel say that it would be absurd to treat that action as the fulfillment of an independent purpose; on the contrary, it is simply a step towards implementing the only true purpose: driving to the city.

7. Counsel seek to apply this analysis to the present case by saying that, properly understood, the Commissioner's findings were that the ultimate purpose of Mr Perron (and so the Northern Territory Government), in making the subject regulations, was a planning purpose; planning purposes being purposes authorised by the Town Planning Act. All steps taken in implementation of that purpose are authorised, unless specifically prohibited by statute. As the purpose of blocking a land claim is not prohibited, it follows, according to the argument, that the existence of that purpose does not affect the validity of the regulations.

8. In support of their contention that a distinction ought to be drawn between a direct, or primary, purpose and a consequential, or secondary, purpose, counsel refer to a number of authorities. The principle is discussed in an Irish case, Cassidy v Minister for Industry and Commerce (1978) Ir R 297. In that case it appeared that the Minister had a statutory power to make maximum price orders, for the purpose of preventing unwarranted price increases. In practice, the Minister generally achieved this objective by negotiating voluntary price agreements with industries. But when the publicans of Dundalk refused to abide by the voluntary agreement, the Minister made a maximum price order, in purported exercise of his statutory powers. The publicans challenged the order, arguing amongst other things that, in making the order, the Minister had been motivated by the purpose of enforcing adherence by traders to voluntary agreements. The trial judge did not find such a purpose but the Supreme Court, on appeal, held that the Minister had a purpose of enforcing the voluntary system. Nonetheless, the attack on purpose failed. In a judgment with which both O'Higgins J and Griffin J concurred, Henchy J said, at pp 308-309:
   

"The evidence forces me to the conclusion that the primary and dominant purpose of the Minister in making these orders was to eliminate unwarranted price increases and that, while he also had as his aim the return of the publicans to the voluntary practice of not making price increases without giving him prior notice, that aim was merely subsidiary and consequential to the dominant and permitted aim. I would hold that the Minister did not act ultra vires in this respect. Where a power to legislate for a particular purpose is delegated and the power is exercised bona fide and primarily for that purpose, I consider that the exercise of the power is not vitiated if it is aimed also at the attainment of a subsidiary or consequential purpose which is not inconsistent with the permitted purpose. If the law were otherwise, many delegated powers would be unexercisable, for the permitted purpose frequently encompasses of necessity the attainment of other purposes. In my opinion, the first ground of appeal fails."

1. Counsel also cited a number of local cases in which the same principle has been applied, whether expressly or implicitly: Thompson v Randwick Municipal Council (1950) 81 CLR 87, C C Auto Part Pty Limited v Minister for Works (1965) 113 CLR 365, Samrein, Harlowe's Nominees Pty Limited v Woodside (Lakes Entrance) Oil Company NL (1967) 121 CLR 483 and Znaty v Minister for Immigration (1972) 126 CLR 1.

2. We do not find it necessary to discuss these cases. We accept the general propositions for which counsel contend. The real question, in the present case, is whether or not it is correct to say that the Commissioner found that the purpose of blocking the land claim was merely consequential.

3. We have already quoted the critical passage in the Commissioner's reasons. The findings in that passage may be summarized as follows:
   

(a) Following the lodgment of the Tennant Creek land claim on 9 November 1978, it became apparent to Mr Perron "that the planning options then being considered for the rural area in and around Darwin, including Cox Peninsula, could be affected by a successful Aboriginal land claim".

(b) Accordingly, Mr Perron embarked upon a course of conduct designed to ensure that the land could not be made the subject of a land claim.

(c) There was never any intention that a town planning scheme under the Town Planning Act be adopted, or even be proposed, for the extended Darwin area, including the Cox Peninsula. Nor was there a suggested need to control further the subdivision of land in that area. Rather, "(w)hat seems to have been in contemplation was something in the nature of a regional plan", something which was not a "town planning scheme" within the contemplation of the Town Planning Act. Consequently, the regulations were not made for the purpose of carrying out or giving effect to the Town Planning Act.

(d) The regulations were planned and implemented "to ensure that no Aboriginal land claim could be made to the areas specified. That was the sole reason for making the regulations.".

(e) Mr Perron had in mind a rural plan, not a town planning scheme. Although "planning considerations" were involved in the making of the regulations, Mr Perron was aware that the Town Planning Act was "an inappropriate vehicle" for a rural plan.

(f) The imminent proposal of a land rights claim over the Cox Peninsula motivated the making of the regulations. The regulations were "made in an attempt to ensure that the authority of the Northern Territory legislature and executive government" over the Darwin regulation area would not be diminished or inhibited by a land claim.

1. In our opinion, the findings of the Commissioner are clear. He did not suggest that the regulations were made out of prejudice or spite or because of some general objection to the principle underlying the Land Rights Act. But his finding as to "the sole reason" for the regulations -- para.(d) above -- is stated as an independent finding of fact, travelling beyond a statement that, for the regulations to be valid, the Government must have had the purpose of applying to the subject lands the controls provided by the Town Planning Act. This finding was well open on the evidence; it is strongly supported by the contemporaneous memoranda to which we have already referred.

2. It is true that the Commissioner also made a finding that "to some extent ... planning considerations were involved". We take this to mean that part of the reason why Mr Perron wished to block an Aboriginal land claim was because of views he held on planning matters. The Commissioner did not find that this was the whole, or even the primary, reason for Mr Perron's attitude. However, the Commissioner went on to deal with this reason, saying, in effect, that even if it was the primary reason it would not constitute a relevant purpose; this being because a mere "planning purpose" is not necessarily within the scope and purpose of the Town Planning Act. The relevant planning objectives of Mr Perron were not those contemplated by the Town Planning Act; that is, the control of land use through the medium of town planning schemes and the control of freehold subdivisions. His objectives were the avoidance of any restriction or inhibition, in the Government's regional or rural planning, flowing from the existence of a land claim.

3. It is only when one gets to the second aspect of the Commissioner's finding -- the "to some extent" explanation -- that this first submission of counsel becomes relevant. The first aspect is a finding of a primary purpose which, on any view, is extraneous to the scope and purpose of the Land Rights Act. However, turning to the second aspect, it is apparent that, upon the reasoning of the Commissioner, this is not a case of an authorised -- because not prohibited -- step in the implementation of a permitted purpose; but rather a case of the use of a statute for an extraneous purpose: regional or rural planning.

4. This brings us to the second submission made on behalf of the applicant: that the Commissioner erred in treating regional planning as being outside the purposes of the Town Planning Act. In the course of his reasons the Commissioner posed a question as to the circumstances under which regulations prescribing a specific area pursuant to s.5 might be made for carrying out or giving effect to the Act. He pointed out that the effect of any such regulations would be, firstly, to require that any application for the subdivision of freehold land within the area be submitted to the Town Planning Board, secondly, to entitle the Minister to require the Board to prepare proposals for a town planning scheme and, thirdly, if a town planning scheme came into operation, to prohibit without approval the commencement or continuation of prescribed works. The Commissioner then found that, unless made for one of these purposes, regulations pursuant to s.5 would not have been made for a purpose relating to the carrying out or giving effect to the Town Planning Act.

5. This conclusion is challenged by counsel for the applicant. They say that it confuses purpose and method, that the particular powers conferred by the Act are not purposes but methods of achieving purposes. The purpose of the Act, so it is submitted, is planning; the various controls noted by the Commissioner are merely methods of achieving proper planning. Reliance is placed upon the observation of Wilson J in Toohey at p 277 that:
   

"... the Act is clearly concerned with the planning and control of the use and development of land generally, whether it be land in a town or otherwise."

Counsel also refer to phrases used by other members of the High Court, in that case, such as "planning purposes".

1. If we are correct in reading the Commissioner's reasons as containing an independent finding that the purpose for which the regulations were made was to block a land rights claim, the present question does not arise. However, we think it is appropriate for us to say that we do not accept the submissions advanced by counsel for the applicant upon this aspect of the case. Toohey provides no support for those submissions. After the commencement of the Planning Act, on 3 August 1979, the regulations made on 22 December 1978 under the Town Planning Act were re-gazetted as regulations under the Planning Act. Before Toohey J, as Commissioner, it seems to have been assumed that the question whether the land was "unalienated Crown land", and therefore available for a land claim, had to be detemined by reference to the position at the date of the land claim inquiry, that is after the re-gazettal of the regulations. Consequently, when the decision of Toohey J was challenged in the High Court, attention was focussed upon the validity of the regulations under the Planning Act. The comments of Wilson J, and of the other judges who spoke of "planning purposes", were made in the context of the Planning Act. It was that Act to which Wilson J was referring in the passage cited. As his Honour went on to note, the Planning Act, unlike the Town Planning Act, extended to land which was not within a "town" and it made specific provision for regional planning. Consequently, it was not possible to say that the regulations were beyond the scope and purpose of the Planning Act. (Subsequently, in Kearney, the High Court held that the relevant date for determining whether particular land was "unalienated Crown land" was the date of the lodgment of the land claim. The Kenbi (Cox Peninsula) Land Claim was lodged after 22 December 1978, when the regulations were purported to be made under the Town Planning Act, but before the regulations were re-gazetted under the Planning Act. Accordingly, since Kearney, attention has been directed to the validity under the Town Planning Act of the original regulations. The question of the validity of the re-gazetted regulations under the Planning Act has been seen to be irrelevant.)

2. It is a fundamental principle of administrative law that, in the absence of a specific statutory provision to the contrary, the proper limits of the exercise of a statutory discretion are defined by, and only by, the scope and purpose of the legislation itself. This principle applies to decisions affecting particular individuals: see Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at p 505, The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Limited (1979) 144 CLR 45 at p 49. It also applies to the making of delegated legislation: see McEldowney v Forde (1971) AC 632. In that case, at p 651, Lord Pearce said:
   

"But it" (Julius v Bishop of Oxford (1880) 5 App Cas 214) "is an example of the principle that when Parliament gives a power without any indications of its extent, one must read the limitations from the context. It is a power given to carry out the purposes of the Act and any discretion given is limited to those purposes. Even where such wide words are used as 'may make such regulations as he may think fit,' the subjective power is limited to such things as the general context of the statute shows to be its objectives. It cannot be suggested that he can make any regulations that he likes, regardless of the intentions to be derived from a statute conferring the power. A fortiori is this so when no subjective licence is given; for it certainly should not be implied."

The principle has application in the present case. Section 73 of the Town Planning Act (the section which conferred the power to make the subject regulations) authorised the Administrator in Council to make regulations, not inconsistent with the Act, "prescribing all matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to this" (Act). To the extent that the making of the regulations was motivated by a desire to facilitate regional planning, as distinct from invoking the planning controls within a "town" envisaged by the Town Planning Act, the subject regulations were not prescribed for the purpose of "carrying out or giving effect to" the Town Planning Act. However desirable it might have been, in December 1978, that the Northern Territory Government undertake regional planning of the areas surrounding its major towns, this was not a purpose of the Town Planning Act. We think that the Commissioner was correct in his analysis of the scope and purpose of the Town Planning Act and that the applicant can gain no comfort from his finding that "to some extent ... planning considerations were involved". As the Commissioner made clear, and indeed Mr Perron's evidence did not suggest otherwise, the relevant planning considerations were not related to the limited controls provided for under the Town Planning Act.

1. The third submission put on behalf of the applicant is that the Commissioner erred in distinguishing between the control of rural land and controls under the Town Planning Act. Counsel point out that some of the zones envisaged by the Town Planning Act are zones appropriate to rural lands; so that, although zoned land must be land within a "town" as defined in s.5, zoned land need not necessarily be urban in character. The scope of the Town Planning Act, as it is submitted, extended to the planning of those rural areas which had a functional relationship to nearby towns. Consequently, so it is said, Mr Perron's evidence that he was concerned about the lack of power to control some rural uses -- for example, concrete batching plants -- and to prevent development in rural areas which might inhibit the planning of those areas for future urban development, impels the conclusion that his purpose in proposing the subject regulations fell within the Town Planning Act.

2. Once again, upon the Commissioner's findings, this question does not, strictly, arise. However, we think that this submission also is misconceived. We accept that the Town Planning Act was concerned not only with urban development, but also with the control of the subdivision and development of rural lands in the vicinity of an existing urban area, provided that such lands were within a "town", as defined by s.5. But the Town Planning Act was not concerned with rural lands in the abstract. It was concerned with the control of such lands in particular ways, in connection with subdivision and in connection with land use controls imposed by town planning schemes. Whatever might have been the desirability of the Government having additional powers over rural lands, it cannot be said that the making of the subject regulations was for the purpose of carrying out or giving effect to the Town Planning Act, in respect of the relevant rural lands, unless it can be said that, when they were made, there was a purpose of applying to those lands the controls envisaged by that Act. The Commissioner found as a fact that there was no such purpose. This finding is unassailable. Not only was the possibility of imposing controls over rural lands, under the Town Planning Act, never discussed before 22 December 1978; in preparing the Darwin rural plan, in December 1978, the Government was acting upon the basis that this plan could not, and would not, be brought into effect until the commencement of the then proposed Planning Act. As with counsel's second submission, it seems to us that the Commissioner's finding that the subject regulations "were not made for the purpose of carrying out or giving effect to the Town Planning Act" is fatal to the argument.

3. In our opinion the Commissioner did not err in law in his consideration of the preliminary question with which this case is concerned. The application must be dismissed with costs.