Jungarrayi v Olney

[1992] FCA 73

Re: GEORGE BROWN JUNGARRAYI; GEOFFREY TAYLOR JAPANGARDI; TASMAN CASSON
JAPANANGKA and DICK RILEY JAPANANGKA
And: THE HON. HOWARD WILLIAM OLNEY, ABORIGINAL LAND COMMISSIONER and THE
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
No. V G82 of 1991
FED No. 73
Aboriginals - Administrative Law
105 ALR 527
(1992) 34 FCR 496
(1992) 26 ALD 390

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Hill(1) and O'Loughlin(1) JJ.

CATCHWORDS

Aboriginals - Aboriginal Land Rights (Northern Territory) Act - "strength or otherwise of the traditional attachment" by claimants to land - whether an ingredient in the definition of traditional Aboriginal owners - repeat land claim - question whether "it is likely" that the Commissioner will find that the applicants or specified Aboriginals are the traditional Aboriginal owners of land - meaning of "it is likely".

Administrative Law - Administrative Decisions (Judicial Review) Act - whether errors of law - whether errors influenced outcome.

Administrative Decisions (Judicial Review) Act 1977: s.5(1)

Aboriginal Land Rights (Northern Territory) Act 1976 ss.3(1), 50(1), 50(2A), 50(2B), 50(3), 50(4)

The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

Bayer Products, Ltd's Application (1947) 2 All ER 188

Transport Ministry v Simmonds (1973) 1 NZLR 359

Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR303

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Others (1979) 27 ALR 367

Sheen v Fields Pty Ltd (1983-84) 51 ALR 345

Radio 2UE Sydney Ptd Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557

The Queen v Kearney: Ex parte Jurlama (1984) 158 CLR 426

HEARING

SYDNEY

#DATE 27:2:1992

Counsel for the Applicants: Mr K.R. Howie and Mr T.P. Keely instructed

by Mr David Avery of the Central Land Council

Counsel for the Second
Respondent: Mr T. Pauling QC and Mr V. Hughston

instructed by the Solicitor for the Northern Territory

ORDER

The decision of the Aboriginal Land Commission be set aside.

The matter be referred to an Aboriginal Land Commissioner for determination in accordance with law.

The second respondent to pay the costs of the applicants.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

This application for judicial review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of a decision made by the first respondent ("the Commissioner") the then Aboriginal Land Commissioner appointed pursuant to s.52(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") was heard immediately after the conclusion of the hearing of Northern Land Council v Olney ("the Kenbi Land Claim"). In each case, the court was constituted by the same three judges. In each case the same counsel appeared for the Attorney-General for the Northern Territory of Australia who opposed the orders being claimed. Counsel leading for the applicants in the present case ("the Kanturrpa Repeat Land Claim") appeared for the Central Land Council in the Kenbi Land Claim and was present in court during the whole of the hearing of that case. The reasons for judgment in each case are to be published at the same time. The references to the provisions of the Act and the construction of the relevant provisions of the Act appearing in the reasons for judgment in the Kenbi Land Claim have equal application to the present case and need not be repeated in these reasons.

1. The Kanturrpa Repeat Land Claim raises two discrete questions. The first question was raised in the Kenbi Land Claim and can be stated shortly, as follows:
   

"Whether strength of traditional attachment, to which s.50(3) of the Act directs the Commissioner to have regard to is an ingredient in the definition of traditional Aboriginal owners or whether it is a matter to be considered by the Commissioner when he comes to determine whether he will make a recommendation to the Minister that a grant of land be made".

1. In its reasons for judgment in the Kenbi Land Claim, under the heading "The relevance of strength of traditional attachment", the court said:
   

"Having regard to the decision of this court in Jungarrayi v Olney (the Kanturrpa Repeat Land Claim) delivered at the same time as the present judgment, and in respect of which the question more directly arose, it is unnecessary to discuss this question. It is sufficient to say that in taking into account the strength of the claimants' attachment to the land in determining whether among the claimants there were to be found "traditional Aboriginal owners" his Honour fell into error."

1. The reasons for the court coming to that opinion are set out in these reasons for judgment.

2. The second discrete question raised in the Kanturrpa Repeat Land Claim did not arise in the Kenbi Land Claim. The question involves the proper construction of a limitation on the power of a Commissioner to exercise a function conferred by s.50(1) of the Act in relation to a claim to an area of land with respect to which an earlier claim had failed.

3. The Act came into operation on 26 January 1977. There was then nothing in the Act which prevented a second or even repeated claims being made with respect to land which had been the subject of an earlier unsuccessful claim. In 1987 the Act was amended to impose restrictions on what are commonly described as repeat claims. Section 25 of Act No 40 of 1987 amended s.50 of the Act by inserting new sub-sections (2A), (2B), (2C), (2D) and (2E). Section 50(2A) imposes a time limit on the making of claims. The limitation is imposed by prohibiting the Commissioner from performing a function under s.50(1)(a) in respect of any application made after the expiration of 10 years after the commencement of Act No 40 of 1987, namely 5 June 1987.

4. Section 50(2B) imposes restrictions on repeat claims by providing, in substance, that the Commissioner shall not perform or continue to perform a function under s.50(1)(a) in relation to the repeat claim unless the Commissioner finds the existence of one or more of three specified factors or conditions precedent "and that it is likely that the Commissioner will find that the applicants or specific Aboriginals are the traditional Aboriginal owners" of the land being the subject of the repeat claim. The second question calls for the proper construction of the words quoted and in particular the words "that it is likely that the Commissioner will find".

5. Before turning to the facts of the Kanturrpa Repeat Land Claim it is convenient to set out the particular provisions of the Act directly relevant for present purposes. It must be remembered however, that the more detailed consideration of the provisions of the Act are contained in the reasons for judgment in the Kenbi Land Claim and are taken to have been read.

6. The primary provisions of s.50 of the Act are contained in s.50(1)(a) which provides:
   

"50(1) The functions of a 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. In the performance of his functions, the Commissioner is also governed by (inter alia) the provisions of sub-s.(3) and (4) of s.50. Those two sub-sections state:
   

"(3) In making a report in connection with a traditional land claim a Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters:

(a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part;

(b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part;

(c) the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and

(d) where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned.

(4) In carrying out his functions a Commissioner shall have regard to the following principles:

(a) Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place;

(b) Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place."

1. Section 50(2B) provides:
   

"(2B) Where -

(a) an application referred to in paragraph (1)(a) has been made to a Commissioner;

(b) it appears to the Commissioner that the land to which the application relates is, in whole or part, the same as the whole or part of land to which an earlier application related; and

(c) the report made under sub-paragraph (1)(a)(ii) in relation to the earlier application made no recommendation as mentioned in that sub-paragraph in relation to that land, the Commissioner shall not perform, or continue to perform, a function under paragraph (1)(a) in relation to the land (in this sub-section referred to as the 'common land') in (sic) which both the first-mentioned application and the earlier application relate unless the Commissioner finds -

(d) that the basis on which the applicants contend that the applicants, or specified Aboriginals, are the traditional Aboriginal owners of the common land is substantially different from the basis on which the like contention was made in relation to the previous claim;

(e) that information, documents or records that are likely to be relevant to the performance by the Commissioner of that function, being information, records or documents that were not available to the Commissioner to whom the previous application was made, will be available to the Commissioner in connection with the performance of that function; or

(f) any other ground upon which it appears to the Commissioner appropriate to perform, or continue to perform, that function, and that it is likely that the Commissioner will find that the applicants or specified Aboriginals are the traditional Aboriginal owners of the common land."

1. An application known as the Waramungu Land Claim having been made, a former Aboriginal Land Commissioner, Maurice J., reported his findings to the Minister and to the Administrator as required by sub-paragraph 50(1)(a)(ii). So far as is relevant to these proceedings that report, which was dated 8 July 1988, did not contain any recommendation to the Minister for a grant of land. Shortly thereafter, on 19 July 1988, the Central Land Council (sometimes described as "the CLC") forwarded to the office of the Aboriginal Land Commissioner an application (the Kanturrpa Repeat Land Claim) in the name of the four Aboriginals who are the applicants in this proceeding. It is common ground that that application covers an area of land generally south-west of the town of Tennant Creek, and refers to land that was part of the land to which the Waramungu Land Claim related. In these circumstances s.50(2A) of the Act applies. In considering the provisions of that sub-section it may be assumed that the matters referred to in paragraph (a), (b) and (c) were established.

2. The application came on for hearing before the Commissioner for the purpose of determining whether he should, within the language of s.50(2B), "perform, or continue to perform, a function under paragraph (1)(a)" in relation to the common land. Having found that each of the matters referred to in paragraphs (a), (b) and (c) of s.50(2B) existed, the Commissioner then proceeded to consider whether one or other of the matters referred to in paragraphs (d), (e) or (f) ofthat sub-section was present. He concluded that the basis upon which the applicants had presented their claim was not "substantially different from the basis on which the like contention was made in relation to" the Warumungu claim; he held therefore that paragraph (d) could not assist the applicants. He also found that there was no "other ground", upon which it appeared to him "appropriate to perform, or continue to perform, that function"; he thus ruled out paragraph (f). As to the provisions of paragraph (e), the Commissioner found that no new documents or records were available; but he did come to the conclusion that new information would be forthcoming. He said:
   

"I accept that further research has been carried out since the

(Warumungu) Report was published and that anthropologists engaged by the CLC for that purpose have been given information by claimants and others about sites on or near the claim area and that this information is additional to the information that was made available to the previous Commissioner in Waramungu. The new information if accepted as evidence having weight could be relevant in the conduct of an inquiry to determine the traditional Aboriginal ownership of the claim area."

1. None of the abovementioned findings have been challenged before this court.

2. It remained then for the Commissioner to consider whether "it is likely that" he "will find that the applicants or specified Aboriginals are the traditional Aboriginal owners of the common land". As to that, he observed that the new information indicated that there were possibly eight additional sites of significance to the claimants within the claim area. Nevertheless, he came to the conclusion that:
   

"The nature of the additional information now said to be available is not such as to lead to the conclusion that I would be likely to find the claimants or any specified Aboriginals are the traditional Aboriginals are the traditional Aboriginal owners of the claim area."

1. In coming to this conclusion, the Commissioner construed the words "it is likely" where they last appear in s.50(2B) as meaning "probable" or "to be reasonably expected" or "to have a substantial chance of success". The second question raised before the court involves the proper construction of the words.

2. This finding led the Commissioner to conclude, in reasons published on 20 March 1991, that he was "constrained ... from performing any function under paragraph 50(1)(a) in relation to the claim area". Classifying this conclusion as a "decision" the applicants have applied to this Court for an order of review. They pleaded, in the alternative, that the Commissioner had failed to make a decision and sought an order of review in respect of that alleged failure. However nothing turned on the classification of the Commissioner's conclusion and it will be convenient to continue to refer to it as a "decision".
   The First Question

3. The task that the Commissioner had set himself was to assess the likelihood that he would find "that the applicants or specified Aboriginals (were) the traditional owners of the common land". The applicants complain that the Commissioner, in making his decision, took into account an irrelevant consideration; it is said that he wrongly had regard "to the strength or otherwise of the traditional attachment by the claimants to the land claimed ..." These quoted words appear in sub-section (3) of s.50 of the Act.
   

"(3) In making a report in connection with a traditional land claim a Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters ..."

(There are then set out four subject matters which are to be the subject of comment).

1. The report to which sub-s.(3) refers is, of course, the report which is earlier referred to in sub-s.(1). Two facts are significant when considering that report; first, it is to be compiled only after the Commissioner has ascertained "whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land"; and secondly, the primary purpose of the report is to inform the Minister adequately so that the Minister will be able to consider and assess properly the recommendations of the Commissioner that are contained in the report.

2. The report might disclose a finding of traditional Aboriginal ownership but little or no traditional attachment; in such circumstances, the Commissioner may feel constrained not to make a recommendation to the Minister; alternatively, the Minister may not regard himself as satisfied under paragraph 11(1)(b) that the land should be granted to a Land Trust even though a favourable recommendation had been made by the Commissioner. In either case, it would be the secondary question of "traditional attachment" - not the primary question of identification of the traditional Aboriginal owners that would determine the issue. In other words, the issue of "traditional attachment" is not called into question under sub-section 50(1)(a)(i) at the time when the Commissioner is engaged upon the exercise of ascertaining whether there are any traditional Aboriginal owners of the relevant land; he will only address this issue when, having ascertained that there are such owners, he is engaged in the compilation of his report and the making of his recommendations.

3. This accords with the views of Wilson J. in The Queen v Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 CLR 327 at p 347 where his Honour approved of the following summary of a Commissioner's functions as contained in sub-s.50(1) as qualified by sub-ss.(3) and (4):
   

"In the Borroloola Report (par.24) the Commissioner summarized his functions in respect of a claim to unalienated Crown land as follows:

'1. I am to ascertain who are the traditional Aboriginal owners of the land claimed, if there be such.

2. I am to have regard to the strength or otherwise of their traditional attachment to that land.

3. I am to have regard to the principles spelled out in sub-s.(4).

4. That done, I am to make recommendations to the Minister for the granting of land, if it be appropriate.

5. I am then to comment on the matters mentioned in paragraphs

(a) to (c) or sub-s.(3), but in doing so I should make some evaluation of those matters in such a way as to assist the Minister in deciding whether to act on my recommendations.'"

1. But the parts of sub-s.50(2B) relevant to the present question are less complex than the provisions of sub-s.50(1). In this respect, sub-s. 50(2B) is concerned only with the question of identification, that is, the question of traditional Aboriginal owners. In answering that question regard must be had to the definition of "traditional Aboriginal owners" appearing in s.3 of the Act. In relation to land, that phrase
   

" ... means a local descent group of Aboriginals who -

(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b) are entitled by Aboriginal tradition to forage as of right over that land."

1. Thus the investigation of questions of ownership will extend to spiritual affiliations, foraging rights and the other matters that are encompassed in he definition. But neither sub-s.50(2B) nor the definition of "traditional Aboriginal owners" refers to the subject of "strength or otherwise of the traditional attachment", referred to in sub-section 50(3).

2. The phrase "traditional Aboriginal owners" is used in a number of the sections of the Act; see for example, s.23(1)(b), (c) and (e)(i), s.23(3)(a), s.24, s.35(2)(b) and (4), s.42(2)(a), (4), (5) and (6), s.43(2)(a), s.44(8), s.44A(1) and (3) and s.46(4) and (5)(d). A reference to these provisions makes it clear that traditional Aboriginal owners of land have continuing rights and obligations. Land Councils are required to consult with them and to obtain their consent to transactions affecting the land of which they are the owners. The Act confers functions on Councils including the functions of protecting the interests of traditional Aboriginal owners and of consulting with them. Under s.24 a Land Council is empowered to compile and maintain "a register setting out the names of the persons who, in the opinion of the Council, are the traditional Aboriginal owners of Aboriginal land in the area of the Land Council".

3. The persons comprising the group being the "traditional Aboriginal owners" of any land will change over the years. As time goes by, additional persons will become part of the group. Other persons will die. The Land Councils are required to deal with the "traditional Aboriginal owners" of land from time to time as the group is then constituted. Councils are required to form an opinion on which persons constitute the group from time to time. Nowhere does the Act suggest that in forming that opinion a Land Council is required to "have regard to the strength or otherwise of the traditional attachments of the claimants to the land claimed"; see s.50(3). Having regard to the structure of the Act, the phrase "traditional Aboriginal owners" is to have the same meaning wherever it is used in the Act, the meaning given to it by the definition in s.3. In making a finding under s.50(1)(a) the Commissioner must apply that meaning to the facts found. Similarly, a Land Council, in forming an opinion as to who are the traditional Aboriginal owners of land, must apply that meaning to the facts found. The provisions of s.50(3) can have no application in identifying traditional Aboriginal owners. This point is reinforced when regard is had to the fact that nowhere else apart from s.50(3) does the Act make reference to "the strength or otherwise of the traditional attachment ..."

4. Initially, the Commissioner correctly identified his task when he said that he had to "reach a positive finding that it is likely he will find that there are traditional owners if the claim proceeds". But later in his reasons he referred to and relied upon adverse findings about "traditional attachment". For example, after reviewing the information that was before him, he said:
   

" I am left with the distinct impression that the circumstances which led the previous Commissioner to conclude the traditional attachment to the claim area was weak, still prevail. No reason has been advanced as to why a different conclusion is now likely to be arrived at."

Later the Commissioner said:

"My assessment of the position, derived from the previous Commissioner's findings as expressed in the Report and the material both written and in the form of oral evidence) put forward on behalf of the claimants in this preliminary hearing is that there was not at the time of Warumungu nor is there now, any evidence available to demonstrate that any Aboriginal people, irrespective of the group or groups to which they may belong, have a significant traditional attachment to the claim area. The absence of such attachment was one of the bases upon which the previous Commissioner declined to find the Kanturrpa claimants to be traditional owners and the same conclusion must inevitably result from the material now before me. Subsection 50(3) quite clearly requires the Commissioner to have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed. The absence of any significant traditional attachment to the land is in my view a proper ground for not making a finding of traditional ownership. In case such as this the absence of such an attachment renders it unlikely that a finding of traditional ownership will be made."

1. These passages from the reasons of the Commissioner show an impermissible use and reliance upon the subject of strength or otherwise of traditional attachment in ascertaining whether there are traditional Aboriginal owners of the land. The task of the Commissioner required him to limit himself and his deliberations to the subject of "traditional Aboriginal owners" as that term is defined in the Act. At a later stage, the question of traditional attachment might arise if the matter proceeds to the compilation of a report by the Commissioner as required by sub-s.50(3). But at this stage, sub-s.50(2B) only directs the Commissioner's attention to the subject of "traditional Aboriginal owners".
   The Second Question

2. The applicants contend that the Commissioner erroneously interpreted the words "it is likely" where they last appear in s.50(2B) as meaning "probable" or "to be reasonably expected" or "to have a substantial chance of success".

3. The context in which the words "it is likely" appear should first be identified before any attempt is made to interpret them. The meaning to be ascribed to a particular phrase is covered in part by the Act of Parliament or document in which it appears, and in part by the context in which it is used.

4. As the title of the Act indicates, the Act provides "for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals ...". Under s.11 the Minister is required, in appropriate circumstances, to establish Land Trusts to hold land for the benefit of relevant Aboriginals. Those trusts, if established, will be established as a consequence, in part, of a recommendation from a Commissioner and such a recommendation is one of the functions of a Commissioner that is conferred by s.50. But if no such recommendation is made by the Commissioner that is not necessarily the end of the matter. It is open for a second or third or subsequent claim (a repeat claim) to be made subject only to the circumscribing effect of a sub-s.50(2B). To avoid repetitious and substantially identical claims being made, the Commissioner must be satisfied that the basis of the repeat claim will be substantially different or that new information etc. will be forthcoming or that there is some other ground that will justify the continued performance of his functions. But, even if one of those three factors is found to be present, the Commissioner is still proscribed from performing his function unless he finds that "it is likely" that he will find that there are traditional Aboriginal owners of the common land.

5. As to this last requirement, the Commissioner said in his reasons that it suggested to him that "Parliament's intention was that a repeat claim should proceed only in the most obvious of cases". At a later stage in his reasons he said:
   

"In the context in which it is used the word 'likely' seems to me to mean 'probably' or to be reasonably expected' (Concise Oxford Dictionary). Something more than a mere prima facie case is obviously required, and further, I do not think the CLC submission that a 'real chance or possibility' is the appropriate test places the onus high enough."

1. The Commissioner then quoted the relevant passage from the Minister's second reading speech, commenting that he could find nothing in it to suggest that the meaning that he had attached to the word "likely" was contrary to "the Minister's expression of the purpose sought to be achieved". The Minister had said:
   

"The Act will be amended to clarify the position in respect of repeat land claims. Where a claim has not resulted in a recommendation for grant from a Commissioner it will be possible, in certain circumstances, for a Commissioner to hear a later claim to the same land. These criteria, to be applied by a Commissioner, are aimed at ensuring that the status of land which has been unsuccessfully claimed is not frozen indefinitely by claims which have little or no chance of success." (Hansard, House of Representatives, 22 October 1986, p 2569).

1. There are numerous examples of cases where it has been held that "likely" is synonymous with "probable": see, for example, Bayer Products, Ltd's Application (1947) 2 All ER 188 which questioned whether a trade mark so nearly resembled another as to be "likely to deceive or cause confusion": see also Transport Ministry v Simmonds (1973) 1 NZLR 359 where the appellant had been convicted of an offence of maintaining an aircraft in circumstances whereby avoidable danger to life or property was likely to ensue. In that case, McMullin J. was of the opinion, without deciding, that, as penalties could be imposed, the word ought to be taken as meaning probable "so that only those avoidable dangers which will probably ensue are caught by the regulation". In Australian Telecommunications Commission v Kreg Enterprises Pty. Ltd. (1976) 14 SASR 303 Bray C.J. said:
   

"As I have said, the ordinary and natural meaning of the word is synonymous with the ordinary and natural meaning of the word "probable" and both words mean, to adopt the expression of Lord Hodson in the passage previously quoted, that there is an odds-on chance of the thing happening." (p 312)

1. On the other hand, Deane J. in Tillmanns Butcheries Pty. Ltd. v Australasian Meat Industry Employees' Union and Others (1979) 27 ALR 367 thought that the views of Bray C.J. went too far. He said:.
   

"This view, if accepted, would lead to the conclusion that, prima facie, the word 'likely' in s.45D(1) means probably in the sense of more likely than not. While dictionary definitions and examples of judicial and lay usage can be adduced to offer strong support for that view, I am unable to accept that likely is synonymous with 'more likely than not' or that if there is a 49.9% chance of an event occurring it would ordinarily be denied that it was likely (or 'quite likely') that the event would occur. Nor does it appear to me that there is a presumption that, in a legislative provision proscribing conduct that is likely to cause loss or damage to another, the legislative intent was that conduct which had a 49.9% chance of causing such damage was to be outside the proscription." (p 381)

1. Earlier in his judgment (at p 380) Deane J. had commented that, "in an appropriate context", the word can also refer "to a real or not remote chance or possibility, regardless of whether it is less or more than 50%"; Gibbs C.J. endorsed those remarks in Sheen v Fields Pty. Ltd. (1983-84) 51 ALR 345 at 348. Lockart J. also recognised that the word had shades of meaning; in Radio 2UE Sydney Pty. Ltd. v Stereo PM Pty. Ltd. (1982) 44 ALR 557 he said at 564:
   

"The word 'likely' is susceptible of various meanings. It may mean 'probable' in the sense of more likely than not or more than a 50% chance. It may mean a real or not remote possibility. There are other possible meanings."

1. That case dealt with (inter alia) s.45 of the Trade Practices Act - "likely to have the effect, of substantially lessening competition" - and although Lockhart J. found it unnecessary to determine the question, he rejected the view that, in the context of sub-s.45(2), the word "likely" means only "a mere possibility, whether real or not".

2. The remarks by Deane J. in Tillmanns' case seem more appropriate when one stands back and considers the aims and objects of the Act; it is directed to remedying, where possible, the hardships suffered by Aboriginals through the loss of their lands. If in the performance of his functions as contained in s.50 of the Act, the Commissioner ascertains that there are traditional Aboriginal owners of particular land, the aim of the legislation is to set aside that land, in appropriate circumstances, through the establishment of a Land Trust for the benefit of the relevant Aboriginals: see sections 11 and 12 of the Act. This then is a strong example of beneficial legislation which should be construed liberally in favour of the person or class of persons for whose benefit the legislation was enacted. It being clear from the authorities that the word "likely" is one that is capable of a number of different meanings, any consequential ambiguity should be resolved by a beneficial construction.

3. Speaking of paragraph 50(1)(a) of the Act Gibbs C.J., with whose judgment Brennan, Dean and Dawson JJ. agreed, said in The Queen v Kearney; Ex parte Jurlama (1984) 158 CLR 426:
   

"If the section is ambiguous it should in my opinion be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve." (p 433)

1. Those remarks also apply when considering the provisions of sub-s.50(2B); see also The Queen v Toohey; Ex parte Meneling Station Proprietary Limited (1982) 158 CLR 327 at 349 per Wilson J.; R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365 at 376 per Murphy J.; R v Toohey Ex parte The Attorney-General for the Northern Territory of Australia (1980) 145 CLR 374 at 392 per Wilson J.; Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345 at 357 per Lockhart J. and at 395 per von Doussa J. and the decision of this Court in Northern Land Council v Olney delivered at the same time as this judgment.

2. If a meaning is given to the word "likely" so that it refers "to a real or not remote chance or possibility, regardless of whether it is less or more than 50%" (Tillmanns' case at p 380), that construction will be an appropriate beneficial construction; it will also be a construction that would better promote the purpose or object underlying the Act: s.15AA of the Acts Interpretation Act 1901 (Cth). Moreover, it will accord with the Minister's second reading speech in the sense that the Minister explained that "the criteria to be applied by a Commissioner" when considering repeat land claims "are aimed at ensuring that claimants are not disadvantaged ..."; the repeat claims that were to be summarily rejected were, according to the Minister, those that had "little or no chance of success". For these reasons the Commissioner fell into error when he said:
   

"This requirement suggests to me that Parliament's intention was that arepeat claim should proceed only in the most obvious of cases."

1. The consequence of these conclusions is that the findings made by the Commissioner must be set aside and the matter must be referred back to a Commissioner to be heard and determined in accordance with law. The Attorney-General for the Northern Territory of Australia should pay the applicants' costs of the application.