Lansen & Ors v Northern Territory of Australia & Ors

[2005] HCATrans 437

[2005] HCATrans 437

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D6 of 2004

B e t w e e n -

HARRY LANSEN (ON BEHALF OF PERSONS CLAIMING TO BE TRADITIONAL ABORIGINAL OWNERS OF BILLENGARRAH STATION)

First Applicant

GORDON LANSEN (ON BEHALF OF PERSONS CLAIMING TO BE TRADITIONAL ABORIGINAL OWNERS OF BILLENGARRAH STATION)

Second Applicant

FREDDY RAGGATT (ON BEHALF OF PERSONS CLAIMING TO BE TRADITIONAL ABORIGINAL OWNERS OF BILLENGARRAH STATION)

Third Applicant

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

NORTHERN TERRITORY LAND CORPORATION

Second Respondent

HON HOWARD OLNEY QC (AS ACTING ABORIGINAL LAND COMMISSIONER

Third Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 17 JUNE 2005, AT 2.34 PM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR S.A. GLACKEN, for the applicants.  (instructed by Northern Land Council)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:May it please the Court, I appear with MS R.J. WEBB, QC for the Northern Territory.  (instructed by Solicitor for the Northern Territory)

MR G.E. HILEY, QC:   May it please the Court, I appear with MR R.H. BRUXNER for the second respondent.  (instructed by Clayton Utz)

GUMMOW J:   Thank you.  There has been an appearance by the Aboriginal Land Commissioner indicating that he abides by the order of the Court, save as to costs.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours. Your Honours, these proceedings challenge the decision of the Full Court of the Federal Court, the essence of which appears at page 41, paragraphs 32 to 34. Your Honours will see that in those paragraphs it was held that an Aboriginal Land Commissioner could not enter upon an application under section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act in circumstances where, before the making of that application, the land had been the subject of a grant of a title, which title had become registered in favour of another person, the other person in this case being the second respondent.

Now, your Honours, could I take your Honours to the Act for just a moment. It is tab 1 in the materials that your Honours have, supplied by the first respondent. Under section 50(1)(a) of the Aboriginal Land Rights Act an application is to be in respect of an area of land which, for relevant purposes, must be “unalienated Crown land”. “Unalienated Crown land”, your Honours, is a term which is defined – perhaps I should indicate the relevant parts of section 50(1)(a). It says:

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 –

Your Honour, the alternative does not matter for present purposes, and your Honours will see what is to follow then, to ascertain whether those Aboriginals are the traditional Aboriginal owners of the land, and to report the findings and make recommendations.

Now, your Honours, “unalienated Crown land” is a term which is defined by section 3, and your Honours will see that it means:

Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town.

In the present case, the land became unalienated Crown land in 1993 when the leasehold which had been granted in respect of it was transferred back to the Crown.  On the face of things it ceased to be Crown land when the lease was transferred very shortly afterwards to the second respondent.  That, of course, gave rise to a question, namely, whether in the proceedings before the Land Commissioner, that step, the creation of the interest in the Northern Territory Land Corporation, could itself be challenged and challenged on the basis of improper purpose.

Your Honours, may I say exactly what I mean by “improper purpose” in just a moment.  It has more than one possible aspect.  But could I just say before doing that, that the Court’s decision in R v Toohey; Ex parte Northern Territory Land Council 151 CLR 170, behind tab 14 in that bundle of material, appears to establish three things.

The first, your Honours, is that the Commissioner is entitled to decide whether executive action, which has had the effect that land is not to be unalienated Crown land, was validly taken.  Your Honours, that can be seen from the reasons of Chief Justice Gibbs at page 193, about point 5 on the page in the first new paragraph, and your Honours will see the first five lines of that and then it goes through, in effect, the remainder of that paragraph.  To the same effect, your Honours, I will not take your Honours to the actual passages.  Justice Stephen, with Justice Mason agreeing at page 216 about point 2 to point 7, and Justice Aickin at page 269 about point 5.  Your Honours, that is the first point, the Commissioner is entitled in making a recommendation, to consider whether the executive action was validly taken, as is apparent from those passages of the case.

The second point is, one of the bases on which the validity of such executive action can be challenged, is whether the executive action was taken for an improper purpose.  The third point, your Honours, and the one which is important for present purposes, is that Toohey was a case where the impugned action was the making of regulations, and there were two sets: one which came into effect before, and one after the making of the application under section 50(1)(a).

This Court, in our submission, hardly surprisingly, did not regard the fact that the former set had been made before the application was lodged, as meaning that an improper purpose could not be made out.  Indeed, rather the opposite and your Honours will see that at page 193, again about halfway down the page and the two sets of regulations referred to there, the planning regulations, on the one hand, were made before the application.  The Town Planning Regulations were regulations made after the application.

Now your Honours, the fact that this land in the present case had become, on the face of it, land which was no longer unalienated Crown land, the Full Court appeared to think that was fatal.  Your Honours will see that referred to at page 41, paragraph 32 and in particular, your Honours, you see the top of the page, the fundamental difficulty and so on, through the remainder of that sentence.

Could I say two things about that, your Honours.  The first is that that does not seem at all consistent with the decision in Toohey.  The respondents seek to mute in their submissions the effect of the decision in Toohey by saying that it is explicable on the basis that the earlier regulations in Toohey’s Case were made at a time when it was known that a land claim would be made.

Your Honours, we would say in relation to that, that how could that affect the legal question of the Commissioner’s ability to consider whether executive action prior to the making of the claim was undertaken for an improper purpose.  The fact, of course, that a claim might have been in the offing might be germane to whether the executive action had in fact been engaged in for an improper purpose, but that is a different question.

The second thing we would say about it, your Honours, if I may say so, with respect, on a somewhat lighter vein, is that if one goes to page 80 of the application book, to the submission at the bottom of that page and the top of the next page, I think the second respondent, in paragraph 19, that this Court’s decision in that case, is the only authority, it is said, to which we can point for saying that one can look at the situation before, we would say one is good enough, really, your Honours.  We do not need more than one.

CALLINAN J:   Mr Jackson, could I just ask you something about the facts.

MR JACKSON:   Yes.

CALLINAN J:   The land was the subject of a perpetual lease.  Is that right?

MR JACKSON:   Yes.

CALLINAN J:   And it was transferred pursuant to the exercise of the power of sale, I think.

MR JACKSON:   Your Honour, yes, it was transferred to the Northern Territory Government.

CALLINAN J:   Yes, and so that there was, in effect, a merger at that stage.  The Northern Territory Government was the lessor.

MR JACKSON:   Lessor and lessee, yes.

CALLINAN J:   So that that would be tantamount to a surrender, a perpetual lease.  It disappeared, I suppose.

MR JACKSON:   Your Honour, the form in which the transactions appear to have been carried out was that the lease was treated as if it were transferred to the lessor and then re-leased, but the situation was, at the moment when it ‑ ‑ ‑

CALLINAN J:   Yes.  For a very brief time, both the lessor and the lessee were one and the same person.

MR JACKSON:   Yes, it thus was unalienated Crown land.

CALLINAN J:   And that was Northern Territory.

MR JACKSON:   Yes, yes.  Now, your Honours, could I ‑ ‑ ‑

CALLINAN J:   It was only a few days later, was it not?  There was ‑ ‑ ‑

MR JACKSON:   Your Honour, what happened was the instruments, perhaps, were dealt with 10 minutes apart, but the registrations took place one after the other. 

CALLINAN J:   That would have to happen, it would have to be done that way, but anyway.  But in any event, they were almost simultaneous transactions.

MR JACKSON:   Yes, your Honour, that is why it is critical, of course, for us to attack the second of those transactions.  I mean, the first of them makes it unalienated Crown land.  The second of them is the one that endeavoured to take it out.

Could I go, your Honours, to indicate the nature of the attack on the executive action that is involved and if I might do so very briefly, firstly indicating the factual aspects; secondly, the legal aspects.  The factual basis, your Honours, is at page 27, set out in paragraph 10.  Your Honours will see that the Full Court set out the argument that was advanced and the nature of the evidence which we sought to have relied on and that goes through, your Honours, virtually the whole of the next page.

GUMMOW J:   I am not sure I quite understand.  This says “the transfer of the lease”.  Is that the right way to describe it?

MR JACKSON:   Yes, your Honour, that is how it is described throughout.

GUMMOW J:   But it is not accurate.

MR JACKSON:   Well, your Honour ‑ ‑ ‑

GUMMOW J:   There had been a supervening merger.

MR JACKSON:   Well, your Honour, that seems to be correct.

GUMMOW J:   I would have thought so.

MR JACKSON:   It is difficult to see why it would not be a merger, but the language that is used is “transfer of the lease”.

GUMMOW J:   On that assumption then, what was invalid?  What conveyancing steps would be valid?

MR JACKSON:   Two things.  One, which is described in line 20 on page 27 as being “the transfer of the lease to NTLC”, which either is a grant of a new lease or, if the old one remained in being, the transfer of the old lease.

CALLINAN J:   How did they purport to do it, Mr Jackson?

MR JACKSON:   By transfer of the lease which was then registered.

CALLINAN J:   So the lease was transferred to the lessor, assuming that to be possible, and then the lessor purported to transfer the lease to itself.

MR JACKSON:   Well, to Northern Territory Land Corporation, your Honour.

GUMMOW J:   Yes.

CALLINAN J:   Would that have been a valid transaction?  I would have thought that as a matter of law there was a merger and that was ‑ ‑ ‑

MR JACKSON:   Well, your Honour, it perhaps does not matter for the purpose of the statute because whether one calls it a merger or whether one says that the lessor and the lessee are the same person, namely, the Crown, the definition of unalienated Crown ‑ ‑ ‑

GUMMOW J:   But you do not want to attack, do you, the steps which produced the status of unalienated Crown land?

MR JACKSON:   No, your Honour, no.

GUMMOW J:   It is something after that that you want to attack.

MR JACKSON:   After that.

CALLINAN J:   You need a merger, really.

MR JACKSON:   No, I do not, your Honour.  The reason why I do not is because it does not matter to us whether it is merger or whether one says there are two separate interests because the result would be, even if there were two interests, that both are in the Crown so it would still be ‑ ‑ ‑

CALLINAN J:   But if you do not have a merger you do not have, for that moment in time, unalienated ‑ ‑ ‑

MR JACKSON:   Yes, I do, your Honour, I am sorry, with respect.

CALLINAN J:   You do.

MR JACKSON:   That is because unalienated Crown land is land in which no person, other than the Crown, has an interest and that is the definition, your Honour, so the first stage, whether one is merger or no ‑ ‑ ‑

CALLINAN J:   It does not matter what you call it – if it is the Northern Territory – for that brief instant in time that caused the land to satisfy the description.

MR JACKSON:   That is so, your Honour.  Your Honour Justice Gummow asked me the steps which we impugn.  There are two.  One is the creation of the lease between the Northern Territory and the Northern Territory Land Council.  The second step is the registration of that lease under the Real Property Act equivalent. 

I was referring to the factual basis which is set out in paragraph 10 and your Honours will see that referred to.  It is contended, I might say, by the respondents, that paragraph b) of the actual determination made by the Commissioner, which appears at page 29, paragraph 12 - you will see the Commissioner’s determination that gave rise to the matter in the Federal Court and you will see in paragraph b) of the determination, about line 9, he said, it “was not attended by any improper purpose”.

Now, our learned friend’s submission is that paragraph b) has the effect that this is not an appropriate vehicle because there is not the necessary substratum to give rise to the issue because of that finding.  May I say, your Honours, in relation to it, that that cannot be correct and may I give your Honours two references in that regard.  The first is page 33, paragraph 16 where, referring to that, your Honours will see that they say in the Full Court that:

the Commissioner used language . . . which suggests that he viewed the decision of the Full Court -

in an earlier case -

as precluding consideration of the allegation of improper purpose.  If so, that approach is difficult to reconcile with his jurisdictional ruling . . . and with the formal determination (b) -

to which I have just referred.  Their Honours say:

The reasons do not contain any real analysis of the argument put by the applicants about improper purpose nor do they explain why it was rejected. 

Then, your Honours, one goes to page 43, paragraph 39, and your Honours will see that they say:

This is what we understand the Commissioner to have had in mind when he used the expression . . . The Commissioner had no power to set aside the transfer or to declare that the Real Property Act did not operate according to its terms to create indefeasibility of title.  This application should be dismissed with costs.

Your Honours, could we just say in relation to that, it is in the Full Court’s reasons at paragraph 39 that one does see, with respect, fundamental error.  Of course the Commissioner had no power to set aside the transfer.  Of course he had no power to declare that the Real Property Act did not operate according to its terms to create indefeasibility of title. Rather, his function was to do the things contemplated by section 50(1)(a), and that was, as your Honours have seen, to ‑ ‑ ‑

CALLINAN J:   Make a recommendation, ultimately ‑ ‑ ‑

MR JACKSON:   Make a report and recommendation.  In relation to paragraph 39 of the Full Court’s reasons, what they said there appears, and if one looks there at the preceding paragraphs, particularly paragraphs 35 through to 38, they seem to have fastened on the view that because he did not have the power to set aside the transfer or declare the Real Property Act did not operate, that that was the end of the matter.  Your Honours, in relation to that that is a misapprehension, with respect, of what he was to do. 

GUMMOW J:   Just explain to me again what he was empowered to do. 

MR JACKSON:   What he was empowered to do, your Honours, was to form a view on the question whether the land was unalienated Crown land. In doing that he was entitled to form the view that the transaction which would prevent it being that was one which was for, to use the language of the earlier case, an improper purpose and, having done that, he was then to make the determination, in effect, that is referred to in section 50(1)(a)(i), and to make the report and recommendations referred to in 50(1)(a)(ii).

GUMMOW J:   Does this involve any question of a relationship between the Land Rights Act, which is a Federal Act, and the Real Property Act, which is territorial ‑ ‑ ‑

MR JACKSON:   That is just what I am about to say, your Honours, with respect.  I was going to say that if one looks to see in what respect – this is a question I foreshadowed a moment ago – could the transaction be for an improper purpose, there are two possibilities, in essence.  One might say, and this will probably be a matter of Territory law only in which the Real Property Act provision might be effective, one could say the transfer of the pastoral lease was not for the purposes of the Territory’s Pastoral Land Act.

The second basis is that it would be inconsistent with the Commonwealth Act to use powers under legislation of the Territory to impair the operation of the Commonwealth Act and that concept was one referred to by Justice Brennan in The Queen v Kearney; Ex parte Japanangka (1984) 158 CLR 395, tab 12, and the passage is at page 418. Your Honours, I see the time has expired. I will be about two minutes, if I may, with respect.

GUMMOW J:   Yes, go on, Mr Jackson.  It is important we understand this.

MR JACKSON:   At page 418 at the bottom, the last four or five lines, going through to the top of page 419.

GUMMOW J:   Was this point you are just making adverted to in the Full Federal Court?

MR JACKSON:   Your Honour, the matter was argued.  The Full Court appears to have steered away from it, if I can put it that way.  The Full Court appears to have decided on the relatively narrow basis because your Honours will see the Full Court’s reasoning relatively commencing at page 36, paragraph 22.  Essentially, they appear to have taken the view that the temporal limitation that is before the event made the difference.

Your Honours, could I just say one last thing.  If the result of the application of the view akin to that by Justice Brennan in Kearney were that

the transfer of the lease was not valid - because undertaken for an improper purpose – by that I mean the grant of the second lease – then, in our submission, it could not be given greater effect by another Territory law, namely the Real Property Act and could I refer your Honours in that regard to our submissions in‑chief at page 61, paragraph 3.10 and to the reply submissions at page 90, paragraph 8.

GUMMOW J:   You would have the matter remitted to the Commissioner to do it again, in effect.

MR JACKSON:   To do it, your Honour, with respect, yes.

GUMMOW J:   Yes, to do it, so in a way it is in the nature of a mandamus question, is it not?

MR JACKSON:   Yes, it is, your Honour.

CALLINAN J:   It was mandamus in Toohey, was it not?

MR JACKSON:   Yes, it was, your Honour.  In fact, we use the expression, “constructive failure to exercise the power” somewhere in these submissions. 

GUMMOW J:   Yes, thank you.  Yes, Mr Solicitor.

MR PAULING:   Your Honours, can I take you to the application book, in particular to paragraph 33 in the Full Court’s decision – page 42, line 12. What is highlighted here is that the argument about inconsistency which my learned friend raises between the Land Rights Act in the Northern Territory legislation or an executive Act taken under an Act, depends upon the existence of a right that is conferred by the Lands Right Act which can be impaired if the Northern Territory Act was valid in its application and that depends on two matters, but if we can you to the paragraph I am referring to, the Full Court found:

We are not persuaded that the Commonwealth Parliament intended the Land Rights Act to curtail or limit dealings in land under Northern Territory laws before a claim was made or affect indefeasibility of title under Northern Territory laws arising from such a dealing.

GUMMOW J:   Well, that is a question.

MR PAULING:   It is, your Honour, but may I take you to this, that ‑ ‑ ‑

GUMMOW J:   It is like saying there is no 109 situation because the Commonwealth intended to stay its hand in some way.

MR PAULING:   Yes.  I mean the resolution of the ‑ ‑ ‑

GUMMOW J:   The General Motors Case type argument.

MR PAULING:   Yes, but the resolution of those matters ‑ ‑ ‑

GUMMOW J:   But there is no section like that here?

MR PAULING:   No, it does not need to be, your Honour, because we are dealing with a superior Parliament.  What I am trying to put to your Honours is that the cases that the High Court – where they dealt with these things, Toohey apart, all had to do with actions taken by the Northern Territory Government after a claim was made because under the Land Rights Act it is a making of the claim under section 50(1)(a) that enlivens the jurisdiction of the Aboriginal Land Commissioner and creates what the High Court has held to be a statutory right to have that application heard and dealt with and finally disposed of and if it is a subject of a recommendation taken on.

There is nothing in the Act that deals with a situation where the transfer, as in this case of land, occurs many, many years before any claim was made and, indeed, the authorities are quite clear that were that to happen, then that would mean that the land was no longer available for claim and quite rightly, as the Land Commissioner in this case determined, it does not meet the description in the Act and if I can take your Honours to the bundle of material that we have filed to make that point first.  It is R v Kearney, your Honour, and you will find it at tab 13.  It is in the judgment of Justice Brennan at page 393 about halfway down the page, your Honour:

Before a claim is made under s 50(1)(a) in respect of any parcel of unalienated Crown land, the parcel may be included in a town area or in an area to be treated as a town. The lawful inclusion of such a parcel in a town area or in an area to be treated as a town precludes the making of a claim in respect of that parcel.

Your Honours, in relation to R v Toohey a proper analysis of that case shows it did not turn on any question of alleged inconsistency between rights under the Land Rights Act and actions taken but on the issue of whether or not the town planning regulations were authorised by the Planning Act under which they were made and the High Court - and the ratio of the decision is that it shows that they were unauthorised and therefore, could have no effect and therefore, the Commissioner needed to go ahead and determine whether the land was land within a town or not, so that Toohey’s Case does not turn on the Japanangka statement of Justice Brennan about detracting from rights granted under a Commonwealth Act.

This is a case where the land began life as a pastoral lease in 1965 well before the Land Rights Act and it has remained a pastoral lease all the way through and except for that instant when it was in the possession of the Northern Territory before the transfer was registered they transferred it to the Land Corporation.

Can I say in relation to the issue of merger, your Honours, I will not take you to the passages, that this is not the first time this case has been here and, indeed, both your Honours were on the panel that refused special leave on the last occasion.  The case that came up on the last occasion was called Lansen v Olney.  It is included at tab 11 in our materials and the issue of merger is dealt with by Justice French at paragraphs 50 to 58 and by Justice Sackville from paragraph 113 in quite some detail and it is no part of the issues as I understand it with my learned friends here ‑ ‑ ‑

GUMMOW J:   What was their Honours’ conclusion?

MR PAULING:   That there was no merger ‑ ‑ ‑

GUMMOW J:   Why?

MR PAULING:   And that it was lawful and valid for the Northern Territory to take the transfer from the mortgagee in possession and similarly - and that gave the Northern Territory an absolute and indefeasible title and then it got abandoned.  If I can take your Honours to ‑ ‑ ‑

CALLINAN J:   What was the title though, that it got, the Northern Territory?

MR PAULING:   The pastoral lease.  It became lessee of the pastoral lease.  It was argued below in the earlier case that you could not have the same entity ‑ ‑ ‑

CALLINAN J:   Well, you could not because you cannot sue yourself. 

MR PAULING:   That is true.

CALLINAN J:   How do you enforce your rights against yourself?  I mean, it just seems to me to be, with all due respect, an absurdity.

MR PAULING:   Well, the issue was that the obligations of the lessee would not be overlooked because the lessee and the lessor were the same person. 

CALLINAN J:   But you cannot sue yourself so you cannot enforce any of the rights or obligations.

MR PAULING:   One needs to look at it on the basis that it was not intended that the Northern Territory other than for an instant would be the proprietor or the owner of the pastoral lease.

CALLINAN J:   At any rate, I do not want take up time on it, I do not know ‑ ‑ ‑

MR PAULING:   What I do want to say is that if you go to paragraph 86 in Lansen v Olney you will see that in Justice Sackville’s judgment he says:

As I have noted, Mr Basten initially framed the applicants’ contention, that the Territory could not acquire a pastoral lease in its own right, in terms of the doctrine of merger.  When he abandoned reliance on that doctrine, I think it fair to say that the basis for the applicants’ argument that the Territory could not validly acquire such a lease was not formulated with precision.  However, I understand the substance of the argument to be that the Pastoral Land Act assumes in its language and construction that pastoral leases will not and cannot be granted or transferred to the Territory.  It was said that for this reason, while pastoral leases are generally assignable or transferable, they cannot be assigned or transferred to the Territory and thus the purported transfer of what was described as PL 759 by the Bank to the Territory was void.  It appeared to have been assumed in oral argument ‑ ‑ ‑

GUMMOW J:   That is a different ‑ ‑ ‑

CALLINAN J:   Sorry, it is different, quite different.

GUMMOW J:   That is a different point.

CALLINAN J:   It is what happens when the activity, however you describe it, transfer or otherwise, happens once the parties purport to vest the lease on both the landlord’s rights and the tenant’s rights in the same legal personality. 

MR PAULING:   I understand that, but I ‑ ‑ ‑

CALLINAN J:   There is that fundamental difficulty that, I do not know whether the judgment here deals with it, but the fundamental difficulty that a party cannot enforce rights or obligations against itself.  It just makes a nonsense of it.

MR PAULING:   But that is not the basis on which special leave is sought in this matter.

CALLINAN J:   No, I understand that.

GUMMOW J:   We understand that.

MR PAULING:   I just wanted to clear that up.  So that I was dealing, your Honours, with the question of inconsistency and I wanted to take your Honours to the proposition that the Full Court dealt with.  The cases such as the Katherine Case to which I have referred, R v Kearney; Ex parte Northern Land Council, all deal with situations where a statutory right arises by the making of an application to have that application dealt with and the Court has directed a number of Commissioners that they have to proceed to hear the matter and to make the findings and recommendations that the Act contemplates.

Nowhere is there a situation where what is being enforced is a right in particular Aboriginal people to require that the Northern Territory not deal with land in the future without giving them an opportunity to make a claim so that the administration of land in the Northern Territory would be set at nought unless and until there was some indication that people did not want to make a claim.  This was a proposition put by Mr Castan in Japanangka and the summary of the argument that is set out in the Commonwealth Law Reports – the case itself, your Honours, is report of R v Kearney; Ex parte Japanangka (1994) 158 CLR.  It is behind tab 12 and the argument – and it seems to us it is the same argument being put again is summarised by the editor at page 398 about six lines down:

Powers such as those under s 14 of the Crown Lands Act (NT) must be exercised in accordance with rules of natural justice where they interfere with existing rights or prevent fulfilment of a reasonable and legitimate expectation.

Now, this case was argued at the same time as R v Kearney; Ex parte Northern Territory and judgment was given in that case and this case on the same day and they are cross-referenced.

Your Honours, the point to be made is that it has already been brought up here to argue that somehow or other the Land Rights Act evinces an intention that the due administration of land by the Northern Territory is not to proceed unless and until some opportunity is given to Aboriginal people to make a claim, and ‑ ‑ ‑

GUMMOW J:   For what is Toohey authority then?

MR PAULING:   Toohey is authority for the proposition that the administrator – that he can inquire and go behind the actions of the administrator in making regulations and if the regulations were not authorised by the Act which permitted regulations to be made, that is, they were not made for a planning purpose, then they would be invalid and the effect of that is they would not then constitute the land under claim to be land in a town.  It would not be excluded from the definition of unalienated Crown land, so that ‑ ‑ ‑

GUMMOW J:   But the regulations that were sought to be impugned in Toohey, what was the chronology, with reference to ‑ ‑ ‑

MR PAULING:   There were regulations made under the town Planning Act, then there was an official claim to the ‑ ‑ ‑

GUMMOW J:   Well, that is Mr Jackson’s point, is it not?

MR PAULING:   Yes, but the issue was that there was no question of inconsistency with a right that the Land Rights Act conferred.  The issue was that Justice Toohey as Aboriginal Land Commissioner would not be precluded from hearing the matter if, on inquiry, it was determined that the town planning regulations were invalid as not being authorised and it is on that basis, not on the basis of inconsistency or improper purpose in trying to deal with things that the fact that there was a foreshadowed land claim was the background and eventually on the evidence that was given before Justice Olney established the fact that it was the fear of land claims that had provoked the making of the planning regulations. 

In this case, Mr Justice Olney analyses the material that was before him in Kenbi because he was because he was the one who determined that the regulations were not authorised, not for a planning purpose and says this case is completely different from that case and whilst it is true that the Full Court were critical that there was not any proper analysis of the argument, a fair reading of the reasons for the Land Commissioner showed that he compared Kenbi and this case; he found they were completely different; that in Kenbi there was an unauthorised non-planning purpose for the making of the regulations and this case was just an ordinary transfer of a lease from one entity to another and that in those circumstances, with the possibility of an instant, the land remained as it always was, unclaimable, because it did not answer the definition of unalienated Crown land in the Act, so that ‑ ‑ ‑

GUMMOW J:   Was there any adjudication of want of good faith?

MR PAULING:   No.  Indeed, he specifically made the determination that the particular improper purpose alleged against us, that is, transferring the land to the Corporation for the purpose of defeating a land claim was not made out, that that was not the purpose for the transfer at all.

CALLINAN J:   What about the other point, though, that it was not for a purpose or that the new perpetual lease, because that is what I am determined to call it, the new perpetual lease was not granted for the purpose for which such leases could be granted under the relevant legislation?  Was there a determination in relation to that?

MR PAULING:   There was a finding that for years the Northern Territory had been looking at incorporating some or all of Billengarrah into a national park to be called the Limmen National Park and that there was an intention – I suppose it needs to be looked at in a particular background but the land came into the hands of the mortgagee or the possession of the mortgagee because the owners had walked off.  It was commercially not possible and under the Pastoral Land Act it could have happened if advice to that effect had been given that they could have applied to the Pastoral Land Board to use the pastoral leased land for purposes other than pastoral purposes.

The Act is not as regimented as might be suggested reading the summation of Mr Basten’s arguments as put below but that it would be perfectly permissible, with the Pastoral Board taking into account known government policy, ie, included into a national park, and issues of sustainability to say it would be better for us if you were to not use this as a pastoral lease but incorporate it into a national park when you are ready to do so.

CALLINAN J:   So, before the Commissioner did you call evidence about these matters?

MR PAULING:   There was documentary evidence that came in and a late lot of documentary evidence came from the Land Corporation ‑ ‑ ‑

CALLINAN J:   It showed the sorts of things that you are talking about?

MR PAULING:   And it showed the government’s interest and other interests in the land being used as part of a national park, yes, and that had been going on for many years before the transfer and many more years before there was any claim made.  I see my time has expired, your Honour. 

Sorry, there is one point I am urged to make if I might just have a minute.  In R v Kearney; Ex parte Japanangka it was argued that there was no Territory executive power to alienate land by a minister exercising power to prevent or impede the operation of the Land Rights Act, which is the inconsistency argument that is being raised but three of the Justices, Chief Justice Gibbs and Justices Wilson and Brennan, made specific reference to an area of land, namely the Devils Marbles, which had been alienated to the Conservation Land Corporation before an application to it had been made under the Land Rights Act and held that it was not unalienated Crown land for the purposes of the Act so that Japanangka also specifically recognises that if the change in ownership had occurred before any claim was made well that takes it out of the description of “land” and it is inconsistent with the notion that somehow there is a freeze on land because it may be possible some time in the future that somebody might make a claim.

CALLINAN J:   May be an instant in time when it is not unalienated Crown land, in the future.

MR PAULING:   Yes, but that would suggest, inconsistently with the authorities on it, that somehow an application, once made, is ambulatory and just sort of hangs around waiting for something to happen that would ‑ ‑ ‑

CALLINAN J:   That is what I am putting to you.

MR PAULING:   Whereas the cases are quite clear that you look at the day on which the application is made to determine the status of the land to see whether the claim was a valid claim.

GUMMOW J:   Yes, thank you, Mr Solicitor.  Yes, Mr Hiley.

MR HILEY:   Thank you, your Honours, just to add a few points to those made by my learned friend, the Solicitor-General.  As we understand it, the main criticism made of the Full Court’s decision and in turn of the Commissioner’s decision turned upon the emphasis placed upon the registration of the title because our learned friend during his submissions referred the Court to paragraphs 35 to 38 of the Full Court’s decision where they talked about registration and rightly pointed out that the Commissioner, of course, does not have jurisdiction to alter the register.

In our respectful submission, what the Full Court did in that matter, following that, did not really say that was the end of the matter, they did not treat registration as the end of the matter at all and neither did the Commissioner.  Could I take the Court to application book 26 because at page 26 the Full Court at the bottom of the page, this is at paragraph 8, the Full Court recites what the Commissioner said as part of his reasons at paragraph [21] of his reasons and the Commissioner said:

So long as the NTLC remains the registered proprietor of the claimed land it has . . . indefeasible title . . . Any finding I may make will not affect the registration of the title.  The Commissioner has no power to amend or rectify the register.

That is right.

But, if a finding is made that the transfer . . . was effected improperly for the purpose of defeating the operation of the Land Rights Act, then consistent with the decision in R v Toohey I will be required by operation of s 50(1)(a) of the Land Rights Act to conduct an inquiry . . . Just as my finding of improper purpose in the Kenbi Land Claim did not effect a repeal of the Town Planning Regulations, nor indeed of the later Planning Regulations, so in this case, the NTLC will remain registered . . . unless or until a court of competent jurisdiction orders otherwise.

Your Honours, the main reason for me taking the Court to that is that the Commissioner recognised that the register was not the end of the matter, that if he reached a contrary conclusion, that is, that the transfer was invalid, he did not have to worry about what the register says because if there was an inconsistency between the Northern Territory register on the one hand and the requirements of the Commonwealth Land Rights Act on the other, of course the Land Rights Act would prevail.

Your Honours, that is also reflected in what in the Full Court said because if I can take your Honours to pages 38 and 39 of the application book, their Honours refer to a Full Court decision of Attorney General v Hand and that did in fact relate to a situation where a claim was made.  Some time after that the Territory granted a lease.  It then became registered and the question then arose, well, in circumstances where the grant was invalid, what happens to the registration of the lease and the Full Court there has quoted what Justice Lockhart said and this is at the top of application book page 39, pointed out much the same as what Justice Olney had said in the passage that I have just taken the Court to, in particular, the second main paragraph, that is line 12:

The contention may be briefly dealt with.  I have already concluded that there is inconsistency . . . For the same reason in my view it must follow that there would be a necessary conflict between the Land Rights Act . . . and the operation of the indefeasibility provisions . . . The Real Property Act . . . cannot confer an indefeasible title –

so the net effect of all of that is that both the Commissioner and the Full Court were fully aware that registration of the title in the name of my client was not the end of the matter.  So, really all the talk about registration and the like was perhaps as a bit of a side wind. 

The second point I make which probably goes with that, your Honours, is that the critical part of the Full Court’s decision – and Mr Jackson, I think, opened with this – appears at pages 41 to 42.  It is what we call the temporal argument.  It recognises the fact that this transfer occurred in 1993.  The claim was not made until 1997, a four‑year gap and it was because of that fact, that is, that there was this temporal difference between this case and all the other cases, with the possible exception of Kenbi, that made the difference and the Full Court and several others of the judgments that have already been referred to the High Court talk about the enlivening of the Land Rights Act at a point when the claim was being made and Mr Pauling has already addressed the Court on that. 

So it was that point, what we call perhaps the temporal point, that resulted in the Full Courts’ decision and it is for that reason that it is correct.  Yes, your Honours, at application book 41, paragraph 33, the Full Court then comes back to talk about registration.  If I can just take your Honours to paragraph 33, the second sentence there says:

It is a large step to say that the Commonwealth parliament intended, by enacting the Land Rights Act, that the Northern Territory could not deal conclusively with land which might be (but at the time of the dealing was not) the subject of a claim . . . It is also a large step to say that (because of an inconsistency between the two) the Land Rights Act qualified the operation of the Real Property Act in relation to a transaction registered under the latter Act before any claim had been made under the former.

So it is really in that context that we submit that the Full Court has talked about the effect of indefeasibility of title. 

The final point that we wish to make, perhaps to add to what has already been submitted, is, your Honour, and really this is where both respondents commenced their written submissions, the Land Commissioner did consider the question of improper purpose and so, it would seem to us, with respect, that if this application was successful and the appeal allowed, what happens?  It gets remitted to the Commissioner to consider the same question again.

CALLINAN J:   Where did he actually find in terms against the applicant on the improper purpose?  Where is it found most clearly that improper purpose had not been made out?

MR HILEY:   The formal determination, your Honour, appears at ‑ ‑ ‑

CALLINAN J:   I know that, but where are the reasons, Mr Hiley?

MR HILEY:   The reasoning, your Honour, the Full Court, if I can ‑ ‑ ‑

CALLINAN J:   No, not the Full Court, the Commissioner.

MR HILEY:   All right, yes, your Honour, the Commissioner goes through that, and this is back at application book really starting at page 3 ‑ ‑ ‑

CALLINAN J:   I saw where it started, Mr Hiley, but I cannot at the moment find the conclusion why, if his Honour did deal with it, why he rejected it.

MR HILEY:   Yes, your Honour, it is primarily – sorry, my learned friend Mr Jackson has already taken you to the Full Court’s summary, if you like, of the analysis ‑ ‑ ‑

CALLINAN J:   Yes, but I want to see it for myself.

MR HILEY:   You are after the Commissioner’s - your Honour, can I suggest that we start at page 3 and ‑ ‑ ‑

CALLINAN J:   I have read that.

MR HILEY:   And then we go to ‑ ‑ ‑

CALLINAN J:   Then the Commissioner recites a history of the Toohey Case and goes into other matters.

MR HILEY:   Yes, and then we have page 4 which is paragraph 9 where he raises that as a question.  Paragraph10, probably which is where he really gets towards it ‑ ‑ ‑

CALLINAN J:   Where is his conclusion, Mr Hiley?

MR HILEY:   The conclusion appears at pages 13 and 14, your Honour.  To get there, he has in the process pointed out that he has considered a long series of documents, that he has also seen similar documents during the Kenbi matter and that he then gets to the conclusions, your Honour, at paragraph 22 which is at page 12 reciting the contention and it is really paragraph 25 and we particularly rely upon, on page 14, line 3, it is just another finding that he makes on the way through:

The intention was to vest the land in NTLC in accordance with the relevant legislation.

So there his Honour really is comparing this case with the Kenbi Case because he had just pointed out in the Kenbi Case the intention was to basically defeat the operation of the Land Rights Act.  So here he is making that finding of fact which, we submit, is important and then going down a little bit further on, about line 10, he says there:

The difference between Kenbi and Billengarrah is that in Kenbi an attempt was made to use Territory law for an illegitimate purpose . . . whereas in Billengarrah title to land passed to NTLC by an entirely appropriate process in accordance with Territory law ‑ ‑ ‑

CALLINAN J:  

with the effect that land in respect of which no claim had been made . . . retained the status it had had at all times since well before the Land Rights Act became law.

MR HILEY:   Yes, your Honour.  I do not want to go back to the merger argument but that, in a way, perhaps bypasses or ignores ‑ ‑ ‑

CALLINAN J:   It does.  I just noticed in the Federal Court that case that we were referred to.  There is no reference at all to American Dairy Queen in this Court in which the Court held that you applied common law concepts and principles to statutory titles if the Act was silent on them.

MR HILEY:   Yes.

CALLINAN J:   Or there was no necessary implication against them.  There is no reference to that, is there?

MR HILEY:   As I say, I do not want to reopen it again but ‑ ‑ ‑

CALLINAN J:   No, I mean in the case that was relied upon.  All Justice French ‑ ‑ ‑

MR HILEY:   There was extensive argument, I think, that Mr Pauling pointed out, in the previous Lansen v Olney about the whole question of merger because that was one of the ‑ ‑ ‑

CALLINAN J:   Yes, that is the one I was talking about, not this case.  There was a reference to American Dairy Queen here, the earlier case in which Justice Sackville and Justice French found against merger.

MR HILEY:   Yes.

CALLINAN J:   They did not refer to American Dairy Queen.

MR HILEY:   As I say, I do not recall whether or not anyone referred to it at the time.  Your Honours, perhaps just to conclude what I was saying about improper purpose.  Yes, the Full Court was perhaps critical of the apparent lack of reasoning demonstrated by the Commissioner in the reasons but, with respect, it goes too far to suggest that the Commissioner did not consider improper purpose.  He says he did.  He says he looked at all these documents and the Full Court had recited in those paragraphs that I mentioned the various things that the Commissioner did in going through that process.

CALLINAN J:   Is he bound by the rules of evidence, strict rules of evidence?

MR HILEY:   No, your Honour.

CALLINAN J:   So there was nothing wrong with his referring to his earlier experience?

MR HILEY:   No, and as one of the passages indicates, a lot of the documents were the same as the documents that he had earlier seen in any event, so one perhaps could understand him having been through all the same documents before being perhaps a bit briefer than one might normally be and analysing them point by point.

So, in conclusion, our submission, your Honour, is that fundamentally it is a temporal issue because the Land Rights Act has not been enlivened, was not enlivened for some four years until after the event – it does not matter if it is four years or one day – that there is no special leave point.  If the Court pleases.

GUMMOW J:   Yes, Mr Jackson.

MR JACKSON:   Could I say, your Honours, first, in relation to the question that was last argued, the improper purpose, at the highest, what is dealt with at page 13, paragraph 23 through to the next page, is really one of the two possible improper purposes, and that is, the purpose under the Territory law.  Now, it is perfectly possible for there to have been the

purpose to transfer the land to the Northern Territory Land Council in accordance with the relevant Territory legislation.

It does not follow from that that in doing that, there was not a purpose which was rendered improper because of the application of the Land Rights Act and that is the point that – and your Honours, if one looks, for example, at paragraph 25 which is the central paragraph in the Commissioner’s reasons, one can see that the issue with which he is dealing appears to be the Territory Act and taking the view that if it is done pursuant to the territorial legislation and within the powers apparently conferred, that is sufficient.  It does not deal with the other question, namely that to which I adverted earlier, whether it is intended to affect the operation of the Commonwealth Act.

Your Honours, could I say Japanangka was referred to by our learned friends as being a case where there was, in fact, a transfer to the Conservation Land Council before the application was made under the Land Rights Act.  However, it was a case where the issue of improper purpose was not one that was raised so it was simply a question of timing.  That is what gives rise to a focus, which is a proper, but not the only focus, under the Land Rights Act.

The third thing, your Honours, is this, that one sees – our learned friends say, well this stops the Territory doing what it needs to with its land.  Your Honours, there is nothing that requires that land not be dealt with until it is determined that a claim either has been made or will not be made.  The land can be dealt with but, your Honours, it has to be dealt with properly, if I can use that term, meaning not improperly and if it be that what has been done with the land is to deal with it in a way so that it will not be available for the making of a land claim when otherwise would be, that was the purpose of doing it, that is something to which at least the Commonwealth Act is applicable.  Your Honours, those are our submissions.

GUMMOW J:   Having regard to the history of the title in respect of the subject land, we are of the opinion that there are insufficient prospects of success in an appeal to warrant a grant of special leave.  Special leave is refused with costs.

We will adjourn until 2.15 pm on Monday, 20 June 2005 at Brisbane.

AT 3.32 PM THE MATTER WAS CONCLUDED