Minister Administering the Crown Lands Act v NSW Aboriginal Land Council

[2008] HCATrans 289

[2008] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S217 of 2008

B e t w e e n -

MINISTER ADMINISTERING THE CROWN LANDS ACT

Appellant

and

NSW ABORIGINAL LAND COUNCIL

Respondent

KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 AUGUST 2008, AT 10.04 AM

Copyright in the High Court of Australia

MR M.J. LEEMING, SC:   May it please the Court, I appear with my learned friend, MR J.A. WATERS, for the appellant.  (instructed by Crown Solicitor’s Office)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR M.L. WRIGHT for the respondent.  (instructed by Chalk & Fitzgerald)

KIRBY J:   Yes, Mr Leeming.

MR LEEMING:   Thank you, your Honour.  Your Honours, the issue in this appeal is whether the decision to sell Crown land coupled with steps taken to implement that decision, all those things taking place under the Crown lands legislation of New South Wales, satisfy the lawfully used or occupied limb in 36(1)(b) of the Aboriginal Land Rights Act.  So stated, it is obvious the appeal involves the interaction between two pieces of State legislation, one relatively recent and undoubtedly beneficially intended, the Aboriginal Land Rights Act, the other having an ancestry back to early colonial times whose goal for many, many decades has been to fetter the powers of the Executive to sell Crown land in the interest ‑ ‑ ‑

KIRBY J:   I will ask you to pause at that moment over a curiosity that occurred to me reading the submissions.  How does one approach such a conflict?  Are there any canons of general construction that one should take into account?  On the one hand, one thinks that the specificity of the later legislation attracts both the principle of the specificity and the principle of subsequent legislation, but on the other hand this Court has said many times that care has to be observed in applying the just and generous type approach.  So what is the latest principle, if any, that has been pronounced on the general approach to such matters?

MR LEEMING:   Your Honour has anticipated the very first point I wish to flag.  It is a threefold answer.  Ultimately the starting point of the resolution is the express terms of the legislation, which in their terms direct attention as to how the two classes of legislation, the Crown lands legislation and the Land Rights Act are to be resolved.

Although we say, as your Honours know, that section 7 of the Crown Lands Act to which the President gave attention and my learned friends continued to give attention to it, it is the wrong section. Nor is section 4 of the Crown Lands Consolidation Act. The answer is in section 36 itself and I will come to that. Secondly, often ‑ your Honour asked for that general doctrine and I think we are in furious agreement with my learned friends ‑ this is not a case of replied repeal in facts, in reasons that I will go to and this is the force of provisions like section 7 of the Crown Lands Act and section 4 Crown Lands Consolidation Act  They make it clear that implied repeal is not part of the effect of the Crown lands legislation.  It is like a GMAC legislation ‑ a GMAC provision saying one thing for sure, this legislation is Crown lands legislation.  It is not intended implied to repeal other bodies legislation and insists that expressed repeal is necessary rather like, in a different context, 75 of the Trade Practices Act.

The outcome of those two propositions, in my submission, leads to the answer to the appeal.  The question is simply one of construing the Aboriginal Land Rights Act and, yes, as your Honour knows, in our written submissions we embrace what this Court has said most recently in Victims Compensation Fund v Brown that the invocation of beneficial purpose simply is not a helpful resolution to the compromise which has been struck in the Aboriginal Land Rights Act.  Justice Mahoney put it quite well, we say, in dissent in Daruk.  It is quite plain that the 1983 legislation was beneficial, intended to right past wrongs of dispossession.  It is also quite plain that a line was drawn.

KIRBY J:   You do not like much the majority approach in Daruk and you are attracted to Justice Mahoney’s dissent, but was it inherent in Justice Priestley’s opinion that – or was it Justice Sheller in that case that there had to be a modification of that principle?

MR LEEMING:   We accept that, of course, with legislation which has an undoubted beneficial official purpose like this it is not to be construed restrictively.  We say, however, that that is not the answer to the question of legal analysis of the meaning of the words in the exception; they are striking at different levels.  It is no answer to the question what precisely does “lawful use” or “occupied” mean?  To say, well, this is part of legislation which has a beneficial purpose.  It is an exception from the operation of that legislation, therefore, we are going to bend over backwards to construe it very narrowly.

I put it very colloquially that what I have just said represents not merely what Justice Mahoney in dissent said about this very Act, it is also what Justice Spigelman for the Court of Appeal in Deerubbin (No 2) said, in effect, about this Act, to which I will take your Honours in due course.  My learned friends and the President rely upon, I think, paragraphs 53 and 54 of his Honour’s reasons.  In fact 57 is the dispositives part where his Honour, contrary to what my learned friend submits, does give a narrow construction to the meaning of another one of those protean words “likely”.  “Likely” can mean almost anything, but the two candidates are “more probable than not” or “a real and not remote chance”.

If the application of the proposition that legislation with an undoubted beneficial purpose were to be construed generously or not restrictively meant what it said, then there would have been a different outcome on that question of construction in Deerubbin.  It is exactly the same approach that this Court most recently adopted in further undoubtedly beneficial legislation.

KIRBY J:   Which case is that?

MR LEEMING:   Victims Compensation Fund Corporation v Brown 201 ALR 260 at paragraph [33]. That, so far as we have found, is the most recent statement in this Court – belatedly to answer your Honour the presiding Judge’s question to me – of the limitations in the approach which my learned friend’s submission style as the third issue. We agree with what is there said by your Honour Justice Heydon. It simply obscures the essential question of determining the meaning of the relevant words in the section.

Indeed, your Honour Justice Heydon in the last two sentences of paragraph [33] adopted what had been said in the court below where, and as it happens, exactly those words are apposite to my present appeal:

“The issue before the Court is the determination of the circumstances in which compensation –

if that is read to include transfer of land for the reasons of the Aboriginal Land Rights Act, then that, wholly apt, is payable.  The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery.  That is undoubtedly true.

KIRBY J:   Does Brown stand for the proposition that with beneficial or protected legislation you adopt a generous construction but not the most expansive construction possible in the circumstances and does that really tell us much in respect of this case?

MR LEEMING:   Your Honour, I put it slightly differently.  I readily concede what is said in the middle of a paragraph:

no doubt it should not be construed restrictively –

Absolutely, and because we are dealing with an exemption here, do not construe “lawfully used” or “occupied” broadly, because that would undercut the beneficial purpose.  But save for that, it is not helpful where, as in Brown, as in this case, the words represent a balancing of competing rights, a line has to be drawn.  The starting point and really the end point are the conventional approaches to legislation.  That is how we see it and that is how we see Brown and the other cases I have referred as applying in that case.

KIRBY J:   Thank you for answering the question, but I think in your submissions you refer to what the court said in Visy and ultimately the task is to go to the text to examine what it says.

MR LEEMING:   Yes, that is a slightly different point because, as your Honours know, we take issue – although it is not necessary to deal with it in this appeal – with some of the glosses that have been placed on these words by earlier appellate courts.  To simply make one other point absolutely clear, there is nothing in the task before the Court today that has anything to do with native title.  There is a statutory mechanism completely unrelated to any question of native title except for the fact that it goes out of its way to be free of such rights as now exist under the Native Title Act (Cth) for good constitutional reasons. The question is what is the outcome of the statutory mechanism that my learned friend’s client enlivened on a particular date, 23 May 2005?

KIRBY J:   I suppose you would be prepared to concede though that the wellspring of the native title legislation and of the legislation under consideration here, has common roots, that is to say, to endeavour by legislation to respond to what is called in some of the texts the dispossession of the Aboriginal people.

MR LEEMING:   Yes.  Obviously, as well, this legislation really precedes expressly, if one goes to the purpose and the extrinsic materials, on the assumption that because New South Wales was the colony first settled – and the words used in the extrinsic materials I think are shattered because original occupants ‑ ‑ ‑

CRENNAN J:   Were dispersed and so forth.

MR LEEMING:   I think it is even strong than that, but, yes, and so therefore a completely different approach was necessary.

CRENNAN J:   Because of the difficulty in being able to prove traditional longstanding links.

MR LEEMING:   In a nutshell, that had been in attempted in the Northern Territory and to a slight extent in New South Wales as well, even in Northern Territory where the links were stronger it was bedevilled with legal controversy and delay and one might – for that reason a different mechanism was adopted in New South Wales.  But, yes, your Honour, ultimately the wellspring is compensation for past wrongs, undoubtedly, at that high level.

CRENNAN J:   So there was to be a capital sum, was there not, that was to be a percentage of ‑ ‑ ‑

MR LEEMING:   Yes, 7.5 per cent of land tax revenues are revenue derived from the assertion of sovereignty by English colonists.

CRENNAN J:   And a mechanism like section 36 as well.

MR LEEMING:   And a mechanism like section 36 and there is a dispute, I would hope that it is not a major dispute between us.  We say the $485 million that was put into this fund, the result of the 15 years of accumulation of 7.5 per cent of land tax revenues for the State, that was the primary means by which the goals of assurance of revenue and self‑determination were to be achieved and the interests from that capital sum would then be used to purchase lands because, as my learned friends make a good point, the scheme did not, as enacted, include the right to claim lands in private ownership.  They were intended to be acquired, but using the funds provided.  But, of course, the section 36 mechanism was an important part of the remedial statutory purpose.  We take issue with what the courts below said, it is the principle means.

As your Honours will have appreciated, most of this appeal, in my submission, turns upon the construction of section 36, but it is convenient, if I may, before going to 36 ‑ which is not the most straightforward of provisions to construe ‑ to deal with the Crown lands legislation conveniently reproduced by his Honour Justice Biscoe at appeal book 234 and 235 early on in his reasons. His Honour at 234 reproduces section 6, the provision that Justice Bryson describes should be regarded as a constitutional provision for New South Wales. That has a very, very long ancestry.

Sections 10 and 11 of the Crown Lands Act 1989 that he reproduced there both invoke notions of management. That is not some verb applied by management consultants in the 1980s. It goes back at least to 1882. Section 10 refers to the object of management “for the benefit of the people of New South Wales” and we would invite the Court to read that for the benefit of the present and future people.

CRENNAN J: Just going back for a minute, section 6 seems to distinguish between “occupation, use, sale”.

MR LEEMING: Yes, indeed, and it might be thought that is against me. It is not. I do not think it is a point my learned friend takes against me although I may be wrong about that. Section 6, of course – and it is related to the error that we say is disclosed in the President’s reasons in reliance on section 7. Both sections 6 and 7 are in a 1989 Act. The Crown Lands Act 1989 simplified, replaced the very substantial Crown Lands Consolidation Act 1913.

Coincidentally, section 6 in both have the same number but they have different form. Ultimately, there are two questions but the second is easy. The relevant question is, first, in relation to section 6 as it appeared in the Crown Lands Consolidation Act, what is the impact of that when the 1983 Act is enacted, and perhaps there is a second question. When section 6 in the 1913 Act is replaced by section 6 in the current Act, in the Crown Lands Act that we have here, is anything different achieved?

I am perhaps going a long way around making a simple proposition. Those words that your Honour Justice Crennan has drawn attention to, occupied, used and sold, do not appear in section 6 of the Crown Lands Consolidation Act.  We say that second question – nothing substantive happened when the Crown Lands Consolidation Act was replaced by the Crown Lands Act.

KIRBY J:   But is it a fair point that within this statute the Parliament has drawn a distinction between occupied and used and sold?

MR LEEMING:   It has.  It is a very fair point.

KIRBY J:   As Justice Glass used always to say, counsel work with imperfect materials and as far as we are looking in the entrails here that is a pointer against you, I think.

MR LEEMING: Your Honour, there is no doubt there is a distinction in section 6 of the current Act that draws a distinction that if it is relevant is against me and I do not beat around the bush. I simply say, unless something happened in 1989 when this Act replaced the Crown Lands Consolidation Act it does not matter and we say nothing happened and I do not hear my learned friend saying the contrary.

Returning to sections 10 and 11, 11 picks up the principles of Crown Land management. Your Honours can see (a) to (e), but (f) is what the trial judge gave and we give particular importance to. One of the principles is – and again it draws up the same language “occupied, used, sold” at the start of section 6, but do those dealings or otherwise dealt with occur in the best interest of the State consistent with the above principles? That again is a form of provision with a long ancestry. We have burdened your Honours with the Sale of Waste Lands Act 1842 in the appellants materials and there can I indicate at page 1 is that Act. Sections I and II at about point 7 on that page authorise sales of what were then known as “waste lands of the Crown”, but only following the steps set out in the Act. That is an antecedent of section 6. Also section XIX at the bottom of page 3 required that:

the gross proceeds of the sales of the waste lands of the crown in each of the said colonies shall be appropriated and applied to the public service of the said colonies respectively –

It goes on to make reference just half of the sum is emigration which reflects aspects of things which had become the Wakefield scheme.  We have traced through the history of that in the written submissions.  I do not wish to go back over that.  So from 1842 legislation authorised the sale ‑ ‑ ‑

KIRBY J:   I read that and I should put this to you so you can react to it.  As I read your history, it showed back to early colonial times and then after representative government there was this principle of using Crown lands for the benefit of the public and the public service.  But then along comes this new legislation with its special provision that rather suggest a departure from the old principle which has to be accommodated in some way.

MR LEEMING:   Yes, it does and I obviously cannot shrink from that, plainly I do not.  It needs to be accommodated, but our submission is the accommodation is simply a question of construing the new legislation in its context, which includes this history. 

It is doubly relevant, in my submission, to refer to the provisions on appeal book 235, doubly relevant because first of all these are the modern provisions which by legislation authorise that which section 6 would have prevented, that is, the statutory authorisation to sell. So, they fall within that legislative context and, of course, when one gets to section 36 itself they are an essential aspect of the inclusionary paragraph 36(1)(a) because a claim will fail unless the land, the subject of it, is able to be sold. So 34(1) gives a power to the Crown Lands Minister to, among other things, sell Crown land, but there is a series of fetters on it and the fetters matter in a way that I will develop when I deal with what section 36 means.

The first fetter is 34(3), the sale cannot occur unless there has been 14 days published “noticed of intention to sell”. The second fetter is section 35. These two sections are within Part 4. Section 35 says:

The powers of the Minister under this Part –

Part 4 –

may not be exercised until –

the Minister reaches a state of satisfaction about assessment –

under Part 3.

But, as your Honours know, section 35(2), permits the Minister to waive the assessment under Part 3 if he or she has had:

due regard to the principles of Crown land management,

and that it is in the public interest to do so without undertaking that assessment.  That is what occurred and the document that reflects that exercise of 35(2) dispensation power is the document which both of us regard as the most important document in the materials in the book.

The third qualification upon power is the reservation.  Section 87 now permits reservation of Crown land from sale.  There were two reservations ‑ in fact there were about half a dozen.  There were two mentioned in the trial judge’s reasons.  Both of them pre‑dated the Crown Lands Act, both of those were reservations under section 28.  The counterpart of 87, under the Crown Lands Consolidation Act, was 28 of the Crown Lands Consolidation Act. There is no need to go to it. It is in page 49 of my learned friend’s bundle, but that reservation from sale could be revoked by section 90. It was something that had to be done before the section 34 power could be exercised. It happens by publication in the gazette, but that publication itself cannot happen until 92. There has been a notice in a newspaper of an intention to revoke that reservation.

Your Honours, the facts in this case are in short‑compass and were not in dispute in trial and are not really in dispute now.  They are fully set out in Justice Biscoe’s reasons.  For that reason I wish to be very brief in relation to them, but if I may, mostly because we both of us say it is the most important document.  Can I just trace through the documents which reflect those statutory steps under the Crown Lands Act that were in fact wholly carried out or at least in the process of being carried out at the critical date, 23 May 2005.

The first of those is at 170 in the appeal book.  That is the exercise of power under delegation by the most senior public servant in the department, the director general of the 35(2) to waive assessment under Part 3.  His signature appears on page ‑ ‑ ‑

KIRBY J:   Are these all the steps anterior to the sale, is that ‑ ‑ ‑

MR LEEMING:   Yes, it had to be done before there was a sale.

CRENNAN J:   Statutory steps?

MR LEEMING:   Administrative steps is a way of describing them.  None of them necessarily involve any activity on the land.  None of them in the facts of this case, at least as far as evidence discloses, in fact, involved anything physically taking place on the land.  All of them wholly completed, save for one, before the claim was made.  I keep emphasising when the claim when was made because I think it is common ground.  The whole section 36 mechanism that is the subject of this appeal is temporally dependent.  A claim can fail ‑ or as we say, this claim would have succeeded had there been, on the facts that are disclosed in the record, had it been made nine months earlier and we say it ought to have failed because it was made too late.  That is in a nutshell what this case is about and that is the paradox, as it were, or the peculiarities that were, that his Honour Justice Biscoe ordered at the commencement of his reasons at paragraph 61 on 246.

KIRBY J:   The peculiarity that is pointed to against that peculiarity is that if your theory of the statute is right, then whenever there is a whiff of and a claim in respect of land that has not been used, all that has to be done to destroy the claim under the Act is for some step – maybe not a great deal; no contracts of sale, no advertisements, no entry by real estate agents, that the Minister intends to sell the property . That undoes the statute.

MR LEEMING:   That is what we say is the straw man.

KIRBY J:   You will have to develop that.

MR LEEMING:   I will.  I am not saying, and I do not read his Honour Justice Biscoe as saying, that the point he makes in paragraph 61 about the making of a claim on the morning of the day of the auction, that is not determinative or dispositive of the appeal but it is an unlikely result and just gives one cause to question and, of course, it cuts both ways, as your Honour Justice Kirby has indicated.

KIRBY J:   You make a good point, I think, in your written submissions that some land is used simply by not using it, for an airport or a highway or high power tension lines and so on, but in this present case, was there any evidence that this fell into that type of user of the land?

MR LEEMING:   Yes, but I do not rely upon it.  Yes, there was uncontroversial evidence that at all times some old disused office furniture was being stored in the building, but I do not rely upon that.

CRENNAN J:   There is some evidence, is there not, that the premises were somewhat derelict and neighbours were mowing the lawn or whatever gratis.

MR LEEMING:   Neighbours were mowing the nature strip.  Neighbours were complaining about stones being thrown.  Officers for my client went out and removed all the stones and boarded ‑ ‑ ‑

CRENNAN J:   Indubitably no occupation.

MR LEEMING:   No occupation.  Exactly the sort of land, as Justice Mason says.  To cut to the chase, as Justice Mason says at paragraph 24 on 271, we do not disagree with any of his description of the land:

vacant for years, has fallen into a state of disrepair, has been identified as surplus to departmental needs and for which there is no known reason for retention –

He says, we agree that –

is precisely the type of land which the ALRA envisages ought to be available for claim absent any suggestion that other exclusions apply.

We concede, had a claim been made before a deal of public servants’ time and money had been expended, contracts entered into with the real estate agent, then the claim would have succeeded.  But, we say, that decision to sell and the steps – not merely some lowly public servant thinking it would be a good idea to sell this land, maybe there is a claim coming along – it is the extent of those steps that give rise to lawful use and occupation.  There are some unpleasant pictures of the land which your Honours have probably seen.  The most recent and best reproduced in my appeal book is at 224, the fold out page.  It is a large two‑storey building.  At one stage there was a suggestion of evidence that more than 100 public servants were working there.

KIRBY J:   What page is this?

MR LEEMING:   I am sorry, 224.  If I can identify in the pictures.  That is a picture after the date of the claim in 2006.  Before the date of the claim there are some relatively unattractive but poorly reproduced, I apologise, pictures at 198 to 206 of the land.  As your Honours can see, it is an urban allotment in downtown Wagga Wagga falling into disrepair, unoccupied, surplus to departmental needs.  Nothing turns on this.  It is probably fair to say that those pictures are designed to emphasise the disrepair of the building.  It is also probably fair to say that the pictures in the valuation, which your Honours can see at 166, do not have that emphasis.  I do not in any way disagree with what your Honour ‑ ‑ ‑

CRENNAN J:   It all serves to uncomplicate the question you are advancing.

MR LEEMING:   Quite so, and this is a clean question, in a way.  The reason, I think, that both of us regard that report for waiving land assessment at appeal book page 170 is important, is that my learned friend emphasises, quite fairly, the statements that your Honour Justice Crennan points to me.

We say this is the document that takes it out of what I have perhaps flippantly described as the straw man argument.  This is not some lowly person without any authority expressing a view, it would be a good idea to sell this land.  This is a formal decision of the highest levels of government following the proper statutory process to sell the land.

KIRBY J:   But what if it is a person in authority?  It does have an air of self‑levitation, as Justice Mason said, that you can levitate your answer to the Act on your own and effectively take the matter, though the land has been unused for some time perhaps and thereby deprive the Act of its effectiveness in respect of property of the kind shown in those photographs, which do look a little bit like Bagdad rather than Wagga Wagga.

MR LEEMING:   Your Honour, I hope it is not the magical abilities attributed to me by the President that make me conclude that that aspect of his Honour’s reasoning is the key element where we say he got it wrong.  His Honour there perceived ‑ we say quite wrongly ‑ an inconsistency which gave rise to self‑levitation between two paragraphs within section 36(a) and (b).  We say that simply ignores the distinction necessary in the section, having regard to subsections (10) and (13) ‑ provisions to which he did not refer ‑ between the ability to sell and the exercise of that ability to sell, but that is the heart of the appeal, if I may say so, if there is a heart of this appeal.

CRENNAN J:   Although you could win on that point and lose the appeal, could you not?

MR LEEMING:   Your Honour, that is possible.  I would like to think it is unlikely because I would like to say that there is no qualitative difference between this claim that arrived about six weeks before 2 o’clock on the afternoon of 8 July and a claim that is lodged on the morning of 8 July.  There is no qualitative difference there, excepting as I do, that to determine whether the things that have occurred count as lawful use and occupation as a question of degree.  But if I am right and there is no qualitative difference in a relevant section 36(1)(b) way in that six‑week delay, then I would like to say it should not make a difference in the outcome of the appeal.

It would be different if, as I have already conceded, claims made any time in 2004 and it ought succeed because there has not even been a decision by the relevant decision‑maker.  That is the document we are looking at at 170.  It might be a difficult question and then I would readily concede that how long is a piece of string.  Suppose the claim were made in January or February that by the time one gets to such a state where the real estate agent has been appointed, where the keys have been handed over, the marketing campaign has been agreed, the date, time and location have been set, that is enough to make me clearly ahead.

I have to concede that the President was against me there because he seemed to place importance on putting up a for sale sign.  If there is anything in that, then, with respect, your Honour is right, I could lose, if putting up a sale on the outside matters.  We say it does not.

HAYNE J:   All of this depends ultimately on the expression, “lawful use or occupation”.

MR LEEMING:   Absolutely.  I have not got there yet.  I am conscious of that, I am sorry, your Honour.  Back at page 170 the points that need to be made are those in the box numbered 5.  It is a:

Former motor registry building:  The building has not been used and has been vacant for a number of years, and has fallen into a state of disrepair –

Then on page 171 under the heading “PUBLIC INTEREST”. What is the best practice? The details are, “has been identified as being surplus to departmental needs”. Then, as we know from 35(2) has to occur, regard is had to the “PRINCIPLES OF CROWN LAND MANAGEMENT” at the bottom of 171 and over on 172 and applying all of those principles the conclusion is expressed that disposal on an as is basis accords with those. In fact, against the last of those boxes on 172, that is box (f), reflecting section 11(f), it is said that, “The preferred use of this site is disposal under the current zoning”. Why?

There is no known reason for Allotment 10 to be retained by the State of NSW and any future use, is better managed by private interests after disposal.

The financial return to government from the disposal of this property would provide Treasury with recurrent funds –

It is not just the capital sum, a tiny amount in the scheme, $200,000 is what the valuer said, but there are ongoing funds in maintaining the services and maintaining and repairing this building.

KIRBY J:   Mr Gleeson latches on to that and says you did not use, you had not used and you had no intention to use, you only wanted to sell so that you could get rid of a property which you were not using and did not intend to use.

MR LEEMING:   And I say entirely true, except for a little bit of furniture storage on which I do not rely, but does not answer the case because I say the decision and the steps to implement the decision are use.  Just as, incidentally, although it is obviously not determinative, the author of this document regarded it when he said, “The preferred use of this site is disposal”.

HAYNE J:   Are we to approach your submissions on an understanding that the critical question hinges about the meaning of the words “lawfully use”?  That is, are we to discard from consideration the subsequent words, or “occupation”?

MR LEEMING:   No, your Honour, it is not.

HAYNE J:   Because hitherto the submissions have focused upon physical activity upon the land constituting use in that sense.

MR LEEMING:   Yes.

HAYNE J:   It is far from clear to me yet how you seek to construe the terms “lawful use” or “occupation”?

MR LEEMING:   I have not attempted to do so other than ‑ ‑ ‑

HAYNE J:   Just so.

MR LEEMING:   In answer to your Honour’s question, no.  We are in agreement at the bar table that “use” and “occupation” take colour from each other and so I do not wish by according to the question, is it sufficient simply to look at “lawful use” to neglect that.  We say, as your Honour knows, it is one statutory term.

KIRBY J:   I would just like a bit more help on the answer that you gave to Justice Hayne.  You agree that “use” and “occupation” colour each other but the normal canon of construction is if Parliament uses two words it does not intend to use a redundant word.  That it has used “occupation” to have some added value by putting that in.  Can we accept that approach or is there a different principle that governs the approach to these two ‑ this phrase ‑ maybe it is just an ancient phrase?

MR LEEMING:   Your Honour, it is an ancient phrase.  Your Honour, Justice Heydon’s reasons in the Victims Compensation Fund v Brown are doubly helpful, coincidently it happens in this case, because not only at paragraph [33] is there encapsulated really the whole of our answer to my learned friend’s and the President’s reliance upon beneficial construction, but in paragraph [34] under the heading, “composite or portmanteau phrase”, his Honour sets out, what we say this is a case of.  “Use” and “occupation” are words, especially the first, both of them undoubtedly taking colour from each other, and we say this is a case where it is not necessarily right to do as previous court of appeal decisions have done and split them up as though they are wholly discrete.  Having said that, if one were to do that, of course, “use” is more apt to describe what was happening here.  It must be the case, given my concession that I do not rely upon any – it was vacant and I do not rely upon the storage of the furniture as constituting any form of occupation.

KIEFEL J:   Why do you assume reliance upon “occupation”, as you seem to , if there is a possibility that “occupation” denotes control and it seems to be the assumption of control that you are referring to?

MR LEEMING:   Quite.  Although one might think that “use” is a more protean term than “occupation”, on analysis, as your Honour has just observed, not so.  “Occupation” can of course ‑ and one often thinks it means “physical occupation” but need not, and there are plenty of contexts, not least military, not least colonisation, where a broader approach has been taken.

HAYNE J:   Not least in closure?

MR LEEMING:   Quite.  What I think I am doing is ‑  perhaps with excruciating slowness ‑ , trying to maintain that I do not eschew either, but if it were appropriate, as previous intermediate appellant courts have held, to treat them severally, and as your Honours know, whole cases have been run on the basis that, first of all let us deal with “occupation” then deal with “use” and President Mason, when appearing in Nowra Brickworks was criticised because of a concession he had made “no occupation”.

No such concession is made, the phrase falls to be construed together.  That is our primary submission, but the fallback submission is; if it does, I am happy to concede its “use” rather than “occupation” if that be appropriate.

KIEFEL J:   Before you go on to construe the critical phrase, could I ask you just to recap for my benefit what reliance you place upon the historical provisions of the Crown Lands Act in terms of management for the purpose of construction of use and occupation?  Are you saying in simple terms something like the legislation in relation to the management of Crown lands establishes things that the Crown must do in relation to land which tends to suggest that itself is a form of use.  Is that what you are saying?

MR LEEMING:   Yes, but it is not all that I am saying.  That is certainly at the forefront of what I am saying.  I am not trying to be captious.  I am happy to put it now if the Court wishes.  I also wish to say that when one reaches section 36, which I have held back.....and one asks the question raised by 36(1)(a) in the definition of “claimable Crown lands”, are they able ‑ ‑ ‑

KIRBY J:   Where are you reading from?

MR LEEMING:   As it happens, I am reading from page 120 of my materials, which is where I wish to start with the exegesis of the construction.  It is not the current form of section 36.  It is the form of 36 as enacted.  There is a reason for doing that obviously.

KIRBY J:   You better be a bit careful about this.  We do not want to be citing something which is not the current form or the form at the relevant time.  Why are you taking us to this previous form?

MR LEEMING:   Sincerely, to try to make it easier.

KIRBY J:   I am sure that is always the desire of counsel, but sitting up here you get a bit suspicious.

HAYNE J:   It is not what counsel are paid for.  Counsel are paid to make it easier for their client.

MR LEEMING:   I am an appellant and I need to persuade your Honours and I do not persuade unless I can get the message across.  That is why it is in my client’s interest.

CRENNAN J:   This is going to illuminate the current section 36.

MR LEEMING:   The definition of “claimable Crown lands” has been accreted to.  Nothing relevantly has been subtracted from.  The accretions are a distraction.  I propose fully to deal with them.  The point I wish to make in answer to your Honour Justice Kiefel’s question to me, those opening words, which we concede and which it is common ground were satisfied in paragraph (a) “are able to be lawfully sold”, they necessarily, necessarily, pick up the procedures under the Crown lands legislation. 

This is in the teeth of what I described to your Honour the presiding Judge as the nub of the appeal, the self‑levitation point.  Quite wrong, we say, for his Honour to discern a contradiction between (b) and (a).  Quite wrong because first of all (a) is talking about question of power, an ability to do something and (b) is talking about things that are actually happening, so exercise of an ability to do something.  That is the most obvious reason why it is wrong.

The second most obvious reason is one looks at some of the exemptions like residential lands later inserted.  Residential lands are going to be sold, one might think many of them, to the new happy home owners.  No contradiction there at all.  Again, it is the difference between the ability and the exercise of the ability.

HAYNE J:   Does 36(1)(a) as originally enacted identify a universe of land, that is, the whole of the universe of land, dealt with by the two specified Acts?

MR LEEMING:   If I understand your question correctly, yes.

HAYNE J:   That is not the purpose of paragraph (a) to spell out that the lands to which the definition is referring are lands, putting it more loosely, lands that come under the two specified Acts.

MR LEEMING:   Yes, your Honour.

HAYNE J:   And you do that by saying, well, there are lands that are able to be lawfully sold or leased, there are lands that are reserved, there are lands that are dedicated under those Acts.

MR LEEMING:   Yes, your Honour.

HAYNE J:   So you have a universe of land of a kind dealt with in the two specified Acts.  Then paragraph (b) narrows.

MR LEEMING:   Subtracts, yes, your Honour.  Paragraph (a)’s inclusion is not the only inclusionary paragraph, but it is the most important one, and (c) subtracts as well.

HAYNE J:   Yes.

MR LEEMING: The third point which is relatively subtle is that it can be tested in this way. Your Honours know that even when the claim was made, the section 34’s power of sale could not be exercised. It could not be exercised because section 6 says you cannot sell land unless you comply with the requirements of the Act and you cannot sell any land without first of all publishing a notice that you intend to sell land and that notice must be published at least 14 days before the sale. That notice, by the way, at 194 I should take the Court to before going straight back to section 36.

The notice had been prepared at 194 and your Honours can see it there.  It is a notice of intention to sell land – so this is exercise of the 34(3) power – at a particular time and place, Friday, 8 July at 2 o’clock in the afternoon on the site and, of course, although that amount of certainty had been determined, your Honours will see at the very end of the notice that the right was reserved to withdraw land from sale with notice.  No different from any other vendor.

That notice had not been published.  It is in the appeal books it had been prepared.  The reference is paragraph 32 of Mr Flarrety’s affidavit which your Honours can find at appeal book 18.  He says there is no question about it, that he prepared that notice shortly after he had selected LJ Hooker as the real estate agent on the sale and had signed that contract with that company.  He had drafted up the notice having chosen also the sale date and approved of the marketing campaign.  There is no need to go there, but if the Court wishes, the acceptance of that is at 177 and the marketing campaign itself is at 91 of the appeal book.  That is the offer from LJ Hooker accepted at 177.

KIRBY J:   Have you ever been tied down to express exactly what you say “lawfully used or occupied” means?

MR LEEMING:   Not this morning.  Not so far.  I propose to.

KIRBY J:   Well, it is coming.

MR LEEMING:   It is coming.  It certainly is.

KIRBY J:   I think we are entitled at a certain point to ask, especially as you are representing the State and the Minister, that you tell us what the Minister says it he meaning of the statue which governs him.

MR LEEMING:   Your Honour, first of all, paragraph 45 of our written submissions says exactly that.  It says that word has its ordinary meaning.  It is unburdened by the distinctions of earlier appellate decisions of things like notional and, relevantly to this case, that ordinary meaning includes the utilisation, exploitation and employment of the land for ‑ ‑ ‑

KIRBY J:   Which paragraph are you reading?

MR LEEMING:   Sorry, paragraph 45 of the submissions in‑chief, your Honour.  Examples may help.  We say lawful use and occupation would occur if a farmer chose to leave a field fallow for a year.  If the State owned the farm.  There would lawful use and occupation of land that was reserved only to be used by stock in times of extreme drought.  There would be lawful use and occupation for land ‑ ‑ ‑

KIRBY J:   That is a user that is actual to a farmer.  From biblical times land has been left fallow for a period.  Looking at the motor registry office in the photograph in Wagga Wagga, one can hardly say that has been left fallow in order that it will be more useful in the following year.

MR LEEMING:   I could not agree more.

KIRBY J:   It has a look, if I can say so, to express my reaction to the photograph, of abandonment.

MR LEEMING:   It is not quite abandonment.  There is still maintenance taking place, fences, doors, locking, but I am not disagreeing with your Honour.  What I am seeking to ‑ ‑ ‑

HAYNE J:   But that brings you to the point, do you embrace, do you have to embrace the notion that lawful use or occupation is satisfied by the bare fact of enclosure and exclusion of others by fencing, by locking doors, et cetera?

MR LEEMING:   No.  I say that I do not need to and I do not.

HAYNE J:   What content then are you giving to “occupation”?  Because there would be an unlawful use or occupation of Crown land if a farmer enclosed part of the Crown land, would there not, by fencing?

MR LEEMING:   If a farmer without otherwise having rights?

HAYNE J:   Just so.

MR LEEMING:   Then, yes, that would be unlawful.

HAYNE J:   And use or occupation or, more accurately, unlawful use or occupation has a long history in Crown lands legislation, does it not? 

MR LEEMING:   It certainly does.

HAYNE J:   Is that the origin of this apparent antonym expression “lawful use or occupation”?

MR LEEMING:   We say, no.  We say that, carve out paragraph (b), that exemption, is the only exemption in section 36 which speaks to the present – which spoke to the present in its original form.  It is clear and it is one of the reasons why it is ‑ ‑ ‑

HAYNE J:   But you expressly disclaim the construction that says that enclosure constitutes occupation?

MR LEEMING:   No.  I thought what I disclaimed – and I apologise if I misunderstood your Honour’s question – I disclaimed a construction that enclosure embraced the construction of the term.

CRENNAN J:   That sovereignty was tantamount to occupation – that sort of idea?

MR LEEMING:   I certainly disclaim that, but no doubt about that.  That has never been the case in the whole of the litigation.

CRENNAN J:   You have expressly said that ‑ this is a connected point.

MR LEEMING:   That is a different point.

CRENNAN J:   But in a sense, Justice Hayne’s question bears on that concession that you have made?

MR LEEMING:   It does, but it is absolutely clear ‑ and let there be no doubt about it ‑ my client is the sovereign of this land, and that says absolutely nothing about whether there has been lawful use or occupation but that is an easy concession to make.  If that were the case, then all of these claims would fail.

KIRBY J:   That cannot be so?

MR LEEMING:   It cannot be so and it never has been so in this litigation.  Nor, I think, has it ever been so in any litigation.

KIRBY J:   One would think ‑ just bringing it down a line on the chart ‑ that there would be a lot of land which has fences around it or doors that are locked that are not being used or occupied in an actual sense – the adverb or adjective that the Court of Appeal has introduced?

MR LEEMING:   Quite so.

KIRBY J:   Now, in the context of legislation which has been enacted to provide a source of added revenue for Aboriginal interests, why would one not then read that as equivalently a theoretical occupation which if it were given full force would really defeat what appears to be the purpose of the statute?

MR LEEMING:   First of all, not enacted to provide revenue for dispossessed Aboriginal groups.  Secondly, does not follow on the  onstruction for which I contend because I say “lawful use” and “occupation” ‑ agreeing here with Justice Sheller in Nowra Brickworks [No 1] necessarily connotes an element of purpose.  The question that arises is ‑ the why question ‑ what was in mind by doing whatever the acts were which are said to constitute the lawful use or occupation and that in turn gives rise to questions of degree.  So that I can imagine ‑ and concede ‑ circumstances where there could be an unmaintained fence; derelicts, well known people have been walking across it, using it for stock, whatever, that might not, as a matter of degree, amount to lawful use or occupation, depending upon what was in the mind of – the relevant bit of the mind of ‑ the Crown at that time.

KIRBY J:   So your point is that it is not only the list of acts that you have listed in your submissions which fell short of a contract of sale or a sign on the land, it is a matter of looking at those acts and asking, what is their purpose; why were they done; and does that amount to use or occupation?

MR LEEMING:   Absolutely.  Can I make that good and then come back to the first point that I made in answer to your Honour.  I referred to land lying fallow for a year, land being used as a carbon sink.  I did not say land being used as a buffer zone around some noisy extractive industry conducted by the State.  Your Honour has already referred to land being used as a potential catchment area for a dam that may never get built.  All of those things, we say, fall within “lawfully used or occupied”.  All of those things require an examination to be made on the evidence on which my client is going to bear the onus in any curial proceedings of what the purpose was.  I have Justice Sheller’s reasons in Nowra Brickworks (No 1) 31 NSWLR 106 opened up at page 121 where his Honour said, and with respect we agree, at E:

Further I do not think that it is possible to determine whether the lands are being lawfully used within the meaning of s 36(1)(b) without taking into account the purpose for which it is claimed they are being used.  The purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense. 

Now, true it is his Honour is using the language formulated in distinctions in previous cases and, as your Honours know we have something to say about that, but the basic point, we say, must hold good.  It depends upon why, which turns upon an examination of the purpose of the landowner, something is being used in the way that it is in order to determine, first of all, whether it is lawful, an obvious element that has to be satisfied by my client, and, secondly, whether what has been done is sufficient to fall within the used or occupation limb.  That is, as we read Justice Sheller’s statement there, exactly what his Honour is saying. 

KIRBY J:   This tends to suggest that this case is ultimately really about line drawing.  It is about the amount of facts that you can put into the basket and whether they bring you sufficiently within use or occupation.

MR LEEMING:   Yes, I would say many cases are like that.

KIRBY J:    But then we have to get a theory of what the Act is for and that took the Court of Appeal in its series of cases into actuality as a requirement and not simply something which might go ahead or might not, that might lead to sale or might not and so on.

MR LEEMING:   It is a difficult requirement, if there be a requirement of actuality, which I understand is put against me, to apply because, as this very case, Nowra Brickworks, shows, an intention to do something at that time unlawful, to extract clay from the land the subject of the claim, in more than a decade in the future.  Nothing was actually happening on the claimed land.  Nothing was intended to happen on the land for, I think I am right to say, more than a decade.  I will have that checked.  Even then it did not have approval to do that.  That was nonetheless held to be within 36(1)(b).  So, if that is what “actuality” means, your Honours can see the difficulty we have with that as a potentially confusing gloss on 36(1)(b).  But we agree it is the intention that is critical.

Can I turn directly to 36? ‑ I am sorry, I said that I did not agree with your Honour’s proposition that 36 was intended to provide pecuniary compensation for claimant land councils.  The reason I said that was until later amendments it was not, in normal circumstances, possible for the successful claimant Land Council to sell land which had been transferred to it under section 36.  Now it is, but it was not originally, and so that is why I say it was not originally a form of pecuniary.

KIRBY J:   At the time of these proceedings it is?

MR LEEMING:   It is, yes.

KIRBY J:   Is that not a significant development that in a sense it is topping up the fund.  It is saying not only are we going to have this fund which is derived from land tax and which is a very significant amount but we are going to lay open all Crown land in New South Wales which is not used or occupied and you may, by your own initiatives which we hope will be successful, top up the funds that are available to support the Aboriginal community.

MR LEEMING: Yes, it is a significant development and, yes, my answer on that development is the same as my answer on the change in form of section 6 in the Crown Lands Consolidation Act to the Crown Lands Act.  The material words “not lawfully used or occupied” have not changed at all and we say, notwithstanding those two developments, there is no material alteration in the content of those words pursuant to those later changes and my learned friend so far has not relied upon it.  If and when he does I will deal with that.  To return to section 36 there are, as I have indicated, some complexities about it.

HEYDON J:   Is this the modern 36?

MR LEEMING:   Can I go to the old one, if I may, at page 120 of our bundle?

HEYDON J:   Yes.

MR LEEMING:   So, this is as enacted.  It does not contain some extra exemptions, it does not contain native title Acts.  It contains an error in relation to Western Lands Act.  The starting point, as the Court, I think, knows, is subsection (2), the mechanism for making a claim.  Subsection (4) tells how such a claim is to be made, including lodgement “with the Registrar”.  Subsection (5) makes an obligation ‑ note the word “shall” before paragraphs (a) and (b) – no discretion, an obligation on the Minister to grant or refuse the claim, depending upon his or her state of satisfaction, and what satisfaction, that they are “claimable Crown lands”.

Subsection (6) is a statutory appeal.  So it is not judicial review, it is an appeal, merits review, as it were, in the Land and Environment Court in subsection (7) ‑ that is as of right.  We have never contended and do not content that “may” in (7) involves a discretion, that just as the Minister must transfer if he or she is satisfied, the claimable Crown land.  So too the court, if it finds claimable Crown lands, no discretion involved must transfer.

Subsection (8) qualifies in part the statutory mechanism because the Minister can issue a certificate to conclusively prove satisfaction of exclusionary limb (c), “essential public purpose” no subsection (8) certificate for lawful use and occupation.  Subsection (10) and subsection (13) are in our argument quite significant and have been wholly omitted from consideration by the court below.  I should say it is not something I put to the court below, it is something that has more recently occurred to me.

Subsection (10) makes it clear that there is an overriding of the Crown lands legislation – I mean both Acts by that phrase – that is overriding the reservation of power from sale. There is an automatic revocation if there be a transfer. Subsection (13) makes it clear that other prohibitions, procedural steps, picked up by section 6 which would stand in the way of a valid exercise of the power of sale by the land owner likewise are overridden. So that, for example, we know in this case there was never published a notice of intention to sell the Crown land 14 days ahead of time as required by the Crown Lands Act.  That does not stand in the way of the land being “able to be lawfully sold” in the first limb of the definition of “claimable Crown lands”.

It does not stand in the way because of subsection (13). I have two things to say about this. First of all, if subsections (10) and (13) which answer the question, how do these two classes of legislation, land rights and Crown lands legislation, interact, and there it is, expressly. Not section 7 of the Crown Lands Act.  It is directed to a different question.

KIRBY J:   Are (10) and (13) in force at the relevant times?

MR LEEMING:   Yes.  No provision to which I have taken the Court so far has changed.

KIRBY J:   Any of them?  Any of the provisions of section 36 as shown on pages 120 to 123?

MR LEEMING:   Yes.  Extra exemptions in 36(1) for residential lands.

KIRBY J:   We just better get it very clear which of the provisions are historical and which of the provisions are both historical and applicable.

MR LEEMING:   Yes, your Honour.  Page 132 of the same bundle is 36 in the form it was at the time the claim was made.

KIRBY J:   What is the relevant time in your submission?

MR LEEMING:   The time the claim was made, the time the statutory mechanism was engaged, 23 May 2005.  Page 132 has 36 in the form it was at that time.  The first thing that one can see are changes in relation to residential lands, that is to say, there is a new form of exclusionary paragraph in 36(1)(b1) for lands in the opinion of the Crown Lands Minister which are needed or likely to be needed as residential lands and accompanying that, that is 1986, accompanying (b1) was an ‑ ‑ ‑

KIRBY J:   That is irrelevant to this case?

MR LEEMING:   Irrelevant to this case, except that it is the clearest indication, in our respectful submission, of the error that his Honour the President fell into when saying there is a necessary contradiction in the act of sale falling into the exclusionary paragraph (b) when that is the very thing, the ability to sell, that gets you in the inclusionary paragraph (a) because, we say:

lands which . . . are needed or are likely to be needed as residential lands –

possibly there is a housing estate that the government is going to continue ownership of, but many, the Court knows, many times those lands are actually intended to be sold to new home owners.  That falsifies, in our submission, the contradiction, the self‑levitating contradiction that his Honour perceived in the same argument that we make that in relation to (b) against (a) as apposed to (b1) against (a), we say there is no contradiction between exercising the statutory power to sell, which excludes you from the definition and the ability lawfully to sell a lease which gets you into the definition.

In answer to your Honour’s question, the first set of amendments 1986 (b1) comes in as a further exemption and accompanying that there is an expansion of subsection (8).  So that there are now two species of certificates, not merely essential public purposes, but also there is a residential land certificate provision in (8)(a). 

The second class of amendments are amendments that accommodate the Commonwealth native title regime and take this legislation outside that regime.  They can be found in paragraphs (d) and (e) of section 36.  They have got nothing to do with this case either and they too reflect an amendment to what has now become subsections (9) and (9A) which preserve Commonwealth native title rights in any section 36 land which is transferred to a claimant council, and that too has nothing to do with this case.

KIRBY J:   So none of the amendments that have been enacted to section 36 of the Act affect this case?

MR LEEMING:   I do not apprehend there are any.

KIRBY J:   Except by the retrospective argument that you have suggested could be applied?

MR LEEMING:   Quite possibly, yes.  There is one other matter.  It is a little bit more that peripheral because it helps explain 36(1)(a).  There is a correction that has now been taken place in relation to the original subsection (10).  Your Honours will see the original (10) on page 122.  I am sorry, I have misled you; subsection (9).  The original subsection (9) required all transfers of land to be for “an estate in fee simple”.  Well, that is a mistake because the vast majority of lands in the western division of New South Wales, except for those in towns, are held on lease, perpetual leases that this Court is familiar with from Wilson v Anderson.  So it would be an odd result, one might think the legislator was thinking, that a successful 36 claimant should get freehold title in this area which is surrounded by leases under the Western Lands Act.

KIRBY J:   That is a very particular matter the, Western Lands Act, which the Court has looked at in one of the early native title cases.  So why are you taking us to this except to point out the differences?  Is there any significance for this case?

MR LEEMING:   Yes, because now that I come to the bits that matter, it is a further explanation of why those words in the opening paragraph (a) of the definition of “claimable Crown lands”, “able to be lawfully sold or leased”, as Justice Hayne was pointing out to me earlier on.  This is a case where the sale naturally relates to the first of the Acts mentioned, the Crown Lands Consolidation Act, and the leased naturally relates to the second, the Western Lands Act.  That is the only reason that I take it there. 

Now, on the definition itself it is perhaps important to note that as well as what I call the inclusion limb of (a) there is another necessary gateway that needs to be satisfied, as I indicated to your Honour Justice Hayne.  The claimable Crown lands must also be lands vested in Her Majesty.  It would be erroneous to think that lands vested in Her Majesty were Crown lands as defined in the Crown lands legislation.  This is a much broader definition of Crown lands than the definition of Crown lands in the Crown Lands Act.

If your Honours wish to note, in my learned friend’s bundle at page 36, there is the definition of “Crown lands” which ‑ ‑ ‑

KIRBY J:   What page?

MR LEEMING:   At page 36 of the respondent’s bundle towards the top of the page.  To be Crown lands under Crown lands legislation, they must not only be:

vested in his Majesty –

sorry, this is in the Crown Lands Consolidation Act, the relevant Act at the time, but they also must not be:

permanently dedicated to any public purpose or lawfully contracted –

to sale.  So that section 36, the universe, is a broader universe than the class of lands known as Crown lands in the Crown lands legislation.  It includes lands the subject of a reservation or dedication.  That is the first point.

The second point in the definition is the words “when a claim is made”.  I do not think this is a controversial. .The operation of these inclusionary and exclusionary provisions under this statutory mechanism is temporally dependent.  One asks those questions on the morning of the day of auction or six weeks before or 18 months before.  That is why, we say, there is no point in talking, as my learned friend’s submissions do, about what would otherwise be a good claim.  One simply assesses how the statutory mechanism works at the time a claim is made. 

The reason we do not accept is that the rolled‑up summary that my learned friend went through blow by blow in paragraph 65 is no more than that.  The findings are set out earlier in the judgment.  The findings that happened after what we say is the decision – the director‑general’s signing on 23 December 2004 – can be found in paragraphs 25 to 44 of Justice Biscoe’s reasons and, contrary to what his Honour the President seemed to think, they did include, as has been pointed out, the identification survey, that is paragraph 36.  Your Honours can find that at pages 212 and 214.

Just on that point, 214 is the survey itself.  Someone within the Department of Lands on 4 April 2005 went out and surveyed the land for the purposes of a survey for the contract which – my learned friend is right – had not, on the evidence, been prepared.  Your Honours may be assisted by page 212 because there there is a shortish summary from about line 25 to the first quarter of page 213 of the events that took place in relation to the land.  Secondly, the findings of Justice Biscoe at paragraph 40 on page 241, as your Honour Justice Crennan observed, included someone from LJ Hooker going on site and recommending this needs a clean up.  The reference to that is page 186.

I think I said second lastly, I meant anti‑penultimately.  Second lastly now, there was reference made to paragraph 77 of Justice Giles’ reasons.  We disagree that that is what my learned friend described as a fair summary of the history of the legislation.  Justice Giles did take a different approach and his focus was on really identifying continuity of use and there was too long a gap.  The difficulty with that is that the factual premise is not there.  His Honour says at 77 that:

The land was recognised as surplus to requirements in 1999, but was not sold then or promptly after January 2004.

The difficulty with that is, if your Honour goes to page 38 of the appeal book one can see what the situation was in early 2000.  $12,000 was being spent in February, March, April and May on the findings of the trial judge as part of the renovations to convert this building into a laboratory.  On 29 March you can see that the termite infestation was said to be completed within the next couple of days.  Then it was expected that the new staff would move in in May 2000.  None of that happened because, as we know

from the handwritten note, a claim was made and tools were downed at that stage.  It took until 2003, not a happy fact, but that is the fact, for that claim to be determined.  That is, therefore, in paragraph 77 of Justice Giles’ reasons, not a fair summary of the factual background.

The very last point, my learned friend referred to an invisible process in the department and I concede in some cases the steps on which either line might be invisible.  Not this one.  Two references, 158 refers in paragraph 3.3 of a briefing note that was can date to March 2004, in paragraph 3.3 to advice being given by the department to the Aboriginal Legal Service that the department was investigating disposal of the site and, if that were not clear enough, one has in this case, page 222 of the Daily Advertiser, again April 2004, 13 months before a claim was made at a time when, we say, when if a claim had been made it would succeed.  On 222 on the bottom of the left most column, there is reported a spokesman from my client’s department.  He said:

yesterday the building would be put on the market.

“That particular site has been declared as being surplus to requirements by the government –

and so on.  So there is nothing secret going on.  I think it is just a rhetorical flourish, but that completes the references to record falsifying that.  May it please the Court, those are the submissions we make.

KIRBY J:   Thank you, Mr Leeming.  The Court thanks counsel for their help in this case.  We will reserve our decision.  The Court will now be adjourned until 9.30 am tomorrow in Canberra.

AT 2.59 PM THE MATTER WAS ADJOURNED