Minister Administering the Crown Lands Consolidation Act And The Western Lands Act v New South Wales Aboriginal Land Council

[1989] HCATrans 19

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl30 of 1988

B e t w e e n -

THE MINISTER ADMINISTERING THE

CROWN LANDS CONSOLIDATION ACT

AND THE WESTERN LANDS ACT

Applicant

and

NEW SOUTH WALES ABORIGINAL LAND

COUNCIL

Respondent

Application for special leave to

appeal

MASON CJ

Land

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1989, AT 11.36 AM

Copyright in the High Court of Australia

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"MR B. COLES:  May it please the Court, I appear for the

applicant. (instructed by the Crown Solicitor

for New South Wales)

MR G.G. MASTERMAN, QC: If the Court pleases, I appear

for the respondent with my learned friend,

"MR J.G. TERRY. (instructed by Goddard Dean & Co)

MASON CJ: Yes, Mr Coles.

"MR COLES: If Your Honours please. Could I hand up to

Your Honours a bundle of statutory material collected perhaps, we hope Your Honours find conveniently

in one place, together with copies of a written outline of the applicant's submissions to which

I will speak shortly.

Your Honours, the applicant takes little

issue with anything that fell from Mr Justice Hope

until, really, one gets to the end of His Honour's

judgment and the dividing point between the

applicant's contentions and those found by

His Honour is, really, capsulated in a line

at page 28 where His Honour says at about the

letter 8:

The Land Council's right was a right to

have the land transferred to it in fee

simple.

Now, Your Honours, if Your Honours look in the

statutory material Your Honours will see that by -

the scheme of the legislation, very shortly,

Your Honours, if Your Honours look at page 1, is

that certain lands are relevantly claimable if
they satisfy the criteria in that definition. A

claim may then be made by certain means. A claim

is to be considered by the Minister who is to grant
it if he is satisfied the lands are claimable or
to refuse it if he is not so satisfied. If the

Minister has refused a claim then subsection (7),

which Your Honours will see at page 3 of the

bundle, requires:

The Court -

which is the Land and Environment Court, to -

hear and determine any appeal -

to that. court, and -

if the relevant Crown Lands Minister
fails to satisfy the Court that the
lands or a part thereof are not or is
not claimable Crown lands, order that
the lands ..... be transferred to the

claimant.

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Now, Your Honours, we do not challenge what

the Court of Appeal held to the effect that, in

effect, really, little or, indeed, no discretion

is involved if the land is relevantly claimable

as at the date of the claim and satisfies the

statutory ingredients. What we do say, Your Honours,

what is put is that accepting that the respondent

acquired a right to obtain pursuant to subsection (7)

an order from the court, the order, of course,

would in terms only be an order that the land be

transferred to it. Neither before nor after the

amending Act would any issue arise in the Land and

Environment Court to which the amending Act relates.

Your Honours know that after the appeal - indeed,

after the claim was lodged; after it was refused

and after the court had received an appeal, the

only relevant amendment was that which went to the nature or mode of tenure by which the Minister was to satisfy the claim or one may equally say,

the authority and duty on the part of the

Minister to give effect to the order to grant the

transfer. So that accepting, Your Honours, the

respondents had a right at all material times, the

amendment left that right, the only right one can

identify which is a right to an order for a

transfer, entirely unimperilled and unpffected.

It was only - - -

DEANE J: When you say "a right to an order for transfer",

did they need an order or did an order only become

necessary if the Minister wrongly refused a

transfer?

1:1R COLES:  No, they did not. If the Minister had been satisfied

the lands were claimable, then it was the Minister's

duty to transfer it himself.

DEANE J: So, their right if, as has been held, the land was

claimable was a right to transfer?

1:1R COLES:	Yes.
DEANE J:	Which the Minister could resist thereby making

court proceedings necessary?

1:1R COLES:  Yes. Court proceedings .·.in which the Minister would

fail if he did not satisfy the court the lands

were not claimable. But, Your Honours, at the time

of the claim, of course, the method of tenure or

the mode of transfer was by subsection (9), which

Your Honours will see on page 3, a transfer for
an estate in fee simple. When the amendment came

in, Your Honours, from 2 May 1986, which Your Honours

will see at page 5 where there was inserted after

subsection (9) the provision that:

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Where the transfer of lands ..... is of land to which the WESTERN LANDS ACT 1901 applies -

then, relevantly -

the transfer shall be effected by the granting to the Council of a lease in

perpetuity under that Act.

Now, Your Honours, nothing that the Minister

had to consider in becoming - in the only task confided
for his consideration, namely, whether the land

was claimable or not, nothing that the Land and

Environment Court on any appeal would have to consider,

which was whether the Minister had discharged the

burden of showing otherwise, was the slightest bit

affected by the amendment. So that no question, in

my submission, of the operation or divesting of any

so-called accrued or acquired rights arose at all.

The only question, of course - the only right that,

on any view, in my submission, had accrued or was

acquired was a right to a transfer if the land was

relevantly claimable. Only then, Your Honours, does

the question of tenure or method of transfer arise

when the obligation itself arises. And the central

submission, Your Honours, which is a simply one,

really, is that the amendment as to transferring

the land by a lease in perpetuity arises and is to

be applied in any case that arises where the Minister

has to make a transfer at any time after the amending

Act comes into operation. In other words, Your Honours,

the amendment simply speaks according to its tenure

and from its date wherever any circumstance for its

application does arise.

As is put, Your Honours, taking - perhaps it

is no doubt unnecessary to read it to Your Honours

but one accepts that if the right to transfer was fixed by matters occurring prior to fu.e amendment,

that right would not be affected by an amendment

if, indeed, as I submit is not the case, the
amendment did affect those rights.	But an

alternative way of looking at the matter is to
regard the amendment, if otherwise there was a right
to not only a transfer but to a transfer in fee
simple, as merely being an amendment going to the
means by which the right is to be enjoyed or

regulating the means by which the remedy is to be

secured by judicial activity. If that be

so, Your Honours, then another answer to the matter

is simply to regard section (9A) as, in effect,

procedural.

So, pausing there, Your Honours, the submission

is simply that accepting all that Mr Justice Hope

said as correct, the central error for which the

applicant contends is the assertion by His Honour at

page 29, the last page of His Honour's judgment, that:

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Section 36(9) was simply a definition

of what was meant by the transfer.

One treated "transfer" as equally "transfer in

fee simple': In my submission, Your Honours, that
itself is, of course, a question of statutory

construction and for reasons shortly noted in the

outline of submissions it would not readily be
assumed that it was the intention of the legislature

that the specific subsection (9), operating as it

did to prescribe the mode of transfer or method of

tenure as one in fee simple, was simply definitional.

If it was intended to be definitional, it would have

been in the definition provisions. And, indeed, the
question itself, as I have already put to Your Honours,

of whether or not it was to be a fee simple or to be

a lease in perpetuity was never to for.n any part

of the Minister's original consideration or the

court's either. So that to treat it as definitional

is to, in my submission, degrade the significance

of the subsection appearing as an independent and

specific subsection in the Act.

Lastly, Your Honours, the alternative

proposition is put that one may in any event, for
the purposes of section 8 of the INTERPRETATION ACT,

find a contrary intention. Your Honours will find

at page 23, the second-last page, the relevant

provisions of section 8 of the INTERPRETATION ACT

set out but plainly enough, Your Honours, the

preservation of acquired or accrued rights, assuming

a right to a transfer in fee simple as opposed to

a transfer simplicter was an accrued or acquired

right, must yield to any contrary intention. In

my submission, one finds a contrary intention if

for no other reason than that the amending Act of

. 1986 dealt with a number of matters. Your Honours

will find the amending Act set out in full in the

bundle of documents cormnencing at page 7. Relevantly,

Your Honours, section 3 of the amending Act gave

effect to the second schedule. Your Honours will

find the second schedule on page 22, and Your Honours

see that there was enacted by the amending Act

certain savings and transitional provisions,

dealing with a very important financial question which
the amending Act bore upon. And one could develop

the significance of those provisions of the amending

Act of 1986 which might or might not bear on

what might be said to be acquired rights or otherwise.

But, plainly enough, Your Honours, in my

submission, the legislature has declared its

intention to preserve those recognizable acquired

rights by means of a savings and transitional

provision and it has left the balance of the amending
provisions to operate according to their tenure in

any case which the application of those provisions

is called for, in other words, in any case where

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the occasion arises for the Minister to effect
the transfer.

Your Honours, to regard it otherwise is to, in my submission, put not only applicants but the

Minister himself in a state of difficulty as to

knowing after the amending Act what he is to do.

In my submission, the fact of the amending Act

withdrew from the Minister any power or authority

at all to continue to grant fee simples for land

in the western division. The matter, Your Honours,

does raise an important question of law of public

importance for at least these reasons. As

was recognized by Mr Justice Hope there is no

decision precisely in point or, at least, no decision

where the legislative provision divides a right

which might be identified as a matter of construction

as an accrued right from, on the one hand, the

means of its implementation or :1forcement on the
other quite as separately or as well differentiated
as subsection (9) and subsection (9A) do in the

present case.

There is an important question, in my submission,

Your Honours, as to the obligations cast by the legislation on a minister of the Crown to obey a

legislative cormnand operative according to its

terms from the date of assent to an Act and

further, if Your Honours please, there is a question

whether in the relatively unusual circumstances

where one finds a vested conditional right as

His Honour Mr Justice Hope perhaps found the respondent's

right to be, where that vested conditional right

vests absolutely after some determination, whether

curial or ministerial, the question arises whether

the machinery provisions themselves are part of the
conditional right or merely arise once the condition

is fulfilled or the right becomes unconditional.

But Your Honours, in my submission, would accept

that the legislation itself is a matter of general

public and social importance and that the application

of it and the implementation of its provision,

where they give rise to questions of law, do relevantly

give rise to such questions which are of general

public importance. Those are the submissions, if

Your Honours please.

TOOHEY J:	Mr Coles, was the only question before the Land and
Environment Court as to the status of the land, that
is, whether it was claimable land or not?

MR COLES: That is right, yes.

TOOHEY J:	Once that question was resolved in favour of the
appellant, the entitlement, presumably, was as of
right thereafter, was it?
MR COLES:	Yes, or, relevantly, the Land and Environment Court
would simply order the Minister to transfer the land.

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It would not be necessary for the Land and Environment

Court to take into account at all whether the land

was in the western division or any other division

except for the purposes of ascertaining its claimability.

It is of no concern to the Land and Environment Court that the Minister might satisfy the duty to transfer

by one form of tenure as opposed to another. That is

a matter that only commences to operate once the

order is made. If Your Honours please.

MASON CJ: Thank you, Mr Coles. Yes, Mr Masterman?

MR MASTERMAN: If the Court pleases. While we would concede

that the legislation itself is, as my friend says,

of social and public importance, we would submit

that no such question arises in this case. We would

also submit, of course, that the decision of the

Court of Appeal is plainly right. Further, this

area of law has been well traversed and was most

recently, I think, dealt with by this Court in

CARR V FINANCE CORPORATION, ..... a decision

in which Your Honour the Chief Justice was a party

and in which the relevant law and approach to amending

legislation or legislation which repeals provisions

is set out authoritatively.

The manner in which the matter has been argued

this morning differs from the way it was put

before the Court of Appeal, at least in the main

substance of the argument. The primary argument,

as His Honour Mr Justice Hope's judgment or the

Court of Appeal's judgment reflects, was debate as

to the definition of "claimable lands" and the

respective arguments that that definition which defines

"claimable Crown lands" in terms as they existed at
the time, and that is the definition of the importance

of the word "when" in the definition of "claimable

Crown lands". The facts were to be examined as at

the date of the claim and an argument, as the Court will see, was erected that because of the words in

· (c) for example:

arerot needed, nor likely to be needed,

for an essential public purpose -

that that involved an element of discretion on the

part of either the Minister or, on appeal, the Court. As I understand the argument, ·that is not pressed here

and is abandoned, and that the alternative argument

or the position as accepted by the Court of Appeal,

namely, that for the New South Wales LAND RIGHTS ACT

in contradistinction to the federal legislation,

there is no discretion at all, it is a fact-finding

exercise. So, at either of two events: at either

the stage a claim is made or, alternatively - and

this was the ratio of the Court of Appeal's decision -
as soon as an appeal is made to the Court of Appeal, one,

the claimant, has a vested right.

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The only matter that is called for on either of the two formulations is examination of a factual

position, it is proof of a right, rather like in the traditional cases coming before the courts, including

this Court, in the past on the effect of amendment or

repeal and replacement by new legislation had been

under the WORKERS COMPENSATION ACT and similar Acts

and at the date of injury to a worker or at the time of an application to the court, the worker

has an accrued right, even though he has not established

it in terms of court proceedings, which is unaffected

by any change in the legislation unless that

legislation very, very clearly shows an intention to
operate retrospectively. So that the nature of the

right here, as I understand my friend, not now in

dispute, is a right - the only matter in respect

at the date of the amendment of the legislation was

to proof of the facts as they existed at the date

of the claim. And as the workers compensation and

other cases show, the effect of making a claim or

making an appeal to the court is that the court

proceedings continue under the old Act. So the terms

of the statute are preserved for the purpose of

determining and concluding that particular claim

or that particular action. So that a worker injured while in the course of his employment has an accrued right subject to him proving the relevant facts

which is unaffected by later amendments.	So we say
the same applies here.

The only question, as we understand the way it

is put to this Court, is whether, in traditional

terms, the amendment can be regarded as purely

procedural as distinct from substantial. We would

submit, of course, that the amendment to subsection (9),

to use the words in CARR's case, deals with matters of

substantive right. The amendment made to

subsection (9) by the addition of words to (9) and the introduction of (9A) are not merely procedural matters. They are matters which deal very

intimately with the right in respect of which

litigation had been commenced, namely, a claim

that the lands in question were claimable lands, the

consequence of which being that the applicant was

entitled to a transfer in piece fee simple under

the legislation as it was, and we would submit that

the alteration of the legislation is far from being

procedural.

MASON CJ:	Mr Masterman, I do not think we need trouble you
further.

MR MASTERMAN: If the Court pleases.

MASON CJ:	Mr Coles?
MR COLES:	One matter if I may briefly pursue it, Your Honours.
When one speaks of the distinction between substantive

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and procedural matters, one does not, of course,

mean by the latter those matters which are purely

of an immaterial type of practice and procedure

nature. One can have procedural changes which

are themselves substantive in their operation or in

effect but perhaps the best way of describing what

is really meant, in my submission, by procedural

changes is perhaps to read to Your Honours the

passage referred to from the judgment of Sir Owen Dixon

in MAXWELL V MURPHY, 96 CLR at page 267.	I will
read Your Honours but one sentence:

But, given rights and liabilities fixed

by reference to the past facts, matters
or events, the law appointing or regulating
the manner in which they are to be enforced

or their enjoyment is to be secured by

judicial remedy is not within the application

of such a presumption.

That is the presumption that the amending law does

not app'ly to events that have already given rise to

accrued rights.

Your Honours, the present subsections,

both (9) and (9A), merely, in my submission, regulate

the procedure by which the Minister is to effect the transfer. The right is to the transfer; the matter of procedure is the method by which it is

transferred and the tenure that goes along with it.

We do not, of course, suggest, Your Honours, that

that is not of course, of itself, substantive in

its consequence but the mere fact that that is the
case, in my submission, does not alter the fact that
the change in the law is purely of a procedural one

and one applies it as one finds it at the time. If

Your Honours please.

MASON CJ:  Thank you, Mr Coles.

The Court is of opinion that the decision

of the Court of Appeal is not attended with

sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

MR MASTERMAN:  I would ask for an order for costs, if the Court

pleases.

MASON CJ: Yes. You do not oppose that, Mr Coles? The application

is refused with costs.

AT 12.03 PM THE MATTER WAS ADJOURNED SINE DIE

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