NSW Aboriginal Land Council & Anor v Minister Administering the Crown Lands Act

[2010] HCATrans 140

[2010] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S8 of 2010

B e t w e e n -

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

First Applicant

METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL

Second Applicant

and

MINISTER ADMINISTERING THE CROWN LANDS ACT

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2010, AT 9.38 AM

Copyright in the High Court of Australia

MR J.E.GRIFFITHS, SC:   If the Court pleases, I appear for the applicants with my learned friend, MS S.E. PRITCHARD.  (instructed by Chalk & Fitzgerald Lawyers)

MS C.E. ADAMSON, SC:   May it please the Court, I appear on behalf of the respondent with my learned friend, MR C.L. LENEHAN.  (instructed by Crown Solicitor – Sydney)

HAYNE J:   Yes, Mr Griffiths.

MR GRIFFITHS:   Thank you, your Honours.  Your Honours, this application raises some important questions about two discrete matters.  The first is the scope of judicial review for jurisdictional error and the second is the scope of a statutory right of appeal from the Land and Environment Court to the Court of Appeal under section 57 of the Land and Environment Court Act in this State.

We have identified, your Honours, in our summary of argument, five special leave questions.  The first two relate to the first topic that I just described.  Your Honours will find that at page 158 of the application book.  The first two questions relating to 1(a) and (b) concern the first topic I just described, jurisdictional error and judicial review and (c), (d) and (e) relate to the scope of the statutory appeal under section 57. 

FRENCH CJ:   Those matters go to characterisation of particular issues as questions of fact or law.

MR GRIFFITHS:   That is correct, your Honour.  It is significant to note at the outset that the Court of Appeal divided, of course, two to one with, in our respectful submission, a strong dissent from Justice Basten.

HAYNE J:   Now, is the hinge about which the first two points turn the proposition that the relevant Minister cannot take account of the decision of the particular official?

MR GRIFFITHS:   Not so much that he cannot take account of the particular official but that the authority of the particular official to make a decision on behalf of the Executive Government concerning the need or likely need of the land for nature conservation was a matter which the Minister needed specifically to address rather than be advised that it was open to him to accept the officer’s own subjective assertion of his authority to make that decision on behalf of the Executive Government.

HAYNE J:   Does this aspect of the case turn upon a view of government in which there are little separate silos in which, in particular, the Minister can take account of the view of the particular official if, but only if, that official is within a silo at which stands the Minister as its head?

MR GRIFFITHS:   Up to a point, yes, your Honour, up to a point, yes, because as your Honour would appreciate and underlying your Honour’s question is the fact that the relevant officer was the chief executive of the statutory authority which fell into a portfolio of responsibility other than the portfolio responsibility of the Minister making the decision to issue the conclusive certificate. 

HAYNE J:   Now, if you cannot make good that approach to an understanding of the way in which the Act intersects with the processes of government, where stands the application?

MR GRIFFITHS:   It still stands good on the other two aspects, the first being the misconstruction, as we would put it, of section 36(8) and, in particular, the meaning of the phrase “need” or “likely to be needed” and the paragraph 7.12 of the briefing note, your Honour, whereby the notion of land being used was equated with the notion of “need” or “likely need”.  That stands separately and apart from the matter that your Honour just put to me.  Secondly, your Honour, standing separately and apart from that matter is the other mandatory relevant consideration which the primary judge held had not been taken into account and with which Justice Basten agreed was both a mandatory relevant consideration and had not been taken into account, namely the relevant statutory regimes for reservation or dedication of land for nature conservation purposes.

FRENCH CJ:   Is it the hoops that had to be gone through before that could happen?

MR GRIFFITHS:   Yes.

FRENCH CJ:   But so far as the other points are concerned they are all to be found in the phrase “needed or likely to be needed”, are they not, which is really a matter of statutory construction in the scope of the ministerial judgment?

MR GRIFFITHS:   It is certainly a matter of statutory construction.  We necessarily accept that.  We would add, however, that it is a statute which has a particular significance, of course, in this State, not only for the parties to these proceedings but it has a particular significance or importance to the public generally relating as it does to the claimability of Crown or public land.

HAYNE J:   For my own part, I need no persuasion that this is a matter of high public moment, but does your argument, if accepted, lead to the conclusion that the Minister cannot respond to - I attempt to find a neutral phrase - a statement in another ministry at high level.  “Look, we need this land for - here insert ‘Government use’”.  Is that not where the argument takes you to?

MR GRIFFITHS:   Your Honour, it is a matter that your Honour raises that is difficult for me to answer without going to the particular facts and, in particular, in response to the matter that your Honour raises with me is the very pertinent consideration that post the date of claim but in the course of consideration being given to whether or not the land was claimable land and the grants should be granted, the very Minister who did have ministerial responsibility for Landcom and Mr O’Toole, Mr Refshauge, specifically said in response to another ministerial colleague that there was nothing that had been decided - I am paraphrasing - prior to the date of claim or as at the date of the claim which would conclude the question whether or not a decision had been taken by Executive Government that the land was needed or likely to be needed.

FRENCH CJ:   That precluded judgment that the land is likely to be needed?

MR GRIFFITHS:   No, it does not, your Honour.  We accept that it does not preclude that but, of course, the conclusive certificates in this case address both need and also likely need. 

FRENCH CJ:   Yes.

HAYNE J:   Forgive me for just picking away at this, Mr Griffiths.

MR GRIFFITHS:   No, no, please, your Honour.  It assists me.  In the short time it assists me, your Honour.

HAYNE J:   At pages 95, 96 paragraph 66, we find do we not an important element of Justice Basten’s reasoning?

MR GRIFFITHS:   Yes.

HAYNE J:   What struck me was the last sentence of the paragraph on page 96:

It is therefore unlikely that Parliament expected the Crown Lands Minister to exercise his or her statutory powers under the Lands Rights Act through the agency of -

It is that idea which provoked the proposition I first put to you about a silo view of government which, if I may say so, seems to me to be a view that has difficulty.

MR GRIFFITHS:   Yes.  I understand what your Honour puts to me and would respond by saying that obviously one needs to read Justice Basten’s reasons as a whole.  That is one sentence that stands there but there was more to what his Honour was saying about this issue of…..the proposition that is contained within that final sentence.

Your Honours, perhaps I do not need to tell you more about the public importance only to add this, that insofar as the second topic is concerned, section 57 question of law as opposed to finding of fact, that is a matter obviously of importance not only to the parties to these proceedings but also of some importance, too, to the Land and Environment Court itself and its amenability to appellate review by the Court of Appeal under section 57 noting, your Honours, that the Land and Environment Court has exclusive jurisdiction to deal with appeals under section 36(6) of the Aboriginal Land Rights Act.

No appeal can be taken to the Supreme Court from such a decision, it is a statutory right of appeal to that body and that body, as your Honours might appreciate in sitting on Aboriginal land claims, involves not just a judge of that court but invariably a commissioner who normally, though not always, is a person with a particular interest in indigenous affairs. 

Your Honours, as far as the first topic is concerned, the jurisdictional error point, I do not believe I need to say anything further about the first mandatory relevant consideration in view of the exchange that I have just had with Justice Hayne.  I should say something about the other two elements of the jurisdictional error.  The first is that in our respectful submission the matter of statutory construction is an important one about whether or not land used can always be equated with the notion of land being needed or likely to be needed.

FRENCH CJ:   That concept of needed is not some sort of objective reality out there, is it?  It is an assessment the Minister makes on a variety of legitimate bases.

MR GRIFFITHS:   That is the way that we would put it, your Honour.  The mere fact that land might happen to be being used for nature conservation or that a decision has been made that it be used for nature conservation as at the date of claim, recalling always that that is the pivotal point, does not, in our respectful submission, necessarily equate with the land being needed or likely to be needed, having regard especially to the sorts of assessment that needs to be required for that purpose.

The majority, both Justice Hodgson and Justice Macfarlan, took the view, in our respectful submission, erroneously that the two could always be equated.  Now, Justice Basten, as your Honours would appreciate, did not need, in fact, to determine that issue, having regard to his findings on the other matters to which I have made reference, but your Honours will see in paragraph 87 of Justice Basten’s judgment at page 103 of the application book in obiter dictum his Honour expresses clearly what are grave doubts about the correctness of that equivalence, if I can put it that way, drawn by the majority judges. 

His Honour makes reference to a decision of Justice Jagot when she was a member of the Land and Environment Court in which she, too, had cast doubt on whether the concepts of “used” and “needed or likely to be needed” are synonymous.  That is a matter, in our respectful submission, which itself warrants consideration by this Court having regard to the division of judicial opinion on it.

There are other aspects of the case relating to jurisdictional error which, in our respectful submission, also warrant grant of special leave.  They include, and I say this with the greatest of respect to Justice Hodgson, his, what we would describe as unorthodox description of what amounts to a jurisdictional error.  We make no complaint about what his Honour says at page 72 of the application book in paragraphs 8 and 9.

Paragraph 8 is simply a quote from this Court’s decision in the Yusuf Case and we have no complaint about 8 and 9 but paragraphs 10 and 12, with all due respect to Justice Hodgson, seem to introduce considerations as to what constitutes a jurisdictional error which do not sit particularly comfortably with orthodox doctrine in this field but recognising as we do, of course, that the notion of jurisdictional error is one which is very difficult of precise definition and one which has, of course, been the subject of a number of recent important decisions by this Court, not only in the Kirk Case but in a decision handed down only yesterday as well in a migration matter.

It is very difficult, in our respectful submission, to understand how it is that the notion of jurisdictional error can entertain the sorts of matters that his Honour describes in paragraph 10, not of course the natural justice requirement but this notion of conscientiously addressing the question whether the land in question was at the time needed or likely to be needed. 

In our respectful submission, Justice Hodgson’s understanding and analysis of what constitutes jurisdictional error seems to have impacted upon his rejection of the primary judge’s finding that two, using a shorthand expression, mandatory relevant considerations had not been taken into account - the first one, the one that I have discussed with Justice Hayne; the second one relating to the relevant legislative regimes concerning reservation and dedication of nature conservation land in this State.

Justice Macfarlan’s judgment comes at the matter from a different angle but, with respect, on a proper reading of it, it does not seem to be a judgment that is on all fours with Justice Hodgson insofar as the determination of whether or not certain matters were mandatory relevant considerations or not but rather his Honour dealt with this aspect of the appeal by reference to the question whether or not he considered that the mandatory relevant considerations in question, assuming that they were mandatory relevant considerations had, in fact, been taken into account by the Minister.

In our respectful submission that constituted a transgression, with respect, on the proper scope of a statutory right of appeal on a question of law.  Whether or not a matter is or is not a mandatory relevant consideration, having regard to orthodox Peko-Wallsend considerations where you are dealing with implied considerations having to be divined from the subject matter, scope or purpose of the legislation is undoubtedly a question of law.

The question, though, whether or not something which is a mandatory relevant consideration has or has not been taken into account is a question of fact.  It is a question for the trial judge to determine, not for a court of appeal on a statutory right of appeal of the sort conferred by section 57 to decide that question of fact.  It is evident from Justice Macfarlan’s judgment, in our respectful submission, that he has approached the matter on that factual basis and stepped beyond the legitimate ambit as we would put it of ‑ ‑ ‑

FRENCH CJ:   Now, can you take us to a critical passage in his judgment which evidences that?

MR GRIFFITHS:   Yes, your Honour.  If your Honour sees paragraph 152, for example, at about line 32, 131 of the application book:

He cannot have been unaware of the statutory scheme . . . it defies common sense to suggest that the Minister was not aware -

So in other words effectively holding that he must have taken these matters into account and then, paragraph 153, your Honours:

no inference can be drawn that the Minister failed ‑ ‑ ‑

FRENCH CJ:   A proposition that a contrary conclusion is not open might be a proposition of law, might it not?

MR GRIFFITHS:   It is an unusual concept, I have to say, for a ministerial adviser to use language of that sort in an advice to a minister as opposed to a court of law.

FRENCH CJ:   I am just talking about the judge’s approach.  Yes.

MR GRIFFITHS:   It is an unusual use of terminology.  It is open to the Minister.  It is open to a judge to make certain findings.  It is unusual.  That may well be driven by the fact, your Honours, of the context in which this question arose.  It is a briefing note.  Whether or not a conclusive certificate should be issued in the course of proceedings which, of course, had been on foot for many months and were about to be heard and, indeed, one of the conclusive certificates resulted in the hearing having to be adjourned.  Then, if your Honours go to paragraph 155, perhaps an even clearer example:

I do not consider that it has been established that there was any failure to consider -

and then paragraph 159 is another example:

The fifth matter referred to . . . was whether Mr O’Toole had authority . . . This complaint cannot be sustained as the Briefing Note specifically brought to the Minister’s mind -

et cetera, again relating to the question of fact rather than to the question of law.  For all those reasons, your Honours, we would respectfully submit that the matter is one which warrants the intervention of this Court in order to provide a greater certainty to an area of law which comes up frequently and, as we mentioned in our summary of argument, in circumstances where there would appear, based on forensic experience, at least, to be a growing tendency to use these conclusive certificates in the context of these sorts of proceedings.  If the Court pleases.

FRENCH CJ:   Thank you Mr Griffiths.  Yes, Ms Adamson.

MS ADAMSON:   Your Honours, there are two fundamental reasons why special leave should not be granted in this case.  The first is that the applicants’ argument as to mandatory relevant considerations is substantially a question of statutory construction which is governed by the text of the Act and the principles outlined by this Court in Peko-Wallsend. 

What occurred in the instant case is that the trial judge overreached his jurisdiction in the sense that the question that arose by reference to the certificates issued by the Minister under section 36(8) of the Act was were the certificates valid certificates under that subsection or were they accompanied by or infected by jurisdictional error which meant that they were not valid certificates. 

But what the trial judge purported to do was to determine whether the Minister had given adequate or sufficient consideration to certain considerations which had been identified by the applicant as mandatory relevant considerations and the judgment at first instance is replete with considerations which have regard to merits review as distinct from judicial review or a determination of whether the certificates were intra vires section 36(8) or ultra vires 36(8). 

That, in part, explains what may on the face of it appear to be an unorthodox approach by Justice Macfarlan in the court below in that Justice Macfarlan went through the identified mandatory relevant considerations and expressed a view, in part, on whether they had in fact been considered by the Minister.  That discussion ought be seen against the context of the court below which simply decided whether the consideration was adequate or not.

It is in that context that Justice MacFarlan expressed that view and although it is apparently a question of fact whether the Minister considered those matters, it can be taken from the decision of the trial judge that the Minister had, in fact, considered those matters although the trial judge found that the consideration was not adequate, a finding which, in our respectful submission, his Honour was not entitled to make. 

The second aspect of our learned friend’s argument depends, in our respectful submission, on upsetting well-established Court of Appeal authorities, namely Deerubbin (No 1) and Maroota which have been referred to in the summary of argument.  The decision of the Court of Appeal in Deerubbin established that the word “likely” in section 36 meant real and not remote chance and that in Maroota “needed” meant required or wanted by the Executive Government.

It follows from those decisions, in our respectful submission, that a decision as to use of land is sufficient to indicate need and a real and not remote chance of a decision as to use is sufficient to indicate likely need.  In our respectful submission, a pedantic consideration of into which whose Minister’s portfolio Mr O’Toole falls is far from what Parliament contemplated in enacting section 36.  Mr O’Toole, as the managing director of Landcom, made a decision to do with the use of the land.

True, it is, he was not in a position unilaterally to make that land international park or to ensure that it was reserved as bushland, reserved under the Crown Lands Act but the fact that he made a decision with respect to the land prior to the date of the claim must, in our respectful submission, have been a relevant matter.

Now, Justice Basten, the judge on whom our learned friend relies for the alternate view to the majority’s view, found that it was an irrelevant consideration and accordingly the Minister, having taken into account Mr O’Toole’s decision and his authority as the Minister can be taken to have done, those matters having been addressed in the briefing note which was given to the Minister to equip him to make the decision, we say that matter was a relevant matter.  It could not possibly be an irrelevant matter having regard to the part Mr O’Toole played as managing director of Landcom.

So in light of the authorities of the Court of Appeal in Maroota and Deerubbin we would say that Mr O’Toole was part of the trajectory of the decision to do with the land and to do with use of the land and, therefore, even if his authority was not sufficient to enable need to be established, it was more than ample to establish likely need in light of the authorities of the Court of Appeal in Maroota  and Deerubbin, the correctness of which was not sought to be reargued by the applicants on the appeal.

HAYNE J:   Does the interposition of a statutory corporation, Landcom, affect the analysis that has to be made?

MS ADAMSON:   We would submit, no, because even though the statutory corporation has a separate legal personality from the Crown, the statutory corporation still falls within the responsibility of a minister of the Crown and as the managing director of Landcom, Mr O’Toole had access, as it were, to the Treasurer to make a decision about that.  So Landcom was, as it were, set up by the Parliament with a view to making decisions about what parts of New South Wales would be developed for housing use.

In our respectful submission, the Carltona principle would apply for statutory corporations.  Separate legal personality does not create a situation where a decision via statutory corporation is not a relevant decision of the Executive Government for the purposes of establishing need or likely need within the meaning of section 36 of the Act.  The question of mandatory relevant consideration ‑ ‑ ‑

HAYNE J:   Do any of the Court of Appeal judgments to which you have referred examine the significance of interjection of a statutory corporation?  They are all, are they not - I may be wrong - one arm of government as ordinarily understood, without interjection of some statutory corporation?

MS ADAMSON:   Yes, yes, I think that is right because even in the case of, for example, the National Parks and Wildlife Service, that was, I think, part of a minister’s portfolio and therefore the analogy would not be the same ‑ ‑ ‑

HAYNE J:   Simply part of the Executive Government of the State, I think, is it not?

MS ADAMSON:   Yes, that is right.

HAYNE J:   So what is the relationship between Landcom and the government as would have been understood, say, circa 1950?

MS ADAMSON:   Well, I think in the applicant’s summary of argument at page 159 of the application book, there is excerpted helpfully from the Housing Act the establishment of Landcom and the Housing Act provided that it was:

subject to the direction and control of the Minister.

So, in our respectful submission ‑ ‑ ‑

FRENCH CJ:   The Crown Corporation?

MS ADAMSON:   Yes.  That makes it relevantly part of the Executive and, therefore, a decision by Landcom would be taken to be a decision of the Executive.  Also, the question of Mr O’Toole’s authority is relevant in another respect in that Mr O’Toole as managing director of Landcom had made a decision with respect to these lands.  The fact that he personally, or Landcom particularly, did not have authority to deal with the land is, in our respectful submission, beside the point because he had the authority to make a decision with respect to the use of the land and in light of the authorities of the Court of Appeal to which we have referred, a decision as to use of the land is sufficient to establish need ‑ ‑ ‑

HAYNE J:   Now, that proposition, as I understand it, is a proposition that says what he decided is just the same as if the Director of Education for the State had said “I want that land for a new primary school”.

MS ADAMSON:   Yes, relevantly because of that provision in the Housing Act.  Even if it were taken that his decision as to - our primary argument is his decision as to use is sufficient to establish need and we refer to Maroota or rely on Maroota for that proposition.  But in any event, it surely would be sufficient to establish likely need in that there would be a real and not remote chance that a decision would be made by the Executive

Government that the land is required or wanted for an essential public purpose, namely the purpose of nature conservation.

FRENCH CJ:   You see “likely” being used there not in the sense of more probable than not but any non-trivial likelihood or probability?

MS ADAMSON:   It has been established by the Court of Appeal in Deerubbin (No 1) that “likely” in that context means real and not remote chance as distinct from more probably than not and the correctness of that was not sought to be reargued by the applicants in this case, nor to my knowledge has the correctness ever sought to be reargued.  So that is the sense in which likely is construed by reference to what the Court of Appeal has said.  Those are our submissions, may it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Griffiths.

MR GRIFFITHS:   Yes, just very briefly if I may.  As far as the submission that was made concerning what is generally known as the Maroota Case which is Deerubbin (No 2), that is the decision of the Court of Appeal which is among the materials which we have provided to the Court, the relevant paragraph from the Chief Justice’s judgment, your Honours will find at paragraph 50 on page 673.  It is the second of the cases, it is among the materials.  Do your Honours have that?  Your Honours see in paragraph 50 the context in which this matter arose was in the context of whether or not, accepting that the word “needed” means no more than required or wanted, and I pause to say, does not mean “used”, it means required or wanted, and then his Honour went on to say:

The distinction between what was “needed” and what was “likely to be needed” turned, in the appellant’s submission –

that was made on behalf of the now Commonwealth Solicitor‑General –

on whether or not a decision concerning the use of the land had in fact been made.  This is an acceptable distinction.

Now, the use of the word “use” in that context was specifically for the purposes of differentiating between what “need” is as opposed to “likely to be needed”.  It does not stand, in our respectful submission, the proposition that the word “used” can always be equated in every circumstance for “need” or “likely to be needed”.  That is at the heart of our statutory construction point.

The only other thing we wish to say by way of reply relates to Landcom.  Ms Adamson quite correctly draws attention to footnote 1 of our summary of argument.  It goes without saying, of course, that the power of

ministerial direction referred to there is a power of ministerial direction vested in the then Minister for Planning, not the Minister for Crown Lands.

Of course, not only did the Minister for Crown Lands have no portfolio responsibility for the operations of Landcom, but equally, on the evidence, Landcom was involved in this exercise as agent for the Treasury and the evidence referred to by Justice Basten and also by the trial judge was that Treasury were saying to Mr O’Toole, “You had no authority to make any decision on the use of that land, acting as our agent”.  That is all that we wish to say by way of reply.

FRENCH CJ:   Thank you, Mr Griffiths.

In our opinion, this application turns upon questions of statutory construction and the characterisation of matters as question of fact or law.  It does not raise a question of sufficient general importance to warrant the grant of special leave.  Special leave will be refused.

AT 10.14 AM THE MATTER WAS CONCLUDED