R v Toohey; ex parte Northern Land Council

[1981] HCA 74

HIGH COURT OF AUSTRALIA

Gibbs C.J., Stephen, Mason, Murphy, Aickin and Wilson JJ.

THE QUEEN v. TOOHEY; Ex parte NORTHERN LAND COUNCIL

(1981) 151 CLR 170

24 December 1981

Crown—Northern Territory

Crown—Regulations—Validity—Whether within power—Whether examinable by Court—Purpose—Planning Act 1979 (N.T.), s. 4(1)—Planning Regulations (N.T.), reg. 5, Sch. 3. Northern Territory—Administrator—Whether representative of Crown in Territory—Northern Territory (Self-Government) Act 1978 (Cth), ss. 31, 32, 51.

Decisions

1981, December. 24.
The following written judgments were delivered: -
GIBBS C.J. This is an application for a writ of certiorari to quash a decision made on 20 December 1979 by Toohey J., sitting as an Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) as amended ("the Land Rights Act") to hear a matter known as the Kenbi Land Claim, and for a writ of mandamus directing Toohey J. to exercise his jurisdiction under the Land Rights Act and hear the claim. An application for prohibition was also made, but not strongly pressed. Kenbi is the Aboriginal name for the Cox Peninsula in the Northern Territory. An application was, on 20 March 1979, made to the Commissioner by the prosecutor, the Northern Land Council, on behalf of Aboriginals claiming to have a traditional land claim to a substantial area of the Cox Peninsula and to islands and reefs lying off the coast of the peninsula. The application was made under s. 50(1)(a) of the Land Rights Act which provides as follows:
"(1) The functions of the Commissioner are -
(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals - (i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and (ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12." By s. 3(1), "unalienated Crown land" is defined so as not to include land in a town, and "town" is defined as follows:

"'town' has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town."

On 20 December 1979 the Commissioner held that a large part of the land the subject of the claim was land in a town within the meaning of the Land Rights Act, and was not available to be claimed as unalienated Crown land under s. 50(1)(a). The land which the Commissioner held to be land in a town was specified in schedule 3 to the Planning Regulations made by the Administrator of the Northern Territory under the Planning Act 1979 (N.T.). By s. 4(1) of that Act, "town" means, inter alia, "(c) land specified by the regulations to be an area which is to be treated as a town". Regulation 5 of the Planning Regulations provides as follows:

"For the purposes of section 4 of the Act, the several areas of land specified in Schedule 3 are specified to be areas which are to be treated as towns."

In Sch. 3, under the heading "Part 1 - Darwin", there is described a large tract of land extending out from Darwin in most directions; the tract contains an area of 4,350 square kilometres, and includes most of the land in the Cox Peninsula the subject of the claim, as well as much other land. The most important question in the case is whether, and if so on what grounds, the validity of this regulation is open to challenge. (at p175)

2. Before turning to this and to the other questions raised in the case, it is necessary to refer to the facts. Darwin is a town whose population is about 50,000. It occupies an area of about 142 square kilometres. The Cox Peninsula is separated from Darwin by an arm of the sea. Although the nearest point of the peninsula is only about 6 kilometres from Darwin by sea, access by road is much longer and more difficult. Much of the peninsula is vacant land. Its area is about 800 square kilometres. The Northern Land Council is established as a body corporate under s. 21 of the Land Rights Act in respect of an area which includes the subject land. Its functions include that of assisting Aboriginals claiming to have a traditional land claim to an area of land to pursue the claim (s. 23(1)(f) of the Land Rights Act). However, a body known as the Northern Land Council, which was in existence before the Act was passed, on 23 September 1976 wrote to the Interim Aboriginal Land Commissioner enclosing a map which showed the areas of land on the Cox Peninsula and nearby islands claimed by Aboriginals. Later, on 26 September 1977 and 14 March 1978 the Northern Land Council wrote to the Lands Branch of the Department of the Northern Territory indicating that claims were made to vacant land on the Cox Peninsula, and asking that this land be not alienated until the matter was determined by the Commissioner. The first application under s. 50(1)(a) in respect of any of the subject land was lodged with the Commissioner on 29 June 1978 in respect of Dum-In-Mirrie Island, one of the islands the subject of the present claim. When, on 20 March 1979, the present application was made, the two applications were consolidated. (at p176)

3. In the meantime, on 22 December 1978, Town Planning Regulations were made by the Administrator under the Town Planning Act 1964 (N.T.), as amended. The regulations were gazetted on 29 December 1978. By s. 5(b) of that Act it was provided that the regulations may prescribe that a specified area of land - "(b) being land adjacent to a town, shall be subject to the provisions of this Act, but not including the provisions of sub-section (4) or (5) of section eight or sub-section (2) of section eleven of this Act, as if it were part of that town". The Town Planning Regulations provided (inter alia) that the area of land specified in Sch. 1, being adjacent to the town of Darwin, was prescribed under s. 5(b) of that Act to be subject to the provisions of the Act (s. 8(4) and (5) and s. 11(2) excepted) as if it were a part of that town. The area specified comprised the 4,350 square kilometres subsequently described in Sch. 3 to the Planning Regulations. (at p176)

4. The making of the Town Planning Regulations raised the question whether the land the subject of the application was "unalienated Crown land", and the Commissioner fixed a date for the hearing of argument on that question. Counsel for the Northern Land Council then tendered an affidavit by Mr. Heathwood, a town planner, in which Mr. Heathwood expressed the opinion that land on the Cox Peninsula was not reasonably required to be set aside for town planning purposes as land adjacent to Darwin. During the hearing the Commissioner was asked by the applicants to make an order, under s. 54 of the Land Rights Act, requiring the production of certain documents. The Commissioner gave judgment on 24 July 1979. He held that the motives of the Administrator in making the regulation could not be called in question, and that the affidavit was inadmissible. He declined to order the production of any documents except those relevant to the question whether the area prescribed is adjacent to Darwin. (at p176)

5. The Planning Act, which was assented to on 14 May 1979, came into operation on 3 August 1979. It repealed the Town Planning Act. The Planning Regulations were made on 31 July 1979; they also came into effect on 3 August 1979. In the light of this change in the law, the Commissioner heard further argument, and on 2 November 1979 he published his judgment in respect of that argument. He adhered to the view, which he had expressed on 24 July 1979, that the Administrator is the representative of the Crown, that bad faith may not be imputed to him, and that it is therefore not appropriate to inquire into the motives with which he makes a regulation. However he said that if a particular purpose is made an express condition of exercising a power, and the purpose is not pursued, the power is not validly exercised. He concluded that the efficacy of the Planning Regulations "depends upon the land specified having some connection with a town planning purpose", and that the onus of proving that the exercise of power was not reasonably capable of fulfilling a town planning purpose lay on the claimants. He then heard evidence, and held, on 20 December 1979, that it had not been shown that the land specified in the Planning Regulations is not reasonably capable of having some connexion with or fulfilling a town planning purpose. He accordingly held that the land is land in a town and not unalienated Crown land. (at p177)

6. For the purpose of the first submission made on behalf of the prosecutor counsel accepted that the land has become a town within the meaning of the Land Rights Act, and is therefore no longer unalienated Crown land. The submission was that the Commissioner may and should exercise the function conferred on him by s. 50(1)(a) if the land in question is unalienated Crown land at the time when a claim to it is made, and that the fact that the land has subsequently ceased to be unalienated Crown land is irrelevant to the question whether the Commissioner should proceed to discharge his function. This submission faces the initial difficulty that the Town Planning Regulations, made on 22 December 1978, i.e., before the application was made to the Commissioner of 20 March 1979, had prescribed that an area which includes most of the land in question should be subject to the provisions of the Town Planning Act as if it were part of a town. The prosecutor sought to meet this difficulty in two ways. First, it was said that the land had been claimed by the letter written to the Interim Aboriginal Land Commissioner on 23 September 1976, or perhaps even earlier, or alternatively by the letters written to the Lands Branch of the Department of the Northern Territory on 26 September 1977 and 14 March 1978. However, it is clear that an application to which s. 50(1)(a) refers is an application made to the Commissioner under the Land Rights Act, and that a claim to the land made before that Act was passed, or made to some authority other than the Commissioner, does not answer that description. It cannot possibly be relevant that the land was unalienated Crown land at an earlier date; if it is not unalienated Crown land, or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals, at the time the application is made the Commissioner has no function to exercise. Secondly, it was said on behalf of the prosecutor that even if the land had become a town by virtue of the provisions of the Town Planning Act and the Town Planning Regulations, that Act and those regulations were repealed on 3 August 1979 - after the application had been made to the Commissioner - and the fact that the land thereupon became a town as a result of the enactment of the Planning Act 1979 and the making of the Planning Regulations only means that the land underwent a subsequent change of status, and that should be disregarded. However, that Planning Act and the Planning Regulations came into force at the very instant that the Town Planning Act and the Town Planning Regulations ceased to operate, so that, assuming the validity and applicability of both sets of regulations to the land in question, there was never any moment after 29 December 1978 at which that land was not a town. It follows that even if the major premise in the prosecutor's argument is correct, the submission that the land was unalienated Crown land at the date when the application was made to the Commissioner cannot succeed if the regulations are valid. (at p178)

7. Since I take this view, I find it unnecessary finally to decide whether the major premise in the prosecutor's argument is correct. The question is not free from difficulty. The function described in s. 50(1)(a) is cast on the Commissioner "on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". These words suggest that if the land answers the requisite description at the date of the application the Commissioner may proceed to inquire and report notwithstanding that subsequently the land ceases to answer that description. That view derives possible support from s. 50(3)(d) which requires the Commissioner, in making his report, to comment on the following matter: "where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned." Although this provision may refer to alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals, it may equally refer to land which has been alienated to persons other than Aboriginals. It is true that there is nothing to prevent the alienation of land, or any other alteration in the status of land, after an application in respect of that land has been made to the Commissioner. However, the inquiry and report of the Commissioner will not necessarily be a futility even if land which at the date of the application was unalienated Crown land has since become land that is part of a town. Section 11(1) provides as follows:
"Where -
(a) the Commissioner recommends to the Minister in a report made to him under paragraph 50(1)(a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and (b) the Minister is satisfied that the land, or any part of the land, should be so granted, the Minister shall - (c) establish a Land Trust under section 4 to hold that land, or that part of that land, for the benefit of such Aboriginals; (d) where that land, or that part of that land, is, or includes, alienated Crown land, ensure that the estates and interests in that alienated Crown land of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and (e) after any acquisition referred to in paragraph (d) has been effected, recommend to the Governor-General that a grant of an estate in fee simple in that land, or that part of that land, be made to that Land Trust." Although, by s. 3(1), "alienated Crown land", like, "unalienated Crown land", does not include land in a town, the definition of "Crown land" in that sub-section does not contain any such exclusion. It would therefore appear that the Minister has power, if the necessary conditions precedent are satisfied, to recommend the grant of an estate in fee simple in Crown land that is land in a town, provided that it was unalienated Crown land at the time when the application was made to the Commissioner. Paragraph (d) of s. 11(1) refers to alienated Crown land; the estates and interests in such land might be held by Aboriginals, or by persons who are not Aboriginals. Although, as I have said, there is nothing to stop dealings with the land after an application has been made, it may nevertheless have been intended by the Parliament that once the Commissioner had embarked upon his function his inquiry should not be frustrated by a subsequent alienation of the land, or by the making of regulations by which the land was to be treated as a town. However, as I have said, I need not express a concluded opinion on this question since there was no change in the status of the land after the date of the application. (at p180)

8. Then it was submitted on behalf of the prosecutor that the Planning Act is not "the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns" within the meaning of those words in the definition of "town" in the Land Rights Act. The Planning Act set up a Northern Territory Planning Authority with power, inter alia, after following a prescribed procedure, to submit to the Minister a draft planning instrument permitting or controlling the use of land and the carrying out of any development on or in relation to land (ss. 34 to 59). If the Minister accepts the draft, the Administrator may make a planning instrument in relation to the land (s. 61). It is an offence to use or develop land otherwise than in accordance with any planning instrument (s. 63). The Act contains other provisions relating to approval of subdivisions and development control. The provisions of the Act are not restricted to towns, and the Act makes no special provision in relation to the planning or development of towns, or to the use of land in or near towns. It relates to the planning and developing of all land, and the use of all land, and this obviously includes land in towns. It seems to me therefore that the Planning Act does relate to the planning and developing of towns and the use of land in or near towns although it relates to the use of other land as well. No other law in the Northern Territory now in force that relates to the planning and developing of towns and the use of land in or near towns was brought to our attention. It follows that the Planning Act is "the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns" within the meaning of those words in the definition of "town", and that if reg. 5 of the Planning Regulations is valid the area of land specified in Sch. 3 to the regulations is an area that by virtue of those regulations is to be treated as a town. In other words, if reg. 5 is valid, the land in question is land in a town within the meaning of the Land Rights Act. (at p180)

9. The next submission on behalf of the prosecutor was that reg. 5 of the Planning Regulations is invalid. If that is so, the land in question will no longer be land in a town, and will therefore be unalienated Crown land within the meaning of s. 50(1)(a). Even if it be right to say that the Commissioner is bound to discharge his function in respect of land which was unalienated Crown land at the time the application was made to him, although the land ceases to answer that description at some later date, it does not follow that the Commissioner may not hold an inquiry and make a report when land which, at the time when the application was first made, was not unalienated Crown land, becomes unalienated Crown land at a later date. Section 50(1)(a) requires no particular kind of application. In the present case, if the land in question had become unalienated Crown land on 3 August 1979 because reg. 5 of the Planning Regulations was invalid, there would after that date have been a subsisting application of the kind referred to in s. 50(1)(a). In other words if the change in status of the land after the application is made has the result that the land comes within the description of s. 50(1)(a) and the application remains on foot, the Commissioner should proceed under s. 50(1)(a). (at p181)

10. The submission that the regulation is invalid was put in two ways. It was first said that reg. 5 was purposeless - that to specify that an area should be treated as a town entailed no consequence under the Planning Act. At the time when the regulations were made, the only reference to "town" in that Act was to be found in the definitions in s. 4(1) and in the transitional provisions in Pt IX where the word appears in the expressions "town planning scheme" and "town plan", which refer to town planning schemes and town plans under the repealed Act. Paragraph (c) of the definition of "town", which I have already set out, shows that the Act contemplated that the regulations might specify an area to be treated as a town. By s. 165(1) of the Planning Act, the Administrator is given power to make regulations, not inconsistent with the Act, "prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act"; then follows a reference to some particular matters which have no bearing on the present case. Regulation 5 plainly enough prescribes a matter permitted by the Act to be prescribed, but it was submitted that the words "for carrying out or giving effect to this Act" govern the words "required or permitted by this Act to be prescribed" as well as the words "or necessary or convenient to be prescribed", and that reg. 5 does not prescribe any matter which is permitted to be prescribed for carrying out or giving effect to the Act. The words from s. 165(1) which are quoted above appear in the same or in similar form in many statutes. Sometimes they appear with a comma after "prescribed" where it appears for the second time, and that makes the construction of the provision a little more difficult. Where, as here, no comma appears in that position, there is no reason for regarding the phrase "for carrying out or giving effect to this Act" as qualifying "required or permitted by this Act to be prescribed". If the Act requires or permits a matter to be prescribed, it would seem superfluous to consider whether that matter is prescribed for carrying out or giving effect to the Act. But, assuming that the prosecutor's argument as to the construction of s. 165(1) is correct, it does not follow that reg. 5 does not prescribe any matter permitted to be prescribed for carrying out or giving effect to the Act. By the regulation, par. (c) of the definition of "town" is made actually, rather than potentially, effective to include particular land within the definition. In s. 4(1) of the Planning Act, "planning instrument" is defined to mean a regional plan or a town plan made under s. 61, and "town plan" means "a planning instrument that applies, either wholly or substantially, to land which is in a municipality or a town". Although neither s. 61, nor any of the other sections that deal with the making of a planning instrument, draws any distinction between a regional plan or a town plan, it is obvious enough that there may be very significant differences between planning instruments in respect of a region and those in respect of a town. It may have been regarded by the legislature as convenient for administrative purposes to know whether a regional plan or a town plan was in contemplation when a draft planning instrument was produced, and for this reason to know what was a town, even though the Act did not expressly state the consequence of declaring that an area should be treated as a town. By an amendment made to the Act which took effect on 14 March 1980, there was inserted a section which does use the word "town", and which attaches consequences to the fact that land is "within a town" - s. 60A, which deals with plans for small towns. If the regulation had been made after that date its validity on this ground could not have been questioned. However, even before that amendment was made reg. 5 was in my opinion within the powers conferred on the Administrator by s. 165(1), being a regulation which prescribed a matter permitted to be prescribed and (if it matters) prescribed for giving effect to par. (c) of the definition of "town". (at p182)

11. The final submission made on behalf of the prosecutor raises important issues. It was submitted that the Commissioner was wrong in holding that the Administrator was the representative of the Crown in the Northern Territory, and that it was not permissible to inquire into the reason why the Administrator made the regulations or to impute bad faith to him. It was submitted that the Commissioner should have inquired into the question whether reg. 5 of the Planning Regulations was made for the purpose of defeating the claim by the Aboriginals to the land described in Sch. 3, or of converting that land into land that was not within the description contained in s. 50(1)(a) so that the Commissioner could not entertain the application made with respect to it. It was not suggested that this Court should decide that question - obviously it could not do so on the present state of the evidence - but that the matter should be remitted to the Commissioner for further inquiry. It was not essential to the prosecutor's argument to establish that the Adminis trator could not be regarded as the representative of the Crown, for it was submitted that the challenge to the validity of the regulation could be made even if the Administrator represented the Crown. Nevertheless it is convenient to proceed to consider that question. (at p183)

12. The Administrator who made the regulations, Mr. J. A. England, had been appointed under s. 3A of the Northern Territory (Administration) Act 1910 (Cth), as amended. At the time when he made the regulations the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act") had come into force, and by s. 58 of that Act the Administrator continued to hold office as if he had been appointed under that Act. The Self-Government Act was enacted for the purpose of conferring self-government on the Northern Territory which, by s. 5, is established as "a body politic under the Crown". Provision is made for the office of Administrator by s. 32 of the Self-Government Act, which provides as follows:

"(1) There shall be an Administrator of the Territory, who shall be appointed by the Governor-General by Commission under the Seal of Australia and shall hold office during the pleasure of the Governor-General. (2) The Administrator is charged with the duty of administering the government of the Territory. (3) Subject to this Act, the Administrator shall exercise and perform all powers and functions that belong to his office, or that are conferred on him by or under a law in force in the Territory, in accordance with the tenor of his Commission and (in the case of powers and functions other than powers and functions relating to matters specified under section 35 and powers and functions under sections 34 and 36) in accordance with such instructions as are given to him by the Minister."

The terms of the Commission in fact issued to Mr. England are unenlightening. The Commission is signed and sealed by the Governor-General, who states that "I . . . hereby appoint John Armstrong England to be the Administrator of the Northern Territory of Australia on and from 1 June 1976." Section 31 of the Self-Government Act provides as follows:

"The duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers of the Territory imposed or conferred by or under this Part extend to the execution and maintenance of this Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities."

Section 35 of the Act provides that the regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority, and regulations have in fact specified a large number of matters in respect of which the Ministers of the Territory have executive authority. The number and designation of ministerial offices is determined by the Administrator (s. 34) and the Administrator may appoint a member of the Legislative Assembly to a Ministerial office and may at any time terminate the appointment (s. 36). No doubt in exercising these powers the Administrator must act in accordance with the principles of responsible government. By s. 6 it is provided as follows:

"Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as provided by this Act, to make laws for the peace, order and good government of the Territory."

If a proposed law is presented to the Administrator for assent he may assent to it, withhold assent, or reserve it for the Governor-General's pleasure (s. 7). The Governor-General has power to disallow laws to which the Administrator has assented (s. 9). Section 51(1) provides as follows:

"Where an Act (whether or not by express provision) binds each of the States or the Crown in right of each of the States, that Act, by force of this sub-section, binds the Territory or the Crown in right of the Territory, unless that Act specifically provides otherwise."

The reference to "the Crown in right of the territory" in this section does not indicate who is the representative of the Crown in the Territory. (at p184)

13. The Northern Territory, although granted self-government, remains a Territory of the Commonwealth. The Governor-General is the Queen's representative within the Commonwealth: see ss. 2, 61 of the Constitution. By the constitutions of the States, which are continued by s. 106 of the Constitution, the Governor is the Queen's representative within the State, and the office of Governor of a State is recognized by a number of sections of the Constitution: see ss. 7, 12, 15, 21, 84 and 110. The Constitution does not recognize that any person other than the Governor-General is the Queen's representative within a Territory which has not yet become a State. I need not consider whether the power conferred by s. 122 would enable the Parliament to provide by legislation for the appointment of an officer who would be the Queen's representative in a Territory. If the Parliament has that power, one would expect that an intention to exercise it would be expressed in clear words. The Self-Government Act nowhere declares the Administrator to be the Queen's representative. The absence of any Letters Patent, Instructions under the Sign Manual or Commission from Her Majesty marks a departure from the manner in which other representatives of the Queen have been appointed in Australia. The decision of the Judicial Committee in Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick (1892) AC 437 suggests that the absence of the usual instruments of appointment is not necessarily conclusive. Lord Watson, who delivered the judgment of the Board, considered the position of the Lieutenant-Governor of a province of Canada who was not appointed by the Queen but by the Governor-General under the authority of s. 58 of the British North America Act 1867, and said (1892) AC, at p 443 that "a Lieutenant-Governor, when appointed, is as much the representative of Her Majesty for all purposes of provincial government as the Governor-General himself is for all purposes of Dominion government." The case is however distinguishable, because it concerned the position of one of the provinces which were united into the Dominion of Canada, and the power under which the Lieutenant-Governor was appointed was contained in the Imperial Statute that formed the Constitution under which the provinces were united. It does not follow from that decision that the absence of any appointment by the Queen, and of any express statement that the Administrator is to be the Queen's representative, is lacking in significance in the present case. It is clear that the Administrator cannot be the Queen's representative for all the purposes of the government of the Territory, because his functions are limited by ss. 34 to 36 of the Self-Government Act. Moreover, in exercising powers and functions outside those limits he must act in accordance with such instructions as are given to him by the Minister. It may be that the matters in respect of which he is bound to act on ministerial instructions are comparatively few, but it does not seem consistent with the position of a representative of the Queen that he should be liable to receive instructions of that kind at all. The provisions regarding the reservation of proposed laws for the Governor-General's pleasure and the power of the Governor-General to disallow enactments do not assist in the determination of the present question; they are neutral. However, having regard to the matters to which I have referred, I consider that the fact that the Administrator is charged with the duty of administering the government of the Territory and that his duties, powers, functions and authorities extend to the exercise of the prerogatives of the Crown so far as they relate to those powers, functions and authorities, does not mean that the Administrator is the representative of the Crown. His office is an important one, but in my opinion he does not represent the Crown within the Northern Territory, although, when exercising the prerogatives of the Crown, he is no doubt entitled to such privileges and immunities as those prerogatives attract. (at p186)

14. However, since it appears that a majority of the Court may be of opinion that the Administrator does represent the Crown, I should approach the question on that basis. We are not concerned to consider generally to what extent the acts of the Crown are subject to judicial review, and in view of the constitutional importance of the matter it is desirable to define precisely what does fall for decision and what is outside the scope of our inquiry. The case does not concern the exercise of a prerogative power. It does not involve the question whether the writs of certiorari and mandamus are available against the Crown - a question which, on the present state of the authorities, would be answered in the negative: R. v. Governor of South Australia (1907) 4 CLR 1497, at p 1512 ; Horwitz v. Connor (1908) 6 CLR 38, at p 40 ; Banks v. Transport Regulation Board (Vict.) (1968) 119 CLR 222, at p 241 . The case is one in which the Administrator (whom I shall assume represents the Crown) has exercised a power conferred on him by statute. It is of course a power that the Administrator exercises on the advice of his Executive Council. The power is not one whose existence is expressed to depend on a subjective belief or opinion (such as is the case where a Governor-General or Governor is given power to act "if it appears to him . . ." or "if he is satisfied . . ."), nor, on the other hand, is it granted to be exercised for a particular specified purpose. Under a statutory provision such as the present, the nature and extent of the power "must be inferred from a construction of the Act read as a whole": Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997, at p 1033 . The principle, which is clearly settled, at least in the case of authorities subordinate to the Crown, is that a statutory power may be exercised only for the purposes for which it is conferred. As Latham C.J. said in Brownells Ltd. v. Ironmongers' Wages Board (1950) 81 CLR 108, at p 120 :
"No inquiry may be made into the motives of the Legislature in enacting a law, but where a statute confers powers upon an officer or a statutory body and either by express provision or by reason of the general character of the statute it appears that the powers were intended to be exercised only for a particular purpose, then the exercise of the powers not for such purpose but for some ulterior object will be invalid. This question was fully examined in Arthur Yates &Co. Pty. Ltd. v. Vegetable Seeds Committee (1945) 72 CLR 37, at pp 67-69, 72, 75, 76, 82, 83 and it was there held that subordinate bodies exercising powers conferred by statutes were bound to exercise their powers bona fide for the purposes for which the power was conferred and not otherwise."
In the present case, it is not open to doubt that the powers conferred by s. 165 of the Planning Act, read in conjunction with the definition of "town" in s. 4(1), are to be exercised only for planning purposes, using that expression widely to include such matters as subdivision and development. It is incontestable that the power is not intended by the Act to be conferred for the purpose of defeating the traditional land claims of Aboriginals. If it was used for that purpose the exercise of the power was invalid, unless the Administrator enjoys some privilege that enables him to transcend and disregard the limitations which the statute on its proper construction imposes. It would be surprising in principle if this were so. It seems fundamental to the rule of law that the Crown has no more power than any subordinate official to enlarge by its own act the scope of a power that has been conferred on it by the Parliament. (at p187)

15. One thing that is clearly settled by numerous cases is that a power expressed in terms such as those of s. 165 of the Planning Act does not enable the Governor-General in Council or Governor in Council to make regulations "which go outside the field of operation which the Act marks out for itself": Morton v. Union Steamship Co. of New Zealand Ltd. (1951) 83 CLR 402, at p 410 . The principle was stated as follows in Shanahan v. Scott (1957) 96 CLR 245, at p 250 :
". . . such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorize the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."
This passage was adopted with approval by the Judicial Committee in Utah Construction &Engineering Pty. Ltd. v. Pataky (1966) AC 629, at p 640 and by this Court in Willocks v. Anderson (1971) 124 CLR 293, at pp 298-299 - both cases which, like Shanahan v. Scott, concerned an exercise of regulation-making power by the Crown in Council. These authorities establish that if it can be seen from the words of the regulations themselves that the regulations go beyond the purposes of the statute under which they were made, the regulations will be invalid, although made by the Crown in Council. In this respect the Crown stands in no different position from any official to whom a statutory power is entrusted. (at p188)

16. There are, however, a number of decisions of this Court which appear to provide authority for the view that an act done by the Crown, apparently regular on its face, cannot be impugned because it was done for a purpose unauthorized by the statute which was relied upon to provide the necessary power. In the first of these cases, Duncan v. Theodore (1917) 23 CLR 510 , the jury had made a finding that the proclamation in question, which had been issued by the Governor in Council, was not issued in good faith in the sense that there was no real intention to act under the relevant statute, but an intention to achieve an ulterior purpose. Isaacs and Powers JJ. said (1917) 23 CLR, at p 544 , that "it is not open to impute mala fides with respect to the issue of a royal Proclamation, which is the act of the King by himself or his representative". Barton J. seems to have inclined to the same opinion (1917) 23 CLR, at pp 525-526 . Since Isaacs and Powers JJ. held that there was no sufficient evidence to support the jury's finding their remarks were obiter. No reasons were given and no authority was cited in support of them. On appeal to the Privy Council the judgment of Isaacs and Powers JJ. was approved (1919) 26 CLR 276, at p 283 but on this point their Lordships said no more than that "it cannot be assumed that the Queensland Ministry would have acted in any fashion inconsistent with such duty as they had been entrusted with by the representative of the Soveriegn" (see at p. 282). In James v. Cowan (1930) 43 CLR 386, at p 411 Isaacs J. said "You cannot challenge the Minister's bona fides on the ground of dishonesty at all - that, in my opinion, can never be imputed to the King's Executive." Again, the Privy Council, on appeal, did not indorse these remarks, but rather suggested that the existence of bad faith on the part of a Minister might be proved (1932) 47 CLR, at p 395 . (at p188)

17. Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73 is the strongest authority in favour of the view that the motives of the Governor-General in Council in making a regulation are immaterial to its validity. The regulations there in question had been made under a statute whose validity was upheld as a law with respect to interstate and overseas trade and commerce and they were challenged on the ground (amongst others) that they were being used for industrial purposes. The Court held the regulations to be valid. Gavan Duffy C.J. and Starke J. (1931) 46 CLR, at pp 84-85 , simply said that the only remedy for an abuse or misuse of the power of making the regulations was by political action, and that the only question for the courts is whether the regulations are within the power conferred by the statute. Rich J. said (1931) 46 CLR, at p 86 :

"It is now contended, however, that the actual motives of the Executive should be inquired into for the purpose of invalidating the Regulations. The power given to the Governor-General in Council is not, in my opinion, of an order which makes the validity of its exercise depend upon the grounds taken into consideration by the donee of the power."

Dixon J. said (1931) 46 CLR, at p 104 :

"But it is now suggested that in fact the actual exercise of the discretion by the Executive was clearly not directed to the subject of trade and commerce. This contention too is answered, I think, by the legislative character of the function entrusted to the Governor-General in Council. His discretionary power over the subject is as unqualified as that of a legislature, and the actual grounds upon which it is exercised are, therefore, immaterial."

Evatt J. (1931) 46 CLR, at p 129 left open the question whether it is possible to impute want of good faith to the representative of the Crown for the purpose of nullifying executive acts performed in the name of the representative of the Crown. The argument to which the members of the Court directed themselves appears to have been that those who made the regulation had no purpose connected with trade and commerce (see per Dixon J. (1931) 46 CLR, at p 103 ), rather than that it was made for a purpose which the Act did not authorize. The judgments are not distinctly directed to the point now under consideration, but the case nevertheless assists the argument of the respondent. (at p189)

18. In the next case, Arthur Yates &Co. Pty. Ltd. v. Vegetable Seeds Committee (1945) 72 CLR 37 , it was held that orders made by a subordinate authority (not by the Crown) were open to attack on the ground that they were made for a purpose other than that conferred by the statute under which they purported to be made. In the course of the valuable discussion in which the members of the Court engaged somewhat divergent opinions were expressed on the present question. Latham C.J. (1945) 72 CLR, at pp 64-65 referred to the fact that there is authority that the bona fides of the Crown cannot be impugned, but suggested, without finally deciding, that evidence of dishonesty might be proved in the case of an individual Minister for the purpose even of invalidating a legislative act which he is authorized to perform. However, he said that the rule against inquiry into motives applied only to laws (including "some" regulations) and not to orders and directions given under statutory powers (1945) 72 CLR, at pp 65-67 . Rich J. said (1945) 72 CLR, at p 73 that the bona fides of delegated legislation made by the Crown's representative will not be examined, but thought that a court might examine the bona fides of a purported exercise of power by an individual Minister even if the power was of a legislative character. Starke J. said (1945) 72 CLR, at p 74 that the motives, reasons and bona fides of a sovereign legislative body cannot be examined in a court of law, and that "it may be that orders in council made pursuant to statutory authority fall within this category". Dixon J. (1945) 72 CLR, at pp 80-81 held that the question whether the purpose of orders renders them invalid does not depend on whether the orders are of a legislative character. He said (1945) 72 CLR, at pp 81-82 , that the acts of a sovereign legislature could not be challenged on this ground and added, "Then, too, legislative and executive acts formally done in the name of the Crown stand in a special position: see Duncan v. Theodore (1917) 23 CLR 510, at p 544 ." He appears to have drawn a distinction between statutes and acts formally done in the name of the Crown, on the one hand, and the acts or determinations of subordinate authorities on the other. However, in the course of discussion of the principle that a power to make bylaws ought not to be used for a collateral purpose, he cited (1945) 72 CLR, at p 84 Bailey v. Conole (1931) 34 WALR 18 without any adverse comment. That was a case in which a regulation made by the Governor in Council, and "in form within the letter of the statute" (1931) 34 WLR, at p 24 was held invalid because it was made for an object foreign to the scope of the Act. (at p190)

19. In Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, at pp 178-179 , Dixon J., in the course of discussing the validity of one of the sections of the statute there in question, whose operation was made conditional upon the opinion of the Governor-General in Council, again expressed his acceptance of the correctness of the statement that the good faith of any of the acts of a representative of the Crown cannot be questioned in any court of law. He gave as a reason the fact that the counsels of the Crown are secret. Fullagar J. (1951) 83 CLR, at pp 257-258 expressed similar views. It has been suggested that Williams J. (1951) 83 CLR, at p 221 expressed the same opinion, but in my opinion his remarks were directed only to the effect of the particular statute before him. The other members of the Court did not deal with the question. (at p191)

20. Finally, in W. H. Blakeley &Co. Pty. Ltd. v. The Commonwealth (1953) 87 CLR 501 it was held that the effect of the Lands Acquisition Act 1906 (Cth), as amended, was to make a notification by the Governor-General, under s. 15(2) of that Act, of the purpose of an acquisition, conclusive of the existence of that purpose. The decision appears to me to rest on the proper construction of the Act, rather than on any general principle which precludes the Court from examining the purposes of the Crown. (at p191)

21. It can be seen that there are expressions of opinion which are entitled to great weight in support of the view that acts of the Crown in Council, apparently regular in form, cannot be examined on the ground that they were done with the intention of achieving an unauthorized purpose - i.e. done in bad faith, in the sense in which that expression has sometimes been used in the authorities. Those statements have naturally been followed in some decisions of the Supreme Courts in Australia. However, it is significant that this view does not appear to have been so firmly accepted elsewhere. Although in de Smith, Judicial Review of Administrative Action, 4th ed. (1980), at pp. 287, 336 it is stated that bad faith cannot to attributed to the Crown, the only authorities cited for that proposition are Duncan v. Theodore and Australian Communist Party v. The Commonwealth. The English authorities leave the position unsettled. In Attorney-General (Canada) v. Hallet &Carey Ltd. (1952) AC 427 the Judicial Committee rejected an argument that the courts might canvass the considerations that led the Governor-General to deem it necessary to act under a statute which authorized him to do such things as he might, by reason of the continued existence of an emergency, deem necessary or advisable for any of various specified purposes. However, Lord Radcliffe said (1952) AC, at p 444 :

"There is no warrant at all for presenting this as a case in which powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorized or actually forbidden. If bad faith of that kind can be established, a court of law may intervene."

In Ningkan v. Government of Malaysia (1970) AC 379 a proclamation which recited that the Supreme Head of the Federation of Malaysia was satisfied that a state of emergency existed, was challenged on the ground that it was made not to deal with grave emergency but for another purpose. It was held that the appellant had not discharged the onus of proof which lay upon him, but Lord MacDermott, who delivered the judgment of the Judicial Committee said that it was "unsettled and debatable" whether a proclamation made by the Supreme Head of the Federation of Malaysia under statutory powers could be challenged on some or any grounds (1970) AC, at pp 391-392 . In New Zealand (Reade v. Smith (1959) NZLR 996 ) and Canada (Re Doctors Hospital and Minister of Health (1976) 12 OR (2d) 164 and Re Heppner and Minister of the Environment for Alberta (1977) 80 DLR (3d) 112 ) there are decisions that support the view that some investigation at least may be made into the purposes with which the Crown in Council acted. (at p192)

22. In this state of the authorities it appears to me that this Court is free to decide for itself the question that now arises. As I have shown, if the Crown in Council makes a regulation which appears on its face to be made for a purpose that was not authorized by the statute under which it purports to be made, the regulation will be invalid. It would be anomalous if a regulation which bore the semblance of propriety would remain valid even though it should be shown in fact to have been made for an unauthorized purpose; that would mean that a clandestine abuse of power would succeed when an open excess would fail. As Mr. Hogg points out in an article "Judicial Review of Action by the Crown Representative", Australian Law Journal, vol. 43 (1969), p. 215, three reasons appear to have been suggested for giving an immunity from review to acts of the Crown. The first is that the Ministers on whose advice the representative of the Crown relies are responsible to Parliament, whose scrutiny is available to check excesses of power. If that reason were valid it ought logically to follow that the act of an individual Minister also could not be invalidated even if it were shown that he had acted for an extraneous purpose. Not all of the members of this Court who have upheld the immunity of the Crown have gone so far as to extend it to the acts of individual Ministers. To do so would be contrary to the approach taken in such cases as Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) AC 1014 . Moreover, under modern conditions of responsible government parliament could not always be relied on to check excesses of power by the Crown or its Ministers. The second reason suggested is that the courts should not substitute their views for those of the executive on matters of policy. That is of course true, but it does not mean that the courts cannot ensure that a statutory power is exercised only for the purpose for which it is granted. A third reason suggested is that the counsels of the Crown are secret. However the secrecy of the counsels of the Crown is by no means complete (see Sankey v. Whitlam (1978) 142 CLR 1 ) and if evidence is available to show that the Crown acted for an ulterior purpose, it is difficult to see why it should not be acted upon. In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review. If a statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for another. The courts have the power and duty to ensure that statutory powers are exercised only in accordance with the law. They can in my opinion inquire whether the Crown has exercised a power granted to it by statute for a purpose which the statute does not authorize. The onus of proving that the Crown did act for an unauthorized purpose lies on those who make that assertion: see Ningkan v. Government of Malaysia (1970) AC, at p 390 , and McEldowney v. Forde (1971) AC 632, at p 660 . (at p193)

23. In the present case, the appellant was in my opinion entitled to challenge the Planning Regulations, and if necessary also the Town Planning Regulations, on the ground that they were made for a purpose which was not a planning, or a town planning, purpose. The challenge might be made either on the ground that the regulations were invalid on their face, or on the ground that evidence would show that they were in fact designed to defeat the traditional land claims of Aboriginals. It was necessary for the Commissioner to decide on the validity of the Planning Regulations to enable himself to determine whether the application was made in respect of land to which s. 50(1)(a) of the Land Rights Act applied. If the regulations were invalid, there was no justification for him to fail to continue to exercise his function under s. 50(1)(a). For the reasons given the Commissioner has not exercised his functions in accordance with law and the case is a proper one for mandamus. (at p193)

24. Reference was made to O. 55, r. 30 of the High Court Rules which provides that an application for a writ of mandamus to a judicial tribunal to hear and determine a matter shall be made within two months of the date of refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Justice. No application for an order nisi was made in the present case until May 1980. I doubt whether the Commissioner was a judicial tribunal within the meaning of this rule, but if he was there are special circumstances warranting an extension of time. The delay in making the application is explained by the difficulty in getting instructions from the applicants, since to communicate with them it was necessary to enlist the assistance of a linguist and an anthropologist, and by the time that it took to obtain legal opinions in respect of a matter which was undoubtedly a difficult one. Although as at present advised I consider that the Court would have jurisdiction to grant certiorari, for the reasons I gave in Reg. v. Cook; Ex parte Twigg (1980) 147 CLR 15, at pp 25-28 , I do not think that certiorari would be necessary in the present case, assuming it to be appropriate. Mandamus is sufficient. (at p194)

25. I would make an order for mandamus. (at p194)

STEPHEN J. The Northern Land Council is a body corporate created pursuant to Pt III of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). One of its functions is to assist Aboriginals living in northern parts of the Northern Territory to pursue traditional land claims. The Council has for some time been assisting a group of Aboriginals with its claim to land on Cox Peninsula and adjacent islands. Cox Peninsula, some 800 square kilometres, projects out into the Timor Sea a few kilometres to the west of Darwin, separated from it by the waters of Port Darwin.

The making of traditional land claims. (at p194)

2. The first formal step in making a traditional land claim is to apply to the Aboriginal Land Commissioner under s. 50(1)(a) of the Act. This the Council has done in respect of Cox Peninsula and adjacent islands. Once such an application is made the Commissioner must ascertain whether the applicants or any other Aboriginals are the traditional Aboriginal owners of land and must report his findings to the Minister. Where he finds that there are traditional Aboriginal owners of the land he is to make recommendations to the Minister for the granting of the land to a Land Trust in accordance with s. 11 of the Act. (at p194)

3. The Commissioner may only exercise these functions in relation to certain classes of land, the presently relevant class being "unalienated Crown land". Unless the Cox Peninsula is "unalienated Crown land" he cannot embark upon the task of ascertaining its traditional Aboriginal owners, let alone make any recommendations about it. "Unalienated Crown land" is defined by s. 3(1) of the Act to mean "Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town".

The Claim to Cox Peninsula. (at p195)

4. It is this exclusion of "land in a town" which has given rise to these proceedings. The Commissioner has held that Cox Peninsula is land in a town and therefore not available to be claimed as unalienated Crown land under s. 50(1)(a) of the Act. The Council now seeks certiorari to quash the Commissioner's decision and mandamus to compel him to carry out his functions under s. 50(1)(a). (at p195)

5. Although Darwin lies only some 6 kilometres away, across the waters of Port Darwin, the Cox Peninsula is itself far from urban. Its 800 square kilometres are mainly low-lying forest and scrub land, fringed with mangroves and surrounded at low tide by great mud flats which connect its western shores with what, at high tide, are off-shore islands. Its road system is primitive, sometimes impassable even to four-wheel drive vehicles. Apart from some mining leases, a few small private freehold and leasehold areas, an aboriginal reserve, a forest reserve and some extensive areas owned by the Commonwealth and used as sites for overseas radio transmitters or, in the case of one of the off-shore islands, as an aircraft bombing range, the remainder, well in excess of three quarters of the total area, is largely undeveloped Crown land. The Peninsula is used extensively by the residents of Darwin for outdoor recreational purposes - camping, fishing, swimming and the like. Its permanent population, apart from residents of the Aboriginal Reserve, is very small, at most one or two hundred persons.

"Land in a town". (at p195)

6. This undeveloped and sparsely populated peninsula is said to have become "land in a town" because of the interaction of the Planning Act 1979, an Act of the Northern Territory legislature, regulations made under it and certain provisions of the Commonwealth Parliament's Aboriginal Land Rights (Northern Territory) Act 1976. This is said to have happened in this way. Regulation 5 of the Planning Regulations provides:

"5. For the purposes of section 4 of the Act, the several areas of land specified in Schedule 3 are specified to be areas which are to be treated as towns."

One area of land in Sch. 3 comprises 4,350 square kilometres centred upon the town of Darwin, itself only some 143 square kilometres in extent. It includes the Cox Peninsula. Regulation 5 derives its effect from par. (c) of the definition of "town" in s. 4(1) of the Planning Act. That definition is as follows:

"'town' means - (a) a town within the meaning of the Crown Lands Act; (b) a municipality; or (c) land specified by the regulations to be an area which is to be treated as a town;".

Taken together, the regulation and this definition purport to extend the meaning of "town" in the Planning Act to the whole 4,350 square kilometres centred upon Darwin, including the Cox Peninsula. (at p196)

7. This extended meaning of "town" is then taken up by the Aboriginal Land Rights (Northern Territory) Act 1976. In s. 3(1) of that Act "town" is defined as follows:

"'town' has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town;".

The result of the interaction of these provisions is said to be that Cox Peninsula, being "land in a town", is not "unalienated Crown land" to which s. 50(1)(a) can apply. (at p196)

8. I have referred only to the current planning legislation of the Northern Territory, the Planning Act 1979, and to the regulations made under it. Its predecessor, the Town Planning Ordinance 1964-1978, (whose name was changed from "Ordinance" to "Act" shortly before it was supplanted by the current legislation) contained a provision somewhat similar to the provisions of the Planning Act described above. By a regulation made under that ordinance an area substantially the same as the present 4,350 square kilometres was, in 1978, made subject to the Ordinance "as if it were a part of" the town of Darwin. In included the whole of the Cox Peninsula. It will be necessary to revert to this earlier legislation, but for the moment I confine myself to the current Planning Act and regulations.

The Land Council's first submission. (at p196)

9. The Northern Land Council relied upon two principal submissions in urging before the Commissioner and in this Court that the Cox Peninsula was nevertheless "unalienated Crown land" for the purposes of s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976. The first was founded upon the premise that if an application is made to the Commissioner under s. 50(1)(a) at a time when the land claimed is unalienated Crown land, no subsequent change in the status of that land can prejudice the application. Moreover, any change in status of the land occurring after application is made and which, had it occurred before that application was made would have removed any obstacle in the application's path, will have that some beneficial effect upon an existing application. For present purposes, and without determining the correctness of this premise, I am content to accept it. (at p197)

10. The Council contends that, when understood in the context of the changing pattern of the Territory's planning legislation, the facts concerning traditional land claims to Cox Peninsula give rise to a situation to which the above premise can be applied. The result is said to be that the Cox Peninsula must be treated by the Commissioner as "unalienated Crown land". Various alternative circumstances are put forward as constituting the making of a relevant application in respect of Cox Peninsula under s. 50(1)(a). The earliest in point of time involves land claims made before the Aboriginal Land Rights (Northern Territory) Act 1976 came into operation. It was put, somewhat tentatively, that these might in some way have been converted into applications under s. 50(1)(a) when the Act came into operation. However, it was conceded in argument that there are substantial difficulties involved in this contention, quite apart from the vague nature of aspects of these early claims. Together these factors make it unnecessary to do more than note my rejection of these early claims as land claims under the Act. (at p197)

11. Then it is said that a letter of 26 September 1977, written after the Act had come into operation and before the making of the first disqualifying regulation under the Town Planning Ordinance, can be regarded as an application under s. 50(1)(a) in respect of the Cox Peninsula. It was addressed to the Lands Branch of the Department of the Northern Territory and merely informed the Branch that, since a claim was to be made to the Commissioner in respect of "vacant Crown land on Cox Peninsula" it was assumed that the policy of not alienating claimed lands until the claim had been dealt with by the Commissioner would apply to that land. Its contents preclude it from being relied upon as an application under s. 50(1)(a). (at p197)

12. A later letter, dated 14 March 1978, from the Council to the Lands Branch, is also relied upon. It refers to the Council's understanding that all vacant Crown land on Cox Peninsula had earlier been claimed before "the interim Land Commissioner". It speaks of the "considerable confusion" which had earlier existed concerning appropriate procedures and of advice received by the Council from the Minister for Aboriginal Affairs that his Department had been notified by the interim Land Commissioner of a claim to all vacant Crown land on Cox Peninsula. It concludes by referring to "the general uncertainty that still prevails" regarding land claims and asks that Cox Peninsula be afforded the status of being under claim and therefore not subject to further alienation until determined upon by the Lands Commissioner. The reply, dated 11 April 1978, from the Lands Branch states that the Lands Commissioner is unaware of any land claim to the Cox Peninsula and that "it is not possible to extend any previous undertakings to the administration and alienation of land on Cox Peninsula, not contained within" an area marked on the enclosed plan. For reasons which remain unexplained the area so marked in fact comprises by far the greater part of Cox Peninsula. Material in evidence suggests that much confusion must then have surrounded the making of land rights claims; there must also have been much other correspondence relating to claims to Cox Peninsula which is not before the Court. In the result much remains unexplained: the status of the interim Land Commissioner, who receives no statutory recognition in the Aboriginal Land Rights (Northern Territory) Act 1976, is unclear; there must have been land claims of some sort to some parts of Cox Peninsula made well before March 1978 and made to what were then thought to be the appropriate authorities. Perhaps all that emerges at all clearly is that even when the Land Branch's letter of 11 April 1978 was written the Commissioner was still not in receipt of any application made under s. 50(1)(a) in respect of Cox Peninsula. This is confirmed by what happened at the hearing of another application under s. 50(1)(a), confined to one of the off-shore islands of Cox Peninsula. In January 1979 an adjournment was sought by the Council so that, in the words of the Commissioner in his reasons for judgment delivered on 14 February 1979, it could be consolidated "with a broader claim foreshadowed in respect of the Cox Peninsula". His Honour added that "that broader claim had not then been lodged nor has it been since". (at p198)

13. Only on 20 March 1979 was that broader claim made by formal application pursuant to s. 50(1)(a) of the Act. It alone can in my view be regarded as the application initiating the Commissioner's enquiry relating to Cox Peninsula: to it alone may the Council's initial premise be applied. It was made when the Town Planning Ordinance and the regulation made under it were still in force; not until 3 August 1979 did the current Planning Act and its accompanying reg. 5 come into operation and thereby repeal the Town Planning Ordinance. Upon that repeal the Council's argument must rest. (at p198)

14. Applying the Council's initial premise, the repeal of the Ordinance and, consequently, of the regulation made under it is said to have caused the Cox Peninsula to revert to the status of "unalienated Crown land", that repeal causing the land to cease to be deemed to be part of the town of Darwin. The simultaneous coming into operation of the new Planning Act and its accompanying reg. 5 is, according to the premise, a change in status of the land adverse to the application and therefore to be ignored: upon the repeal of the Town Planning Ordinance the application was regularized: it thereafter applied to land which was to be treated as "unalienated Crown land", to which s. 50(1)(a) could properly apply. In the words of the submission, the repeal repaired the flaw in the application, and if there was need for re-application after its repair that was satisfied by the Council's subsequent pressing of its application. (at p199)

15. This might have been well enough had there been any period between repeal of the Ordinance and the commencement of the Planning Act and reg. 5 during which the land could be regarded as reverting to its original status as "unalienated Crown land". But there was no such period. The Cox Peninsula never reverted to its original status; what brought about the repeal of the Ordinance was the simultaneous coming into operation of the Planning Act and also of reg. 5. Cox Peninsula remained throughout as an area to be treated as a town and hence excluded from the status of "unalienated Crown land". It follows that even if the Council's initial premise be correct, it will not serve the purpose for which it is proposed. The first of the Council's submissions must be rejected.

The attack on the validity of reg. 5. (at p199)

16. The Council's second submission was that reg. 5 of the Planning Regulations was not validly made and was therefore ineffective to make Cox Peninsula "land in a town". It took two forms: the first relied upon the express terms of the regulation and of the Act, the second, while accepting that the regulation was good on its face, sought to establish invalidity by proof that it was in fact made for no purpose of the Act but for a quite alien purpose, the removal of Cox Peninsula from the operation of the Aboriginal Land Rights (Northern Territory) Act 1976. To found the second line of attack, the Council sought an order pursuant to s. 54 of the Aboriginal Land Rights (Northern Territory) Act 1976 for the production and inspection of a wide range of documents in the possession of the Administration relating to the considerations which brought into existence the predecessor of reg. 5, at that time the relevant regulation. The Commissioner refused to make any such order because he regarded this particular line of attack as not being open in principle. If in fact such an attack is permissible in principle, its ultimate success will depend upon the Council establishing by evidence the existence of such an alien purpose. However it is exclusively with the preliminary question of principle that this Court is concerned. (at p199)

17. The regulation-making power is conferred by s. 165(1) in the following terms:

"The Administrator may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular- (a) providing for the payment of fees and expenses to witnesses required under this Act to attend and give evidence before the Authority or another person; (b) prescribing the manner in which fees or payments prescribed shall be paid; (c) specifying subdivisions to be excluded subdivisions; (d) amending the provisions of section 94 or 110; (e) providing for the inspection of a register of consents kept under this Act; and

(f) prescribing penalties, not exceeding a fine of $100, for offences against the regulations." (at p200)

18. I have earlier set out the other relevant provisions, the definition of "town" in s. 4(1) of the Planning Act and reg. 5 of the Planning Regulations. The conjoint effect of reg. 5 and of this definition is, as I have already said, to make a "town" of an area of land specified in Sch. 3 of the Planning Act and centred upon but more than thirty times larger than the present area of Darwin and which includes all of Cox Peninsula.

The first line of attack on reg. 5. (at p200)

19. The first line of attack upon the validity of reg. 5 takes an unusual form, prompted by unusual features of the Planning Act itself. Delegated legislation is commonly attacked as ultra vires because it deals with a subject beyond the scope of the regulation-making power, because, as Isaacs J. said in Carbines v. Powell (1925) 36 CLR 88 , it supplements rather than complements the granted power. Not so in the present case: the Council relies rather upon the complete inutility of the regulation to take it outside the scope of the granted power. That this inutility stems not so much from the character of the regulation as from the statutory definition of "town" itself is said to be no obstacle to this view. (at p200)

20. The attack begins by showing the definition of "town" to have no purpose since the Act contains no provision which operates in terms of towns: the word "town" nowhere appears in the legislation once the definition section is passed until the last of its nine Parts, Pt IX headed "Transitional", is reached. In that Part "town" frequently appears, but always as a descriptive substantive, preceding either "planning scheme" or "plan", each referring to planning instruments in force or proposed under the previous town planning legislation. Although the Act legislates exclusively in terms of planning instruments which may be either regional plans or town plans, nothing seems to turn upon this distinction. (at p201)

21. The Council seizes upon the definition's apparent lack of purpose: if it be purposeless to define "town", reg. 5, which does no more than extend the meaning of that useless definition, must be equally lacking in utility. While the statutory definition, being part of the Act, cannot be attacked for inutility, that same inutility, communicated by it to the regulation, will make the latter ultra vires the regulation-making power conferred by s. 165(1). That power is confined to the prescription of matters "required" or "permitted" by the Act to be prescribed or "necessary" or "convenient" to be prescribed "for carrying out or giving effect to this Act". This last phrase is said to qualify the whole grant of power, not merely its second limb, and because the regulation, being inutile, neither carries out nor gives effect to the Act it is beyond power. (at p201)

22. The opening words of the grant of regulation-making power in s. 165 are in a form long familiar in Commonwealth legislation. They seem in the past to have been understood as involving two distinct limbs, the concluding phrase, "for carrying out or giving effect to this Act", being treated as forming part of the second limb only, as explanatory of what is "necessary" or "convenient" in the second limb and as inapplicable to "required" or "permitted" appearing in the first limb - Carbines v. Powell (1925) 36 CLR, at p 92 , per Isaacs J.; Broadcasting Co. of Australia Pty. Ltd. v. The Commonwealth (1935) 52 CLR 52, at p 63 , per Rich J.; and see Reade v. Smith (1959) NZLR 996, at p 999 , per Turner J. (at p201)

23. However, let it be accepted, as the Council contends, that each exercise of the regulation-making power must be "for carrying out or giving effect" to the Act: I am nevertheless unable to accept the view that to prescribe that which adds to the meaning of a word not fully defined in the Act, doing so in the manner contemplated by the terms of that statutory definition, can ever be said not to carry out or give effect to the Act because inutile. The inutility of the statutory definition itself, both before and after its meaning has been added to in this way, is irrelevant for this purpose: the definition itself stands inviolate against attack as purposeless, and for the regulation to add to its meaning in the manner which the statute contemplates is, I think, sufficient to bring it within power. An amendment made to the Act in 1980, by which a new s. 60A was inserted, serves to illustrate how reg. 5 has itself never lacked utility. Section 60A contemplates planning instruments which relate to land within a town and although its insertion in the Act cannot, as it were, retrospectively confer utility ab initio upon the statutory definition of "town", it does demonstrate how reg. 5 from its inception served the purpose of giving "town" an expanded meaning. That for some years the operation of the Act did not make use of that expanded meaning is not to the point.

The second line of attack on reg. 5. (at p202)

24. There remains the Council's second line of attack on validity of the regulation. This is the attack which the Commissioner stopped in its tracks when he rejected the Council's application for discovery of Administration documents. While accepting that on its face the regulation is within power, the Council seeks to show that, because it was made for a purpose extraneous to the purpose for which the regulation-making power was conferred, the regulation was made in excess of power and is accordingly ultra vires. (at p202)

25. The Commissioner acted as he did because he held that the Administrator was the Crown's representative in the Territory and that, as such, the purpose which actuated his exercise of power under s. 165 was immune from any examination by the courts. The Council contends that the Administrator is only a servant of the Crown, not its representative, and in that capacity possesses no immunity. It also makes the broader submission that, even if he be its representative, the suggested immunity does not exist. If this broader submission be correct, as I think it is, the other becomes irrelevant. I accordingly turn to that broader submission.

Minister's decisions open to attack for purpose. (at p202)

26. It is now well established that both the exercise and non-exercise by Ministers of the Crown of discretionary powers vested in them are subject to judicial review, which extends to the examination of the reasons which led to the Minister's exercise or non-exercise of his power - Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997 esp. per Lord Reid (1968) AC, at pp 1032-1034 , Lord Morris (1968) AC, at p 1041 , Lord Hodson (1968) AC, at pp 1045-1046, 1049 , Lord Pearce (1968) AC, at pp 1053-1054 and Lord Upjohn (1968) AC, at pp 1060-1062 . As Lord Pearce pointed out a Minister cannot in his discretion "set aside for his period as Minister the obvious intention of Parliament" (1968) AC, at p 1053 ; he must rather "use his discretion to promote Parliament's intention" (1968) AC, at p 1054 . In Congreve v. Home Office (1976) 1 QB 629, at p 649 , Lord Denning M.R. observed that a Minister's discretionary power must be uninfluenced "by any ulterior motives"; and see per Roskill L.J. (1976) 1 QB, at pp 657-659 . See also Laker Airways v. Department of Trade (1977) 1 QB 643, at p 707 per Lord Denning M.R. and the recent case of Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) AC 1014 , where Lord Wilberforce observed (1977) AC, at p 1047 that the courts will ensure that a discretionary power given to a minister has not been exercised "outside the purpose of the Act, or unfairly, or upon an incorrect basis of fact" - and see per Viscount Dilhorne (1977) AC, at p 1062 , Lord Diplock (1977) AC, at pp 1064-1065 , Lord Salmon (1977) AC, at p 1071 and Lord Russell (1977) AC, at p 1074 . (at p203)

27. In this Court modern instances are provided by Television Corporation Ltd. v. The Commonwealth (1963) 109 CLR 59 and by Murphyores Inc. Pty. Ltd. v. The Commonwealth (1976) 136 CLR 1 , per Barwick C.J. (1976) 136 CLR, at p 6 , per McTiernan J. (1976) 136 CLR, at p 8 , Gibbs J. (1976) 136 CLR, at p 9 , and Murphy J. (1976) 136 CLR, at p 26 . In Murphyores it was the exercise of discretion by the Minister of State for Minerals and Energy that was in question and Mason J. said (1976) 136 CLR, at p 23 :

"There remains for consideration the plaintiffs' argument based on the scope and purpose of the Customs Act and the Customs (Prohibited Export) Regulations. It was said, correctly, that the subject matter and the scope and purpose of a statutory enactment may enable a court to pronounce the reasons given for the exercise of a statutory discretion to be extraneous to any objects the legislature had in mind. . . ."

In that case I said of the Minister's statutory powers (1976) 136 CLR, at p 12 :

"So much for the constitutionality of a decision whether or not to relax a prohibition upon export. A quite distinct question also arises: has the maker of the decision duly exercised his decision-making power or, on the contrary, is his decision vitiated by the nature of the considerations, extraneous to the power conferred, to which he has had regard in arriving at that decision? This question must depend for its answer primarily upon the legislation which confers the power. Where the extent of the power is delineated, perhaps by specific enumeration of matters to be considered, perhaps as a result of implications which may be drawn from the subject matter dealt with, the courts will relieve against excesses of power affecting the rights of a subject. It will be seldom, if ever, that the extent of the power cannot be seen to exclude from consideration by a decision-maker all corrupt or entirely personal and whimsical considerations, considerations which are unconnected with proper governmental administration; his decision will not be a bona fide one since these considerations will, on their face, not be such as the legislation permits him to have regard to. In other instances the task for the court will be to discern what restraints, if any, the legislation places upon considerations to which he may have had regard."

What of decisions of the Crown's representative? (at p204)

28. It is accordingly clear that had reg. 5 been made by a Minister of the Northern Territory Government it would have been open to the Council to seek to show that the regulation was beyond power because made for a purpose other than that for which the power was granted. Having in fact been made by the Administrator in Council the same question arises which confronted the Ontario Divisional Court in Re Doctors' Hospital and Minister of Health (1976) 68 DLR (3d) 220, at p 230 : does it makes any difference in law that the relevant power was one exercised not by a Minister of the Crown but by the representative of the Crown upon the advice of his Ministers? To that question I would give the answer "No", as did the Ontario Divisional Court, which held that, whether it be Minister or Lieutenant-Governor in whom discretionary power is vested by statute, its exercise will be "subject to Court review". Where a Parliament confers powers they will seldom if ever be conferred in gross, devoid of purposes or criteria, express or implied, by reference to which they are intended to be exercised. Unless a Parliament, acting constitutionally, can be seen from the terms of its grant of power to have excluded judicial review, the courts will, at the instance of a litigant, examine the exercise of powers so granted, determining whether their exercise is within the scope of Parliament's grant of power. This will be so whether the grant of power be to the representative of the Crown, to a Minister of the Crown or to some other body or person. (at p204)

29. The Commissioner, in rejecting the Council's application for discovery of Administration records, took a view of the examinability of the exercise of power by the Administrator in Council quite different from that which I have expressed. He did so in reliance upon "a line of authorities beginning with Duncan v. Theodore (1917) 23 CLR 510 ", which he regarded as establishing that "the courts will not enquire into the reason why the Crown or its representative exercised a particular regulation-making power and bad faith may not be imputed to them".

The Australian cases. (at p204)

30. It is the joint judgment of Isaacs and Powers JJ. in Duncan v. Theodore which has provided the basis for much of what has subsequently been said in Australia concerning the examinability of the exercise of power by representatives of the Crown. This is despite the fact that what their Honours said was both brief and obiter. It was obiter because their Honours held that there was no evidence fit to go to a jury to support a finding that the proclamation of the Governor in Council there in question was issued mala fide. Its brevity may be demonstrated by setting out the relevant passage in full; it reads (1917) 23 CLR, at p 544 :
"But in our opinion it is not open to impute mala fides with respect to the issue of a royal Proclamation, which is the act of the King by himself or his representative." (at p205)

31. There are three comments to be made concerning this passage. The first is that when Duncan v. Theodore was successfully appealed to their Lordships (1919) 26 CLR 276; (1919) AC 696 , the dissenting joint judgment of Isaacs and Powers JJ. being upheld, this question of immunity of the Crown's representative was not dealt with. Indeed the judgment, delivered by Lord Haldane, appears to attach no significance to the fact that the proclamations in question were made by the representative of the Crown, throughout it is to "the Queensland Ministry" or to "Ministers" that reference is made - see especially at p. 282. (at p205)

32. The second is that by their use of the term "mala fides" their Honours would seem to have intended to confine the immunity to cases where actual dishonesty is sought to be imputed. This emerges from the judgment of Isaacs J. - a few years later in Jones v. Metropolitan Meat Industry Board (1925) 37 CLR 252, at pp 263-264 where his Honour said:

"The good faith, which is the antithesis of fraud in this connection, is that which is required in the common law sense in relation to the legal exercise of statutory powers, and is not dependent on any doctrine of equity. It is wholly distinct from the notion of mistakenly pursuing a by-purpose. Such a pursuit may in this connection be honest or dishonest. The body pursuing it may genuinely avow it, thinking it permissible. There the action adopted may be ultra vires, but not mala fide. On the other hand there may be a pretended pursuit of a legitimate purpose that is mala fide."

Again in Werribee Council v. Kerr (1928) 42 CLR 1, at pp 8-9 his Honour emphasized the distinction between "honest error and dishonest design", only the latter involving want of bona fides. At least to Isaacs J. "mala fides" seems in Duncan v. Theodore to have signified actual dishonesty and not the mistaken pursuit of a by-purpose. (at p205)

33. Thirdly, Isaacs J. appears elsewhere to have contemplated that this immunity extended equally and without distinction to Ministers of the Crown and to its representatives. Thus in James v. Cowan (1930) 43 CLR 386 , a case of ministerial discretionary action, his Honour, having once again distinguished between immunity from examination for good faith and the absence of such immunity where "what is really excess of power" is in question, said (1930) 43 CLR, at p 411 : "You cannot challenge the Minister's bona fides on the ground of dishonesty at all - that, in my opinion, can never be imputed to the King's Executive". This wide view of immunity, extending to Ministers, no longer finds support in the modern authorities earlier referred to. (at p206)

11. The affidavit of Philip John Teitzel, filed in support of the application, provides a detailed history of the events leading up to the hearing before the Commissioner. It exhibits correspondence in September 1977 and March 1978 from the Northern Land Council to the Lands Branch of the Department of the Northern Territory in Darwin in respect of a claim to the Cox Peninsula made or to be made to the Aboriginal Lands Commissioner. However, that correspondence falls far short of establishing that a claim was ever made to the Commissioner in respect of the Peninsula prior to 20 March 1979. In his affidavit, Mr. Teitzel describes the steps taken in January 1979 to adjourn the hearing of a claim to Dum-in-Mirrie Island then scheduled for February 1979 so that the claim could be consolidated with the claim "then foreshadowed" in respect of the Cox Peninsula, and he then says, "At that time the broader claim had not been lodged." The affidavit then proceeds to the statement that on 20 March 1979 a claim was lodged by him on behalf of the Northern Land Council in respect of the substantial area of land in the Cox Peninsula. There can be no doubt that for the purpose of considering the operation of s. 50 of the Land Rights Act, this is the date of the application to which the section refers. At that time, of course, regulation No. 53 (assuming validity) was already operative, the Cox Peninsula was no longer "unalienated Crown land", and the Commissioner was without jurisdiction to entertain the claim. (at p274)

12. At this point in the argument, the applicant relies on the repeal on 3 August 1979 of the Town Planning Act and regulation No. 53. but of this stand, two things must be noted. The first is that a fresh claim was not made; the second, more importantly, is that the new regulation came into operation on the same day as the repeal of the old one became effective, so that there was no point of time at which it could be said that the Cox Peninsula had reverted to the status of "unalienated Crown land". (at p274)

13. In any event, this submission would only avail the applicant if it were correct in its premise, namely, that so long as an application has been made pursuant to s. 50 of the Land Rights Act in respect of unalienated Crown land, then a subsequent change in the status of the land is immaterial. It is true that s. 50 outlines the function of the Commissioner "on an application being made" in respect of a traditional land claim to an area of land which satisfies a given description. It is clearly the policy of the Act that a land claim can be entertained only in respect of land which is "unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". But, unfortunately, from the point of view of the claimants, the Act does not prevent the land being alienated subsequently to an application being made, nor does it provide any procedures whereby a claim may be granted notwithstanding such an alienation. The applicant pointed to the provision in s. 11(1)(d) whereby the Minister, in the event that he is satisfied that the land or any part of it should be granted to the Aboriginals, is required in the case of alienated Crown land to ensure that the estates and interests in that land of persons other than the Crown are acquired by the Crown by surrender or otherwise. But in my opinion this provision is simply a recognition of the fact that an application may be made under s. 50 in respect of land which is alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals - hence the emphasis on "surrender". I am forced, reluctantly, to the conclusion that the Commissioner's function under s. 50(1)(a) extends only to land which satisfies the description contained therein. A change in the status of the land subsequently to the making of an application whereby the land ceases to fit the description necessarily has the effect of depriving the Commissioner of any further function in respect of it. (at p275)

14. If it should be thought that this result reflects a serious gap in the legislation, it must be remembered that at the time of the passing of the Land Rights Act the authority of the Commonwealth extended not only to the administration of the Act but also to the alienation of Crown land in the Northern Territory, with the result that a conflict of policy may not have been anticipated. However, that situation was changed when self-government was conferred on the Northern Territory in 1978.

The validity of the regulation: (at p275)

15. (a) Want of Utility. (at p275)

16. The applicant advances two independent submissions by way of attack on the validity of the regulation under the Planning Act that purported to come into effect on 3 August 1979. The first is that it fails for want of a useful purpose; the second is that it fails because of bad faith or improper purpose, an issue which he submits the Commissioner wrongly held was not maintainable in relation to the actions of the Administrator in his capacity as a representative of the Crown. If this latter allegation succeeds, then the matter may have to be remitted to the Commissioner for the issue to be determined on evidence. (at p276)

17. In support of the first of these submissions, the applicant relies on the nature and thrust of the Planning Act. It says that it is an Act of general application. Its long title declares that it is an Act to provide for "the Planning and Control of the Use and Development of Land". It draws no distinction between town and country, between urban and non-urban land. The word "town" appears only in s.4, the definition section, and in Pt IX which contains transitional provisions. It follows therefore, so it is said, that there is no purpose of the Act to be served by identifying an area as a town or as an area which is to be treated as a town. I will consider the argument before describing an amendment to the Act which received assent on 14 March 1980, and which may be relevant. (at p276)

18. In Shanahan v. Scott (1957) 96 CLR 245 , a majority of the Court (Dixon C.J., Williams, Webb, and Fullagar JJ.) discussed the scope of a general power to make regulations providing for all or any purposes necessary or expedient for the administration of an Act or for carrying out the objects of an Act. In a joint judgment, their Honours, after referring to Carbines v. Powell (1925) 36 CLR 88 ; Gibson v. Mitchell (1928) 41 CLR 275 ; Broadcasting Company of Australia Pty. Ltd. v. The Commonwealth (1935) 52 CLR 52 ; Grech v. Bird (1936) 56 CLR 228 ; and Morton v. The Union Steamship Co. of New Zealand Ltd. (1951) 83 CLR 402, at pp 409-410 said (1957) 96 CLR, at p 250 :

"The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."

This passage was approved by the Judicial Committee of the Privy Council in Utah Construction &Engineering Pty. Ltd. v. Pataky (1966) AC 629, at p 640 and affirmed by this Court in Willocks v. Anderson (1971) 124 CLR 293 . (at p276)

19. It will be noted that the attack here is not that the regulation is bad because it extends the operation of the Planning Act; it is rather that it achieves nothing at all. As I have already observed, the power to make regulations is found in s. 165; it extends to "regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act...". The applicant argues that the words "for carrying out or giving effect to this Act" govern both the prescriptions described in this section, with the consequence that it is not enough that a regulation should be in respect of a matter which is required or permitted by the Act to be prescribed; it must also be seen to carry out or give effect to the Act. The grammatical construction of the section is opposed to the argument because, in contrast to its predecessor (s. 73) in the Town Planning Act, there is no comma to separate the concluding phrase from the words immediately preceding it. (at p277)

20. But even if the point be conceded, the submission that this regulation is invalid because it fails to serve a useful purpose and is therefore unnecessary cannot in my opinion be sustained. It is true, as the Commissioner observes, that the precise significance of a town does not emerge very clearly in the Planning Act. However, the Act is clearly concerned with the planning and control of the use and development of land generally, whether it be land within a town or otherwise. An important technique of control is the "planning instrument", which is defined to mean either a regional plan or a town plan. A regional plan applies wholly or substantially to land which is not in a town, and a town plan applies to land which is. Presumably the distinction which the Act draws between town and region will find expression in the pursuit of the procedures for which the Act provides, for example, the preparation of a draft planning instrument (s. 44), the hearing of objections (s. 56), the consideration of an application for subdivision (s. 93), and of a development application (s. 110). Part IX of the Act (ss. 166ff.) deals with transitional provisions, and includes many references to town planning schemes, but this term takes its meaning from the repealed Act. I do not think that this Part materially contributes to an understanding of the part that "town" plays in the Planning Act. Finally, in this regard, reference may be made to s. 60A of the Act. This is a section which was inserted on 14 March 1980 by amending Act No. 24 of 1980. It contemplates that the Minister may prepare and accept a draft planning instrument in relation to any land within a town in the circumstances which are there set out. Clearly, it is a section which is affected in its operation by the definition of "town" in s. 4, including the regulation which is in question here. (at p278)

21. It is also alleged for the applicant that the earlier regulation (No. 53 of 1978) was invalid, and therefore inoperative at the time when its formal claim was lodged in March 1979. The submission assumes a form which differs from that which I have discussed in relation to the later regulation. The earlier regulation was made under the Town Planning Act, in pursuance of a provision (s. 5(b)) in that statute which expressly authorized the prescription of a specified area of land, being land adjacent to a town, to be subject to certain provisions of the Act "as if it were part of that town". In this case the argument is that the regulation is invalid for failing to serve the purposes of the Act because it was premature. To be valid such a prescription should be made only when a proposal for a town has been prepared. No authority was advanced in support of such a contention, and I find it quite untenable.

(b) Improper purpose: Status of the Administrator. (at p278)

22. However, notwithstanding the fate of these submissions, the applicant argues that the validity of both the regulations is open to attack on an entirely different ground, a ground which the Commissioner refused to entertain, and the success of which would require the matter to be remitted to him for further hearing. This is the argument that both regulations were made for an ulterior purpose, namely, to thwart the traditional land claim to the Cox Peninsula. The Commissioner ruled that the Administrator was the representative of the Crown, and that the doctrine of Crown immunity applied so as to preclude a court from questioning the motive behind his actions. The applicant contests both the status of the Administrator and the existence of the doctrine in any event. (at p278)

23. Mr. Sher argues that the position of the Administrator under the Northern Territory (Self-Government) Act 1978 is no different in essential respects from his position under the Northern Territory (Administration) Act 1910-1976. He points out that under the earlier Act the Administrator was charged with the duty of administering the government of the Territory on behalf of the Commonwealth, was bound to comply with such instructions as were given to him by the Commonwealth Minister, and obliged to take an oath of service as well as the oath of allegiance to Her Majesty. In the light of these features of the office, so it is said, the Administrator was clearly a servant of the Crown in right of the Commonwealth with the consequence that his legislative and executive acts were open to challenge for want of good faith. As it was then, so it is now. In my opinion, this submission fails to have regard to the true significance of the Self-Government Act. It effected an important change in the political character of the Northern Territory with a corresponding change in the status of the office of Administrator. The preamble to the Act declares its purpose to be to confer self-government on the Territory, and for that purpose to provide, inter alia, for the establishment of separate political, representative and administrative institutions in the Territory. Section 5 declares that -

"The Northern Territory of Australia is hereby established as a body politic under the Crown by the name of the Northern Territory of Australia."

This section is of fundamental and far-reaching importance. It brings into being a new self-governing policy under the Crown. Of necessity, it required the appointment of a representative of the Crown in right of that polity, to administer the government thereof and perform the traditional vice-regal functions. Section 6 invests the Legislative Assembly with power to make laws for the peace, order and good government of the Territory, a power which in my opinion, subject to the limits provided by the Act, is a plenary power of the same quality as, for example, that enjoyed by the legislatures of the States. The constitution of the Territory as a self-governing community is no less efficacious because it emanates from a statute of the Parliament of the Commonwealth than was the constitution of the Australian colonies as self-governing communities in the nineteenth century by virtue of an Imperial statute: cf. Hodge v. The Queen (1883) 9 App Cas 117 ; Powell v. Apollo Candle Co. (1885) 10 App Cas 282 . In my opinion, the Self-Government Act is a valid exercise of the power conferred on the Parliament by s. 122 of the Constitution. The fact that the Administrator is appointed by the Governor-General and holds office at his pleasure does not deny his character as representative of the Crown in right of the Territory: Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick (1892) AC 437 ; R. v. Carroll (1948) SCR 126 . The status of the new polity is borne out by the provisions of the Self-Government Act, which, contrary to the submission of the applicant, differs significantly from the earlier Administration Act. The Administrator no longer administers the government of the Territory "on behalf of the Commonwealth"; that government is henceforth administered in its own right by the Administrator (s. 32). There is no longer any general subjection of the Administrator to the instructions of the Commonwealth Minister; henceforth such instructions are of force only in relation to the exercise of the powers and functions of the Administrator that fall outside ss. 34 and 36 which cover decisions touching the size of the ministry and the participation of members of the Legislative Council in that ministry, and in relation to matters which fall outside those in respect of which the Ministers of the Territory are to have executive authority (ss. 32 and 35). The range of matters which have been specified pursuant to s. 35 is extensive. The effect of the section is such as to limit the possible impact of ministerial instructions to a small compass. Mr. Sher stressed the fact that the Administrator is still required to take an oath of service to the Crown, but in my opinion this does not determine his relationship to the Crown. Furthermore, while there are provisions which emphasize a continuing role for the Governor-General in relation to the assent to bills, and to their disallowance (ss. 8 and 9), and which maintain a special relationship between the Territory and certain specified laws of the Commonwealth (see, for example, ss. 53 and 54), and while it remains true that the Parliament retains the power to repeal or amend the enactment, none of these things destroy the analogy in the present situation with the relationship that existed between the United Kingdom Government and Parliament and the Australian colonies in the nineteenth century. The creation of a new polity under the Crown, with its own Crown representative, remains a fact.
(c) Improper purpose: Examinability. (at p280)

24. This brings me to the second limb of the argument, namely, that Toohey J. erred in holding that he could not entertain an attack on the validity of the regulation which proceeded beyond its form to the purpose to which it was directed. The submission focusses attention on the problem which lies very close to the heart of this case. It raises a question of great importance to the relationship of the courts to the executive government. There is good ground for saying that the Commissioner faithfully applied the relevant law so far as it has been expressed previously in Australia. But, as Stephen J. has demonstrated in his reasons for judgment in this case, and which I have had the advantage of reading, the established view rests on somewhat slender foundations, and appears to differ markedly from the course that has been taken in Canada, New Zealand and the United Kingdom. In particular, the statements of Dixon J. and Fullagar J. in Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, at pp 179, 257 , must be seen in the context of the facts of that case, where the relevant subject-matter under consideration was the examinability of the view taken by the Governor-General in relation to matters of national security. Such matters are necessarily of a kind which are not often susceptible of judicial review, and the particular responsibility of the Crown and its advisers will generally attract ready recognition: cf. Chandler v. Director of Public Prosecutions (1964) AC 763, at p 797 , per Lord Radcliffe. Even in this field, much may depend on the precise form of the issue and the way in which it is raised: (1964) AC, at pp 809 ff , per Lord Devlin. (at p281)

25. In view of the uncertain state of the authorities revealed in the discussion by Stephen J., I think it desirable that I should examine the matter afresh. In any event, there is every justification for such an examination. The steadily expanding role of the State in recent decades provides increasing occasion for the individual citizen to feel aggrieved as the result of administrative action with a consequent need to ensure that the principles of administrative law relating to judicial review of such action remain sufficiently flexible to meet the requirements of justice without imposing unreasonable restraints on the freedom of government action. As recently as 1967, Jacobs J.A. justified the restraints as then understood on judicial review of discretionary decisions of the Governor in Council by saying that "if it were otherwise the path of the Crown, the executive government, would be so strait that no government could walk it": New South Wales Co. Pty. Ltd. v. Attorney-General (N.S.W.) (1967) 67 SR (NSW) 341, at p 357 . But the winds of change were already beginning to blow, and to blow strongly. In Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997, at p 1030 , Lord Reid asserted the justification for a wide-ranging doctrine of judicial review:

"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so use his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court."

cf. also Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) AC 1014, at p 1025 ; Laker Airways Ltd. v. Department of Trade (1977) QB 643, at pp 707-708 . (at p282)

26. But it is not only in materials of recent origin that guidance is to be found. The distinction has frequently been drawn in this area of discourse between powers which have their origin in the prerogatives of the Crown, and those which are conferred by statute, the latter being said to be more susceptible of judicial review that the former. It may well be true that the limits of a statutory power can be more readily discerned from the Act conferring the power. The distinction is well illustrated in the historical survey which Mason J. has undertaken in his reasons for judgment in this case, and to which I am indebted. Even so, Blackstone would seem to have contemplated the same principle as applicable to the exercise of prerogative powers when he wrote in his Commentaries, 15th ed., vol. 1, at p. 251:

"For the prerogative consisting...in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such pregorative is exerted in an unconstitutional manner."

Lord Denning referred to this passage in his judgment in Laker Airways (1977) QB, at pp 705-706 , and proceeded to the conclusion that "when discretionary powers are entrusted to the executive by the prerogative - in pursuance of the treaty-making power - the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly". By "mistakenly", his Lordship meant "under the influence of a misdirection in fact or in law". (at p282)

27. Again, a distinction has sometimes been drawn between powers which have a legislative character and powers which are more aptly described as administrative or executive powers, the former being thought to be less open to judicial review. But it would seem that only limited assistance is to be gained from such an attempt at characterization. In Arthur Yates &Co. Pty. Ltd. v. Vegetable Seeds Committee (1945) 72 CLR 37 , Dixon J. was discussing the question whether the legislative character of orders made by the Committee was relevant to the question whether the purpose animating the Committee was a ground of invalidity. He continued (1954) 72 CLR, at p 80 :
"Indeed I do not think that in English law such a question will be found ever to be solved by ascertaining whether, upon a correct juristic analysis, the power should or should not be described as legislative. It will depend rather upon the nature of the authority in whom the power is reposed and upon the measure and extent of the power, its subject matter and its limitations and the conditions in or upon which it is exercisable." (at p282)

28. It seems to me that the fact that a particular power is reposed in the representative of the Crown acting on the advice of his Ministers will seldom warrant the operation of different principles of judicial review to those which would apply if the power were reposed in a Minister of the Crown acting alone. I am unable to draw any distinction in principle between the two cases. Of course, it is not for the courts to assume any responsibility for oversight of the policy expressed through the decisions of the executive government. There is no reason whatever to doubt the statement of Warrington L.J. in Short v. Poole Corporation (1926) Ch 66, at pp 91-92 :

"With the question whether a particular policy is wise or foolish the Court is not concerned; it can only interfere if to pursue it is beyond the powers of the Authority."

In other words, the courts will not review the proper exercise of discretionary power. Furthermore, in the case of a statutory power the construction of the relevant statute will be of primary importance in determining the nature and extent of any such power and the consequent scope for any judicial review. In the case of prerogative powers, the subject matter of the power will be of primary importance in determining whether the manner of exercise of the power is justiciable. In this regard, I have already referred to observations of their Lordships in Chandler. (1964) AC 763 . Likewise, I would not question the correctness of the statement of Lawton L.J. in Gouriet v. Union of Postal Workers (1977) QB 729, at p 768 , and confirmed by the House of Lords (1978) AC 435 , to the effect that the courts have no jurisdiction over the discretion of the Attorney-General as to when, and when not, he should grant his fiat in a relator action, or as to a decision to prosecute or not to prosecute. These powers are necessarily encompassed wholly within his traditional law-enforcement function as the Law Officer of the Crown: cf., also, Barton v. The Queen (1980) 147 CLR 75 . (at p283)

29. Against this background, I return to the complaint of the applicant in this case. The Administrator made a regulation which was in due form and to all appearances a proper exercise of the power conferred by s. 165 of the Planning Act. In the exercise of the power, he was obliged to act with the advice of the Executive Council consisting of persons then holding ministerial office (Northern Territory (Self-Government) Act 1978, s. 33). It will be observed at once that the power found its origin in statute, not in the prerogative. In my opinion, the Commissioner has jurisdiction to entertain, in the course of determining whether the Cox Peninsula is unalienated Crown land within the meaning of the Land Rights Act, an allegation that the regulation in question is invalid because it was not made for the purpose of advancing the policy and objects of the Planning Act, but for the ulterior purpose of placing the Peninsula beyond the reach of a land rights claim. This conclusion is not affected by precise considerations based on the construction of the power to make regulations contained in s. 165; it simply recognized that every Act supplies a perspective in which the policy and objects of the legislature can be discerned, and which serves to provide that framework within which the legislature intended the powers which it conferred to be exercised. The scope of judicial review which a statute concedes to a court will vary from Act to Act, depending on the kind of considerations which Dixon J. outlined in the Vegetable Seeds Case to which I have referred (1945) 72 CLR, at p 80 : see also Lord Wilberforce in Tameside (1977) AC, at p 1047 . I would not expect this understanding of the relevant principles to impede good government. It must be seldom that a regulation in due form and apparently within power will be open to challenge on the ground that it was made for reasons which are unrelated to the intent and purpose of the Act. Nor is there any reason to suppose that the principles of law touching Crown privilege will be inadequate to afford proper protection to the relationship between the representative of the Crown and his ministerial advisers. (at p284)

30. It follows from my conclusion in this respect that with all respect I think the Commissioner was wrong when by his decision of 24 July 1979 he refused to allow the claimants to advance the argument of invalidity based on an ulterior purpose.

The Commissioners decision as to onus and test for validity. (at p284)

31. Mr. Sher then directs his attention to the rulings made by the Commissioner in the course of the two hearings conducted by him following the making of the Planning Act Regulations on 3 August 1979. He says that the Commissioner was wrong when he ruled that the regulation in question in order to be valid must be capable of fulfilling a town planning purpose, and further that he erred in placing an onus on the applicant to establish its invalidity. (at p284)

32. In the light of my conclusion relating to the issue of invalidity by reason of ulterior purpose, it may be unnecessary to examine the actual ruling of which the claimants complain. However, it may be helpful to state briefly why I think, with respect, that the Commissioner erred in postulating as a test of validity the question whether the regulation was capable of fulfilling a town planning purpose. (at p285)

33. I agree with Mr. Sher that it is so vague as to be meaningless. Once it be recognized that the test of adjacency to a town which was required in respect of the similar power in the earlier Town Planning Act no longer applies, with the consequence that land in the Territory may be specified as land which is to be treated as a town whether or not it is adjacent to a town, no court can determine whether or not that land is capable of fulfilling a town planning purpose. The answer might be thought to depend on the existence of proposals under the Planning Act to promote its development as a town rather than as a region. But there is no requirement that any particular steps in that direction must have been taken before the power to make the regulation is exercised. It may well be considered expedient to make the regulation so as to give advance notice of the designation upon which the projected development may proceed before any details of that development are ready to be published. Although in the present case the Commissioner was furnished with evidence of long-term proposals having a town planning significance touching the land in question, which led him to find the issue against the applicant, it is difficult to see why the validity of the regulation should have depended upon the fact that those proposals happened to be in existence at that time. It would be otherwise if the exercise of the power was tied into the promulgation of a town plan so that the two things were necessarily related in time, but that does not appear to be a requirement of the Act. I have already noted and rejected, in the context of the earlier regulation, the argument of prematurity which was advanced for the applicant. It must also be said of the Planning Act that a regulation which specifies an area to be treated as a town cannot be said to be invalid merely because it precedes other procedures under the Act which when implemented will operate upon the specification. (at p285)

34. It follows from this conclusion that it is unneccessary to consider the evidentiary questions which attracted the criticism of the applicant. However, I would observe in passing that the argument that the Commissioner erred in holding that an onus rested on the applicant to establish the fact that the land the subject of the claim was "unalienated Crown land" would seem to be untenable. The applicant asserted that the land was of such a character that the Commissioner had jurisdiction to entertain the claim; in the event of an issue being raised in this regard, it was for the applicant to satisfy the Commissioner of its assertion. (at p285)

35. There remains one other matter to be considered. Let it be assumed that the Planning Act regulation is valid, with the result that for the purposes of the application of the word "town" under the Planning Act and the Cox Peninsula is to be treated as a town. It is still necessary to see how it measures up to the provisions of s. 50 of the Land Rights Act. It will be remembered that that section identified the land which could be the subject of a traditional land claim as including "unalienated Crown land". That term does not include land in a town. "Town" is defined in s. 4 as follows -

"'town' has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town".

This definition is apt to include the Cox Peninsula, provided that the Planning Act, vis-a-vis the relevant regulation, satisfies the description of a law "relating to the planning and developing of towns and the use of land in or near towns". No doubt that Act is capable of satisfying the description in so far as it deals with towns and the use of land in or near towns, but in my opinion it could not be so described when it is dealing with other land. If this is so, then, theoretically, it is open to the claimants to assert that the Cox Peninsula is not land "near" the town of Darwin with the consequence that the Commissioner has jurisdiction to entertain their claim because, notwithstanding the regulation under the Planning Act, the land the subject of the claim is unaliented Crown land within the meaning of the Land Rights Act. In my opinion this question must be determined by the Commissioner as a fact on which his jurisdiction would depend; it is not strictly analogous to the issue of "adjacency" which the Commissioner deferred for later consideration when he was dealing with the regulation under the Town Planning Act, and which was relevant to the validity of the regulation rather than to the operation of the Land Rights Act upon it. Notwithstanding that it is a matter for the Commissioner, I propose to express briefly my view upon it, because I do not think that in this case the issue can be resolved favourably to the claimants, and it would be insensitive of me to encourage them to find any comfort in it. The material which is before the Court includes plans which show the area of land to which the regulation in question refers. It appears to extend more or less uniformly out in all directions (excluding the sea) from the boundaries of the town of Darwin to a furthest distance of between thirty and forty miles. In the course of argument, the Court was informed from the Bar table that the nearest point to Darwin of the Cox Peninsula was about 6 kilometres across the harbour, that the whole of the peninsula was contained within a 25 kilometre radius from the town, but that access by road entailed a journey of almost one hundred kilometres by a route that was sometimes impassable. The question of proximity to a town must be a question of fact and degree. Having regard to the facts that - (a) the specified area covers an unbroken area of land which is adjacent to the town boundaries, (b) the peninsula is readily accessible by sea and air, (c) it is already the subject of existing planning proposals which led the Commissioner not to be satisfied that the land was not capable of fulfilling a town planning purpose, I find inescapable the conclusion that the Planning Act, in relation to the regulation in question, is a law relating to "the planning and developing of towns and the use of land in or near towns" within the meaning of the Land Rights Act. (at p287)

36. Having regard to my conclusion on the justiciability of the attack of the validity of the regulation, this matter should be referred back to the Commissioner for him to proceed to deal with the application according to law. As my brother Aickin demonstrates, there has been a constructive failure to exercise jurisdiction. I would therefore make an order for mandamus. (at p287)

Orders

Order that a writ of mandamus issue to the Honourable Mr. Justice Toohey as Aboriginal Land Commissioner directing him to proceed to deal in accordance with law with the application made by the prosecutor under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and known as the Kenbi Land Claim.

Order that the Attorney-General for the Northern Territory pay to the prosecutor its costs of this application.