Wreck Bay Aboriginal Community Council v Williams
[2017] ACTCA 46
•23 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Wreck Bay Aboriginal Community Council v Williams |
Citation: | [2017] ACTCA 46 |
Hearing Date: | 7 August 2017 |
DecisionDate: | 23 October 2017 |
Before: | Murrell CJ, Burns and Mossop JJ |
Decision: | See [88] |
Catchwords: | ABORIGINAL AND TORRES STRAIT ISLANDERS – ABORIGINAL LAND RIGHTS – special case – statutory interpretation – Aboriginal Land – Jervis Bay Territory – whether the Residential Tenancies Act 1997 (ACT) is capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) |
Legislation Cited: | Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth), ss 4, 5, 6, 6(b), 7, 8, 9, 9A, 10, 13, 13(3), 14, 17, 17(1), 17(2), 18, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38, 38(1), 38(2), 38(3), 38(3)(a), 40, 40(a), 40(b), 40(c), 41, 42, 46 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 10, 11 Seat of Government Surrender Act 1915 (NSW) |
Cases Cited: | Attorney-General (NT) v Hand (1989) 25 FCR 345 Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399 Wreck Bay Aboriginal Community Council v Williams [2016] ACTSC 240 |
Texts Cited: | Commonwealth, Royal Commission into Aboriginal Land Rights, Aboriginal Land Rights Commission: Second Report, (1974) Mark Leeming, Resolving Conflicts of Laws (The Federation Press, 2011) Explanatory Memorandum, Aboriginal Land Grant (Jervis Bay Territory) Bill1986 (Cth) |
Parties: | Wreck Bay Aboriginal Community Council (Appellant) Glen Richard Williams (Respondent) The Attorney-General for the Australian Capital Territory (Intervener) |
Representation: | Counsel P Walker SC and R Arthur (Appellant) G Kennett SC (Respondent) P Garrisson SC SG (Intervener) |
| Solicitors Ken Cush & Associates (Appellant) Clayton Utz (Respondent) ACT Government Solicitor (Intervener) | |
File Number: | ACTCA 49 of 2016 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Elkaim J Date of Decision: 25 August 2016 Case Title: Wreck Bay Aboriginal Community Council v Williams Citation: [2016] ACTSC 240 |
THE COURT:
Introduction
Within the Jervis Bay Territory (‘JBT’) is an area of land granted by the Commonwealth to the Wreck Bay Aboriginal Community Council (‘Council’). That is a body established by the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) (‘LG Act’). The Council has the power to grant leases of that land to members of the Council. The issue in the present case is whether or to what extent the power of the Council to grant leases is subject to the Residential Tenancies Act 1997 (ACT) (‘RT Act’) which is applied in the JBT by the Jervis Bay Territory Acceptance Act 1915 (Cth) (‘Acceptance Act’).
The respondent (Mr G Williams) obtained a lease from the Council in 1989. The land that he leased from the Council had a house on it. He paid rent for that house for a period of 12 weeks. He has not paid any rent since. He remains in occupation of the premises. No written lease has been located.
On 14 April 2015 Mr Williams commenced proceedings in the ACT Civil and Administrative Tribunal (‘ACAT’) seeking the payment of compensation for a breach of the terms of the lease and orders requiring the carrying out of repairs on his property. The Council contended that the ACAT had no jurisdiction and there was a preliminary hearing on 13 November 2015 addressing that issue. The basis for the contention that the ACAT had no jurisdiction was that the facts did not establish that there was a residential tenancy agreement. The ACAT concluded that there had been a written lease which required Mr Williams to pay $35 per week, that Mr Williams had paid rent for 12 weeks but had not paid any rent since then and that no steps had been taken to remove him or his family from the property.
Although the record is not entirely clear, it appears that at some point subsequent to the decision of the ACAT on jurisdiction the ACAT referred a question of law to the ACT Supreme Court under s 84 of the ACT Civil and Administrative Tribunal Act 2008 (ACT). On 10 June 2016 a special case was filed in the Supreme Court. That special case was subsequently amended and the parties agreed that only two of the four questions in the Amended Special Case needed to be answered. Those questions were:
Q3 [I]s the Residential Tenancies Act 1997 (ACT), in whole or in part, a law which is not capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?
Q4If the answer to Question 3 is “yes”, to what extent does the Residential Tenancies Act 1997 (ACT) not apply to Aboriginal Land for the purposes of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?
The facts upon which the special case was based may be summarised as follows:
(a)The Council is established by s 4 of the LG Act and is a body corporate with perpetual succession. It consists of the members of the Council registered under the LG Act. There are presently 340 members.
(b)Mr Williams is a registered member of the Council. He has resided in premises provided by the Council on Aboriginal Land within the meaning of the LG Act.
(c)Wreck Bay Village consists of a number of residential dwellings together with administration buildings and community amenities. The number of residential dwellings is insufficient to house all of the members of the Council.
(d)The premises in which Mr Williams lives are in substantial disrepair.
(e)The ACAT found in Williams v Wreck Bay Aboriginal Community Council [2015] ACAT 79 that since 1989 there has been a residential tenancy agreement within the meaning of s 6A of the RT Act between Mr Williams and the Council.
(f)The RT Act provides that a residential tenancy agreement is taken to contain terms set out in schedule 1 of the Act which included the following:
(i)the lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement (cl 55(1));
(ii)the lessor must make non-urgent repairs within four weeks of being notified of the need for repairs (cl 57); and
(iii)the lessor must carry out urgent repairs as soon as necessary, having regard to the nature of the problem (cl 59).
In the ACAT proceedings Mr Williams was seeking orders that:
(a)pursuant to s 83(b) of the RT Act the Council undertake necessary repairs to the premises; and
(b)pursuant to s 83(d) of the RT Act the Council pay compensation for breaches of the residential tenancy agreement in the sum of $15,000.
Elkaim J heard the special case on 22 August 2016 and on 25 August 2016 published reasons answering question 3 “No”: Wreck Bay Aboriginal Community Council v Williams [2016] ACTSC 240. It was therefore unnecessary to answer question 4.
The Council has appealed against that decision. In its Notice of Appeal it contends that question 3 in the Amended Special Case should be answered “Yes”.
The Jervis Bay Territory
The land now forming the JBT was originally a part of New South Wales. The Seat of Government Act 1908 (Cth) provided that the seat of government was to be “in the district of Yass-Canberra in the State of New South Wales”: s 3. The Territory to be granted to or acquired by the Commonwealth for the seat of government was required to contain an area of not less than 900 square miles “and have access to the sea”. The agreement made between the Commonwealth and State of New South Wales on 18 October 1909 in relation to the location of the seat of government included an agreement that New South Wales would grant the Commonwealth certain identified areas of land at Jervis Bay: Seat of Government Acceptance Act 1909 (Cth) First Schedule, cl 5.
In 1913 an agreement for the surrender of the territory at Jervis Bay was reached and following this agreement the land was surrendered by the State of New South Wales and accepted by the Commonwealth by the combined effect of the Seat of Government Surrender Act 1915 (NSW) and the Acceptance Act. Section 4(1) of the Acceptance Act provided that the territory set out in the agreement that was surrendered by the State was accepted by the Commonwealth “as a Territory of the Commonwealth”. Section 4(2) provided:
The territory so accepted shall be annexed to and be deemed to form part of the Territory acquired by the Commonwealth for the Seat of Government, to the intent that all laws ordinances and regulations (whether made before or after the commencement of this Act), which are from time to time in force in the Territory for the Seat of Government shall so far as applicable apply to and be in force in the territory so accepted.
Section 4(3) of the Acceptance Act provided that ss 6–9 of the Seat of Government Acceptance Act and the whole of the Seat of Government (Administration) Act 1910 (Cth) (except ss 9 and 10) applied to the territory “as if it formed part of the Territory for the Seat of Government”. Sections 6–9 of the Seat of Government Acceptance Act were the provisions which applied the laws of New South Wales to the Australian Capital Territory, continued estates in land and provided for the exercise of judicial power by the High Court and by magistrates appointed for the ACT. The only sections of the Seat of Government (Administration) Act which were excluded were those relating to the disposal and acquisition of land.
The position was, therefore, that the laws applying in the Australian Capital Territory applied in the JBT in the same manner as if the JBT formed part of the Australian Capital Territory.
Upon the granting of self-government to the Australian Capital Territory there was some modification of these arrangements. The ACT Self Government (Consequential Provisions) Act 1988 (Cth) amended the Acceptance Act by deleting sub-ss 4(2)–(3) and inserting s 4A:
4A Laws of Australian Capital Territory to be in force
(1)Subject to this Act, the laws (including the principles and rules of common law and equity) in force from time to time in the Australian Capital Territory are, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.
(2) Subsection (1) extends to:
(a) sections 6 and 7 of the Seat of Government Acceptance Act 1909; and
(b) the whole of the Seat of Government (Administration) Act 1910 except sections 9 and 12 of that Act;
but does not extend to any other Act or provision of an Act.
The change was necessary because, by reason of the deletion of s 4(2), the JBT was no longer “annexed to and … deemed to form part of” the ACT. It was therefore necessary to have a provision setting out the laws which were applicable in the JBT.
The ACT Self Government (Consequential Provisions) Act also inserted other provisions relating to the application of laws in the JBT.
4C Ordinance may amend or repeal adopted laws
A law in force in the Territory because of section 4A may be amended or repealed by an Ordinance or by a law made under an Ordinance.
...
4F Ordinances
(1)The Governor-General may make Ordinances for the peace, order and good government of the Territory.
(2) Notice of the making of an Ordinance shall be published in the Gazette, and an Ordinance shall, unless the contrary intention appears in the Ordinance, come into operation on the date of publication of the notice.
Sections 4A, 4C and 4F have remained in this form since their enactment.
The content of the law of the Jervis Bay Territory (arising by application of ACT law or otherwise) is not only significant for the residents of the JBT. Such law provides the basis for regulation of conduct of the members of the defence forces: see Defence Force Discipline Act 1982 (Cth), s 61.
The LG Act
The LG Act was passed in 1986. The second reading speech of the Minister for Aboriginal Affairs, Mr Clyde Holding, explained the purpose of the Act as follows:
The purpose of the Aboriginal Land Grant (Jervis Bay Territory) Bill is to provide for the grant of inalienable freehold title to the Wreck Bay Aboriginal community over an area of some 403 hectares in Jervis Bay Territory. The Wreck Bay Aboriginal community is an established community comprising mainly descendants of the Jervis Bay and other tribes who once inhabited the general area. The land concerned at one time was gazetted as an Aboriginal reserve and administered by arrangement with the New South Wales Aborigines Protection Board. The land has always been regarded as a distinct Aboriginal area separate from the other land in Jervis Bay Territory.
(Commonwealth, Parliamentary Debates, House of Representatives, 29 May 1986, 4193)
The LG Act establishes the Council as a body corporate with perpetual succession: s 4. It sets out the functions of the Council: s 6. It provides that the Council consists of the persons who are the “registered members” at the time: s 5. The registered members of the Council are recorded in a register kept by the Registrar of the Council: s 17(1). The initial members were those Aboriginals who resided in the Jervis Bay Territory on 24 May 1986 and had attained the age of 18 years: s 17(2). Changes to the membership are made by motion at a general meeting of the Council: s 18. An executive committee of the Council is established: ss 27–34, and the provision is made for the establishment of other committees of the Council: s 35. Annual general meetings are required and special general meetings may be called by the Minister, the chairperson of the Council or upon requisition of not less than 20 registered members of the Council: s 23.
The LG Act provides for an initial grant of land to the Council: s 8. That is achieved by the minister signing an instrument which declares that when a copy of the instrument is given to the chairperson of the Council the land identified in the Schedule to the Act becomes “Aboriginal Land”: s 8. There is also a provision for subsequent grants of land: s 9 and the grant of land within Booderee National Park: s 9A. Where a grant of land is made “that land (including all rights, title and interests in that land) is vested in the Council without any conveyance, transfer or assignment”: s 10. Minerals are, however, reserved to the Commonwealth: s 14.
For present purposes the most significant provisions of the Act are those in Part V which is entitled “Dealings with Aboriginal Land”. Section 38 provides:
38Dealings in Aboriginal Land by Council
(1)Except as provided by this Part, the Council shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in Aboriginal Land.
(2)Subject to this section, the Council may grant a lease of Aboriginal Land (other than land within the Booderee National Park or the Booderee Botanic Gardens):
(a)to a registered member or registered members for use for domestic purposes;
(b)to a registered member or registered members for use for business purposes;
(c)to a registered member or registered members for use for the benefit of the members, or of a significant number of the members, of the Community;
(d)with the consent in writing of the Minister—to a person other than a registered member, or to persons at least one of whom is not a registered member, for use for domestic purposes;
(e)with the consent in writing of the Minister—to a person other than a registered member, or to persons at least one of whom is not a registered member, for use for business purposes; or
(f)to the Commonwealth or an Authority.
(3)Except with the consent of the Minister, the term of a lease shall not exceed:
(a)in the case of a lease to which paragraph (2)(a) applies—99 years;
(b)in the case of a lease to which paragraph (2)(b) or (c) applies—25 years; or
(c)in any other case—15 years.
(4)The Council may grant a person a licence to use Aboriginal Land (other than land within the Booderee National Park or the Booderee Botanic Gardens).
(5)Where the Council grants a lease of, or a licence to use, Aboriginal Land to the Commonwealth or to an Authority under this section, the rent and other amounts payable under the lease or licence shall be determined by the Minister.
(6)The Lands Acquisition Act 1989 does not apply to the grant of a lease under this section.
Sections 40–42 provide:
40Rights of existing occupiers
Where, immediately before land became Aboriginal Land, a registered member was in occupation of the land with the consent, express or implied, of the Commonwealth or of an Authority, the Council shall, in accordance with section 38, grant that person a lease of that land, being a lease:
(a)the term of which:
(i) commences at the time at which the land became Aboriginal Land; and
(ii) is for the maximum period permitted for the lease by subsection 38(3);
(b)the terms and conditions of which do not provide for any payment by the person in respect of a building or improvements erected on the land solely at the expense of the person; and
(c)the terms and conditions of which may include terms and conditions approved by the Minister in writing under which the person is to pay to the Council in respect of buildings and improvements on the land (other than buildings or improvements to which paragraph (b) applies) amounts amounting in the aggregate to the value of those buildings and improvements at the time at which the land became Aboriginal Land.
41Dealings in land leased from Council
(1)Subject to this section, where the Council has granted a lease of Aboriginal Land to a person, that person, or a person who has been granted a sub‑lease of the land under this section, may grant a sub‑lease of the whole of the land.
(2)Except with the consent in writing of the Minister, a person shall not grant a sub‑lease of Aboriginal Land to a person other than a registered member, the Commonwealth or an Authority.
(3)Except with the consent in writing of the Minister, a person shall not grant a sub‑lease of Aboriginal Land for use for purposes other than the purposes for which the land is required to be used by the lease in respect of the land.
42Devise of interests in Aboriginal Land etc.
(1)Where a registered member has the benefit, or a share in the benefit, of a lease or sub‑lease of Aboriginal Land for use for domestic purposes, that benefit or share is capable of transmission, by will or under a law relating to intestacy in force in the Territory, to a relative of the member.
(2)Where the benefit, or a share in the benefit, of a lease or sub‑lease of Aboriginal Land is transmitted because of subsection (1), the purposes for which the land is required to be used by the lease or sub‑lease, as the case may be, shall not be taken to be altered.
Finally, in Part VI of the Act is s 46 which provides:
46 Application of laws of Territory to Aboriginal Land
This Act does not affect the application to Aboriginal Land of a law in force in the Territory to the extent that that law is capable of operating concurrently with this Act.
The Explanatory Memorandum for the Bill for the LG Act provided in relation to s 46 (at [74]):
Any law in force in the Territory will apply to Aboriginal Land to the extent that that law is capable of operating concurrently with this Act. This provision is inserted to make it clear that the granting of the Aboriginal Land to the Council has no other effect on the applicability of the general law of the Territory than as provided by specific legislative enactment in this Act.
The RT Act
The RT Act is an Act regulating residential tenancies. It commenced on 25 May 1998. Save for a limited number of provisions, it applied immediately to all residential tenancy agreements whether entered into before or after the commencement of the Act: s 4(1). From 1 July 2000 the whole of the Act applied to all residential tenancy agreements whether entered into before or after the Act commenced: s 4(2).
The RT Act contains a broad definition of what constitutes a residential tenancy agreement: ss 6A–6F. It provides that certain “standard residential tenancy terms” must be included in a residential tenancy agreement: s 8. (Prior to 1 January 2006 such terms were referred to as “prescribed terms”.) Terms which are inconsistent with the standard residential tenancy terms are void: s 9. There is capacity for terms which are inconsistent with the standard residential tenancy terms to be endorsed by the ACAT: s 10. Section 10 refers to “[t]he parties to a residential tenancy agreement” applying to the ACAT, indicating that the application must be made jointly. Where an inconsistent tenancy term is endorsed by ACAT then it may be contained within a residential tenancy agreement and is not void: ss 8(1)(c)(ii), 9(1). The standard residential tenancy terms, are set out in sch 1 to the Act and include cl 55 which is as follows:
55 (1) The lessor must maintain the premises in a reasonable state of repair having
regard to their condition at the commencement of the tenancy agreement.(2) The tenant must notify the lessor of any need for repairs.
(3) This section does not require the tenant to notify the lessor about anything that an ordinary tenant would reasonably be expected to do, for example, changing a light globe or a fuse.
Section 83 of the RT Act empowers the ACAT to make the following orders in relation to a tenancy dispute:
(b) an order requiring performance of a residential tenancy agreement or occupancy agreement;
…
(d) an order requiring the payment of compensation for loss of rent or any other loss caused by the breach of a residential tenancy agreement or occupancy agreement.
It is these provisions which Mr Williams sought to engage by his application to the ACAT.
The issue
The issue that arises from the question in the special case is whether s 38 of the LG Act is inconsistent with the RT Act to the extent to which the RT Act seeks to impose upon the Council an obligation to maintain the building on the land the subject of the lease to Mr Williams. In order to resolve that issue the submissions of the parties and of the intervener addressed it in two stages, first asking what was the status of the RT Act for the purposes of determining the question of inconsistency and second, whether s 38 of the LG Act precluded the application of cl 55 of the standard residential terms to the lease between the Council and Mr Williams.
What is the status of the RT Act when applied in the JBT?
The laws of the Territory are applied in the JBT. Any conflicts between Territory enactments and Commonwealth laws are, within the Territory, resolved in accordance with s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (‘Self‑Government Act’) as recently explained in Commonwealth v Australian Capital Territory [2013] HCA 55; 250 CLR 441 at [53], [54], [56]. However, the present case does not involve any potential conflict with a Commonwealth Act in the Australian Capital Territory. That is because the LG Act only applies in the JBT. What is therefore in question is how conflicts are resolved between applied laws of the Australian Capital Territory and a Commonwealth Act that applies to circumstances that exist only in the JBT. Because the Commonwealth Act does not apply to any circumstances that exist in the ACT there can be no inconsistency with ACT law when that law operates in the ACT but there is potential for inconsistency with ACT law when it is applied in the JBT.
Submissions
The Council submitted that, within the ACT, Commonwealth statutes have unqualified primacy, the High Court having made clear in the Commonwealth v Australian Capital Territory at [53] that Commonwealth statutes are not to be read down so as to permit concurrent operation with Territory enactments. Next it submitted that s 4A of the Acceptance Act picked up ACT laws “as if” the JBT formed part of the ACT. It therefore submitted that any conflict between applied ACT enactments and Commonwealth statutes in the JBT were to be resolved in the same way in which the issue is resolved in the ACT, namely by giving primacy to the Commonwealth statute. To put it slightly differently, when applied in the JBT by s 4A, ACT enactments retain their subordinate status vis-à-vis Commonwealth statutes that they have in the ACT.
Mr Williams submitted that there was no reason to regard an ACT enactment when picked up and given force by s 4A as having some form of subordinate status. Rather he submitted that enactments which are picked up and applied by s 4A have the same force as if they had been enacted by the Parliament as part of the Acceptance Act. He submitted that s 28 of the Self-Government Act had no application because it was only directed to a law that was “in force” in the ACT and was not picked up and applied by s 4A. He therefore submitted that the question of inconsistency between the LG Act and the RT Act should be approached by examining, in chronological order, the two Commonwealth Acts: the LG Act in relation to the investiture of land and the power to lease given to the Council and s 4A of the Acceptance Act in so far as it makes the RT Act part of the law of the JBT.
The Attorney-General, who intervened in the proceedings pursuant to s 27 of the Court Procedures Act 2004 (ACT), recognised that the RT Act was picked up as a surrogate Commonwealth law rather than an ordinary Commonwealth statute. Because of this he did not submit that any conflict was to be resolved by the application of the general rule that a later statute is, to the extent of any conflict, to be taken to repeal the earlier. He submitted that s 46 of the LG Act resolved any conflict in favour of the Commonwealth statute but that s 46 indicated that it was not the intention of the LG Act to exclusively govern Aboriginal Land in the JBT.
Consideration
The formula in s 4A is a formula used in other Commonwealth Acts in relation to other territories such as the Australian Antarctic Territory and the Territory of Heard Island and McDonald Islands: see Australian Antarctic Territory Act 1954 (Cth) s 6, Heard Island and McDonald Islands Act 1953 (Cth) s 5.
The three conditions for the application of laws under s 4A required by the language used are that the laws:
(a)be “in force from time to time in the Australian Capital Territory”;
(b)be in some respect (having regard to their subject matter) “applicable to” the JBT;
(c)not be “inconsistent with an Ordinance”.
Further, when they are given force in the JBT, they are given force “as if the Territory formed part of the Australian Capital Territory”.
In relation to the requirement that the laws be those that are “in force ... in the Australian Capital Territory”, a Territory enactment which has “no effect” under s 28(1) of the Self–Government Act because it is inconsistent with a Commonwealth Act cannot be said to be in force in the ACT and hence it is not picked up and applied. In other words, inconsistency with Commonwealth statutes operating in the ACT may limit what is picked up and applied to the JBT.
The reference to “from time to time” clearly accommodates changes in the law and means that the law that is picked up is not “frozen” at the date s 4A came into force.
The requirement that the laws be “applicable” to the JBT means that laws that clearly could only apply to places or subject matters in the ACT are not picked up and applied. In other words, if the terms of an ACT enactment are clearly confined to a subject matter which only exists in the ACT and does not exist in the JBT, then they will not be applied in the JBT.
The reference in s 4A to laws of the Territory not being inconsistent with an Ordinance makes it clear that, as between applied laws and an Ordinance, the Ordinance takes precedence. It thus provides an express rule for conflicts between Ordinances and applied laws in circumstances where the conflict rule to be applied would not otherwise have been obvious.
Finally, it is necessary to note the final words “as if the Territory formed part of the Australian Capital Territory”. These words are significant because they make clear that all the subtleties of the status of the laws that are picked up that arise from them being laws in force in the Territory are picked up by s 4A. Section 4A does not give them a status which they do not have in the ACT. These words are inconsistent with Mr Williams’ contention that the effect of s 4A is to pick up laws in force in the ACT and apply them as if they were a Commonwealth Act. Rather, it makes clear that the characteristics of the law picked up are those which they have in their home territory, the ACT. That includes their subordinate nature vis-à-vis Commonwealth Acts.
This is reinforced by another element of s 4A, namely, that the section is directed to picking up not only the statutory law in force in the ACT but also “the principles of and rules of common law and equity”. The inclusion of the reference to the principles of common law and equity makes it impossible to contend that the effect of s 4A is to apply the law there referred to as if it was a Commonwealth statute. Rather, the reference to common law and equity makes it clear that what is being picked up is the law in force in the ACT with the same characteristics as that law has in the ACT. Thus the common law picked up is not given the effect of statute (if that could be done, which it cannot: see Western Australia v Commonwealth (1995) 183 CLR 373 at 486–487) but rather retains its inherent characteristic that it is subordinate to, and liable to be modified by, statute. The fact that that must be the position in relation to the rules of common law and equity means, by parity of reasoning, that ACT enactments are picked up with their subordinate nature and inherent susceptibility to being rendered ineffective as a result of inconsistency with a Commonwealth Act.
Therefore Mr Williams’ contention that the RT Act is picked up and applied by s 4A as if it was a Commonwealth Act cannot be accepted.
The test for inconsistency between an applied ACT enactment and the LG Act
As is the case with s 28 of the Self-Government Act as it applies in the ACT, under s 46 of the LG Act the starting point must be determining the proper scope of the LG Act. Once that scope is determined it must be ascertained whether the law to be applied is capable of “operating concurrently” with the LG Act. In Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at [60] Gleeson CJ and Gummow J said that “incapacity of concurrent operation … is narrower than that which applies under s 109, where the federal law evinces an intention to make exhaustive or exclusive provision upon a topic within the legislative power of the Commonwealth”. It is not clear the extent to which that statement survived the decision in Commonwealth v Australian Capital Territory: see at [60].
However it is clear that a law operating in the JBT will not be capable of operating concurrently if the rights, obligations, powers, privileges and immunities created by it conflict with those created by the LG Act: Leeming, Resolving Conflicts of Laws (2011) at 241. A conflict will exist where there is some not insignificant impairment of those rights and obligations, powers, privileges and immunities. To pick up the language used by Dixon CJ in Victoria v Commonwealth (1937) 58 CLR 618 at 630 in the context of s 109 of the Constitution, if the applied law “would alter, impair or detract from” the operation of the LG Act then it would be incapable of operating concurrently with the LG Act.
The consequence of an inability to operate concurrently is that the LG Act may “affect” (in the s 46 sense) the application of that law to Aboriginal Land. Because ACT enactments applied in the JBT by s 4A retain their subordinate character, they may not operate in a manner that is repugnant to a Commonwealth Act.
The language of repugnancy is the conventional manner of describing either a denial of power to a subordinate lawmaker to make a law which is inconsistent with an Act of the Commonwealth Parliament or, alternatively, the overriding effect of the Commonwealth Act upon the subordinate law. It is therefore a useful form of language to describe this kind of conflict and to distinguish it from conflicts under s 109 of the Constitution or conflicts which are resolved by a specific statutory conflicts rule such as s 28 of the Self‑Government Act (cf Resolving Conflicts of Laws at 241). The authorities have differed as to whether repugnancy operates by a denial of law making power or by attributing overriding affect to the Commonwealth Act: Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588; Webster v Macintosh (1980) 49 FLR 317 at 319-320; R v Kearney; Ex parte Japanangka (1984) 158 CLR 395 at 418-419; Attorney-General (NT) v Hand (1989) 25 FCR 345 at 366-367, 402-403; Northern Territory v GPAO at [75]. In the present case the effect of repugnancy is that the LG Act is given overriding effect as the subordinate character of the conflicting law arises not from the ultimate source of authority for its application in the JBT but instead from the inherently subordinate nature of the applied law.
Is there an inconsistency?
The next issue is whether there is, notwithstanding s 46 of the LG Act, an inconsistency between the provisions of that Act and the RT Act which means that some or all of the provisions of the RT Act cannot apply to Aboriginal Land.
Submissions of Council
The Council submitted that s 8 of the RT Act was inconsistent with ss 6, 7 and 38 of the LG Act. It submitted that if s 8 of the RT Act was to apply the standard residential tenancy terms in sch 1 to the leases issued by the Council it would “alter, impair or detract” from the functions and powers given to the Council under ss 6, 7 and 38 of the LG Act. It submitted that s 46 did not preserve the operation of s 8 of the RT Act because there was no scope for ss 6, 7 and 38 of the LG Act to operate concurrently with s 8 of the RT Act. The Council submitted that the purpose of the LG Act is to provide a substantial measure of self-determination to the registered members of the Council in the control of their local affairs. It pointed to the function of the Council set out in s 6(b) of the LG Act “to exercise, for the benefit of the members of the Community, the Council’s powers as owner of Aboriginal Land and any other land owned by the Council”. Under s 7 the Council has “power to do all things necessary or convenient to be done for or in connection with the performance of its functions.” It submitted that the power to grant leases in s 38 is a power to be interpreted in the light of s 6(b) and that the judgement about the exercise of the power under s 38 and the terms of any leasehold estate which is granted would be altered or impaired or detracted from if the standard residential tenancy terms were imported into it by ACT legislation applying in the JBT.
It pointed to three cases where the High Court held that there was an inconsistency between the Commonwealth Act and a law of a State as providing examples of a form of inconsistency analogous to that which it says is found in this case: Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399; Australian Mutual Provident Society v Goulden (1986) 160 CLR 330; Dau v Australian Postal Commission (1987) 162 CLR 317.
The Council distinguished the title granted to the Council under the LG Act from an estate in fee simple, drawing attention to the failure to describe the title granted as such and the statutory provisions relating to subleasing and devise of lands on death which, it submitted, would not have been necessary if the title granted was a fee simple as opposed to a statutory title. It submitted that the language of ss 38 and 40 was consistent with the regime for the granting of leases being one given and controlled by statute rather than the Council having merely the powers of the owner of a fee simple whose entitlements are susceptible to qualification by statute. It submitted that the power to grant a lease is a statutory discretion given to the Council which cannot be constrained by the terms of the RT Act.
It submitted that the judge below erred in concluding that the obligations under the RT Act could be fulfilled without contravening the LG Act. It submitted that the possibility of simultaneous obedience was not the appropriate test. The Council submitted that the first task involved the proper construction of the LG Act so as to identify the ambit of its operation. It is only once that has been established that it is possible to see if the RT Act may operate concurrently.
Submissions of Williams
The submissions made on behalf of Mr Williams were premised on the proposition that the fact that laws were picked up and applied by s 4A of the Acceptance Act meant that reconciling inconsistency between an applied law and a Commonwealth statute involved reconciling enactments of the same legislature. He submitted that s 46 allows another law in force in the JBT to operate unless it directly collided with the LG Act, namely that it prohibits what the LG Act expressly authorises or permits that which the LG Act prohibits. He submitted that this approach is consistent with the common law principle of “harmonious construction” that laws of the same legislature are to be construed so far as possible to operate in harmony and not in conflict: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276. He submitted that this is consistent with the passage from the Explanatory Memorandum for the Bill for the LG Act (set out above at [24]).
The submissions made on behalf of Mr Williams referred to the nature of the title granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘Northern Territory Act’) namely “freehold” and the recommendations of Commissioner Woodward in his reports dated July 1973 and April 1974. He submitted that the vesting of land under s 10 of the LG Act should be viewed in this light as being for all practical purposes the equivalent of full ownership of the land but with the potential that the interest may be abrogated, qualified or varied by statute.
Mr Williams submitted that there was no collision between the provisions of ss 38, 40 and 41 of the LG Act and the provisions of the RT Act because:
(a)s 38(2) merely restored, in part, the ordinary ability of a landowner to grant leases which had been taken away by s 38(1);
(b)only some of the terms of any leases are determined by statute (ss 38(3) and 40) while others are not, impliedly assuming the existence of a general body of contract and property law;
(c)the implication of a term requiring repairs by the landlord does not prevent the Council from doing anything which by force of the LG Act it was otherwise entitled to do and any modification of that right simply involved the modification of the rights of an owner of a fee simple interest in land which are amenable to statutory qualification rather than detracting from any provision of the LG Act.
Mr Williams accepted that some provisions of the standard terms, such as cl 79, which prevented subleasing without consent of the landlord, would prevent acts which s 41 of the LG Act expressly permitted and therefore could not operate concurrently with the LG Act.
Mr Williams also submitted that even if a broader concept of inconsistency was applied, then the RT Act would not be inconsistent with the LG Act because:
(a)the vesting of an interest amounting to freehold in Aboriginal Land did not elevate the Council to anything more than a landowner;
(b)the limited power to make bylaws did not extend to any powers in respect of land tenure or the rights of landlord and tenant, meaning that these powers did not provide a basis for a conclusion that the operation of the RT Act altered or detracted from the scheme in the LG Act; and
(c)the position was distinguishable from that in the authorities referred to by the Council because there was nothing in the LG Act which indicated an intention to confer a capacity to act regardless of the requirements of another body of law.
Submissions of Attorney-General
The Attorney-General submitted that nearly all of the provisions of the RT Act were capable of operating concurrently with the LG Act. The submissions of the Attorney‑General were premised upon the proposition that the question of inconsistency should be approached on the basis that the two laws were laws of the same source. However, the submissions did recognise that because the RT Act was a surrogate Commonwealth law rather than a Commonwealth Act, the doctrine of implied repeal was not applicable. The submissions accepted that s 46 resolves any conflict between the LG Act and an applied law in favour of the LG Act but contended that s 46 makes it clear that the LG Act did not intend to make exhaustive or exclusive provision for Aboriginal Land in the JBT.
The Attorney-General submitted that it was not necessary, in order to decide this case, to address any distinctions in the authorities between the tests for inconsistency between State and Commonwealth laws in s 109 of the Constitution and ACT and Commonwealth laws in s 28 of the Self-Government Act. He submitted that applying any of the tests — the covering the field test, the alters/impairs/and detracts test, or the two conflicting duties test — would yield the same result in the present case, namely, that there was no inconsistency.
He submitted that the LG Act did not manifest an intention to be an exhaustive or complete statement of the law governing the relationship between the Council as landlord and its tenants on Aboriginal Land. The Attorney-General submitted that Goulden, Dau and Australian Broadcasting Commission were distinguishable on their facts. He submitted that in Dau and Australian Broadcasting Commission the entities were expressly permitted to engage employees on terms and conditions that that they determined. No such express language is used in relation to the powers of the Council to grant leases. Further, he submitted that the application of the standard residential tenancy terms to Council leases would not negate the essential scheme of the LG Act which he characterised as ensuring security of tenure for the Wreck Bay Aboriginal Community. As a consequence the Attorney-General submitted that the situation in Goulden could be distinguished.
Consideration
In considering question 3 in the stated case, the starting point is the proper interpretation of the provisions of the LG Act. Section 46 of the LG Act does not require that the provisions of the LG Act be read down so as to avoid inconsistency with another applicable law. Rather it prevents there being an assumption arising from the LG Act that the laws otherwise applicable to land in the JBT are excluded from land which has become Aboriginal Land.
It is only once the scope of the provisions of the LG Act is determined that it is appropriate to ask whether there is an inconsistency with the provisions of the RT Act and hence whether it not possible for the provisions to operate concurrently for the purposes of s 46 of the LG Act.
The goal of the LG Act is to provide secure tenure to land to the Wreck Bay Aboriginal community. It does so by permitting the grant of land and then vesting control of that land in the Council. That Council is an organisation subject to control by members of the community. That control is manifested in:
(a)the control exercised by registered members of the Council over membership of the Council through the power to control variation under s 18 of the Register kept under s 17;
(b)the control exercised by registered members over membership of the executive committee of the Council under ss 29 and 30;
(c)the power of registered members to determine what, if any, of the functions of the Council are delegated to the executive committee under s 36;
(d)the capacity of 20 or more members to requisition a special general meeting at which “any matters relating to the functions of the Council” may be dealt with: ss 23-24.
It is against this background that the provisions of the LG Act must be interpreted. The points of difference between the submissions of the parties focussed on two issues.
(a)First, whether the power of the Council to grant leases was a statutory power or simply an incident of ownership in common with any other holder of freehold title.
(b)Second, whether under the LG Act the determination of the terms on which leases are granted is a statutory discretionary power of the Council (subject to the express provisions of the LG Act) or simply a discretionary power equivalent to that of any other landlord and hence subject to qualification by the provisions of applied laws operating in the JBT?
First issue — is leasing a statutory power or an incident of ownership?
So far as the first of these issues is concerned, the LG Act does not use the expression “freehold” or “fee simple” in its description of the nature of the title that exists in Aboriginal Land.
Sections 8, 9 and 9A refer to land becoming Aboriginal Land without describing it by reference to any particular general law estate. Section 10 describes that where land has been given the status of Aboriginal Land then what vests in the Council is “that land (including all rights, title and interests in that land)”. That vesting is, however, subject to a statutory entitlement of the Commonwealth or a Commonwealth authority to continue to occupy or use land which was occupied or used prior to the vesting of the land in the Council: s 13. While the terms of the interest vested in the Council are, subject to the rights granted under s 13, as broad as the law would permit to be vested, that vesting is a statutory vesting and not the vesting of a common law estate.
The scheme set out in the LG Act was enacted in the context of the existing land rights legislation enacted by the Commonwealth for the Northern Territory, namely, the Northern Territory Act. Under that Act the grant of land is a “grant of an estate in fee simple”: ss 10, 11. That followed the recommendation in the second Woodward Report (Commonwealth, Royal Commission into Aboriginal Land Rights, Aboriginal Land Rights Commission: Second Report, (1974)) where the Commissioner unequivocally recommended that with the title should be an estate in fee simple that was communal and inalienable: see the Report at [70]–[74]. Having addressed and rejected the possibility that the title granted be leasehold because this would not be a satisfactory or proper solution to the aspirations of Aboriginal people, the Commissioner said at [72]:
I had suggested that these requirements could all be met by the creation of a new form of statutory title, to be known as Aboriginal Title, but I am reminded by a submission from the Northern Council that it is necessary to tread warily here. It is pointed out that if the title is expressed as being in fee simple, all the normal incidents of such title would be known. This would resolve any doubts about the applicability of the general law and facilitate any future dealing with the land, which may not be envisaged at present but which could be contemplated by later generations.
In contrast to the language used in the Northern Territory Act, the title granted by the LG Act is not expressly stated to be an estate in fee simple. The statute creates the concept of Aboriginal Land and, where that statutory status is granted, provides for the vesting of the land in the Council under s 10. While the terms of s 10 reflect an intention to make as full a grant of property as possible, and hence a title which might be seen as equivalent to an estate in fee simple, there has been a deliberate decision not to characterise it as such and to give it a statutory description which departs from the approach adopted under the Northern Territory Act. Notwithstanding the breadth of the title vested in the Council, in the light of the approach taken in the Northern Territory Act, the terms of the statute do not clearly support the proposition that what was granted was an estate in fee simple intended to put the Council in the equivalent position to any other landowner subject only to the specific qualifications upon its power specified in the LG Act. Rather, it is consistent with an intention to define the nature of the interest given to the Council by reference to the terms of the statute.
It should be noted that the Explanatory Memorandum for the Bill for the LG Act described the purpose of the Bill as to “provide for the grant of inalienable freehold title”. This language (“inalienable freehold title”) was repeated in the minister’s second reading speech (quoted at [18] above). While these references to inalienable freehold title are extrinsic material that may assist in determining the meaning of an Act: Acts Interpretation Act 1901 (Cth), s 15AB. In the present case the description is both accurate and inaccurate when regard is had to the terms of the legislation. It is accurate in the sense that land is vested in the Council and no power is given to the Council under s 6 of the LG Act to sell or encumber that land. However it is inaccurate to the extent to which the Council is empowered (and in some cases required) to grant long-term leases of the land and is alienable to that extent, and because nowhere in the Act is the expression “freehold title” used. Thus the terms of the Explanatory Memorandum are a useful shorthand expression describing the political purpose of the legislation but not useful as a description of the actual legal effect of the provisions of the Act. As a consequence, the use of the expression in the Explanatory Memorandum and second reading speech cannot be given significant weight when interpreting the provisions of the LG Act in question in this case.
Having regard to the legislative choice not to adopt the expression “fee simple” when describing the nature of the interest granted to the Council, that interest is best characterised as a form of statutory title not necessarily picking up the general law incidents of ownership in the same way as might have been the case if the model in the Northern Territory Act had been adopted. Section 38(1) takes away any power to dispose of or deal with any estate or interest in Aboriginal Land. Section 38(2) (and s 40) then gives a qualified power (and in some cases an obligation) to grant leases. Because of the deliberate legislative choice of language and the denial and reinstatement of a power to dispose of an interest in the land, the powers of Council to do so are best characterised as statutory powers forming part of a statutory scheme rather than the Council merely being placed in the position of any other landowner.
Second issue — the nature of the power of the Council to determine the conditions of leases
This issue is the determinative one. Were the terms of the leases granted to members of the Council intended to be at the discretion of the Council or subject to qualification by applied laws? The starting point is that the statutory provision does not state expressly that it is intended to exclude applied laws in relation to the conditions of leases. Nor does it expressly make a grant of power to grant leases “on terms that the Council thinks fit” so as to make it clear that the statutory power to grant a lease on terms would be inconsistent with an applied law which sought to dictate those terms.
It is the absence of such additional words that distinguishes the case from the decisions in Australian Broadcasting Commission and Dao. In those cases the powers of employment given to the Australian Broadcasting Commission and the Australian Postal Corporation more specifically empowered the entities to determine who should be employed and the terms and conditions of employment. The statutory provisions therefore provided a stronger basis for the conclusion that State laws regulating employment were excluded than exists here in relation to the exclusion of applied laws which would change the content of leases granted by the Council.
Goulden, however, was somewhat different in that what was found was that the application of State anti-discrimination laws to an insurer operating under the Life Insurance Act 1945 (Cth) “‘would alter, impair or detract from’ the Commonwealth scheme of regulation established by the Act”: Goulden at 337. It did so by undermining and negating “the legislative assumption of the underlying ability of a registered life insurance company to classify risks and fix rates of premium in accordance with its own judgment”. Goulden illustrates that a law may alter, impair or detract from a legislative scheme by negating a legislative assumption upon which it is based.
Any conclusion that there is an inconsistency between the power of the Council to grant leases and an applied law which specifies the terms of leases can only be derived from the other provisions of the LG Act, its purpose and context. However there are features of the statute that collectively indicate that the power of the Council to grant leases should not be treated as one subject to laws specifying mandatory terms for such leases. In other words, the power of the Council to grant a lease should be interpreted as including the power to determine for itself the terms of those leases and not subject to qualification by provisions which would alter the terms of those leases.
First, as pointed out above (at [21], [70]), the power to deal with or dispose of any interest or estate in Aboriginal Land is taken away from the Council by s 38(1). The power to grant leases is then given back by s 38(2). That power is subject to conditions. In granting a lease the Council is therefore acting pursuant to s 38(2). That is emphasised by other provisions of the Act: see s 13(3) (“the granting … under section 38 of a lease of land”), s 40 (“shall, in accordance with section 38, grant …”). The statute cannot be read as simply providing qualifications upon a general law power of a landowner to lease land as that is inconsistent with the structure of s 38 which takes away any power before giving back a qualified statutory power.
Second, the initial obligation upon the Council was the obligation to grant leases to persons in occupation of land immediately before it became Aboriginal Land: s 40. Where that occupation was for use for domestic purposes the obligation upon the Council was to grant a 99-year lease. The fact that the statute compelled the granting of a 99-year lease is significant because a lease of such a length is only practical if the terms can be established by the contracting parties. The need for certainty of the terms of the lease over such a period tends against an interpretation of the leasing power which would see it as qualified by the terms of applied laws from time to time which modified the substantive terms of the lease. No such laws existed at the time of the Act and it would be inconsistent with the purpose of providing secure tenure if a long-term lease required to be granted was subject to the modification of its terms by a law of general application in the JBT. The power of the Council to control the terms of leases entered into by the Council was a legislative assumption which underlies the compulsion to grant leases to original occupants. It would negate that legislative assumption if new or different terms could be imposed by an applied enactment.
Third, the long term nature of the leases, and hence the need for certainty of their terms, is reinforced by those provisions which relate to the payment for buildings existing upon the land at the time that it becomes Aboriginal Land: ss 40(b) and 40(c). The legislation contemplates that existing occupiers who built their own houses will pay nothing for the house: s 40(b), whereas lessees who did not may be required to pay a sum “amounting in the aggregate to the value” of the buildings and improvements: s 40(c). The specific provisions accommodating payment or non-payment for buildings and improvements make clearer that the lease is a long-term one more equivalent to ownership under a Crown lease (analogous to those that exist within the Australian Capital Territory) rather than a residential tenancy in the sense contemplated by the RT Act.
Fourth, there is the capacity but not to the obligation to grant leases for domestic purposes to a member other than a person in occupation immediately prior to the land becoming Aboriginal Land for a period of 99 years. In relation to those people 99 years is the maximum term which, in the absence of consent from the Minister, the Council may grant leases for domestic purposes: s 38(3)(a). However, the fact that the Act contemplates the grant of leases for domestic purposes for up to 99 years, and by necessary implication gives power to the Council to determine the length of any such lease, does not detract from the implications which would arise from the obligation to grant 99-year leases to original occupants. Rather, it provides a further indication of the legislative assumption that the Council would have control over the terms of leases which it entered into.
Fifth, these features of the legislation exist in a context where the Council is controlled by its members in a reasonably direct manner: see [63](a)–[63](d) above. There is therefore a significant degree of community control over the activities of the Council. The fact that the fundamental purpose of the LG Act is to extend long-term control of land to an Aboriginal community which acts through the vehicle of the Council is part of the context in which the specific provisions referred to exist. It is a matter which is more consistent with interpreting s 38(2) as encompassing within it the power to determine the terms upon which leases to its own members are to be granted.
In the light of these matters, although the LG Act does not expressly state that the Council may, subject to the specific terms of the Act, grant leases on the terms and conditions which it thinks fit, s 38(2) should be interpreted as containing such a power. In other words, the power to determine the terms of leases is not merely equivalent to that of any other landowner but has a statutory basis in s 38(2).
Once s 38(2) is so interpreted, the modification of leases granted by the Council pursuant to the provisions of the RT Act would clearly involve a significant qualification or impairment of the statutory power of the Council. That may be demonstrated by considering the grant of a lease before and after the enactment of the RT Act.
(a)A lease granted to an original occupant would operate from 1987 until 2086 as it is required to be from the date that the land became Aboriginal Land and for a period of 99 years: s 40(a). The lease would have become subject to the RT Act in 2000 (see s 4 of the RT Act as at that date) when the lease had approximately 87 years to run. At that point, whatever terms of the lease were inconsistent with the standard residential terms would be invalidated and the terms of the lease added to by inclusion of the standard residential terms. The exercise of the statutory power to grant a lease on terms would be qualified or rendered ineffective by the terms of the RT Act. The Council (and the lessee) would be burdened for the next 87 years with a lease different to that which was entered into.
(b)So far as a lease granted after the RT Act came into effect on 25 May 1998 is concerned, the LG Act does not require it to be of 99 years but it could, without ministerial permission, be up to that duration: s 38(3)(a). Whatever the terms determined by the Council and the lessee to be appropriate, they would be rendered void to the extent of inconsistency and would be supplemented by the terms of the standard residential terms. Thus, while the power to enter into a lease on particular terms would not be expressly denied to the Council, the exercise of the power to grant the lease would be rendered void in relation to terms inconsistent with the standard residential tenancy terms (then called the “prescribed terms”) or modified to the extent that it was supplemented by terms not agreed to by the Council. Put slightly differently, the Council would be compelled to grant a lease within the framework of the substantive terms set out in the RT Act.
Therefore it is clear that to the extent to which s 9 of the RT Act rendered void terms inconsistent with the standard residential tenancy terms or s 8 imposed those terms upon a lease granted by the Council that did not include those terms, it would alter, impair or detract from the statutory power given to the Council.
The potential for a joint application to be made by the Council and a tenant for approval of terms inconsistent with the standard residential terms under s 10 of the RT Act does not avoid the initial qualification on the statutory power of the Council. Nor does the possibility that an ordinance under s 4F of the Acceptance Act might be made by the Governor-General disapplying the provisions of the RT Act.
The judge at first instance recognised that there was an apparent tension between the intent of the LG Act to create a self-contained and self-regulating community and the RT Act which has as its purpose the protection of tenants: Wreck Bay Aboriginal Community Council v Williams at [45]. His Honour reached the conclusion that, except in relation to subleasing covered by s 41, the obligations under the RT Act could be fulfilled without contravening the LG Act: at [52]. In reaching this conclusion his Honour placed emphasis on the fact that the LG Act does not give any direction to the Council as to the content of leases: at [47]. He also noted that there is no specific provision in the LG Act stating the scope of the leasing power and that the Council’s interpretation was based on an inference as to the intent and purpose of the Act: at [48]. However for the reasons given above, in the interpretation of s 38, a greater emphasis should be placed on those statutory indications that the power to grant a lease includes the power to determine the terms of that lease. Once that conclusion is reached it is clear that the RT Act operated in a manner that would impair that power.
Conclusion
Question 3 in the special case was a broad question covering all of the provisions of the RT Act. Counsel for Mr Williams submitted that any answer to the question should be limited to the operation of cl 55 of the standard residential tenancy terms because that was the only clause in question in the present case. However, it is a necessary consequence of the reasoning above that any modification or supplementation of the terms of a lease granted by the Council by the RT Act would involve an impairment of the statutory power of the Council under s 38. It is therefore appropriate to answer the special case by reference to those terms of the RT Act which have that effect. The relevant provisions are s 8 of the Act which requires leases to contain the standard residential tenancy terms and s 9 of the Act which renders terms inconsistent with those terms void.
Question 3 in the special case should be answered as follows:
The RT Act is not capable of operating concurrently (within the meaning of s 46 of the LG Act) with the LG Act in so far as:
a.s 8 requires a lease granted by the Council to contain the standard residential tenancy terms within the meaning of the RT Act; and
b.s 9 renders void terms of a lease granted by the Council that are inconsistent with the standard residential tenancy terms.
Question 4 should be answered as follows:
The RT Act does not apply to Aboriginal Land for the purposes of s 46 of the LG Act to the extent to which ss 8 or 9 of the former Act would apply to a lease granted by the Council.
Orders
The orders of the Court are:
1. The appeal is allowed.
2. The answer given in the amended special case dated 22 August 2016 are set aside and questions 3 and 4 in the amended special case are answered as follows:
Q3 [I]s the Residential Tenancies Act 1997 (ACT), in whole or in part, a law which is not capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?
The Residential Tenancies Act 1997 (ACT) is not capable of operating concurrently (within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986) with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 in so far as:
a.s 8 requires a lease granted by the Council to contain the standard residential tenancy terms within the meaning of the Residential Tenancies Act 1997;
b.s 9 renders void terms of a lease granted by the Council that are inconsistent with the standard residential tenancy terms under that Act;
Q4 If the answer to Question 3 is “yes”, to what extent does the Residential Tenancies Act 1997 (ACT) not apply to Aboriginal Land for the purposes of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?
The Residential Tenancies Act 1997 does not apply to Aboriginal Land for the purposes of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 to the extent to which ss 8 or 9 of the former Act would apply to a lease granted by the Council.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 23 October 2017 |
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