Scope Note This title covers the law relating to the Aboriginal people of Australia, includ ing aspects of the criminal law applying specifically to Aboriginals. Cases on protection legis lation, land rights legislation and relics preservation legislation are digested here. Articles, Notes, Etc. Convention Paper. 1979. Serving Our Clients The Disadvantaged: 53 ALJ 509. Papers. 1978. Aboriginal Land Rights in the Northern Territory: 1 AM & PLJ 399. 1980. Aboriginal Land Rights An Update: 2 AM & PLJ 92. 1984. Common Roots But Different Evolutions: The Development of Aboriginal Right s at Common Law in Australia, Asia and North America: 12 Mel LJ 49. 1985. Aboriginal Australians and the World Court I Sovereignty by Conquest: [1 985] NZLJ 33. Aboriginal Australians and the World Court II The Advisory Jurisdicti on of the World Court: [1985] NZLJ 64. Aboriginal Land: 15 FL Rev 159. Indigenous Peoples, Land Claims, and Control of Mineral Development: Australian and US Legal Systems Comp ared: 8 UNSWLJ 271. Land Rights and Land Use A View from the Sidelines: 59 ALJ 413. Articles. 1960. The Application of the Criminal Law to the Aborigines of the Nor thern Territory of Australia: 5 UWA Ann L Rev 1. 1963. Aboriginal Languages and the Law: 6 UWAL Rev 1. 1967. The Australian Constitution and the Australian Aborigine: 2 FL Rev 17. 1972. The Gove Land Rights Case: A Judicial Dispensation for the Taking of Abori ginal Lands in Australia?: 5 FL Rev 85. 1973. A National Aboriginal Legal Service: Government Proposals: 47 Law Inst J 2 39. The Aborigines and the Law: An Overview: 8 UQLJ 60. 1974. Aboriginal Legal Service: 12 Law Soc J 22. Benign Discrimination and The R ight to Equality: 6 FL Rev 26. Communal Native Title and The Common Law: Further Thought s on the Gove Lands Rights Case: 6 FL Rev 150. Administration of Criminal Justice on Aboriginal Settlements: 7 Syd LR 257. The Aboriginal Legal Service in New South Wales: 7 Syd LR 237. 1975. A Radical Approach to the Elimination of Racial Discrimination: 1 UNSWLJ 5 6. 1976. The Mythical Introduction of "Law" to the Worora Aborigines: 3 UWAL Rev 35 0; 12 UWAL Rev 480. Racial Discrimination: 14 Law Soc J 115. 1977. The Anti-Discrimination Act 1977 (NSW): 15 Law Soc J 241. Discrimination i n Employment: A Look at Australia in Light of Current Trends: 5 ABLR 130. The "Coo rong Massacre": Martial Law and the Aborigines at First Settlement: 6 Adel L Rev 26. 1978. The Equal Opportunity Act Tokenism or Prescription for Change?: 11 MULR 503. 1980. Does Aboriginal Law Now Run in Australia?: 10 FL Rev 161. Benign Racial Discrimination: Equality and Aborigines: 10 FL Rev 238. TGH Strehlow and Aborigi nal Customary Laws: 7 Adel L Rev 172. The Australian Aborigine: Full Commonwealth Responsibility Under the Constitution: 12 MULR 516. 1981. Native Justice in Australia, Canada and the USA: A Comparative Analysis: 7 Mon LR 250. 1982. The Federal Parliament's External Affairs Power: Koowarta's Case: 56 ALJ 5 19. Commonwealth Powers with Respect to Racial Discrimination: [1982] ACL AT30. Lega l Language Across Cultures: Finding the Traditional Aboriginal Owners of Land: 12 FL Rev 187. The Legislation Relating to Aboriginal Land Rights in Western Australia wit h Particular Reference to Mining and Petroleum Exploration and Exploitation: 4 AM & PLJ 201. Mining and its Interaction with Commonwealth and State Laws Relating to Environmental a nd Aboriginal Issues: 4 AM & PLJ 55. 1983. Aboriginal Land Claims at Common Law: 15 UWAL Rev 293. Aborigines, Natural Resources and the Law: 15 UWAL Rev 245. Access by Australian Aboriginals to the Fruits of Deep Seabed Mining: 15 UWAL Rev 187. Legal Centres in Australia: 6 UNSWLJ 163 . 1985. Aboriginal Land Rights Conquest or Peaceful Settlement?: 20 Aust Law New s (No 5) 14. Aboriginal Land Rights War and Theft: 20 Aust Law News (No 9) 22. Expec tations and Natural Justice: 59 ALJ 33. The Anthropologist On Trial: 15 MULR 360. 1986. Aboriginal Rights and Sovereignty: Commonwealth Developments: [1986] NZLJ 57. Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Ca se That Wasn't: 11 Syd LR 5. In the Case of the Lawyers and Anthropologists: 11 LSB 202. Maintaining a Child's Link with Native Parents as a Factor in Custody Decisions: 35 ICLQ 461. Over Representation of Aboriginal Children in Care Proceedings before the C hildren's Court of South Australia: 2 Aust J of Law & Society (No 2) 11. Notes. 1967. Racial Discrimination and the Law: 41 ALJ 110. 1972. The Aboriginal and Torres Strait Islanders Legal Service (Queensland): 66 QJP 71. Aborigines, Melanesians and Dying Declarations: 21 ICLQ 176. 1973. Aboriginal Affairs Planning Authority Act (24 of 1972) (WA): 11 UWAL Rev 1 71. 1974. Aboriginal Title to Lands Calder v A-G of British Columbia: 11 UWAL Rev 282. 1976. The Sydney Williams Case: 50 ALJ 386. Non-Exemption of Aborigines from Australian Criminal Jurisdiction: 50 ALJ 496. 1977. The Proposed Human Rights Commission: 51 ALJ 60. Reference to the Law Refo rm Commission of the Question of Aboriginal Customary Law: 51 ALJ 110. 1979. Proposed Treaty between Aborigines and the Commonwealth: 53 ALJ 743. Queensland Inquiry into Aboriginal Access to Legal Aid: 5 QL 96. 1980. Problems of Giving Effect to Aboriginal Customary Laws: 54 ALJ 112. 1981. Law Reform Commission's Discussion Paper on Recognition of Aboriginal Cust omary Law: 55 ALJ 58. Aboriginal Legal Aid Report of House of Representatives Standi ng Committee on Aboriginal Affairs: 55 ALJ 114. The Pitjantjatjara Solution: 55 ALJ 513. 1982. The Plenitude of the External Affairs Power: 56 ALJ 381. Aboriginal Law Re search Unit at the University of New South Wales: 56 ALJ 567. Australian Law Reform Commission's Discussion Paper on Aboriginal Customary Law as to Marriage, Childr en and Property Distribution: 56 ALJ 566. 1986. The Recognition of Aboriginal Customary Laws Report of the Law Reform Commission (Cth): 60 ALJ 655. Seminar on the Rights of Indigenous Peoples under Law and Practice, Canberra, 1-2 May 1986: 60 ALJ 416. Note and Correspondence. 1971-1972. Communal Native Title: 45 ALJ 333, 773; 46 A LJ 45, 206, 305. Comment. 1974. Chief Justice Marshall and the English Oak: A Comment (Aboriginal Land Rights): 6 FL Rev 174. Correspondence. 1973. Basic Questions on Native Lands: 46 ALJ 663. Aboriginal La nd Rights: 47 ALJ 151. 1975. Challenge to the Array: 49 ALJ 697. Discussion Papers. 1980. The Law Reform Commission (Cth) has published Discussio n Paper No 17 and a summary of it entitled "Aboriginal Customary Law Recognition ?" (November 1980). 1982. The Law Reform Commission (Cth) has published Discussion Paper No 18: Abor iginal Customary Law Marriage, Children and the Distribution of Property (August 1982 ). 1984. The Law Reform Commission (Cth) has published Discussion Paper No 20: Abor iginal Customary Law The Criminal Law, Evidence and Procedure (March 1984). Reports. 1986. The Law Reform Commission (Cth) has published Report No 31: The Recognition of Aboriginal Customary Laws (Vol 1). The Law Reform Commission (Cth ) has published Report No 31 (Summary Report): The Recognition of Aboriginal Customary Laws. Articles. 1986. Aboriginal Land Rights: The Constitutional Bases of the Present Regime: 15 MULR 737. 1987. Aboriginal People and Family Law: The Australian Law Reform Commission's Proposals: 2 AJFL 63. Commonwealth Acts for Victorian Aborigines: 29 ALB 10. Gov e Still Rules: 27 ALB 4. The Law of the Land: 29 ALB 7. Positive Discrimination and the High Court: 17 UWALR 128. "Property" A Positive Statement: [1987] Brief 13. 1988. Aboriginal Children and the Placement Principle: 31 ALB 4. Aboriginal Cust omary Law and Sentencing [The Law Reform Commission's Report]: 30 ALB 13. Aboriginal L and Rights in New South Wales: 5 EPLJ 255. Aboriginal Land Rights: Judicial Approach es in Perspective: 62 ALJ 273. The Aboriginal Legal Heritage: Aboriginal Public Law an d the Treaty Proposal: 62 Law Inst J 1174. Aboriginal Women in Custody: A Footnote to the Royal Commission: 30 ALB 5. Disadvantage and Discretion: The Results for Aboriginal Yo uth in Relation to the Adjournment Decision: 11 Adel L Rev 348. The Environment: World Heritage Listing 1988: 13 LSB 3. The Forgotten Option Pt III of the Aboriginal Councils and Associations Act 1976 (Cth): 32 ALB 11. The Law of the Land: 26 Law Soc J (N o 2) 40. The Lawyer's Duty to the Client: A Dilemma for Aboriginal Communities: 26 Law So c J (No 9) 34. NSW Land Rights ... All Just an Act?: 32 ALB 4. Preamble Perils: Comment on the Proposed Preamble to Legislation to Establish an Aboriginal and Torres Strait Is lander Commission: 30 ALB 15. The Recognition of Aboriginal Customary Law: Pluralism Be yond the Colonial Paradigm A Review Article (review of Law Reform Commission 1986 Report): 37 ICLQ 368. 1989. Aboriginal Land Claim Litigation: 5 Aust Bar Rev 187. The Aboriginal Legal Heritage: Aboriginal Public Law and the Treaty Proposal: 63 ALJ 392. Aborigines and Torres Strait Islanders and the Australian Constitution: 2 ALB (No 37) 10. Biting the Bullet Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth): 2 ALB (No 41) 7. The New NT Sacred Sites Act 1989: 2 ALB (No 39) 10. A Perspecti ve From the Sacred Sites Authority: 2 ALB (No 39) 11. Power, Policy, Politics and P ersuasion: Protecting Aboriginal Heritage under Federal Laws: 6 EPLJ 214. Sacred Sites Unde r Threat: 2 ALB (No 39) 12. 1990. Aboriginality, Recognition and Australian Law: Where to from Here?: 1 PLR 53. Australian Law: Freedom and Identity: 12 Syd LR 482. Protection of Aboriginal Sa cred Sites in the Northern Territory A Legal Experiment: 19 FL Rev 378. A Question of Tit le: Has the Common Law Been Misapplied to Dispossess the Aboriginals?: 16 Mon LR 91. Res ource Development and the Extinguishment of Aboriginal Title in Canada and Australia: 20 UWALR 453. 1991. Aboriginal Land Rights History: Western Australia: 2 ALB (No 52) 24. Abori ginal Land Rights in South Australia: 2 ALB (No 52) 20. Aboriginal Power Over Cultural Heritage: 16 LSB 6. From Terra Nullius to Every Person's Land: Legal Bases for Aboriginal Involvement in National Parks Precedents from the Northern Territory: 2 ALB (No 52) 4. Land Rights Under New South Wales Legislation: 2 ALB (No 52) 22. Queensland Land Rights: A Derogation From Poor Standards Elsewhere?: 2 ALB (No 52) 16. Sentencin g Aboriginal People in South Australia: 13 Adel L Rev 90. Sovereignty and Aborigin al Peoples: 2 ALB (No 53) 5. Who Needs a Community Living Area? The "Need" Requirem ent in NT Excisions Legislation: 2 ALB (No 52) 7. 1992. The Aboriginal Land Which May Be Claimed at Common Law: Implications of Ma bo: 22 UWALR 272. Constitutional Issues Relating to the "Process of Reconciliation" with Aborigines and Torres Strait Islanders: 17 UQLJ 111. Moveable Cultural Heritage: 3 A & ELJ 9. North Queensland Aborigines and Criminal Justice in the Courts: 17 UQLJ 5 7. Queensland's Aboriginal Land Act 1991: 11 AMPLA Bulletin 17. Tribal Ownership of Aboriginal IH80: 3 A & ELJ 15. 1993. Aboriginal and Criminal Justice Issues in the Wake of the Royal Commission : 31 Law Soc J (No 5) 52. Aboriginal Joint Management of National Parks: Why New South Wa les Still Has a Long Way to Go: 2 ALB (No 60) 6. Aboriginal Land Rights at Common La w: Mabo v Queensland: 18 Mon LR 251. Aboriginal Land Rights in New South Wales: 10 EPLJ 398. Aboriginal Land Rights in Queensland and Their Impact on Natural Resources: 10 EPLJ 423. Aboriginal Law Does Now Run in Australia: 15 Syd LR 187. Aboriginal Title: Equal Rights and Racial Discrimination: 16 UNSWLJ 57. Aborigines and Police: 16 UNSWLJ 265. Australian Deaths in Custody, 1980-1989: 159 Med J of Aust 577. Australians and Aborigines and the Mabo Decision: Just Who Needs Whom the Most?: 15 Syd LR 168. Can the States Rewrite Mabo (No 2)? Aboriginal Land Rights and the Racial Discrimina tion Act: 15 Syd LR 247. The Commonwealth's Native Title Bill: 3 ALB (No 65) 4. Delgamuukw v The Queen: Implications for Australia: 3 ALB (No 64) 13. Extinguishment of Nativ e Title and the Constitutional Requirement of Just Terms: 62 ALB (No 3) 11. Fiduciary Ob ligations and Native Title: 3 ALB (No 63) 7. The Fiduciary Obligations of the Crown to Abo rigines: Lessons from the United States and Canada: 16 UNSWLJ 70. Fishing, Hunting and Ga thering Rights of Aboriginal Peoples in Australia: 16 UNSWLJ 97. "Genuine Concerns": The Saga of Brunette Downs: 3 ALB (No 65) 6. How Far is There to Travel in Achieving Indigen ous Rights?: 31 Law Soc J (No 5) 30. Indigenous People and Protected Landscapes in W estern Australia: 10 EPLJ 380. Interlocutory Injunctions to Restrain Interference with Aboriginal Title The Balance of Convenience: 17 UQLJ 141. International Law and Indigenou s Marine Rights: The Evolving Framework: 10 EPLJ 438. Judicial Revolution or Cauti ous Correction? Mabo v Queensland: 16 UNSWLJ 1. Land Claims Strike Interpretation Difficulties and Administrative Negativity Aboriginal Land Rights Act 1983: 31 Law Soc J (No 5) 42. Law and Difference: Reflections on Mabo's Case: 15 Syd LR 159. Lega l Fundamentalism and Mabo: 18 Alt LJ 212. Looking After Country: Legal Recognition of Traditional Rights to and Responsibilities for Land: 16 UNSWLJ 161. Mabo and Abo riginal Title in Queensland: 14 Qld Lawyer 15. Mabo and the Racial Discrimination Act: T he Limits of Native Title and Fiduciary Duty Under Australia's Sovereign Parliaments: 15 S yd LR 206. Mabo and the Recognition of Aboriginal Customary Law: [1993] Reform (No 65) 16. The Mabo Decision: 1 APLJ 236. Mabo Explained: 67 Law Inst J 809. Mabo: Extinguishme nt of Native Title and Pastoral Leases Revisited: 3 ALB (No 63) 13. Mabo, Internationa l Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence: 19 MUL R 195. The Mabo Judgment in the Light of Imperial Land Policy: 16 UNSWLJ 27. Movable Cu ltural Heritage: 1 A & ELR 1. The Myths of Mabo: 12 AMPLA Bulletin 62. A National Abori ginal Policy?: 16 UNSWLJ 45. Native Title in the Queensland Wet Tropics: 62 ALB (No 3) 17. "Native Title", Statutory Title and "Special Measures": 3 ALB (No 63) 4. Native Title to Land in Australia: Recent High Court Decisions: 42 ICLQ 84. Political and Legisl ative Responses to Mabo: 23 UWALR 352. Recognition of Aboriginal Customary Law: 31 Law Soc J (No 5) 37. A Reconciliation Odyssey: Negotiating Towards 2001: 9 QUTLJ 81. Reconciliation Restored: Towards Self-determination: 3 ALB (No 64) 19. The Road from Mabo Towards Autonomy: 18 Alt LJ 12. Self-determination: The Limits of Allowin g Aboriginal Communities to be a Law Unto Themselves: 16 UNSWLJ 245. Should the Australian Government Ratify International Labour Organization Convention No 169 ?: 3 ALB (No 64) 3. The Waitangi Tribunal: Towards a Working Treaty Model for Austral ia: 3 ALB (No 64) 16. Wheeling, Dealing and Deconstruction: Aboriginal IH80 and the La nd Post-Mabo: 3 A & ELR 5. 1994. Aboriginal Child Placement Principle: Customary Law Recognition and Furthe r Legislative Reform: 3 ALB (No 71) 13. Aboriginal Employment & Industrial Relatio ns in the 90's: 3 ALB (No 66) 6. Aboriginal Hearing Loss and the Criminal Justice System: 3 ALB (No 65) 9. The Aboriginal Land Rights (Northern Territory) Act 1976: An Overview: [1 994] Vic Bar News (No 91) 33. Blind Justice or Blinkered Vision?: [1994] A & ELR (No 1) 4 . A Conspiracy of Silence: The NSW National Parks and Wildlife Service and Aborigina l Cultural Heritage Sites: 3 ALB (No 67) 4. A Critique and Analysis of the Fiducia ry Concept in Mabo v Queensland: 19 MULR 868. Cultural Diversity Versus Biodiversity: 16 Ad el LR 99. Customary "Adoption" in Torres Strait Islands Towards Legal Recognition: 3 A LB (No 66) 8. Customary Law, Common Law and Statute: 16 Law Soc Bulletin (SA) (No 9) 26 . The Fiduciary Duty: The Next Step for Aboriginal Rights?: 19 Alt LJ 72. Genocide and Australian Law: 3 ALB (No 70) 6. The Gove Land Rights Case: Hard Cases Make Hard Law: 1 Can b LR 97. Impetus for Legislative Protection of Aboriginal Cultural and Intellectual P roperty Rights: [1994] A & ELR (No 4) 63. In Defence of Mabo: 1 JCULR 51. Indigenous Peo ples and Environmental Management: A Review of Canadian Regional Agreements and Their Potential Application to Australia Part 1: 11 EPLJ 320. Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and Their Potential Application to Australia Part 2: 11 EPLJ 320. Indigenous Peoples and the Canadian Constitution: Lessons for Australia?: 5 PLR 11. "Is the Native Title Le gislation Practical, Efficient and Workable for the Mining and Petroleum Industries?": 13 AMPLA 124. Kelvin Condren Considered by the AJAC: 3 ALB (No 66) 10. Mabo and Native Ti tle The Final Implications: Key Concerns for Miners, Developers, Investors and Finan ciers: 13 AMPLA 158. Mabo and Native Title The Final Implications: Past and Future Title s Their Validity and Effect 13 AMPLA 71. Mabo: An Inspiration for Australian Land Management: 1 AJEM 24. Mabo: A Voice from the Past: [1994] Vic Bar News (No 89) 34. Mabo Legislation: The Native Title Act: 2 APLJ 150. Mabo Revisited Commonwealt h Native Title Act 1993: 13 AMPLA Bulletin 29. Mabo, the Constitution and the Repu blic: 11 Aust Bar Rev 229. The National Native Title Tribunal Early Directions: 5 ADRJ 164. The Native Title Act: A Property Law Perspective: 68 ALJ 285. Native Title Act Comme nces Operation: 3 ALB (No 66) 4. Native Title: Act Delivered on Schedule: 19 Alt LJ 4 1. Native Title Act 1993 (Cth): "Fine Tuning" Needed: 2 APLJ 245. Native Title and Capital Gains Tax: 6 CCH J of Aust Taxn (No 4) 8. A New Land Title Regime: 29 AL (No 3) 34. Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia: 18 UQLJ 15. Queensland's AJAC Initiatives in Criminal Justice: 3 ALB (No 69) 4. September Showdown: Validity of Native Title Legislation: 3 ALB (No 69) 8. A Sou th Australian Perspective on the Native Title Bill: 16 Law Soc Bulletin (SA) (No 2) 17. The Torres Strait Islands: Constitutional and Sovereignty Questions Post-Mabo: 18 UQ LJ 38. Towards a Better Tomorrow: A Perspective of Dispute Resolution in Aboriginal Communities in Queensland: 5 ADRJ 28. Unauthorized Reproduction of Traditional Aboriginal IH80: 17 UNSWLR 327. WA's Snuff Move Under Challenge: Biljabu and Oth ers v State of Western Australia: 3 ALB (No 67) 8. Way Cleared for National Project [to Enhance Understanding by Judicial Officers of Aboriginal Culture]: 29 AL (No 7) 18. Western Australia's Land (Titles and Traditional Usage) Act 1993: Content, Confl icts and Challenges: 24 UWALR 31. 1995. Aboriginal Child Welfare: Thanks for the Apology, But What About Real Chan ge?: 3 ALB (No 76) 4. Aboriginal Cultural Heritage Protection in Western Australia: The Urgent Need for Protection: 3 ALB (No 76) 9. Aboriginal Land Rights: Further Reflection s: [1995] Vic Bar News (No 93) 41. Absent Owners [Native Title]: 20 Alt LJ 20. Between a R ock a Hard Place: The Failure of Commonwealth Sacred Sites Protection Legislation: 3 A LB (No 74) 13. Bridging the Cultures: "Sacred Site System Needs Reform": 30 AL (No 8) 2 2. Broken Promises: The Crown's Fiduciary Duty to Aboriginal Peoples: 3 ALB (No 75) 4. Com mon Law Aboriginal Knowledge: 77 ALB (No 3) 10. Conducting Effective Interviews With Aboriginal Clients: 33 Law Soc J (No 11) 55. Cross Examination of Aboriginal Chi ldren: The Pinkenba Case: 3 ALB (No 75) 10. Determining Native Title Claims Learning From Experience in Queensland and the Northern Territory: 69 ALJ 510. The Emerging Co ncept of "Radical Title" in Australia: Implications for Environmental Management: 12 EPLJ 183. Enlightenment or Dreaming? Attempting to Reconcile Aboriginal IH80 and European Law: [1995] A & ELR 18. Family Court Initiatives: With Aboriginal and Torres Strait I slander Communities: 3 ALB (No 76) 15. The Fiduciary as an Accordion Term: Can the Crown Play a Different Tune?: 69 ALJ 440. The Forensic Challenge of Native Title: 69 Law In st J 880. The Great Sandy Region and Aboriginal Aspirations: 12 EPLJ 61. How to Keep a Sec ret: Building Bridges Between Two "Laws": 77 ALB (No 3) 4. Implementing Native Title in Australia: The Implications for Living Resources Management: 14 U Tas LR 1. The Jurisprudence of Regret: The Search for Standards of Justice in Mabo: 17 Syd LR 5. The Lost Kooris [A History of Aboriginal Child Welfare Policies in New South Wales]: 20 A lt LJ 26. Mabo and Native Title: The Commonwealth Finally Prevails: 22 Brief (No 4) 6. Mab o, Native Title and Compensation: Or How to Enjoy Your Porridge: 21 Mon LR 84. Marr ying Law & Custom: 20 Alt LJ 23. Mineral Exploration, Mining and Native Title: 22 Bri ef (No 7) 32. Money and Power: 20 Alt LJ 41. More Native Title Developments: 10 APLB 29. N ative Land Rights in Australia: The Mabo Case: [1995] Conv 33. The Native Title Act: C an It Work?: 17 Law Soc Bulletin (SA) (No 7) 26. Native Title Act Held Valid: The High Court's Decision and Its Consequences: 14 AMPLA 108. Native Title Act Held Valid: The Hi gh Court's Decision in Western Australia v Commonwealth: 69 ALJ 397. Native Title Development Waanyi Peoples Claim: 14 AMPLA 221. Native Title: From Pragmatism to Equality Before the Law: 20 MULR 282. Native Title Takes Off: 69 ALJ 8. Native T itle: Whose Responsibility?: 77 ALB (No 3) 13. A New Legal Shield [Post-Mabo Common La w and Statutory Developments in Tasmania]: 20 Alt LJ 32. One Land: Two Laws Abor iginal Fire Management: 12 EPLJ 37. Onus of Proof for Native Title: 3 ALB (No 75) 8. Pr otection of Indigenous IH80s and Cultural Expression: 12 Copyright Reporter (No 4) 6. The Protection of Intellectual Property for Local and Indigenous Communities: 17 EIP R 546. Proving Native Title: A Critical Guide: 3 ALB (No 74) 4. Queensland AJAC: Furthe r Initiatives in Criminal Justice: 3 ALB (No 73) 15. Racism and the Constitutional Protection of Native Title in Australia: The 1995 High Court Decision: 25 UWALR 127. Racism and the WA Govt: 3 ALB (No 73) 8. The Semantics of Mabo: An Essay in Law, Language and Interpretation: 2 JCULR 154. So Long, and Thanks For All the Fish ... [Aborigina l Fishing Rights and the Commonwealth's Acquisition Power]: 20 Alt LJ 11. Statutory Scheme s of Native Title and Aboriginal Land in Queensland: The Relationship of the Queensla nd Aboriginal Land Act 1991 with the Commonwealth Native Title Act 1993 and the Nat ive Title (Queensland) Act 1993: 2 JCULR 109. Stopping the Rip-offs [Protecting Abor iginal and Torres Strait Islander Cultural Expression]: 20 Alt LJ 7. "They Took the Chi ldren Away" [Project to Redress Harm Caused by Removal of Aboriginal Children From Their Fam ilies]: 20 Alt LJ 35. Western Australia v The Commonwealth: 3 ALB (No 73) 4. 1996. Aboriginal IH80 and Copyright An Overview and Commentary Concerning Rece nt Developments: [1996] MALR 151. Aboriginal Women as Offenders and Victims: The Ca se of Victoria: 3 ALB (No 80) 17. Aborigines and Pastoral Leases Imperial and Col onial Policy 1826-1855: 19 UNSWLJ 315. ATSIC: Decisions, Decisions (and the Review Blu es!): 3 AJ Admin L 229. Beneficial Legislation Meets Judicial Discretion and Leaves La nd Rights on Shaky Ground: 3 AJ Admin L 164. The Black Sea: 79 ALB (No 3) 4. Copyright Infringement Under s 37 Directors' Personal Liability: 9 AIPLB 49. Crocodile F arm: Minister for Aboriginal & Torres Strait Islander Affairs v Western Australia: 3 ALB (No 82) 12. The Development of an Authenticity Trade Mark for Indigenous Artists: 21 Alt LJ 38. Developments in the Legal Recognition of Torres Strait Islander Customary Adopti on: 3 ALB (No 78) 14. Disclosure: In the Public Interest? [Heritage Legislation]: 21 A lt LJ 19. The Duty to Negotiate in Good Faith: 3 ALB (No 78) 4. Gratuitous Justice: A Review o f the Queensland Criminal Justice Commission's Report Into Aboriginal Witnesses in Cri minal Courts: 3 ALB (No 84) 12. Hindmarsh Island Bridge Royal Commission: Fair or Faul ty?: 18 Law Soc Bulletin (SA) (No 4) 10. Homeland Movement: High and Low Roads: 3 ALB (N o 83) 4. Improving ATSIC's Decision Making and Review of Decisions: 3 ALB (No 84 ) 16. Indigenous Culture and Native Title: 21 Alt LJ 2. Indigenous Pre-law Programs: G riffith University Experience: 3 ALB (No 83) 8. Law, Empowerment and Economic Rationalis m: 3 ALB (No 81) 12. Legislative and Policy Frameworks for Indigenous Involvement in Cultural Heritage Management in New Zealand and New South Wales: 13 EPLJ 103. Mediation: Towards an Aboriginal Conceptualisation: 3 ALB (No 80) 10. National Native Title Tribunal Expedited Procedure Process: 15 AMPLA 85. Native Title and Pastoral Leases: Is Co-existence Possible?: 16 Proctor (No 7) 18. Native Title Fishing Rights in Coa stal Waters and Territorial Seas: 3 ALB (No 81) 16. Native Title Litigation: 26 Q Law Soc J 307. Pastoral Leases in Their Historical Context: 3 ALB (No 81) 9. Possessory Title i n the Context of Aboriginal Claimants: 11 QUTLJ 200. Power and Cultural Difference in Native T itle Mediation: 3 ALB (No 84) 8. Presenting Aboriginal Knowledge: Using Technology to Progress Native Title Claims: 21 Alt LJ 6. Recognition of Indigenous Customary L aw: The Way Ahead: 68 Reform 46. The "Rejection of Terra Nullius" in Mabo: A Critical An alysis: 18 Syd LR 5. The Relevance of Representative Proceedings to Aboriginal Tribes in Arts Cases: [1996] MALR 155. Rights to Offshore Resources After Mabo 1992 and the Nat ive Title Act 1993 (Cth): 18 Syd LR 125. Royal Commission Went Wrong: 18 Law Soc Bul letin (SA) (No 4) 15. Some Problems and Issues in the Recognition of Indigenous Custom ary Law: 3 ALB (No 82) 4. The State's Duty to Negotiate in Good Faith: Wally v WA & WMC & NNTT; Taylor v WA & Ors; Collard v WA & Ors; Smith v WA & Ors: 3 ALB (No 82) 14. A Tale of Two Cultures: 21 Alt LJ 10. Women's Business and Law: 3 ALB (No 80) 24. Workability in Whose Interest? The Native Title Amendment Bill 1996: 3 ALB (No 8 4) 4. Working for the Man: Wages Lost to Queensland Workers "Under the Act" [Aborigina l Workers Under Protection Acts]: 3 ALB (No 81) 4. 1997. Aboriginal Community Participation in Sentencing (N Lofgren): (1997) 21 Cr im LJ 127. Aboriginal Copyright An Update (C Golvan): [1997] MALR 55. Aboriginal Mediation: One Step Towards Re-empowerment (K L Pringle): (1996) 7 ADRJ 253. Aboriginal Rights in Canada in 1996: An Overview of the Decisions of the Supreme Court of Canada (K McNeil): (1997) 4 ILB (No 2) 4. Aborigines, Citizenship and the Austra lian Constitution: Did the Constitution Exclude Aboriginal People from Citizenship? ( B Galligan & J Chesterman): (1997) 8 PLR 45. Ancient Customs, Legal First (K Derkley): (199 7) 71 Law Inst J (No 1) 14. Assimilation or Genocide? The Removal of Aboriginal Childr en from Their Families: The Case for Repatriation (T Buti): (1997) 32 AL (No 3) 5. ATSIC Concerned Over Native Title Claim Funding (C Kleeberg): (1997) 19 Law Soc Bullet in (SA) (No 3) 18. Attracting Indigenous Lawyers Into Private Law Firms (C Penfold): (19 97) 35 Law Soc J (No 8) 40. Beyond the Aboriginal Councils and Associations Act? Part I (C Mantziaris): (1997) 4 ILB (No 5) 10. Beyond Waitangi: Comparative Issues in Nati ve Title Dispute Resolution (I Wilson): (1996) 7 ADRJ 271. Building a Bridge on a Constit utional Sea Change (F Brennan): (1997) 4 ILB (No 3) 6. Canadian Supreme Court Clarifies Mabo Paradox (A Castles & J Gill): (1997) 3 ALB (No 88) 11. Can the Judiciary and Law yers Properly Understand Aboriginal Concerns? (Justice Jackson): (1997) 24 Brief (No 4) 12. Citizenship in Australia: An Indigenous Perspective (M Dodson): (1997) 22 Alt LJ 57. Civilisation and Cultivation: Colonial Policy and Indigenous Peoples in Canada a nd Australia (S Dorsett): (1995) 4 ABLR 214. Co-existence Negotiation and Certain ty (Preface and Executive Summary): Indigenous Position in Response to the Wik Deci sion and the Government's Proposed Amendments to the Native Title Act 1993: (1997) 4 ILB (No 2) 10. Co-existence of Indigenous and Non-indigenous Land Rights: Australia and Can ada Compared in Light of the Wik Decision (K McNeil): (1997) 4 ILB (No 5) 4. A Commonwealth Repatriation Odyssey (L Ormond-Parker): (1997) 3 ALB (No 90) 9. Cowboys v Suits (R Goldflam): (1997) 22 Alt LJ 86. Crescent Head Native Title Ag reement (S Blackshield): (1997) 3 ALB (No 88) 9. Critique of the 10 Point Plan (National Indigenous Working Group): (1997) 4 ILB (No 3) 10. Custom, Currency and Copyright: Aborigin al IH80 and the $10 Note (M E Price & A Brown Price): (1997) 9 AIPLB 150. Diminished Indigenous Life Expectancy as a Mitigating Factor in Sentencing (N Lofgren): (19 97) 4 ILB (No 3) 21. Dispossession by the National Native Title Tribunal (R Bartlett): (19 96) 26 UWALR 108. Euthanasia Right Legislation: Wrong Jurisdiction? (C Mackinolty): ( 1997) 22 Alt LJ 68. Grog War (A Wright): (1997) 22 Alt LJ 77. Historic Reconciliation Convention (C Cerexhe): (1997) 4 ILB (No 3) 23. The Impact of Wik on Pastoralists and Miner s (S Beckett): (1997) 3 UNSWLJ Forum (No 2) 8. The Impact of Wik Part I: Lessons fo r Pastoralists (B McFarlane & N Haslam): (1997) 19 Law Soc Bulletin (SA) (No 4) 20 . The Impact of Wik Part II: Lessons for Miners (B McFarlane & N Haslam): (1997) 19 La w Soc Bulletin (SA) (No 6) 10. Implications of the Wik Case for Natural Resource Manag ement (D Yarrow): (1997) 4 ILB (No 3) 17. The Implications of Wik: A Snapshot Guide (J Br iggs & A Denholder): (1997) 24 Brief (No 6) 9. The Implications of Wik: A Snapshot Guide (J Briggs & A Denholder): (1997) 17 Proctor (No 1) 24. Implications of Wik for Company Dir ectors (M Love): (1997) 3 UNSWLJ Forum (No 2) 10. Indigenous Cultures, Copyright and th e Digital Age (M McMahon): (1997) 3 ALB (No 90) 14. An Indigenous Lawyer's Interna tional Experience (N Collings): (1997) 4 ILB (No 4) 8. Indigenous Lawyers: Success or S acrifice? (K Dolman): (1997) 4 ILB (No 4) 4. Indigenous Peoples, Access to Land and Negoti ated Agreements: Experiences and Post-Mabo Possibilities for Environmental Management (M Tehan): (1997) 14 EPLJ 114. An Indigenous Perspective on Intellectual Property ( L Ford): (1997) 3 ALB (No 90) 13. Interlocutory Injunctions and Native Title (G J Koppeno l): (1997) 17 Proctor (No 1) 26. Is Equality Too Hard for Australia? (R Bartlett): (1997) 3 UNSWLJ Forum (No 2) 3. Is the Limit of the Equitable Doctrine of Fiduciary Liability De terminable?: Mabo and the Fiduciary Duty Principle in a Non-western Common Law Jurisdiction ( H A Amankwah): (1997) 3 JCULR 102. It Just Doesn't Fit: Can the Tiwi Family and the Family Law Act be Reconciled? (R Davis & J Dikstein): (1997) 22 Alt LJ 64. Judicial Act ivism? The High Court and the Wik Decision (P Hunter): (1997) 4 ILB (No 2) 6. The Label of Authenticity: A Certification Trade Mark for Goods and Services of Indigenous Or igin (M Annas): (1997) 3 ALB (No 90) 4. Land and Resource Planning Under Native Title: T owards an Initial Model (M B Lane, A Brown & A Chase): (1997) 14 EPLJ 249. Longing to R eturn Home: The Progress of the National Inquiry into the "Stolen Generations" (L Alla m & J Brooks): (1996) 3 ALB (No 86) 6. Majah: Indigenous Peoples and the Law (Reviewed by G Nettheim): (1996) 18 Adel L Rev 331. Maureen and George (K Williams): (1997) 4 I LB (No 1) 17. The May 1967 Referendum: 30 Years Down the Track (L O'Donoghue): (1997) 4 ILB (No 3) 4. Mediating in Aboriginal Communities (D Spencer): (1997) 3 CDRJ 245. Mi ning Leases in Queensland and Their Impact on Native Title (D Yarrow): (1996) 8 Bond LR (No 1) 1. Nailing Down Native Title (G Nettheim): (1997) 4 ILB (No 3) 13. Native Tit le and the Resources Sector After Wik Implications for Governments, Companies, Financiers and Professional Advisors (B Horrigan): (1997) 16 AMPLA 44. Native Title: Implicatio ns for Land Use and Environmental Planning (M Brennan & C Ireland): (1997) 49 Aust Comp any Secretary 266. Native Title Occupies Lawyers' Minds and Hearts: (1997) 35 Law So c J (No 6) 84. Negotiation Can Work With Native Title (D Kempton): (1997) 17 Proctor (No 3) 12. Ngarinyin Response to the Wik Decision (P Neowarra & Kamali Council): (1997) 4 I LB (No 1) 16. Noble Salvage: Aboriginal Heritage Protection and the Evatt Review (R Gol dflam): (1997) 3 ALB (No 88) 4. Outcomes Statement for the Ministerial Summit on Indigen ous Deaths in Custody: (1997) 4 ILB (No 5) 15. An Overview of the Wik Decision (D Ga l): (1997) 3 UNSWLJ Forum (No 2) 2. Past Wrongs, Future Rights (L O'Donoghue): (1997 ) 4 ILB (No 1) 18. Preamble and Principles of Indigenous Statement to the Prime Mini ster 6 February 1997: (1997) 4 ILB (No 1) 22. A Property Law Perspective on The Wik Peo ples v Queensland (D Skapinker): (1997) 8 PLR 107. A Property Law Perspective on Wik Pe oples v Queensland (D Skapinker): (1997) 8 PLR 107. Protecting Secret-sacred Designs Indigenous Culture and Intellectual Property Law (C O'Brien): [1997] MALR 57. Qu eensland Pastoral Leases and Native Title: Wik Peoples v Queensland (E Willheim): (1997) 3 ALB (No 89) 20. The Ramifications of the Wik Decision (P Keane): (1997) 53 Refresher 15. Recognition, Rights and Reform (Opinion): (1997) 19 Law Soc Bulletin (SA) (No 3) 5. Reconciliation and the Law: Learning Together (M Walsh): (1997) 24 Brief (No 1) 34. Redressing the Imbalance Against Aboriginals in the Criminal Justice System (Jus tice Mildren): (1996) 21 Crim LJ 7. Responding to Wik: First, Define the Problem (G N ettheim): (1997) 4 ILB (No 1) 14. Seeking Redress for the Stolen Generation: (1997) 35 Law Soc J (No 3) 14. Should Parliament Enact the Hindmarsh Island Bill 1996? (J Clarke): (1997 ) 3 ALB (No 89) 15. Some Signposts from Daguragu (Sir William Deane): (1997) 8 PLR 15. S tatutory Requirement to Negotiate in Good Faith Enforced (D Spencer): (1996) 3 CDRJ 169. The Stolen Generations: More Than Just a Compo Case (M Storey): (1996) 3 ALB (No 86) 4. Strong Support for Juvenile Cautioning and Conferencing Scheme: (1997) 35 Law So c J (No 2) 80. The Suffering of Children in Central Australia (J N Turner): (1997) 71 La w Inst J (No 4) 54. To Be or Not To Be (Property): Anglo-Australian Law and the Search for Pr otection of Indigenous Cultural Heritage (M Tehan): (1996) 15 U Tas LR 167. Twenty Years of Land Rights Lessons for the Native Title Act (R Levy): (1996) 3 ALB (No 85) 22. Use of a Charitable Trust for Proceeds from Native Title Claims (J J Hockley): (1996) 15 AMPLA 190. Vampires Round the Campfire (S Gray): (1997) 22 Alt LJ 60. Watch Out for th e Native (D Nina): (1997) 22 Alt LJ 17. What Wik Means (T Wilson): (1997) 11 APLB 49. The Wik: A History of Their 400 Year Struggle (N Collings): (1997) 4 ILB (No 1) 4. Wik: C onfusing Myth With Reality (B Keon-Cohen): (1997) 3 UNSWLJ Forum (No 2) 14. The Wik Decision: Advising Your Board (M Love): (1997) 49 Aust Company Secretary 283. Th e Wik Decision and Implications for Resource Development (R Bartlett): (1997) 16 AMPLA 27. The Wik Decision: Is Your Corporation Affected? (M Love): (1997) 49 Aust Company Secretary 236. Wik: Equality and the Fallacy of Extinguishment (R Bartlett): (19 97) 4 ILB (No 1) 11. Wik: Implications for Statutory Leases (D Young): (1997) 3 UNSWLJ For um (No 2) 12. Wik: On Invasions, Legal Fictions, Myths and Rational Responses (G Netthe im): (1997) 3 UNSWLJ Forum (No 2) 5. The `Wik' Peoples of Western Cape York (D F Mart in): (1997) 4 ILB (No 1) 8. Wik Why There Will Be No Quick Answers (T Brennan): (19 97) 11 APLB 77. Women and Land: The Problems Aboriginal Women Face in Providing Gend er Restricted Evidence (A Keely): (1996) 3 ALB (No 87) 4. Writs and Rights in the S tolen Generations (NT) Case (B Cummings): (1996) 3 ALB (No 86) 8. 1998. Aboriginal Rights and the Draft NT Constitution (A Keely): (1997) 4 ILB (N o 8) 10. Accessing Personal and Family Records: Contesting the Gatekeepers (S Smallacombe ): (1997) 4 ILB (No 8) 4. All There in Black and White? The Representation of Abori ginal Issues in the Australian Media (B Shearer): (1997) 135 CU 18. Assimilation, Gend er and Land in the Northern Territory After Kruger v The Commonwealth (B Cummings): (19 97) 4 UNSWLJ 8. Authors of Our Own History: The Challenge For All Australians Presente d by the Final Report of the Human Rights Commission National Inquiry Into the Separa tion of Aboriginal and Torres Strait Islander Children From Their Families (N D'Souza): (1997) 4 UNSWLJ 2. The Best Interests of the Aboriginal Child in Family Law Proceedings ( S Ralph): (1998) 12 AJFL 140. Beyond the Aboriginal Councils and Associations Act? Part II (C Mantziaris): (1997) 4 ILB (No 6) 7. The Catch With Native Title Fishing Rights ( J Virgo): ALMD Advance No 14, 24/7/98, p 1. `Clear and Plain Intention': Extinguishment of Native Title in Australia and Canada post-Wik (S Dorsett): (1998) 6 GLR 96. Compensatin g the "Stolen Generation" (S Garkawe): (1997) 22 Alt LJ 277. Compensation for the Stol en Children: Political Judgments and Community Values (R Graycar): (1997) 4 UNSWLJ 24. Damages for Loss of Cultural Fulfilment in Indigenous Community Life (G Orr): (1 997) 4 ILB (No 6) 17. Debating Wik (J Clarke): (1997) 22 Alt LJ 298. Developments in th e Recognition of Indigenous Rights in Canada: Implications for Australia? (P Grose ): (1997) 4 JCULR 68. Disproving Native Title: The Role of Non-Aboriginal Evidence (A Edgar) : ALMD Advance No 23, 4/12/1997, p 3. Is Equality too Hard for Australia? (R Bartl ett): (1997) 20 UNSWLJ 492. Escaping the Net: Native Title as a Defence to Breaches of Fishing Laws (P Jeffery): (1997) 20 UNSWLJ 352. A Fairly Honourable Defeat (J Keane): AL MD Advance, No 18, 18/9/1998, p 3. The Impact of Wik on Pastoralists and Miners (S Beckett): (1997) 20 UNSWLJ 502. Implications of Wik for Company Directors (M Love): (1997) 20 UNSWLJ 507. Indigenous Children and Family Law (J Dewar): (1997) 19 Adel L Rev 2 17. The International Implications of the Native Title Act Amendments (G Nettheim): (1998) 4 ILB (No 9) 12. Jabiluka Court Cases (J Katona, D Mortimers & M Fagan): (1998) 4 ILB (No 14) 14. Kenbi Land Claim: 25 Years On (D Parsons): (1997) 4 ILB (No 8) 15. Kruge r and Bray and the Common Law (T Buti): (1997) 4 UNSWLJ 15. Kruger v The Commonwealth: Does Genocide Require Malice? (M Storey): (1997) 4 UNSWLJ 11. A Lawyer's Perspec tive on the Use of Fiduciary Duty With Regard to the Stolen Children (M Abrahams): (1 997) 4 UNSWLJ 6. Lessons From the Stolen Generations Litigation (J Cummings, J Blokland & R La Forgia): (1997) 19 Adel L Rev 25. Mabo, Wik and the Art of Paradigm Managemen t (N Bhuta): (1998) 25 MULR 24. The Native Title Act Amendment Bill 1997 (J Clarke): (1997) 4 ILB (No 6) 4. The Native Title Amendment Bill: What Happened in the Senate (P Burke): (1998) 4 ILB (No 9) 4. Native Title and the Criminal Law: the Defence of Galarrw uy Yunupingu (R Levy): (1998) 4 ILB (No 13) 10. Native Title Payments: Tax Implicat ions. Part 2 Assessability (R O'Connor & J J Hockley): (1997) 24 Brief (No 11) 14. No Rig ht For Aboriginal Land Council to Seek Defamation Remedy (B Ilkovski): ALMD Advance No 6, 1/4/1998, p 3. An Overview of the Wik Decision (D Gal): (1997) 20 UNSWLJ 488. Pe ople of Any Race: From Mabo to Wik (G Koppenol): (1998) 18 Proctor (No 2) 47. The Perils of Inclusion: The Constitution and the Race Power (J Williams & J Bradsen): (1997) 19 Adel L Rev 95. Placement of Indigenous Children: Changing the Law (R Chisholm): (1997) 4 UNSWLJ 4. The Political Future of Torres Strait (P Jull): (1997) 4 ILB (No 7) 4. The Proprietary Nature of Native Title (R H Bartlett): (1998) 6 APLJ 77. The Race Po wer: "What Parliament May Enact It May Repeal" (A Edgar): ALMD Advance No 7, 16/4/1998, p 1 . Recasting Old Solutions to Old Problems: Preventive Apprehension Legislation and its Impact on Aboriginals (G Bernardi): (1998) 23 Alt LJ 112. Recognition of Indigen ous Legal Autonomy in Nineteenth Century New South Wales (B Kercher): (1998) 4 ILB (No 13) 7. Reforming Juvenile Justice and Creating the Space for Indigenous Self-Determinat ion (C Cunneen): (1997) 4 UNSWLJ 19. Removal of Indigenous Children from Their Families : The Litigation Path (T Buti): (1998) 27 UWALR 203. Reserved Seats for Indigenous Aus tralians? (J Sutherland & W Russell): (1997) 4 ILB (No 8) 13. Resting in Peace? A Comparis on of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds in A ustralia (P Vines): (1998) 20 Syd LR 78. A Return to Dispossession and Discrimination: Th e Ten Point Plan (R Bartlett): (1997) 27 UWALR 44. The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown (A Mason): (1997) 46 ICLQ 812. Slow Progress: The Legal Recognition of Torres Strait Islander Customary Adoption Pra ctice (P Ban): (1997) 4 ILB (No 7) 11. The Stolen Generations and Reparations (S Pritchar d): (1997) 4 UNSWLJ 28. The Stolen Generations: In the Aftermath of Kruger, Bray v The Commonwealth (M D Schaefer): (1997) 4 UNSWLJ 22. Terrestrial Hunting and Gatheri ng by Aboriginal People in New South Wales: An Assessment of Law and Policy (A J En glish): (1997) 14 EPLJ 437. Torres Strait Islander Land Act 1991 (G Neate): (1997) 4 ILB (No 7) 13. Torres Strait Islanders: A New Deal For Whom? (K Smith & G Lui): (1997) 4 ILB (N o 7) 10. Wik: The Aftermath and Implications (Forum): (1997) 20 UNSWLJ 487. Wik and Beyon d: A View of Native Title in South Australia From the Perspective of an Aboriginal Representative Body (T Wooley): (1997) 19 Law Soc Bulletin (SA) (No 12) 20. Wik: Confusing Myth and Reality (B Keon-Cohen): (1997) 20 UNSWLJ 517. Wik: Feudalism, Capitalism and the State. A Revision of Land Law in Australia? (L Godden): (1997 ) 5 APLJ 162. Wik: Implications for Statutory Lessees (D Young): (1997) 20 UNSWLJ 512. Wi k: On Invasions, Legal Fictions, Myths and Rational Responses (G Nettheim): (1997) 20 UNSWLJ 495. The Wik Peoples v State of Queensland: Re-examining Australian Land Tenure (S Young): (1997) 18 Qld Lawyer 96. Women's Business: Sex, Secrets and the Hindmars h Island Affair (J Bourke): (1997) 20 UNSWLJ 333. Reports and Other Publications. 1987. Constitutionalising Aboriginal Rights Cana dian Style: 25 ALB 6. Indigenous People, Human Rights and Australia: 61 ALJ 291. 1989. The Law Reform Commission (Vic): Report No 25, Public Drunkenness. The Law Reform Commission (WA): Issues Paper on Incitement to Racial Hatred, Project No 86. 1997. The Aboriginal Child Placement Principle. Law Reform Commission (NSW), Research Report No 7, March 1997. Planning Control and Native Title A Queensla nd Perspective (D Yarrow): (1996) 12 QUTLJ 115. Protecting Indigenous Intellectual Property. Australian Copyright Council Discussion Paper, March 1997. [1] Pt I. General. 1. Non-existence of Aboriginal nation exercising sovereignty in Australia Pro prietary or possessory rights in land Colonies founded by settlement .] Held: (1) (by Gi bbs and Aickin JJ) The annexation of the east coast of Australia by Captain Cook in 1770 , and the subsequent acts by which the whole of the Australian continent became part of th e dominions of the Crown, are acts of State whose validity cannot be challenged. I t is fundamental to our legal system that the Australian colonies became British poss essions by settlement and not by conquest, and this is an issue which cannot be considered in legal proceedings. (2) (by Gibbs and Aickin JJ) The contention that there is in Austra lia an Aboriginal nation exercising sovereignty, even of a limited kind, cannot be main tained in law. The Aboriginal people are subject to the laws of the Commonwealth and of th e States or Territories in which they respectively reside. It is not the law that the Aborig inal people as holders of any proprietary or possessory rights could not be dispossessed withou t bilateral treaty, lawful compensation or lawful international intervention. (3) (by Jacobs J) The validity of the Crown's proclamations of sovereignty over New South Wales and ta king possession of it and the Crown's sovereign possession are not matters of municip al law and are not cognizable in a court exercising jurisdiction under that sovereignty. A sovereignty adverse to that of the Crown cannot be set up in such a court. Per Jacobs J Th ere is no actual decision of the High Court or the Privy Council that the Australian colon ies were settled colonies. [(1978) 52 ALJR 334; 18 ALR 592 affd.] COE V COMMONWEALTH (1979) 53 ALJR 403; 24 ALR 118 (HC). [Discussed in note, 53 ALJ 743.] 2. No legislative intention to confer enforceable rights upon Aboriginal commun ity Representative action Declaration as to illegality of revocation of reserves Whether special interest in proceedings .] Held: (1) The Aborigines Protection Act 190 9 (NSW) (now repealed), the Aborigines Act 1969 and the Crown Lands Consolidation Act 19 13 provide no right to a member of a class to bring proceedings to enforce complian ce with the provisions of legislation enacted for the benefit of a class because nowhere in such legislation is there evinced any intention to confer any enforceable rights upon either the Aboriginal community as a whole or the individual members thereof. (2) In procee dings for a declaration, inter alia, that certain Aboriginal reserves had been illegally rev oked, a person who was born an Aboriginal but with no association with any of the reserves in q uestion, nor any association with any of whatever may have been the possible detrimental cons equences of revocation of the reserves, lacked any "special interest" in the subject matt er of such proceedings which would otherwise give him the necessary locus standi to bring t hem. COE V GORDON [1983] 1 NSWLR 419 (NSW Sup Ct, Lee J). 3. Right of Aboriginals to protection of criminal law Colony of New South Wal es founded by settlement .] On a charge of murder it was argued for the defence t hat the court had no jurisdiction if, as was alleged, the defendant was a member of the Aboriginal race of Australia. Held: (1) The colony of New South Wales was founded by settle ment, not conquest or cession. Upon settlement, there was, in the colony, only one soverei gn, namely the King of England, and only one law, namely English law; and, upon settlement, in consequence of instructions from the King to Governor Phillip, the Aboriginal pe ople in the colony became the subjects of the King and, as such, were not only entitled to t he protection of the law, but became liable for breach of the King's peace in accordance with the law. (2) From the foregoing, it follows (a) that the Aboriginal people of Australia are n ot a sovereign people, but are subject, in New South Wales, to New South Wales law; and (b) tha t the English law brought to Australia, including New South Wales, applies to all resi dents of New South Wales, and not only to British settlers. (3) The court, therefore, had jur isdiction to try the accused on the indictment preferred against him, whether he was an Aborigina l or not, and whether the deceased named in the indictment was an Aboriginal or not. R V WEDGE [1976] 1 NSWLR 581 (NSW Sup Ct, Rath J). [Discussed in note, 50 ALJ 49 6.] 4. Breach of confidence towards tribal people Publication of matters of relig ious and cultural significance communicated in secret Interlocutory injunction .] The defendants were the author and publisher of a book containing material which had been commu nicated to the author defendant by people using the Pitjantjara aboriginal tongue many y ears before. The material was of religious and cultural significance, and of a sacred and sec ret nature. It had been communicated in confidence to the author and was such that, if revealed to women and uninitiated members of the tribal groups, it was feared would result in soci al disruption within the groups. Members of the Pitjantjara Council applied ex parte for an in terlocutory injunction to restrain distribution of the book. Held, that the court should, ac ting in pursuance of its power to grant an injunction where it appeared to be "just or c onvenient" to do so under s 28 of the Northern Territory Supreme Court Act 1961 (Cth), and for the purpose of preventing a breach of faith or confidence, grant an interlocutory in junction against distribution of the book in the Northern Territory. FOSTER V MOUNTFORD (1976) 29 FLR 233; 14 ALR 71; [1978] FSR 582 (NT Sup Ct, Muirhead J). 5. Aboriginal social rules and customs Whether recognizable as system of law
Relationship under system of native clans to land Whether recognizable as righ t of property .] Held, that in the circumstances of the case, the natives had estab lished a subtle and elaborate system of social rules and customs which was highly adapted to the country in which the people lived and which provided a stable order of society remarkably f ree from the vagaries of personal whim or influence. The system was recognized as obligatory by a definable community of Aboriginals which made ritual and economic use of the are as claimed. Accordingly, the system established was recognizable as a system of law . However, the relationship of the native clans to the land under that system was not recog nizable as a right of property and was not a "right, power or privilege over, or in connexion with, the land" within the meaning of the definition of "interest" in land contained in s 5(1) of the Lands Acquisition Act 1955 (Cth), relating to the acquisition of land on just te rms. The natives had established a recognizable system of law which did not provide for a ny proprietary interest in the clans in any part of the areas claimed. MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141; [1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in notes, 45 ALJ 333; and in correspondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.] 6. Admissibility of evidence Testimony of Aboriginal natives of ancestors' st atements About clan rights to particular areas of land About system relating to such Expert opinion Anthropological testimony .] Held: (1) Testimony by Aboriginal nativ es of statements made by deceased ancestors about the rights of various clans to parti cular areas of land and about the system of which those rights formed part, was admissible unde r the exception to the hearsay rule relating to declarations of deceased persons about matters of public and general rights (commonly known as reputation evidence). The special b ody of law known as the law of "traditional evidence" by which native law and custom may be established before a tribunal responsible for the administration of such law and custom does not form part of the common law as it is understood in Australia. (2) Evidence f rom an anthropologist in the form of a proposition of anthropology a conclusion havin g significance in that field of discourse was not inadmissible (a) as hearsay, b y the circumstance that the evidence was founded partly on statements made to the expe rt by the Aboriginals, (b) as opinion founded on facts which were not apparent, since the facts were ascertained by the methods and described in terms appropriate to the expert's fi eld of knowledge, and (c) as conceptual in terms rather than factual, provided that the expert spoke in terms of concepts appropriate both to his field of knowledge and the court's understanding. MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141; [1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in note, 45 ALJ 333; and i n correspondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.] 7. Admissibility of evidence Confidential information as to sacred sites Pu blic interest .] Consideration of the circumstances in which a claim of public interest immu nity should be upheld and, in particular, whether it applied to material about sacred sites supplied in confidence by Aborigines. ABORIGINAL SACRED SITES PROTECTION AUTHORITY V MAURICE; RE WARUMUNGU LAND CLAIM (1986) 10 FCR 104; 65 ALR 247 (Fed Ct of Aust FC). 8. Proof that person Aboriginal .] The licensee of an hotel was charged with supplying liquor to an Aboriginal native of Australia. The only evidence as to the race of the person supplied was his own testimony as to his place of birth and parentage and the op inion evidence of a police constable. Held, that the evidence of the native was inadmi ssible without consent, and that there was not sufficient evidence to enable the race o f the person to be determined without recourse to s 48 of the Aborigines Act 1934 (SA). WILLIAMS V WIGHT [1943] SASR 301 (SA Sup Ct, Napier CJ). [Discussed in article, 9 U Tas LR 205.] 9. Who are Aboriginals Aboriginal native married to foreigner .] The marria ge of an Aboriginal woman to a native of Batavia residing within the State of Queensland does not prevent the application of the provisions of the Aboriginals Protection and Rest riction of the Sale of Opium Act 1897 (Q) to that Aboriginal woman as, although her nationality may be changed, her race is not. [(1914) 8 QJPR 57 affd.] DEMPSEY V RIGG [1914] QSR 245; 8 QJPR 149 (Q Sup Ct FC). 80. Determination of Aboriginal descent .] By Letters Patent issued separatel y by the Governor-General of the Commonwealth and by the Governor of Queensland, W was authorised to inquire into deaths of "Aboriginals and Torres Strait Islanders" i n custody. W sought to inquire into the death of a man and ruled that, on the basis of proved Aboriginal descent, the man was an Aborigine whose death was within the terms of reference. The State of Queensland contended that the deceased man was not an "Aboriginal" within the meaning of the Letters Patent and that W had no authority to inquire into his death. A j udge of the Federal Court so held, on the basis of evidence relating to genetic and social f actors. Held, allowing an appeal, that in cases where Aboriginal descent is uncertain or where the extent of Aboriginal descent may be regarded as insignificant, each of the factors of self -recognition and recognition by persons who are accepted as being Aborigines may have an evid entiary value in the resolution of the question. [(1989) 25 FCR 512; 46 A Crim R 12; 90 ALR 611; 18 ALD 712 revd on this point.] A-G (CTH) V QUEENSLAND (1990) 25 FCR 125; 94 ALR 515 (Fed Ct of Aust FC). 81. Determination of Aboriginal descent Degree of descent necessary .] The result of a regional election was contested on the basis that the respondent was not quali fied to stand for election because he was not an "Aboriginal person" for the purposes of the A boriginal and Torres Strait Islander Commission Act 1989 (Cth). As to the meaning of "Abor iginal person", Held: (1) In order for someone to be described as an "Aboriginal person " within the meaning of that term in the Act, some degree of Aboriginal descent is essential, although by itself a small degree of such descent is not sufficient. A substantial degree of Aboriginal descent may, by itself, be enough to require a person to be regarded as an "Abor iginal person". (2) Where a person is either wholly of Aboriginal descent or where the degree of Aboriginal descent is so substantial that the person possesses what would be reg arded by the generality of the Australian community as clear physical characteristics associa ted with Aboriginals that the person would be described in ordinary speech as "Aboriginal ", the person may be regarded as an "Aboriginal person" for the purposes of the Act. It is racial origin, not external physical appearance, that governs whether a person is "Abor iginal" for the purposes of the Act. (3) The less the degree of Aboriginal descent, the more important cultural circumstances become in determining whether a person is "Aboriginal". GIBBS V CAPEWELL (1995) 54 FCR 503; 128 ALR 577 (Fed Ct of Aust, Drummond J). 82. Customary law Relationship with Commonwealth laws Readjustment of latte r in relation to recognised rights of indigenous peoples Claimed fiduciary duty owe d by Commonwealth to indigenous peoples Courts to be cautious in striking out or te rminating legal proceedings capable of contributing to readjustment process .] By writ a nd statement of claim, the plaintiff (an Aboriginal Australian) claimed declaratory relief ag ainst the Commonwealth. First, he sought a declaration that the Commonwealth owed "a fiduc iary duty to the original peoples of this land"; second, a declaration that the Commo nwealth "move in the United Nations General Assembly for an Advisory Opinion from ... th e International Court of Justice, as to the separate rights and legal status of th e original peoples of this land"; and, third, a declaration that the Commonwealth negotiate with th e plaintiff about preparation of the proposed case before the International Court. The state ment of claim made other generalised assertions including allegations that the Commonwealth ha d attempted through force and deceit to impose its laws on the original people, ha d failed to comply with their customary law, had failed to enter into a treaty with them, an d had failed to stop "genocide" being perpetrated against them. The Commonwealth sought dismi ssal of the plaintiff's process for want of jurisdiction or its striking out for failure to disclose a reasonable cause of action or as being frivolous or vexatious, and on other grou nds. Held: (1) The declaration sought in respect of an alleged fiduciary duty could not stand a lone, for it amounted to seeking a declaration of legal right not linked to any attempt to ad minister the law in other words, an entirely theoretical pronouncement. Such a claim did no t seek any immediate right, duty or liability to be established by the High Court's determi nation and therefore could not be a "matter" within ss 75 or 76 of the Constitution so as t o attract jurisdiction. Per curiam The fiduciary relationship held to exist in some circ umstances between the United States and indigenous American tribes (a relationship finding some support in Canada as regards indigenous Canadians) has not gathered support in t he High Court, but, in Australia, the question remains open. (2) Even were the present p rocess an appropriate vehicle to open the fiduciary question, it was inappropriate that th e plaintiff be permitted to undertake what appeared to be a representative action when his righ t to do so was neither plain nor pleaded. (3) The claimed declarations for a motion in the General Assembly and negotiations in respect of it could not enliven the relief sought a s to alleged breach of fiduciary duty, for it was not open to the High Court to control the w ay in which the executive government conducts Australia's international relations. The High Court had never embarked upon such control and should not do so, for the matters in issue were beyond the scope of judicial knowledge, defied judicial application, and turned on a mu ltitude of considerations unknown to the High Court. (4) It was inappropriate to permit ame ndment of pleadings in this case, for such extensive revision would be required as to pres ent to the High Court a completely new and different claim. Per curiam At a time when Australi an law is undergoing a measure of readjustment in relation to indigenous peoples, it is ap propriate for courts to be cautious in striking out or terminating proceedings, including thos e brought by such parties which, in the fullness of time, might, with evidence, elaboration a nd detailed argument, contribute to the process of readjustment. [Earlier proceedings see (1997) 71 ALJR 708.] THORPE V COMMONWEALTH [NO 3] (1997) 71 ALJR 767; 144 ALR 677 (HC, Kirby J). [Discussed in article, 4 ILB (No 7) 19.] 83. Representative action Aboriginal group seeking to avoid Commonwealth legi slation Allegation that statute offensive to oppressed and deprived minority .] Sect ion 22(1) of the Australian Bicentennial Authority Act 1980 (Cth) made it an offence for a pe rson to use the name or prescribed symbols of the Authority in connection with a business, t rade, profession of occupation, or in respect of the sale or hire of goods. The plaint iffs sought a declaration that various sections, including s 22, of the Act were void as being beyond the legislative power of the Commonwealth. They claimed standing to sue on the groun ds that one of them was manufacturing for sale by wholesale to others of them for retail sale of items of clothing bearing the Authority's name and prescribed symbols; that they were Aborigines having, as representatives of their class, a special interest in chal lenging the validity of laws concerning a celebration that offended them as an oppressed and deprived minority; and that they were taxpayers. The defendants applied to have the parag raphs of the statement of claim alleging the latter two grounds struck out under O 20, r 29, of the High Court Rules as being unnecessary, scandalous, or tending to prejudice, embarrass or delay the fair trial of the action. Held: (1) Those parts of the statement of claim allegi ng the interests of a class to challenge the validity of a statute to which that class objected coul d not be dismissed as frivolous or hopeless, and did suggest a special interest such that it would be wrong to exclude them. (2) Those parts of the statement of claim dealing with Ab origines as an allegedly oppressed and deprived minority did not disclose any individual suf fering caused to the plaintiffs, asserted no interest other than an emotional concern g oing only to explain the plaintiffs' feelings, and gave rise to issues that could unreasonabl y prolong the trial, and would therefore be struck out. (3) The allegation that the plaintiffs , as taxpayers, had standing to sue in an action challenging the validity of an Act under which public money was disbursed was arguable and the relevant paragraphs would not be struck out. DAVIS V COMMONWEALTH (1986) 61 ALJR 32; 68 ALR 18 (HC, Gibbs CJ). 84. Bankruptcy Whether Aborigines subject to provisions of bankruptcy legisla tion .] A debtor opposed the making of a sequestration order upon the presentation of a creditor's petition on the ground that, being an Aborigine, he was not subject to the juris diction of the court nor bound by the provisions of the Bankruptcy Act 1966 (Cth). The hearing proceeded on the assumption that the debtor was an Aborigine. Held, in making a sequestrat ion order against the debtor's estate, that the Aboriginal people were subject to the laws of the Commonwealth and of the States or Territories in which they respectively resided . Per Neaves J Even if it could be argued that the colony of New South Wales was acq uired by conquest and not by settlement, the distinction between those forms of acquisiti on had no significance in determining whether, in 1987, descendants of those who in 1770 o r 1788 were inhabitants of what became the colony of New South Wales, were subject to l aws enacted by the Commonwealth Parliament in exercise of the powers conferred upon it by the Constitution. RE PHILLIPS; EX PARTE ABORIGINAL DEVELOPMENT COMMISSION (1987) 13 FCR 384; 72 ALR 508 (Fed Ct of Aust, Neaves J). [2-3] Pt II. Land Rights. [2] Divn 1. At Common Law 10. Non-existence of Aboriginal nation exercising sovereignty in Australia Pr oprietary or possessory rights in land Colonies founded by settlement .] See [1]. COE V COMMONWEALTH (1979) 53 ALJR 403; 24 ALR 118 (HC). 11. Tribal lands Whether doctrine of communal native title part of common law applicable in Australia Circumstances in which native title recognised accordi ng to that doctrine Extinguishment of title so recognised Whether relationship of Abori ginal clans to particular areas satisfied requirements of doctrine Nature of relatio nship of clans to land .] Aboriginal natives of Australia representing native clans sued a mi ning company and the Commonwealth claiming relief in relation to the possession and enjoyment of areas of Arnhem Land in the Gove Peninsula over which mineral leases had been granted by the Commonwealth to the company, which mined for bauxite in the area. The areas cons isted of a number of tracts of land, each linked to a native clan, the total of which exh austed the areas in question. The boundaries between the tracts were not precise but were suffici ent for native purposes. The natives asserted on behalf of the native clans they represented th at those clans and no others had in their several ways occupied the areas from time immemorial as of right. The natives contended, as "the doctrine of communal native title", that at commo n law the rights under native law or custom of native communities to land within territory acquired by the Crown, provided that those rights were intelligible and capable of recogniti on by the common law, were rights which persisted and must be respected by the Crown itsel f and by its colonizing subjects unless and until they were validly terminated. The nativ es further contended, as part of that doctrine, that those rights could be terminated only by the Crown (a) by consent of the native people or by forfeiture after insurrection or, perh aps, (b) by explicit legislation or by an act of State, and that the rights of the native pe ople to use and enjoy the land in the manner in which their own law or custom entitled them to d o was a right of property. Held, that in the circumstances of the case, the natives had not established that, on the balance of probabilities, their predecessors had, at the time of th e acquisition of their territory by the Crown as part of the colony of New South Wales, the same links to the same areas of land as those claimed by the natives. Customs, beliefs and social organization of the Aboriginal natives of Australia in general, and of the areas claimed in p articular, considered. The doctrine of communal native title contended for by the natives d id not form, and never had formed, part of the law of any part of Australia. Such a doctrine had no place in a settled colony except under express statutory provisions. Throughout the hi story of the settlement of Australia any consciousness of a native land problem inspired a po licy of protection and preservation, without provision for the recognition of any commun al title to land. There is no principle of law that communal native title can only be exting uished by legislation by express enactment: extinguishment may be implied. Principles appl icable to the acquisition of colonial territory (both settled or occupied and conquered or ceded) and colonial policies relating to native lands, considered in detail, and in relatio n thereto the following matters considered: the application of English law in the overseas pos sessions of the Crown; colonial policy with regard to native lands in North America; the com mon law before and after 1788; American cases since the revolution; Canadian cases; Indi an cases; African cases; the law in New Zealand; the Australian authorities; the Australia n historical material. MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141; [1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in note, 45 ALJ 333; and i n correspondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.] 12. Tribal lands Effect of proviso in letters patent of 1836 establishing pro vince of South Australia Reservation of rights of Aboriginal natives to occupation and enjoym ent of land Effect of subsequent Imperial legislation granting succession of legislative p owers over territory .] Held, that the Letters Patent of 1836 by which the Province of So uth Australia was established and its boundaries defined, by its proviso that nothing therein contained should affect or be construed to affect "the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own persons or in the pe rsons of their descendants of any Land therein now actually occupied or enjoyed by such Natives ", (a) did not extend to territory which became part of South Australia thereafter, (b) did not operate as a constitutional guarantee of Aboriginal rights, but (c) was no more than the af firmation of a principle of benevolence inserted in the Letters Patent to bestow upon it a suit ably dignified status. Moreover, later Imperial legislation, granting a succession of legislati ve powers effective over the areas claimed, necessarily implied the repeal of any constitu tional limitation on legislative power contained in the proviso to the Letters Patent. MILIRRPUM V NABALCO PTY LTD (GOVE LAND RIGHTS CASE) (1971) 17 FLR 141; [1972-73] ALR 65 (NT Sup Ct, Blackburn J). [Discussed in note, 45 ALJ 333; and i n correspondence, 45 ALJ 773; 46 ALJ 45, 206, 305; 47 ALJ 151.] 13. Tribal lands Whether rights to possession and enjoyment established Upo n acquisition by Crown of new territory By possession from time immemorial By establishment of Aboriginal reserves Interference with tribal lands by mining operations Whether actionable at suit of Aboriginals .] An action was brought by Aborig inal natives of Australia against a mining company and the Commonwealth, claiming rel ief in relation to the possession and enjoyment of certain areas of the Arnhem Land Abo riginal Reserve in the Gove Peninsula, over which certain mining rights had been granted by the Commonwealth to the company which was conducting mining operations in the area. On interlocutory applications by the defendants, Held, that summary judgment should be refused, on the ground that it had not been established to the satisfaction of t he court that contentions of the plaintiffs in the action were unsound, namely, (1) that the C rown, upon the acquisition of a new territory by the Crown, had a legal obligation to respect t he interests of native inhabitants of the territory, (2) that the plaintiffs had enjoyed possess ion of the land in question from time immemorial, and (3) that legal rights were acquired by the pl aintiffs, as Aboriginal natives, upon the establishment of the Arnhem Land Aboriginal Reserve and, accordingly, that certain statutory instruments and agreements relating to the a cquisition by the Commonwealth and grant to the company of certain interests in the land in qu estion were invalid and the mining operations of the company unlawful. Having regard to defe cts in the statement of claim it should be struck out, with leave to the plaintiffs to deli ver a fresh one and to join further plaintiffs. MATHAMAN V NABALCO PTY LTD (1969) 14 FLR 10; [1969] ALR 685 (NT Sup Ct, Blackburn J). [Discussed in note, 44 ALJ 174.] 85. Common law native title Recognition Where not extinguished Operation of "pastoral leases" in pursuance of State statutes Tests applicable to determine extinguishment Scope for co-existence of native title and pastoral lease right s Terms of statutes and individual leases to be examined case by case .] The Native Title Act 1993 (Cth), s 223, defines the expressions "native title" and "native title rights an d interests" by reference to (a) traditional laws and customs; (b) a linked connection with rele vant land or water; and (c) "the rights and interests are recognised by the common law of Aus tralia". The Land Act 1910 (Q), s 4, and the Land Act 1962 (Q), s 5, define "Crown land" as b eing "all land in Queensland" with specified exceptions, particularly Crown grants in fee simple, reserves dedicated for public purposes, or: "Subject to any lease or license [si c] lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land". Part III of each Act deals with "Pastoral Tenures": an expres sion identified in the 1962 Act as pastoral leases, occupation licences and stud hold ings (the last not being included in the 1910 Act). Pastoral leases under the Acts conferred on ly the estate or interest authorised by the relative Act. Held (by majority), that the grantin g of a pastoral lease in pursuance of the Land Act 1910 or of the Land Act 1962 did not of itsel f extinguish native title subsisting in the leased land. An examination of the terms and circ umstances of each such lease and its authorising statute would be necessary to determine whet her any extinguishment had been effected. Per Toohey J (on behalf of the majority) Whe ther there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under st atutory grants, the native title rights and interest must yield, to that extent, to the rights o f the grantees. Per the majority In respect of the pastoral leases presently under consideration: (a) the following matters would tend to suggest that native title had not been extinguis hed but might co-exist with the grant the granting of leases "for pastoral purposes only"; t he reservation of rights of entry for removal of timber, stone and other natural products; deni al of rights exclusive to the lessee to cut or destroy trees or permit such acts; the grant o f pasturage rights to travelling stock; the lessee's failure to observe onerous conditions attachin g to the lease; and the reserved right of entry by "any person duly authorised" for specific pur poses; and (b) the following matters would tend to suggest the conferring of rights of exclusiv e possession the use of "demise", "term", "assigns", "lease" and derivatives of "lease" in the Acts and leases themselves; the distinction drawn in the Land Act 1910 between leases and licences; and the required construction of boundary fences and fulfilment of development c onditions. Per Kirby J The search, now necessary to find indications of extinguishment o f native title, is conducted at a disadvantage because of its reliance on legal materials written in a legal environment of contrary understandings and beliefs. The present must revis it the past to produce a result, wholly unexpected at the time, which will not cause undue coll ision in the future. Observations on the history, policy and application of doctrines of tenu res and estates in Australia, with particular reference to the concepts of radical and allodial title; and on various forms of authorised land occupancy, including pastoral leases, devised t o meet the expanding needs of Australian regional settlement. Per Gummow J Traditional co ncepts of English land law, although radically affected in their country of origin by t he Law of Property Act 1925 (UK), may still exert in this country a fascination beyond the ir utility in instruction for the task at hand. There is also a need to adjust ingrained habit s of thought and understanding to what, since 1992, must be accepted as the common law of Austral ia. Further observations on (a) Colonial Office policy before Responsible Government , and the policy of the Government of Colonial Queensland thereafter, concerning the exten t to which the interests of indigenous land occupants should be recognised and protected; a nd on (b) the consequences of the failure of a pastoral lessee to enter into possession, and o n the (now abolished) concept of interesse termini. [(1996) 63 FCR 450; 134 ALR 637 set aside in part.] [Earlier proceedings see (1994) 49 FCR 1; 120 ALR 465.] WIK PEOPLES V QUEENSLAND (1996) 187 CLR 1; 71 ALJR 173; 141 ALR 129 (HC). [Discussed in articles, 3 ALB (No 89) 20; 11 APLB 49; 16 AMPLA 27, 44; 19 Law So c Bulletin (SA) (No 6) 10; 3 UNSWLJ Forum 2, 3, 5, 8, 10, 12, 14; 24 Brief (No 6) 9; 21 MULR 343.] 86. Common law native title Recognition Where not extinguished Operation of Crown leases Land entitlement of inhabitants of Murray Islands .] Held (by m ajority): (1) Australian common law recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlements of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands. (2) Accordingly, except for the operation of Crown leases, the land entitlement of the inhabitants of the Murray Islands, in Torres Strait, is preserved as native title under the law of Queensland. (3) The land in the Murray Islands is not Crown land within the meaning of that term in the Land Act 1962 (Q), s 5. Observations on: (a) the reception of the common law in Australia, with par ticular reference to its effect on indigenous people; (b) traditional claims to land und er the law of a British settled colony; (c) the doctrine of "terra nullius"; (d) Crown powers to extinguish traditional "titles"; (e) Crown title to colonies and Crown ownership of colonia l land; (f) annexation of the Murray Islands and the survival of traditional "title" thereaf ter; and (g) fiduciary duties owed to traditional occupants of land. [Earlier proceedings see (1988) 166 CLR 186; 63 ALJR 84; 83 ALR 14.] MABO V QUEENSLAND [NO 2] (1992) 175 CLR 1; 66 ALJR 408; 107 ALR 1 (HC). [Discussed in articles, 17 Alt LJ 157, 162; 2 ALB (No 57) 7; 27 ALN (No 6) 9; 66 Law Inst J 1105; 22 UWALR 272; 42 ICLQ 84; 144 ACT Law Soc Newsletter 32; 18 Mon LR 251; 67 ALJ 442; 15 Syd LR 121, 159, 168, 187, 206; 12 AMPLA Bulletin 62; 31 Law Soc J ( No 5) 55; 16 UNSWLJ 1; [1993] Vic Bar News (No 87) 20, 29, 47, 61; 67 Law Inst J 1163; 2 GLR (No 1) 39; 7 Com LQ (No 4) 13; 21 FL Rev 271; 1 APLJ 236; 11 Aust Bar Rev 229; 2 4 UWALR 31; 9 QUTLJ 81; 18 UQLJ 9, 15, 38; 1 JCULR 51.] 87. Common law native title Recognition Queensland pastoral leases Where application to be entertained by National Native Title Tribunal .] Circumstanc es in which, on appeal by specific leave from the Federal Court of Australia (Full Court), it was ordered that the National Native Title Tribunal entertain applications claiming traditio nal title to land in Queensland the subject of specific pastoral leases. Reasons for judgment to f ollow in due course. [(1995) 61 FCR 1; 132 ALR 565 set aside.] RE NORTH GANALANJA ABORIGINAL CORPORATION; EX PARTE QUEENSLAND (1996) 70 ALJR 174 (HC). 88. Common law native title Extinguishment By grant of leasehold interest Pastoral leases No implied reservation in favour of Aboriginal people .] Hel d, that the grant of a leasehold interest conferring rights of exclusive possession upon the lessee, unqualified by any right of access or reservation in favour of Aboriginal people , is inconsistent with the continuance of native title rights and interests. That gen eral proposition is subject to the terms and conditions of particular leases which, for one reaso n or another, may negative the characterization of the grant as intending extinguishment. Thus , the short term of a lease or wide rights of general public access may defeat a contention that it has extinguished native title. However, where native title is extinguished the commo n law position seems to be that it cannot be revived by the common law. [Affd by (1995) 61 FCR 1; 132 ALR 565.] [Earlier proceedings see (1995) 129 ALR 100.] RE WAANYI PEOPLES (1995) 124 FLR 1; sub nom RE WAANYI PEOPLE'S NATIVE TITLE APPLICATION 129 ALR 118 (Cth Native Title Trib). [Discussed in article, 3 ALB (No 77) 19.] 89. Common law native title Extinguishment By grant of leasehold interest Pastoral leases No contract or promise found to limit power of Queensland legi slature .] Held, that the power of the Queensland legislature is not limited by contracts , promises and engagements existing at the time of the enactment of Imperial and local laws from which Queensland's constitution is derived. Accordingly, there is no limitation on its power to grant leases without reservations in favour of the Aboriginal inhabitants of the count ry the subject of the grant. Nor is there any limitation derived from the terms of the Order in Council 1859 (Q) or the Constitution Act 1867 (Q) on its power to extinguish native title. [Affd by (1995) 61 FCR 1; 132 ALR 565.] [Earlier proceedings see (1995) 129 ALR 100.] RE WAAYNI PEOPLES (1995) 124 FLR 1; sub nom RE WAANYI PEOPLE'S NATIVE TITLE APPLICATION 129 ALR 118 (Cth Native Title Trib). [Discussed in article, 3 ALB (No 77) 19.] 90. Common law native title Extinguishment Power of State legislature to ex tinguish native title By legislative or executive action Where breach of fiduciary du ty to native title holders Actions not invalid .] Held, that legislative or executive act s sufficient to extinguish native title are not invalid because they constitute a breach of any fiduciary duty owed in relation to native title holders. RE WADI WADI PEOPLES (1995) 124 FLR 110; sub nom RE WADI WADI PEOPLE'S NATIVE TITLE APPLICATION 129 ALR 167 (Cth Native Title Trib). 91. Common law native title Extinguishment Power of State legislature to ex tinguish native title Attempt by Commonwealth Parliament to enact that common law befor e given date as to native title has "the force of a law of the Commonwealth" Improper attempt to confer legislative power on courts Invalid, but severable, portion of Act .] On 1 January 1994 the Native Title Act 1993 (Cth) commenced to operate. It specified 1 July 1993 as the date on and after which native title could be extinguished by the enactme nt of a law that satisfied conditions prescribed by the Act (s 11). The Land (Titles and Tra ditional Usage) Act 1993 (WA) purported to extinguish native title and replace it with st atutory rights of traditional usage within a regime prescribed by that Act. In particular, s 5 purported to confirm retrospectively the validity of grants of title made after the Racial Di scrimination Act 1975 (Cth) came into operation where those grants sought to extinguish or im pair native title. The State challenged the validity of the Commonwealth native title legisl ation. Interested parties challenged the validity of the State legislation. In the High Court three such matters were conflated and questions were reserved for the opinion of the Full C ourt. Held: (1) Having regard to the circumstances, revealed by history and contemporary doc uments, surrounding the settlement of Western Australia and its establishment as a colon y, the submissions of the State, that the Crown originally intended a general extinguis hment of native title to or over all land within the colonial boundaries defined in Capta in Stirling's commission and instructions, could not be sustained. The Crown's sovereign power was intended only to be directed to granting land to immigrant settlers, extinguishi ng native title on a parcel by parcel basis. No global extinguishment was contemplated or effect ed. Per curiam There is no difference in point of law relating to native title between the establishment of the Colony of Western Australia and the establishment of the Co lony of New South Wales. (2) The Land (Titles and Traditional Usage) Act, s 5, was not i nvalid as being beyond legislative power, but it had no legal operation and was ineffectiv e because of inconsistency offensive to the Constitution, s 109. (3) The Land (Titles and Tra ditional Usage) Act, s 7, was similarly ineffective for inconsistency with the Racial Dis crimination Act, s 10(1). In all respects, whether under the terms of the Land (Titles and T raditional Usage) Act, the Mining Act 1978 (WA), the Petroleum Act 1967 (WA), or the State provisions for the granting of compensation on compulsory acquisition of land, t here was a demonstrable discrimination between the standing and entitlements of indigenous people vis-a-vis those of other people. The prospective operation of the State Act was destroyed by the inconsistency thus created with the rights conferred by the Racial Discrimin ation Act. (4) The Native Title Act was prima facie supported by the Constitution, s 51(xxvi) ( power to make special laws for people of any race). (5) The Native Title Act was not inva lid as purporting to control the exercise by a State of its legislative power or to ren der State laws invalid contrary to the Constitution, s 107. (6) The Native Title Act was not in valid as creating an impermissible discrimination against Western Australia or an impermi ssible impairment of the ability of Western Australia to function as a State, for the A ct did not purport to affect the machinery of the government of the State or obtrude upon t he constitution of the State's three branches of government. (7) The Native Title A ct, s 12, which purported to enact that "Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth" wa s invalid as either purporting to confer legislative power on the courts or as lacking consti tutional support. Its invalidity did not affect the validity of any other provision of th e Act. WESTERN AUSTRALIA V COMMONWEALTH (1995) 183 CLR 373; 69 ALJR 309; 128 ALR 1 (HC). [Discussed in articles, 69 ALJ 397; 22 Brief (No 4) 6; 3 ALB (No 73) 4, 8; 14 AMPLA 108; and in note, 3 APLJ 142.] 92. Common law native title Extinguishment Power of State legislature to ex tinguish native title Torres Strait islands Claim to customary land ownership with tr aditional title and usufructuary rights Purported extinguishment of by State Act without compensation Inconsistency with Racial Discrimination Act 1975 (Cth) .] The plaintiffs, being native occupants of the Murray Islands group in Torres Strait within the State of Queensland, sought declarations that they owned by custom the island la nd they occupied, and held traditional native title and usufructuary rights in relation to it. After action commenced, the Queensland legislature passed the Queensland Coast Islands Declaratory Act 1985 (Q), which declared that the islands, on first becoming par t of Queensland, were vested in the Crown in right of Queensland, and became Crown la nd subject to the State's Crown land legislation from time to time, no compensation being payable in respect of any prior right, title or interest. The plaintiffs contend ed that, as a matter of construction and for want of legislative power, the Act was invalid. T hey demurred to the defence in so far as it relied upon the Act. The plaintiffs further conte nded in support of their demurrer that the Act was invalid pursuant to s 109 of the Commonwealth Constitution as being inconsistent with the Racial Discrimination Act 1975 (Cth) , particularly s 9 (racial discrimination to be unlawful) and s 10 (rights to equa lity before the law). Held, upholding the demurrer: (1) Assuming the traditional legal rights pl eaded in the statement of claim to have existed before 1985, the Act, being declaratory, had the capacity to change the law such that courts became bound to accept the law as declared. P rima facie, any traditional rights were accordingly extinguished by the Act. (2) (a) The hum an rights to which s 10 of the Racial Discrimination Act refer include the right to own and i nherit property, and, by extinguishing the traditional rights of the Murray Islanders, the Queensland Act abrogated the immunity of those people from arbitrary deprivation of their l egal rights in and over those islands. The Queensland Act thus impaired their human rights whil e leaving unimpaired the corresponding human rights of those whose rights in and over thos e islands did not originate in the laws and customs of the Murray Islanders. (b) A State l aw which, by purporting to extinguish native title, would limit the immunity of the native et hnic group from legislative interference with their human right to own and inherit property , cannot prevail over s 10(1) of the Racial Discrimination Act, and the attempt of the Qu eensland Act to extinguish traditional land rights of the Murray Islanders therefore failed. [Further proceedings see (1992) 175 CLR 1; 66 ALJR 408; 107 ALR 1.] MABO V QUEENSLAND (1988) 166 CLR 186; 63 ALJR 84; 83 ALR 14 (HC). [Discussed in articles, 17 MULR 168; 1 PLR 53, 329.] 93. Common law native title Extinguishment Standard of proof Evidence Admissibility .] The plaintiffs brought proceedings against the State of Queen sland claiming rights to ownership of lands on the Murray Islands. The plaintiffs clai med that as a consequence of the continuous application of the laws, customs, traditions and p ractices of the Meriam people they had acquired rights in respect of the lands claimed accor ding to: (a) local custom; (b) traditional native title; (c) usufructuary rights on account o f their possession, use and enjoyment of the Murray Islands; (d) fiduciary obligations t o which the State of Queensland had become subject in respect of the plaintiffs' claimed rig hts; and that the State of Queensland was bound to recognise those rights. The issues to be de termined were: (a) the standard of proof to be applied to a claim based on traditional cu stom and culture; and (b) the admissibility of assertions by witnesses on the basis of wh at they had been told by non-witnesses. Held: (1) It could not be accepted that the plaintif fs were subject to a different standard of proof to that which would apply to any other litigant . (2) It was necessary to distinguish between what was to be proved and the means by which it was to be proved. Thus the plaintiffs could seek to make out a claim to property of a kind which was not within the categories or concepts by which rights to property have, to date, been established under Australian law. In order to do this the plaintiffs could have recourse to proving facts which would not be relevant to proving rights within the so far ac cepted conceptual framework establishing the property rights recognised by Australian l aw. However, the relevant facts were to be proved by evidence admissible according t o generally applicable principles of Australian law. (3) Assertions by witnesses on the basi s of what they had been told by non-witnesses were admissible on the basis of relevance to cust om, but not necessarily for the purpose of proving the truth of the assertions. [Earlier proceedings see (1986) 60 ALJR 255; 64 ALR 1.] MABO V QUEENSLAND [1992] 1 Qd R 78 (Q Sup Ct, Moynihan J). [Discussed in article s, 17 AHLJ 157, 162; 2 ALB (No 57) 7.] 94. Common law native title Prerequisites to pleading valid claim Precise identification of land Joinder of parties having interest in opposing declarat ion Desirability of judicious test cases Process seeking improper purpose .] Hel d: (1) Land subject to a claim for indigenous title of or related to the kind identified in Mabo v Queensland [No 2] (1992) 175 CLR 1 should be described with sufficient precision to enable it to be identified as to specific parcels. (2) The court will only determine a question of such title in proceedings in which all persons having a possible interest in opposing the declaration of title are joined as defendants. Per curiam (a) The better proce dure is that litigation of this kind be resolved by a judicious selection of test cases. (b) A plaintiff asserting native title must establish the conditions according to which that tit le subsists, namely, that the title has not been extinguished by inconsistent Crown grant or by the indigenous occupiers ceasing to have a requisite physical connection with the la nd. (3) Accordingly, where a statement of claim failed to comply with those prerequisite s, appeared to have been brought for the improper purpose of obtaining a collateral advantag e, and would lead inevitably to proceedings so unwieldy as to be prospectively unmanageable, there was an abuse of process such that the statement of claim must be struck out. Observa tions on, among others, the following matters pleaded: alleged sovereignty of the claimant s either as "a nation of people" or as "a domestic dependent nation"; alleged acts of genoci de against ancestors of the claimants; alleged fiduciary obligations to the claimants by th e Crown in right of the State of New South Wales; the anachronism of seeking relief against Federal and State governments constituted long after the grievances complained of had occurr ed, and of invoking international Conventions retrospectively; and the question of extingui shment of native title. COE V COMMONWEALTH (1993) 68 ALJR 110; 118 ALR 193 (HC, Mason CJ). [Discussed in article, 3 ABL (No 70) 6.] 95. Claim against Crown Notice of intent to bring claim Defective notice Declaratory relief sought .] Held, that a claim for declaratory relief in resp ect of native title to land at common law was a "cause of action" within the Crown Suits Act 1 947 (WA), s 6(1). The assertion of the right to native title constituted a continuing "act" within s 6(1), which allowed an action to be commenced and required that notice be given before such commencement. In the exceptional circumstances of the case, leave to commence th e action ought to be granted notwithstanding a defective notice, as the parties had been engaged in protracted negotiations prior to the presentation of the notice. BILJABU V WESTERN AUSTRALIA (1993) 11 WAR 372 (WA Sup Ct, Owen J). [3] Divn 2. Under Statute Generally 14. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) "Traditional A boriginal owners" Construction of definition Competing claims by local descent groups .] On an application to the Aboriginal Land Commissioner based on a traditional land c laim under s 50(1) of the Aboriginal Land Rights (Northern Territory) Act 1976, the Commiss ioner is required under para (a)(i) of s 50(1), to ascertain whether there are "tradition al Aboriginal owners" of the land. This expression is defined in s 3(1) as meaning a local des cent group of Aboriginals "who (a) have common spiritual affiliations to a site on the land, b eing affiliations that place the group under a primary spiritual responsibility for t he site and for the land, and (b) are entitled by Aboriginal tradition to forage as of right ove r that land". Section 71(1) defines the right of Aboriginals to enter on, use and occupy Abori ginal land. The Commissioner reported on claims made under the Act by opposing groups of Aboriginals claiming to be traditional owners of the same land. Applications wer e made for mandamus directed to the Commissioner, and prohibition directed to the Minister, based on claims that the Commissioner failed to have proper regard to the significance of sites situated off the land in ascertaining the traditional owners, that he failed to deal with each claim separately on its own merit, and that he failed to have proper regard to the ent itlement of the applicants by Aboriginal tradition to the use or occupation of the land. Held: ( 1) (by Gibbs CJ, Mason, Wilson and Brennan JJ) While the existence of sites on the land the s ubject of the claim will always, in a practical sense, retain primary significance in prov ing traditional ownership in accordance with the definition of "traditional Aboriginal owners" i n s 3(1) of the Act, such ownership may extend to an area of unalienated Crown land notwiths tanding that the relevant sites are located on alienated land. (2) (by Gibbs CJ, Mason a nd Wilson JJ) In making a report on an Aboriginal land claim, that Aboriginals are the traditi onal owners of land, the Commissioner is not required to make a specific finding in exhaustive terms as to the identity of the Aboriginals described in s 11 as "Aboriginals entitled by Ab original tradition to use or occupation" of the land. Per Gibbs CJ, Mason, Wilson and Bre nnan JJ The group of Aboriginals for whose benefit an area of Crown land is to be grante d to a Land Trust under ss 11 and 12 of the Act, and the class of Aboriginals whose entitlem ent to use of land is declared by s 71 (1), would seem to be wider than the traditional Aborig inal owners of the land. Consideration by Gibbs CJ, Mason and Wilson JJ of the application o f the definition of "traditional Aboriginal owners" in s 3(1) of the Act to a case in which a claim to be such owners is sought to be established by more than one local descent group of Aboriginals. RE TOOHEY; EX PARTE STANTON (1982) 57 ALJR 73; sub nom R V TOOHEY; EX PARTE STANTON 44 ALR 94 (HC). 15. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) "Traditional A boriginal owners" Extent of ownership Land to which character given by sites not situa ted on it .] Under the Aboriginal Land Rights (Northern Territory) Act 1976, s 50(1)(a), it is the function of the Aboriginal Land Commissioner to investigate traditional land cla ims made by those claiming to be traditional Aboriginal owners of unalienated Crown land or of alienated Crown land in which the only interests, other than that of the Crown, are held b y or for Aboriginals. Section 3 (1) defines "traditional Aboriginal owners" in effect as a local descent group who have common spiritual affiliations to a site on land which place them under a primary spiritual responsibility for that site and for the land, and who are ent itled by "Aboriginal tradition" to forage as of right over that land. Section 3(1) define s "Aboriginal tradition" to include Aboriginal traditions, customs and beliefs as applied in r elation to particular sites. Held: (1) (by Gibbs CJ, Brennan, Deane and Dawson JJ) The test required by the definition of "traditional Aboriginal owners" in s 3(1) of the Act is not to be applied to the land the subject of a claim in isolation, with the result that under s 50(1) (a) an application and a recommendation for a grant of land to a Land Trust may be made in respect of a piece of land which forms part of an area of which the applicants are traditional Abor iginal owners notwithstanding that the sites which give the land its character as that of such owners fall outside the part of the land which, under s 50(1)(a), is available to be claimed . Cogent evidence is, however, required to link land to sites off the land. (2) (by Murph y J) Traditional Aboriginal ownership of land within s 50(1)(a) is not dependent on the particula r sites giving it that character being actually part of the land claimed, rather than merely be ing linked to it by dreaming tracks or otherwise. R V KEARNEY; EX PARTE JURLAMA (1984) 158 CLR 426; sub nom RE KEARNEY; EX PARTE JURLAMA 58 ALJR 243; 52 ALR 24 (HC). 16. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Northern Land Council Powers and functions Consent of "traditional Aboriginal owners" "Action" . ] Miners had acquired certain mining leases over land that subsequently became Abo riginal land under the Aboriginal Land Rights (Northern Territory) Act 1976. The Norther n Land Council (NLC) had been negotiating with D for an extension of mining to a wider area of Aboriginal land. A majority of the traditional owners of the land concerned had consented to the negotiations being carried on. Some of the traditional owners sought declara tions that the NLC could not continue the negotiations on the ground that, under the Act, the c onsent of every traditional owner was required before any action in relation to Aboriginal land, including the negotiations concerned, could validly be taken by the NLC. Held: ( 1) The fact that future claimants to traditional ownership of Aboriginal land may emerge wil l not prevent a land council, and known traditional owners, from making valid decisions about the use of Aboriginal land. (2) The requirement, imposed by sub-s (3) of s 23 of the Act, t hat, in respect of any action to be taken by a Land Council in relation to traditional Aborigina l land, "the traditional Aboriginal owners as a group, consent to it" does not require that t here be unanimity among the traditional owners. To so interpret the sub-section would be inconsistent with the objectives of the Act. It is for the Land Council to deter mine whether, after due consultation, consent has been given. (4) The conduct of the negotiati ons with respect to the user of the land was not an "action" within the meaning of the Ac t. The words "any action" relate to a step or decision which, in itself, may grant or deny an interest (in the land) or which may define future rights or entitlements of those whose interests the Land Council has been created to assist and protect. ALDERSON V NORTHERN LAND COUNCIL (1983) 67 FLR 353; 20 NTR 1 (NT Sup Ct, Muirhead J). 17. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Application to Aboriginal Land Commissioner Alienated Crown land held "on behalf of" Aborigin als Land held by Aboriginal Land Fund Commission .] The Aboriginal Land Rights (No rthern Territory) Act 1976 (the Land Rights Act) established an Aboriginal Land Commiss ioner. Section 50(1)(a) provided that the Commissioner was to hear applications made "b y or on behalf of Aboriginals claiming to have a traditional land claim to an area of la nd, being unalienated Crown land or alienated Crown land in which all estates and interest s not held by the Crown are held by, or on behalf of, Aboriginals". Section 3 defined "Aborigi nal" to mean a person who is a member of the Aboriginal race of Australia. The Aboriginal Lan d Fund Act 1974 established the Aboriginal Land Fund Commission which by s 20 was empowered to (a) grant to an Aboriginal corporation an interest in land for the purpose of enabli ng the members of that corporation to occupy that land; and (b) grant to an Aboriginal land trust an interest in land for the purpose of enabling Aboriginals to occupy that land. By s 21 the commission was empowered to acquire by agreement any interest in land for the pu rposes of s 20. Section 3 defined "Aboriginal" to mean an indigenous inhabitant of Austral ia, and to include an indigenous inhabitant of the Torres Strait Islands. Part of land for which an application was made under the Land Rights Act by a group of Aboriginals who cla imed to have a traditional land claim was held by the commission under a pastoral lease from the Crown. Held (by Stephen, Mason, Murphy and Aickin JJ (Wilson J doubting) (Barwic k CJ dissenting)), that the land was held on behalf of Aboriginals within s 50(1)(a) of the Land Rights Act, the commission being under a statutory duty to employ it for the ben efit of particular groups of Aboriginals. R V TOOHEY; EX PARTE A-G (NT) (1980) 145 CLR 374; 25 ALR 27; sub nom RE TOOHEY and CENTRAL LAND COUNCIL; EX PARTE A-G (NT) 54 ALJR 145 (HC). 18. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Recommendation for grant to Land Trust Minister's duties and discretions Matters for considerat ion .] Section 11(1) of the Aboriginal Land Rights (Northern Territory) Act 1976, as it stood at the material time, provided for the Minister to establish Land Trusts. The basis of his doing so was to be a recommendation of the Aboriginal Land Rights Commissioner that Crown land be granted to a Land Trust, and the Minister's being satisfied that one or sever al grants should be made to a trust or trusts of all or part of the land in question. On 15 March 1983 the Minister decided that land, the subject of mineral leases held by the respondent s for some years, be granted to a Land Trust. Part of the land contained uranium deposits. In evidence before the Commissioner a director of the first respondent had misdescribed the location of the deposits such that the Commissioner had considered that they did not fall wh olly within the area recommended for grant. In 1981 the managing director of the fourth resp ondent had written to the then Minister drawing attention to the fact that the deposits wer e wholly within the area and contending that the Commissioner had understated the detriment that would be suffered by the respondents were the entire area granted to a Land Trust. The Mi nister replied that he would consider the representations. He was, however, succeeded b y two other Ministers, the second (the present appellant) in consequence of a change of gove rnment after a general election. The appellant's decision to grant the land depended on the C ommissioner's report and on departmental papers that omitted to disclose the fourth respondent 's representations to prior Ministers. In the Federal Court of Australia the respon dents sought judicial review of the appellant's decision for failure by the appellant to cons ider those representations. At first instance that relief was declined, but the Full Court reversed the decision, holding that the Minister's failure to consider the representations co nstituted an improper exercise of the power conferred by s 11 of the Act. The Minister appeal ed to the High Court. Held, dismissing the appeal, that the Minister was bound to consider the submissions made by the respondents to his predecessors in office: he was not en titled to fail to advert to the existence of those submissions. [(1985) 5 FCR 532; 59 ALR 51 affd.] MINISTER FOR ABORIGINAL AFFAIRS V PEKO-WALLSEND LTD (1986) 60 ALJR 560; 66 ALR 299 (HC). 19. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Land Councils
Employees not to divulge information Extent of obligation .] Held, that s 23 E of the Aboriginal Land Rights (Northern Territory) Act 1976, which made it an offence f or an employee or former employee of a Land Council to divulge any information concern ing the affairs of any of the claimants acquired by reason of his employment by a Land C ouncil, was limited in its operation to information acquired as a result of the exercise by a Land Council of its powers under ss 23A and 23C of the Act. A-G (NT) V MAURICE; RE WARUMUNGU LAND CLAIM (1986) 10 FCR 134; sub nom A-G (NT) V MAURICE 65 ALR 230 (Fed Ct of Aust FC). 20. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Unalienated Cr own land Estate or interest Traditional land claim Recommendations of Commissioner
Discretion of Minister .] The Aboriginal Land Rights (Northern Territory) Act 1976, s 50(1), provides that the functions of the Aboriginal Land Commissioner are, on a pplication by or on behalf of Aboriginals claiming to have a traditional land claim to an a rea of unalienated Crown land, to ascertain whether those or other Aboriginals are the traditional owners of the land, and to report his findings to the Minister and the Administr ator of the Northern Territory and, where he finds that there are Aboriginals who are the tr aditional owners of the land, to make recommendations for the granting of the land or any part of it under ss 11 and 12. Section 3(1) defines "unalienated Crown land" as meaning "Cr own land in which no person (other than the Crown) has an estate or interest", but exclud ing land in a town. Section 50(3) requires that in making a report the Commissioner shall comm ent on the matters set out in paras (a) to (d), which include the detriment to persons or c ommunities that might result if the claim were acceded to. Where the Commissioner recommends tha t Crown land should be granted to an Aboriginal Land Trust and the Minister is satisfied that it should be so granted, he is required to recommend to the Governor-General that a grant be made. The Crown Lands Act 1931 (NT), s 107(1), empowers the Minister to grant licences for up to one year to graze stock on Crown land not held under lease or licence. Under the Crown Land Regulations, reg 71A, a grazing licence may be cancelled if the Minister gi ves three months' notice in writing of his intention to cancel it. Held: (1) (by the whole court) A grazing licence under the Crown Lands Act 1931, s 107(1), does not confer an "es tate or interest" in the land the subject of the licence, and such land is accordingly " unalienated Crown land" within the meaning of s 50. (2) (by Gibbs CJ, Murphy, Wilson and Bre nnan JJ (Mason J dissenting)) In making his recommendations under s 50(1) of the Aborigi nal Land Rights (Northern Territory) Act 1976, the duty of the commissioner is to have no regard to the matters mentioned in paras (a) to (d) of s 50 (3). (3) (by Gibbs CJ, Wilson and Brennan JJ) In determining under s 11 of that Act, whether he is satisfied that the land or any part of it should be granted, the Minister is not bound by the recommendation of the Commis sioner, and the ultimate weight to be given to the matter mentioned in s 50(3), paras (a ) to (d), is for the Minister to decide. R V TOOHEY; EX PARTE MENELING STATION PTY LTD (1982) 158 CLR 327; sub nom RE TOOHEY; EX PARTE MENELING STATION PTY LTD 57 ALJR 59; 44 ALR 63 (HC). 21. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Unalienated Cr own land Land ceasing to be such pending hearing of application Exclusion of "town la nd" .] The Aboriginal Land Rights (Northern Territory) Act 1976 established an Aborigin al Land Commissioner who was empowered to hear applications made "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 b y the Crown are held by, or on behalf of, Aboriginals". An application was made to the commi ssioner in relation to unalienated Crown land near Katherine. After the application but bef ore the commencement of the hearing, the zoning of the land was changed to town land wit h the effect that it ceased to be unalienated Crown land within the meaning of the Act . When the hearing commenced, the commissioner ruled that he had no function to perform bec ause the areas were no longer within s 50(1)(a) of the Act. Held: (1) (by the whole court ) The Land Rights Act did not prevent alienation or conversion into land which was part of a town of unalienated Crown land the subject of a pending application under the Act. (2) ( by Gibbs CJ, Murphy, Brennan and Deane JJ (Wilson J dissenting)) As long as land was describe d by s 50(1) at the time an application was made, a subsequent change in its descriptio n of the land did not deprive the commissioner of jurisdiction over the land. R V KEARNEY; EX PARTE NORTHERN LAND COUNCIL (1984) 158 CLR 365; sub nom RE KEARNEY; EX PARTE NORTHERN LAND COUNCIL 58 ALJR 218; 52 ALR 1 (HC). 22. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Unalienated Cr own land Land ceasing to be such pending hearing of application Exclusion of "town la nd" .] Under s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976, it is a function of the Aboriginal Land Commissioner, on application by or on behalf of Aborigina ls claiming to have a traditional land claim in respect of unalienated Crown land, to ascertain whether any Aboriginals are the traditional Aboriginal owners of the land and to report to the Minister with recommendations for the granting of the land. Section 3 defines "u nalienated Crown land" to exclude "land in a town" and provides that " `town' has the same meaning as in the law of the Northern Territory relating to the planning and development of towns and the use of land in or near towns, and includes any area that, by virtue of regul ations in force under that law, is to be treated as a town". Regulation 5 of the Planning Regula tions made under the Planning Act 1979 (NT) provided that lands specified in Sch 3 to the R egulations were to be "treated as towns". Schedule 3 contained an area of 4,350 square kilo metres in the vicinity of the City of Darwin including most of the Cox Peninsula. The Cox Peni nsula was chiefly vacant land. It is separated from Darwin by Port Darwin and is many kilo metres from Darwin by road, but much closer by sea or air transport. An application was made to the Aboriginal Land Commissioner by the prosecutor, the Northern Land Council, on be half of Aboriginals claiming to have a traditional land claim to a substantial area on t he Cox Peninsula within the land designated in Sch 3 to the Planning Regulations. Held, that the Commissioner had jurisdiction to entertain a claim that reg 5 and Sch 3 to the P lanning Regulations were invalid because they were made for the ulterior purpose of remo ving the Cox Peninsula from the reach of a land rights claim or for any other purpose ext raneous to the Planning Act 1979. R V TOOHEY; EX PARTE NORTHERN LAND COUNCIL (1981) 151 CLR 170; sub nom RE TOOHEY (ABORIGINAL LAND COMMISSIONER); EX PARTE NORTHERN LAND COUNCIL 56 ALJR 164; 38 ALR 439 (HC). [Discussed in note, 56 ALJ 323.] 23. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Unalienated Cr own land Land ceasing to be such pending hearing of application Lease of land by Mini ster Exception of land set apart for public purpose .] The Aboriginal Land Rights ( Northern Territory) Act 1976 (the Land Rights Act), s 50(1)(a), provides that upon an app lication being made to the Aboriginal Land Commissioner by or on behalf of Aboriginals as serting a traditional land claim to "unalienated Crown land", the commissioner is required to ascertain whether Aboriginals are the traditional owners of the land and to make recommend ations to the Minister for the granting to a Land Trust for the benefit of Aboriginals of any land of which Aboriginals are found to be the traditional Aboriginal owners. In s 3(1) o f the Act "Crown Land" is defined to exclude "land set apart for, or dedicated to, a publi c purpose under the Lands Acquisition Act 1955 or under any other Act"; and "unalienated C rown land" is defined as meaning "Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town". Applications were made under s 50(1)(a) of the Act in respect of land which had already been set apart, formally or informa lly, for use as reserves of various kinds, particularly as stock routes and reserves and water c onservation reserves. The reserves had been declared in some cases pursuant to an Ordinance of the Northern Territory made under powers contained in the Northern Territory (Admini stration) Act 1910, and, in one case, pursuant to a South Australian Act continued in forc e and given the force of law in the Northern Territory by Commonwealth Acts. One reserve was vested in the Conservation Land Corporation established by s 27 of the Conservation Commis sion Act 1980 (NT), s 29(1) of which provides that the corporation is not an authority or instrumentality of the Crown. While the Commissioner was hearing the application s, leases in perpetuity of the disputed areas were granted to the Northern Development Lan d Corporation by the Minister for Lands of the Northern Territory under the Crown Lands Act (NT). The Commissioner held that the grant of these leases deprived him of juris diction to proceed with the applications. In granting an application to make absolute an or der nisi for mandamus directed to the commissioner. Held (by Gibbs CJ, Murphy, Brennan and De ane JJ (Wilson J dissenting)), that, except with respect to the reserve vested in the C onservation Land Corporation, the Aboriginal Land Commissioner was not deprived of jurisdict ion to hear and report on the applications by the grant of the leases. So Held, by Gibb s CJ and Murphy J on the ground that if the applications were competent when made as then relating to land which was "unalienated Crown land" within the meaning of s 50(1)(a) of t he Aboriginal Land Rights (Northern Territory) Act 1976, they did not cease to be c ompetent by reason of the fact that the land had thereafter ceased to answer that descriptio n; by Brennan and Deane JJ on the ground that a lease of land could not be granted under a law of the Northern Territory which would affect the full operation of the Land Rights Act, and the Northern Territory Minister had no power to grant the leases of land the subject of the applications, and accordingly such leases were not effective to take the land ou t of the category of "unalienated Crown land". Per Brennan J Power to grant an estate i n fee simple in Crown lands under the Crown Lands Act (NT) cannot be exercised to dest roy the statutory rights conferred on claimants under s 50(1)(a) of the Land Rights Act. Per Deane J It appears that the Northern Territory Government may be able to deal with lan d the subject of an application in a manner which would neither impede nor prejudice t he procedures under the Act or any consequential grant to a Land Trust. Held, furth er: (1) (by Gibbs CJ, Murphy, Wilson and Brennan JJ) The word "Act" in the exception from th e definition of "Crown Land" in s 3(1) of the Land Rights Act means an Act of the Commonwealth Parliament, and land set apart "under any other Act" in that except ion means land set apart under the direct authority of another Commonwealth Act and does n ot include land set apart under a law of the Northern Territory which derives its legal eff icacy from an Act of the Commonwealth. Accordingly the lands set apart as reserves had not cea sed to be "unalienated Crown land" for the purposes of s 50(1)(a). (2) (by Gibbs CJ, Wilso n and Brennan JJ) The Conservation Land Corporation was a "person (other than the Crow n)" within the meaning of that phrase in the definition of "unalienated Crown land" in s 3(1) of the Land Rights Act, and accordingly the reserve vested in the Corporation was n ot "unalienated Crown land". R V KEARNEY; EX PARTE JAPANANGKA (1984) 158 CLR 395; Re Kearney; Ex parte Japanangka 58 ALJR 231; 52 ALR 31 (HC). 24. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Uranium projec t Entry on land Effect of uranium mining legislation .] By s 5 of the Atomic E nergy Amendment Act (No 2) 1980 (Cth) the assignment of an agreement between the Commonwealth and joint venturers for the conduct of uranium mining at a Northern Territory site was authorized. The Northern Land Council, representing Aborigina l interests, challenged the validity of the section as being ultra vires and depending on a s tatutory fiction whereby the assignee, a representative of the joint venturers, was deemed to be carrying on the operation "on behalf of the Commonwealth" when in fact it was carrying on th e operation on its own behalf. Held, that the section was valid. Where a statute operates wi thin a field of legislative power conferred on Parliament, it is immaterial that the operation d epends in part on the creation of a statutory fiction. The law in question was supported by the power contained in s 122 of the Constitution to make laws for the government of territ ories. Section 44(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 provided that where, by virtue of s 41(2) of the Atomic Energy Act 1953 applied in respect of any Aborig inal land without the consent of the Land Council for the area in which the land was situa ted, that Act should not be taken to authorize the entry or remaining of a person on that land or the doing of any act by a person on that land unless the Commonwealth had entered into an agreement under seal with the Land Council for the payment of agreed sums to it. A Council submitted that, although it had entered into an agreement with the Commonwealth in 1978 co ncerning the Ranger Project Area, the agreement was void or voidable. The defendants, in denying the last submission, submitted that the operation of s 44(2) of the Land Rights Act was superseded by the 1980 amendments to the Atomic Energy Act, whereby sub-s (2AA) was added to s 41 of the latter Act, granting specific authority for the carrying on of operations at the Ranger Project Area. Held, that sub-s (2AA) of s 41 of the Atomic Energy Act , being expressed to have effect "for the purposes of this Act", did not extend beyond t he Act nor impair the effect of s 44(2) of the Land Rights Act which denied to the Atomic E nergy Act, whether before or after amendment, the effect of authorizing the entry or remain ing of a person on the Ranger Project Area unless the condition in s 44(2) were satisfied . The condition as to the entry by the Commonwealth into an agreement under seal with the Land Council was not satisfied if the relevant transaction did not create such an agr eement. Were the agreement voidable, its existence was nevertheless acknowledged until avoide d and, as the condition would be satisfied as soon as the relevant agreement was entered i nto, the voidability of the agreement would not be inconsistent with satisfying the condi tion. NORTHERN LAND COUNCIL V COMMONWEALTH (1986) 161 CLR 1; 60 ALJR 331; 64 ALR 493 (HC). 25. Aboriginal Development Commission (Cth) Grant of leasehold interest Val idity of prior grant of interest Nature of interest Estoppel "Aboriginal corporatio n" .] The appellant appealed from dismissal of its action seeking judicial review of the d ecision of the first respondent granting a lease of land to the second respondent, pursuant to s 28 of the Aboriginal Development Commission Act 1980. The appellant claimed it had previou sly been granted an interest in the land by the Aboriginal Land Fund Commission, the predecessor in title to the first respondent. Held: (1) The appellant, pursuant to s 20 (1)(a) of the Aboriginal Land Fund Act 1974 (repealed by the Aboriginal Development Commis sion Act) had been ineligible to receive a grant of an interest in land, because, pur suant to s 3 of the former Act, it had not been an "Aboriginal corporation". (2) Hence the purpo rted granting of an interest in the land pursuant to the Aboriginal Land Fund Act, s 20(1)(a), was a nullity, and the appellant's interest in the land was that of a licensee. (3) As a mere l icensee, proprietary estoppel did not operate in favour of the appellant as against the f irst respondent because there had been no representation, express or implied, that a lease would be granted to the appellant. Per curiam It was doubtful whether an estoppel could arise i n respect of the first respondent's exercise of its discretion pursuant to the Aboriginal Dev elopment Commission Act, s 8, in the granting of interests in land pursuant to ss 27 and 28 of that Act. (4) The appellant, pursuant to s 28 of the Aboriginal Development Commission Act , was ineligible to receive a grant of an interest in land because it was not, pursuan t to s 4(1) of that Act, an "Aboriginal body" and its principal object, the carrying on of a farming business, was not, per se, "conducive to the advancement of Aboriginals". (5) There was not a requirement of natural justice that the appellant should have been given an opportunity to b e heard on the question of whether it could make itself eligible, nor an opportunity so to do, because it did not have a legitimate expectation that it would be granted a lease. Per curiam It may be that the court would not have power to order the assignment of the lease since u nder the South Australian law registration resulted in indefeasibility. [(1984) 1 FCR 210 affd.] [Earlier proceedings see (1982) 69 FLR 328; 43 ALR 535; 5 ALD 42.] RALKON AGRICULTURAL CO PTY LTD V ABORIGINAL DEVELOPMENT COMMISSION (1984) 5 FCR 64; 57 ALR 143 (Fed Ct of Aust FC). 26. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Removal of improvements pending resolution of claim Availability of injunctive relief .] The Aboriginal Land Rights Act 1983, s 36, enabled a local Aboriginal Land Council t o make a claim for specified claimable Crown lands. Certain Crown land which was occupied under a permissive occupancy pursuant to the terms of which the occupants were required or permitted to remove certain buildings on the land which had previously been used to provide holiday accommodation was made the subject of a claim by the plaintiff council. The council sought injunctive relief to preserve the buildings on the land pending a decisio n on its claim. Held: (1) A person or body making an application under a statutory power to do s o, such as a local Aboriginal Land Council making a claim to Crown land under s 36, had stand ing to seek injunctive relief (in appropriate circumstances) to prevent a wrongful inte rference with such a claim or to prevent the destruction of the subject matter of the claim. ( 2) A person having the standing of an applicant might obtain an injunction to restrain an ac t which would interfere with due consideration of the application or which would destroy its s ubject matter only if the act sought to be prevented was the act of a wrongdoer. The court wou ld not restrain acts of the owner of the land which were being lawfully carried out. (3 ) The requiring of the holders of the permissive occupancy to remove buildings from th e subject land pursuant to the terms of their occupancy was not an unlawful act and remova l would not be disallowed only because the land had become the subject of a claim under s 36 . DARKINGUNG LOCAL ABORIGINAL LAND COUNCIL V MINISTER FOR NATURAL RESOURCES (1985) 1 NSWLR 104 (NSW Sup Ct, Cohen J). 27. Pitjantjatjara Land Rights Act 1981 (SA) Prohibition of entry on lands wi thout permission Validity Applicability of Racial Discrimination Act 1975 (Cth), P t II Consistency between Acts .] Held, that the State Act was a "special measure" w ithin s 8 (1) of the Commonwealth Act, and accordingly s 19 of the State Act prohibiting a ny non-Pitjantjatjara person from entering the land without permission was a valid law of the Parliament of South Australia. [(1983) 34 SASR 452; 77 FLR 213; 49 ALR 169 revd.] GERHARDY V BROWN (1985) 159 CLR 70; 59 ALJR 311; 57 ALR 472 (HC). [Discussed in articles, 11 Syd LR 5; [1985] ACL 36057.] 96. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) "Traditional A boriginal owners" "Traditional attachment" Relevance .] Held, that the issue of "tra ditional attachment" is not called into question under s 50(1)(a)(i) of the Aboriginal La nd Rights (Northern Territory) Act 1976 (Cth) at the time when a Commissioner is engaged u pon the exercise of ascertaining whether there are any traditional Aboriginal owners of the relevant land; he will only address this issue when, having ascertained that there are su ch owners, he is engaged in the compilation of his report and the making of his recommendation s. JUNGARRAYI V OLNEY (1992) 34 FCR 496; 105 ALR 527 (Fed Ct of Aust FC). 97. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) "Traditional A boriginal owners" Local descent group Spiritual affiliations .] Held: (1) The words "local descent group", which appear in the definition of the expression "traditional Ab original owners" in s 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (C th), should not be confined to a patrilineal clan, that is to say, a subdivision of a lingui stic or dialect group where membership is determined by common patrilineal descent. Although the underlying principle of recruitment to a group must be some form of descent, tha t need not be seen in a biological sense; what has to be found is the existence of a group, recruited by descent, possessing ties to the land and otherwise satisfying the criteria set o ut in the definition of "traditional Aboriginal owners". The particular principle of desce nt in operation will depend upon the circumstances of the particular case. (2) The common spirit ual affiliations referred to in s 3(1)(a) have to be possessed by the individuals wh o comprise the group, rather than, if there be a difference, by the group as a group. (3) Secti on 4(1B) of the Act makes it clear that a group of "traditional Aboriginal owners" may have spir itual affiliations with sites on other lands. NORTHERN LAND COUNCIL V OLNEY (1992) 34 FCR 470; sub nom NORTHERN LAND COUNCIL V ABORIGINAL LAND COMMISSIONER 105 ALR 539 (Fed Ct of Aust FC). 98. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Aboriginal Lan d Commissioner Powers Power to authorise persons to enter upon privately owned land .] The respondent Aboriginal Land Commissioner was hearing an application by t he Northern Land Council, the second respondent, on behalf of Aborigines claiming t o have a traditional land claim. There was no practical means of access to the area excep t through land held by the appellants under a pastoral lease. On application by the Northe rn Land Council the Commissioner made an order pursuant to s 51 of the Aboriginal Land R ights (Northern Territory) Act 1976 enabling the Council, by its staff and consultants together with Aboriginal informants and claimants, to enter the appellant's land to obtain inf ormation necessary for the inquiry into the claim under s 50 of the Act. The appellants s ought review of the order under the Administrative Decisions (Judicial Review) Act 1977 on th e grounds that the order was not authorised by the Act and, if authorised, was an improper exercise of the power. The trial judge dismissed that application. On appeal, Held, allowing the appeal, that the order was not within the power conferred on the Commissioner by s 51. P er Sweeney J Had the legislature intended to grant the Commissioner a power to make order s, give directions and confer authorities of the kind contained in the instrument it wou ld have expressed that intention with irresistible clearness. [(1986) 13 FCR 262; 69 ALR 177 revd.] ANTHONY LAGOON STATION PTY LTD V ABORIGINAL LAND COMMISSIONER (1987) 15 FCR 565; sub nom ANTHONY LAGOON STATION PTY LTD V MAURICE 74 ALR 77 (Fed Ct of Aust FC). 99. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Aboriginal Lan d Commissioner Bias Prohibition .] The Attorney-General for the Northern Ter ritory sought orders prohibiting the Aboriginal Land Commissioner from proceeding to he ar evidence or submissions, from making a report and from making final recommendati ons pursuant to the provisions of s 50 of the Aboriginal Land Rights (Northern Terri tory) Act 1976 in relation to the Warumungu Land Claim and the Kenbi Land Claim. Held: (1) The statements and conduct of the Commissioner impugned by the Attorney-General must be viewed overall and their likely effect with respect to the future hearing of the land claims considered as a whole. (2) The application for prohibition in relation to the Wa rumungu Land Claim would be dismissed, because: (a) the resolution of the issues, with w hich the Commissioner would in due course deal, would not be affected by any disaffection which the Commissioner had with the Northern Territory Government and its policies in rela tion to land tenure; (b) no particular issue emerged in relation to that claim on which the Commissioner would have to make a finding or have to do anything more than make a recommendation. There were no parties in the strict sense before the Commissione r. His comments had no operative effect as to any legal rights; (c) accordingly, it cou ld not be reasonably apprehended that the Commissioner might not resolve the issues before him in the Warumungu Claim in a fair and unbiased way; and (d) the history of the claim and the fact that it was in the closing stages following extensive hearings, views and s ubmissions were powerful reasons why in the public interest the Commissioner should, in any case, continue to hear the claim. (3) The application for prohibition in relation to t he Kenbi Land Claim would be granted, because: (a) the issues arising would involve inquiry wh y the regulations were made and into any question of bad faith of the Northern Territo ry Government in recommending to the Administrator that the regulations be made; (b ) the issue of the bona fides of the Northern Territory Government was different from the questions arising in the Warumungu Claim. It was an issue upon which the Commiss ioner, if he heard it, would have to make a decision as to the Government's bona fides. I t was not simply that he had to make a comment which a Minister might or might not act upo n; (c) the remarks of the Commissioner which led to the proceed- ings were made during the election of the Northern Territory Government. Personalities involved in the land claims represented different political allegiances. The public awareness of the Commissioner's rema rks was heightened by the publicity attached to the election; and (d) it might reasonabl y be apprehended by a fair-minded person that the Commissioner might not resolve the questions before him in the Kenbi Claim relating to the validity of the planning regulatio ns with a fair and unprejudiced mind. RE MAURICE, ABORIGINAL LAND COMMISSIONER; EX PARTE A-G (NT) (1987) 17 FCR 422; sub nom R V MAURICE; EX PARTE A-G (NT) 73 ALR 123 (Fed Ct of Aust FC). 100. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Aboriginal La nd Commissioner Findings made by Aboriginal Land Commissioner not binding on land council Ascertainment of traditional owners .] Held: (1) The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 23(3), evidences parliament's contemplati on that through succession new traditional Aboriginal owners may emerge over time; s 24 evidences an intention to monitor this. The section not only empowers a land council to co mpile a register but to "maintain" it. (2) A land council is empowered subsequent to a g rant of land being made, irrespective of how the grant came to be made, to determine the trad itional Aboriginal owners. It cannot be bound by a report of the Land Commissioner. (3) Issue estoppel does not apply to the conclusions of a Land Commissioner so as to preve nt a land council from ascertaining traditional Aboriginal owners for the purpose of the A ct. TAPGNUK V NORTHERN LAND COUNCIL (1996) 5 NTLR 109; 108 NTR 1 (NT Sup Ct, Angel J). 101. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to be r ecognised as traditional owners of Aboriginal land Duty of Land Council to assist Aborig ines claiming to have traditional land claim .] The applicants claimed to be the tr aditional Aboriginal owners of Aboriginal land in the Northern Territory, being land withi n the area of the respondent, the Northern Land Council. The respondent conducted a hearing in which the applicants and the members of another descent group participated. The respondent did not arrange for the applicants to be assisted in presenting their claim. At the conc lusion of that hearing the respondent decided that the other group were the traditional Aborigi nal owners of the land. On appeal, Held, setting aside the respondent's decision: (1) In prese nting their claim to the respondent, pursuant to s 24 of the Aboriginal Land Rights (Norther n Territory) Act 1976 (Cth), to be the traditional owners of the land, the applicants were Ab origines claiming to have a traditional land claim to an area of land within s 23(1)(f) o f the Act. (2) The function of the respondent specified in s 23(1)(f) applied equally for the b enefit of the applicants as for the benefit of the Aborigines pursuing a traditional land clai m before the Aboriginal Land Commissioner, under s 50 of the Act. (3) Section 23(1)(f) is nei ther ambiguous nor obscure, nor does its ordinary meaning lead to a result that is ma nifestly absurd or unreasonable. Accordingly, there is no basis for referring to the Mini ster's second reading speech pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth), in order to limit s 23(1)(f). (4) By virtue of s 23(1)(f), the respondent was under a statutory ob ligation to assist the applicants in pursuing their claim to be recognised as the traditional owner s of the land and, in particular, was obliged to arrange for legal assistance at the expense o f the respondent. (5) Given the complexity and significance of the issues involved in the applicants' claims, the refusal of the respondent to provide the applicants with legal assistance in pursuing their claim denied the whole of the process of decision-m aking undertaken by the respondent the essential element of fairness upon which the ap plicants were legitimately entitled to rely. It followed that a breach of one of the rule s of natural justice had occurred in connection with the making of the decision under review.
MAJAR V NORTHERN LAND COUNCIL (1991) 37 FCR 117 (Fed Ct of Aust, Olney J). 102. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Recommendatio n to Governor-General for grant of land Judicial review .] After inquiry and repo rt by the Aboriginal Land Commissioner, the respondent Minister made a recommendation purs uant to s 11(1)(b) of the Aboriginal Land Rights (Northern Territory) Act 1976 to the Governor-General that a grant of land be made on land trusts for the traditional owners, including the second respondents. The first respondent had written assurances fr om the Central Land Council on behalf of the traditional owners that covenants would al low the Northern Territory Government, pursuant to the Control of Waters Act 1938 (NT), to develop and use the Tennant Creek Water Control District which lay within the land claim . However, the appellant had, over two years, been unable informally to negotiate with the Central Land Council an agreement satisfactory to it. Nevertheless, the Minister did not in h is recommendation exclude the Water Control District from the land grant. Held: (1) The court had jurisdiction under s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 to review the recommendation of the first respondent, which was separate from any d ecision of the Governor-General. (2) The first respondent had not been under a misapprehens ion that a legally binding agreement could be made between the Central Land Council and the appellant before the land was granted to the land trusts and accordingly had not erred in law in respect of a material matter. (3) The first respondent's view was that the la nd grant could proceed independently of the consideration that proposed legislation would preve nt any detriment to the appellant's powers under the Control of Waters Act. The first r espondent had not therefore taken into account any irrelevant consideration in making the reco mmendation. (4) The first respondent had not failed to take into account the relevant consid erations under s 50(3)(b) and (c) of the Aboriginal Land Rights (Northern Territory) Act which he was required to take into account, including detriment to the appellant. Had the app ellant established a case for relief, it would not have been refused on discretionary g rounds. [(1986) 67 ALR 282 affd.] A-G (NT) V MINISTER FOR ABORIGINAL AFFAIRS (1987) 16 FCR 267; 73 ALR 33 (Fed Ct of Aust FC). 103. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to Crow n land Area claimed including declared stock routes Whether "unalienated Crown land " Jurisdiction of Aboriginal Land Commissioner to hear claim .] The Northern Lan d Council lodged the Mataranka Area Land Claim with the Aboriginal Land Commission er. It included areas of land within the boundaries of two stock routes. On an applicat ion for an order nisi for prohibition, Held, discharging the order: (1) Even if the effect of the declaration of the stock routes was to create roads "over which the public has a right of way", the land the subject of the declaration remained "unalienated Crown land" within the meaning of s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 197 6, with the consequence that the Aboriginal Land Commissioner had jurisdiction to embark upo n and complete his inquiry and to make his report, including, if appropriate, recommen dations for a grant of land. (2) Even if there had been a real question of jurisdiction, the a pplication would have been premature, as prohibition would be appropriate only if it were plain t hat, without it, the Commissioner would exceed his jurisdiction. [Affd by (1987) 76 ALR 655.] RE MATARANKA AREA LAND CLAIM; R V MAURICE; EX PARTE BANIBI PTY LTD (1986) 15 FCR 520; 70 ALR 53 (Fed Ct of Aust, Wilcox J). 104. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to Crow n land Lease of land by Minister granted and registration effected while claim pendin g Power of Minister Inconsistency of laws Effect of registration of lease .] In 19 80 an application was made, pursuant to s 50 of the Aboriginal Land Rights (Northern T erritory) Act 1976, on behalf of Aborigines claiming to have a traditional land claim to u nalienated Crown land. In 1981 the Northern Territory purported to grant, pursuant to the C rown Lands Act 1931 (NT), a Crown lease for 20 years of land within the land claim area to persons not being Aboriginal claimants. The lease was registered pursuant to the Real Proper ty Act 1886. A case was stated concerning the validity and effect of the grant of the lease. Held: (1) The object and operation of the scheme to be found in ss 11, 12, 50 and 71 of the La nd Rights Act would be defeated if the power to grant estates in fee simple conferred on the r esponsible Minister by the Crown Lands Act could be exercised during the pendency of a land claim. (2) The Crown Lands Act is the source of the power of the responsible Minister of th e Northern Territory Government to grant estates or interests in Crown land, including esta tes in fee simple; but that power cannot extend to the granting of estates in fee simple or any lesser estates or interests in land, including leasehold interests, where the land is i ncluded in a land claim under the Land Rights Act. The grant of power conferred by the Crown Lands Act cannot itself extend to the creation of an estate which conflicts with the opera tion of the legislative scheme embodied in the Land Rights Act. (3) There is inconsistency between the Land Rights Act, a law of the Commonwealth, and the operation of the Crown Lands Act, a law of the Northern Territory, which must be resolved by the primacy of the Comm onwealth law. (4) For the same reason it must follow that there would be a necessary conf lict between the Land Rights Act and the operation of the indefeasibility provisions of the R eal Property Act in respect of the lease. The Real Property Act, a law of the Northern Territ ory, cannot confer an indefeasible title which would operate inconsistently with the Land Ri ghts Act, a law of the Commonwealth, unless a law of the Commonwealth so provides expressly or by implication, which it does not. A-G (NT) V MINISTER FOR ABORIGINAL AFFAIRS (1989) 25 FCR 345; 90 ALR 59 (Fed Ct of Aust FC). 105. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to Crow n land Payment by Crown for use or occupation Payment in nature of rent Power to determine rent .] Held: (1) There is nothing in the Aboriginal Land Rights (No rthern Territory) Act 1976 to suggest that the Aboriginal Land Commissioner has any rol e in fixing the amount payable to the land trust in the nature of rent. On the contrary, thi s is a function entrusted to the Minister by s 15(1) of the Act. (2) The relevant obligation of the Commissioner is to identify any use by the Crown which will or may persist after any grant is made and to point out to the Minister that, if the use does persist, the Crown m ay be placed under an obligation to pay rent. It will be for the Minister to assess the likel y significance of that obligation in determining whether to recommend a grant of the land. [Affd by (1991) 172 CLR 185; 65 ALJR 363; 99 ALR 673.] A-G (NT) V MINISTER FOR ABORIGINAL AFFAIRS (1989) 23 FCR 442; 91 ALR 125 (Fed Ct of Aust FC). 106. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to Crow n land Payment by Crown for use or occupation Use or occupation for "community purp ose" Research station for cattle industry .] The Aboriginal Land Rights (Northern Territory) Act 1976 provides for the constitution of Land Trusts and, in respect of land on which the Act has operated, requires the Crown or an Authority, if continuing to occupy or use any area therein, to pay compensation in the form of rent to the appropriate Land Council where the continuing occupancy or use "is for a purpose that is not a community purpose". Section 3(1) of the Act defines "community purpose" to mean "a purpose that is calculated to benefit primarily the members of a particular community or group". Held: (1) Land on whi ch a research station was conducted, in relation to the cattle industry, by the North ern Territory Government within a Land Trust, was not being occupied or used for a community p urpose within the meaning of the Act and accordingly attracted the payment of rent. (2) The expression "community purpose" in the Act is not to be construed as meaning a pu rpose calculated to benefit only an Aboriginal community or group, although the Act wi ll often have that operation in practice. (3) The Act's definition does not cover a group of persons so loosely defined and geographically scattered as "pastoralists", even if limited to pastoralists in semi-arid areas. [(1989) 23 FCR 442; 91 ALR 125 affd.] A-G (NT) V HAND (MINISTER FOR ABORIGINAL AFFAIRS) (1991) 172 CLR 185; sub nom A-G (NT) V MINISTER FOR ABORIGINAL AFFAIRS 65 ALJR 363; 99 ALR 673 (HC). 107. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to Crow n land Claim to land to which earlier application related Likelihood that applicant s or others are traditional Aboriginal owners "Likely" .] Held, that in the context of s 50(2B) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), if a meaning is give n to the word "likely" so that it refers to a real or not remote chance or possibility, r egardless of whether it is less or more than 50 per cent, that construction will be an approp riate beneficial construction; it will also be a construction that would better promote the purpo se or object underlying the Act. JUNGARRAYI V OLNEY (1992) 34 FCR 496; 105 ALR 527 (Fed Ct of Aust FC). 108. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to Crow n land Application to Aboriginal Land Commissioner Withdrawal of claim Requiremen ts Effect of withdrawal Reinstatement of claim .] Section 67A(5)(a) of the Ab original Land Rights (Northern Territory) Act 1976 provides that a traditional land claim shall not be taken to have been finally disposed of in so far as it relates to a particular a rea of land until the claim, or the claim in so far as it relates to a particular area of land, is withdrawn. Section 67A(5)(b), (c) and (d) refers to other circumstances where a claim shall be take n to have been finally disposed of. Held: (1) A traditional land claim can be withdrawn at any time either before or after the Aboriginal Land Commissioner has forwarded a report o n the claim to the Minister. It would require clear words to confine s 67A(5)(a) to the with drawal of claims prior to a report being forwarded to the Minister and s 67A(5)(b), (c) an d (d) do not exhaustively describe the circumstances in which a report may be "finally dispos ed" of after it has been forwarded to the Minister. (2) The effect of a withdrawal of a tradi tional land claim is to prevent the Minister from recommending the granting of that land pur suant to s 11(1)(e). (3) Once a claim is withdrawn, it is finally disposed of. It could not be reinstated by a withdrawal of the withdrawal. The only way to reinstate the claim would be to make a new application under s 50(1)(a). ROBERTS V MINISTER FOR ABORIGINAL AFFAIRS (1991) 29 FCR 38 (Fed Ct of Aust, Olney J). 109. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Claim to Crow n land Report by Aboriginal Land Commissioner Contents of report Detriment to per sons "Persons" .] Held, that "person" is not defined in the Aboriginal Land Right s (Northern Territory) Act 1976; however, s 22 of the Acts Interpretation Act 1901 provides that, in any Act, unless the contrary intention appears, person "shall include a body politic or corporate as well as an individual". The Northern Territory Government is a body politic and, therefore, a "person" within the meaning of s 50(3)(b) of the Land Rights Act. [Affd by (1991) 172 CLR 185; 65 ALJR 363; 99 ALR 673.] A-G (NT) V MINISTER FOR ABORIGINAL AFFAIRS (1989) 23 FCR 442; 91 ALR 125 (Fed Ct of Aust FC). 110. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Exploration a nd mining Consent of traditional land owners Purpose of legislation Contracting out of legislative provisions .] Held: (1) Part IV of the Aboriginal Land Rights (Nor thern Territory) Act 1976 (Cth) was designed to continue to protect the right of tradi tional owners to prevent exploration and mining on their lands. An applicant has to supply to them a "comprehensive proposal", in relation to his intended exploration, under s 41(6) of the Act. The traditional owners are free, without restriction, to consent to exploration and its concomitant mining. (2) If they refuse consent, that is the end of the matter an d no further applications can be made except in accordance with s 48. This is the so-called " veto". (3) If, however, the traditional Aboriginal owners are not opposed to exploration for mi nerals and the mining of any minerals thereby discovered, the second aspect of Pt IV applie s. It provides a regime for the negotiation of terms and conditions at the exploration and mini ng stages. Once consent to exploration is given, the detailed provisions of Pt IV regulate closely what then is to be done. (4) It follows that there will either be a refusal of consen t or a consent closely accompanied by the terms and conditions agreed upon: s 42(6)(c). There c annot be a consent which is expressed to be conditional upon terms which themselves set asi de and override the provisions of Pt IV. That is wholly contrary to the thrust and purp ose of the legislative scheme in Pt IV. (5) The regime instituted by Pt IV is fully compreh ensive. It is not one from which the various interested parties can contract out, beyond the " firm parameters" which it sets. The legislative steps must be followed, and intereste d parties cannot set up an overriding contractual regime which involves a contracting out from the provisions of Pt IV. In that sense, the legislative regime in Pt IV is mandatory or obligatory. To the extent that a deed of exploration purports to institute a different contr actual regime, it is unenforceable and void as contrary to Pt IV. NORTHERN TERRITORY V TICKNER (1992) 2 NTLR 8; 106 FLR 254; sub nom NORTHERN TERRITORY V NORTHERN LAND COUNCIL 81 NTR 1 (NT Sup Ct, Kearney J). 111. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Exploration a nd mining Validity of uranium mining lease .] Held: (1) The Mining Act 1980 (NT), s 60 , authorises the grant of a mineral lease binding on the Commonwealth in respect o f a prescribed substance. The Territory's Legislative Assembly has power to legislat e in relation to the Northern Territory in a manner that binds the Commonwealth and its proper ty. (2) The purpose of the Northern Territory (Self-Government) Act 1978 (Cth), s 69(4), was to preserve the title of the Commonwealth in prescribed substances, and to ensure t here was no implied repeal of the Atomic Energy Act 1953 (Cth), s 35. It does not follow tha t a section which merely preserves the Commonwealth's retention of property in uranium beyon d the grant of self-government makes it repugnant for the Territory to legislate with respect to uranium. Section 69(4) did not alter the ownership of prescribed substances. (3) There is no inconsistency between the Lands Acquisition Act 1955 (Cth), s 51, and the Mining Act, s 60. Section 51 is not intended to cover the field or to exclude State or Territory l aws. (4) There is no inconsistency between the Mining Act, s 175, and any Commonwealth legislation . MARGARULA V MINISTER FOR RESOURCES & ENERGY (1998) 157 ALR 160 (Fed Ct of Aust FC). 112. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Exploration a nd mining Payments in respect of mining Effect of Commonwealth's obligations to miners acting on its behalf .] Section 44(2) of the Aboriginal Land Rights (Northern Territo ry) Act 1976 was intended to provide, through the Northern Land Council, compensation to Abor igines interested in land for mining operations undertaken without their consent on tha t land. It does not interfere with the Commonwealth's legal obligations to a miner authorised to conduct operations on the Commonwealth's behalf on "Aboriginal land". To enable those mi ning operations to continue, the Commonwealth must assume responsibility for ensuring that the necessary agreement between it and the Land Council remains current or is replac ed by a new agreement. Should s 44(2) lead to the suspension or discontinuance of such m ining operations, the miner's remedy would be against the Commonwealth for breach of c ontract. So Held, by the whole court. Per curiam There is no substance in the argument that, as a matter of construction, s 44(2) in isolation imposes a fiduciary duty on the Com monwealth or attracts that duty when the Commonwealth enters into negotiations with the Land Council for an agreement under the section. Quaere, whether the nature of the common law rel ationship between an unidentified Aboriginal group and the unalienated Crown land historic ally used and occupied by that group is such as to found a fiduciary relationship or some form of trust. NORTHERN LAND COUNCIL V THE COMMONWEALTH [NO 2] (1987) 61 ALJR 616; 75 ALR 210 (HC). 113. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Exploration a nd mining Estate or interest effected before claim Exploration licence .] A traditio nal land claim was made pursuant to the Aboriginal Land Rights (Northern Territory) Act 1 976. Before the hearing of the claim, but after s 67A of the Act commenced to operate , exploration licences were granted over areas of land claimed. Held, that unless a contrary intention appears, by virtue of s 3(2) of the Act, an exploration licence of the kind granted is not deemed an estate or interest in land for the purposes of s 67A, and there is nothing in the statutory context to suggest that an exploration licence is given the elevated s tatus of an interest in land. A-G (NT) V KEARNEY (1990) 25 FCR 408; 94 ALR 488 (Fed Ct of Aust FC). 114. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Exploration a nd mining Terms and conditions of grant of mining interest Proposal "in relation to th e mining works" Uranium ore processing plant within special mineral lease Aboriginal Land Rights (Northern Territory) Act, s 46 .] [(1990) 1 NTLR 66; 100 FLR 331; 71 LGRA 353; 68 NTR 1 affd.] NORTHERN LAND COUNCIL V QUEENSLAND MINES LTD (1991) 1 NTLR 74; 103 FLR 356 (NT CA). 115. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Exclusion of road over which public has right of way Stock route .] The Central Land Council lodged an application under the Aboriginal Land Rights (Northern Territory) Act 1976 claim ing an area of land which included a proclaimed stock route. Sections 11 and 12 of the Act e xcluded from the Act a road over which the public had a right of way. Held, that given t he clear distinction, physically and in terms of the local legislation, between the road system in the Northern Territory and its stock routes, the reference to "roads" in ss 11 and 1 2 was intended to describe the general roadway system and not the network of stock routes, whic h stood outside that system. RE MAURICE'S APPLICATION; Ex parte A-G (NT) (1987) 18 FCR 163; sub nom RE WARUMUNGU LAND CLAIM; EX PARTE A-G (NT) 77 ALR 27 (Fed Ct of Aust FC). 116. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Exclusion of road over which public has right of way Creation of public road under common law Dedic ation of Crown land as public road .] The Aboriginal Land Rights (Northern Territory ) Act 1976 by s 11(3), excluded land from a grant to an Aboriginal land trust establis hed under the Act if it was "land on which there was a road over which the public has a right of way". Held: (1) The words "a road over which the public has a right of way" in s 11(3) are s ynonymous with "public road" and, in the absence of legislation to the contrary, roads to which s 11(3) applies include roads created under the common law. (2) A public road may be cre ated under the common law where a landowner manifests an intention to dedicate land as a pu blic road and the proffered dedication is accepted by the public. (3) An intention by a la ndowner to dedicate land as a public road can be inferred only from acts of dedication whic h are unequivocal. (4) Dedication may be inferred from a user, where the user is by a member of the public, as a member of the public and not as a limited part of the public. ( 5) Acts of dedication must define with some precision the land to be dedicated as a public road. (6) In assessing the probative value of maps and plans as evidence of the intention of a landowner to dedicate land as a public road, consideration must be given to the purpose fo r which each map or plan was prepared. (7) Land which is owned by the Crown cannot be dedicat ed as a public road without acceptance by the public. (8) For a dedication of land as a public road to be effective, all persons holding a legal interest in the land must consent to t he dedication. A-G (NT) V MINISTER FOR ABORIGINAL AFFAIRS (1989) 23 FCR 536 (Fed Ct of Aust, Lockhart J). 117. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Defective des cription of land in claim Whether claim void for uncertainty .] A claim under the Abo riginal Land Rights (Northern Territory) Act 1976 was challenged for its inadequate and defective description of the land. Held: (1) This was not a case of interpreting a precise legal instrument such as a will, Crown grant or conveyance. Such applications usually related to large areas of land whose area was difficult to define with real precision and t he Act required a liberal or a broad construction to give effect to the beneficial purpose it wa s intended to serve. (2) Conflicts between the metes and bounds description in the application and the map attached to it were not to be resolved by recourse to principles of interpretati on such as the contra proferentem rule or the principle of falsa demonstratio non nocet cum de corpore constat. The map was a clearer and more reliable exposition of the application.
[(1986) 72 ALR 231 affd.] A-G (NT) V MAURICE (1987) 73 ALR 326 (Fed Ct of Aust FC). 118. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Grants of lan d to Land Trust Valid and subsisting native title Extinguishing native title of land Discrimination .] Held: (1) When grants of land to which there is native title are made to Land Trusts under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) , the native title is not extinguished; and such grants are not inconsistent with the continued existence of native title to the land. (2) The Act does not deprive traditional owners of traditional rights and benefits including native titles. (3) Native title is a c ommunal title and the rights under it are communal rights. The mechanisms of the Act, namely, Land Trusts and Land Councils, are completely consistent with this objective. (4) An intention t o extinguish traditional native title is not to be inferred lightly. There must be a clear in tention to do so, whether the relevant action be taken by the legislature or the executive. (5) Th ere can be no room for the operation of the Racial Discrimination Act 1975 (Cth) upon the act of issuing a land grant to a Land Trust under the Aboriginal Land Rights (Northern Territory) Act, because the parliament has in terms authorised what is said to be the discrimina tory act. If provisions of the Aboriginal Land Rights (Northern Territory) Act do in fact con flict with provisions of the Racial Discrimination Act then the Aboriginal Land Rights (Nor thern Territory) Act prevails to the extent of any inconsistency. PAREROULTJA V TICKNER (1993) 42 FCR 32; 117 ALR 206 (Fed Ct of Aust FC). [Discussed in note 3 ALB (No 64) 29.] 119. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose "Needed" .] Held: (1) The question to be decided for the purposes of the Aboriginal Land Rights Act 1983 ( NSW), s 36(1)(c), is simply whether the land was, at the date of the claim, needed or li kely to be needed for essential public purposes. The word "needed" is used in the sense of "required" or "wanted". (2) When considering whether the land is needed in the relevant sense it is not proper for the court to consider whether the "essential public purpose" may be a chieved in another manner. (3) (by majority) The errors made by the trial judge did not vit iate the ultimate findings. [(1997) 95 LGERA 364 affd.] MINISTER ADMINISTERING CROWN LANDS ACT V DEERUBBIN LOCAL ABORIGINAL LAND COUNCIL (1998) 43 NSWLR 249; 98 LGERA 99 (NSW Sup Ct CA). 120. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose Certificate of Minister N ature of Minister's function Judicial review .] The applicant made a claim for land u nder s 36 of the Aboriginal Land Rights Act 1983 on 15 January 1985. On 8 May 1985 the respon dent issued a certificate purporting to be under s 36(8) of the Act certifying that t he land was at the date of the claim needed and likely to be needed for an essential public pur pose. Held: (1) The certificate was not vitiated by the fact that it related retrospectively to the date of the claim. (2) Section 36(8) of the Act was not void for its preclusive effect on th e jurisdiction of the Land and Environment Court to hear and determine appeals against refusals of land claims. (3) It was not necessary for a certificate issued under s 36(8) to speci fy the particular essential public purpose for which the land was or was likely to be needed but a n applicant for the land might validly seek particulars. (4) Because the certificate stated that the land was needed "and" likely to be needed it did not comply with s 36(8), was not issued in accordance with the Act and, consequently, was not entitled to the benefit of conclusivenes s therein referred to. (5) The Land and Environment Court had jurisdiction to review the e xercise of the function or power conferred by s 36(8). (6) The Minister's function under s 36(8) was not merely of an administrative or executive character because in carrying it out th e Minister was bound to act judicially. (7) The preclusive terms of s 36(8) could not be regard ed as an effective ouster of the jurisdiction of the Land and Environment Court judiciall y to review the exercise of the Minister's power or function under that provision. [Further proceedings see (1987) 61 LGRA 218.] DARKINGUNG LOCAL ABORIGINAL LAND COUNCIL V MINISTER FOR NATURAL RESOURCES (1985) 58 LGRA 298 (NSW Land and Environment Ct). 121. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose Certificate of Minister Specification of purpose Certificates as at date of claim .] Held: (1) It wa s not necessary for a certificate issued under s 36(8) of the Aboriginal Land Rights A ct 1983 to specify the particular essential public purpose for which the land was or was li kely to be needed. (2) Such a certificate was not vitiated by the fact that it related retr ospectively to the date of the claim. NEW SOUTH WALES ABORIGINAL LAND COUNCIL V MINISTER FOR NATURAL RESOURCES (THE WINBAR CLAIM) (1986) 59 LGRA 333 (NSW Land and Environment Ct). 122. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose Certificate of Minister W hen may be given Natural justice .] Held: (1) Land below the mean high water mark an d the subject of a special lease for an existing marina, was not claimable Crown land within the meaning of s 36(1)(c) of the Aboriginal Land Rights Act 1983, because it was law fully used and was used or likely to be used for the essential public purposes of recreatio n and access. (2) The Minister is not precluded in terms of time from issuing an otherwise val id certificate under s 36(8) of the Act, that lands are needed or likely to be needed for an es sential public purpose, after he has refused a claim. (3) The issuing of a certificate under s 36(8) without affording a local Aboriginal Land Council an opportunity to be heard in oppositi on to any proposal in issue was a denial of natural justice, and a jurisdictional error, n ot abrogated by s 36(8) of the Act, and a certificate so issued was a nullity. WORIMI LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING THE CROWN LANDS ACT (1991) 72 LGRA 149 (NSW Land and Environment Ct, Stein J). [Discussed in article, 2 ALB (No 53) 14.] 123. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose Certificate of Minister R equest for particulars .] Held, that a request for particulars relating to a certific ate issued under s 36(8) of the Aboriginal Land Rights Act 1983 and the alleged public purpose to w hich it referred is a proper one in terms of s 36(14) and the Minister has a duty to sup ply them. NEW SOUTH WALES ABORIGINAL LAND COUNCIL V MINISTER FOR NATURAL RESOURCES (THE WINBAR CLAIM) (1986) 59 LGRA 333 (NSW Land and Environment Ct). 124. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose Certificate of Minister R equest for particulars To what particulars entitled .] The applicant Council sough t particulars, pursuant to s 36(14) of the Aboriginal Land Rights Act 1983, including details o f what consultation was had with the Minister before the issue of a certificate under s 36(8) of the Act, what investigation was made in relation to the land as to its future use, w hether a written report was made about the matter and, if so, asked for a copy of same, what was the purpose for which the land was said to be needed, when that need was claimed to have ari sen, how was the purpose for which the land was needed claimed to be essential, and what were the facts upon which the certificate was based. Held, that s 36(14) should be given an expansive interpretation having regard to its context in what was beneficial and remedial legislation, and accordingly the applicant was entitled to the requested particulars. DARKINGUNG LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING THE CROWN LANDS (CONSOLIDATION) ACT (1988) 65 LGRA 96 (NSW Land and Environment Ct). 125. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose Certificate of Minister J udicial review .] Held: (1) Section 36(8) of the Aboriginal Land Rights Act 1983 was e ffective to oust judicial review except in circumstances of an excess of jurisdiction or an ultra vires act, including bad faith in all its connotations but not including judicial review on the grounds of manifest unreasonableness, the taking into account of irrelevant considerations, the failure to take account of relevant considerations (unless they happened to be material to bad faith) or review on the basis of any breach of the rules of natural justice. (2) The funct ion of the Minister under s 36(8) was an administrative or executive one and was not judici al. [Earlier proceedings see (1985) 58 LGRA 298; and (1985) 1 NSWLR 104.] DARKINGUNG LOCAL ABORIGINAL LAND COUNCIL V MINISTER FOR NATURAL RESOURCES [NO 2] (1987) 61 LGRA 218 (NSW Land and Environment Ct). 126. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed for essential public purpose Land adjacent to cemetery Future need as cemetery .] Held: (1) The relevant minister bears the onus of establis hing claimed land is not claimable Crown land due to the provisions of the Aboriginal Land Ri ghts Act 1983 (NSW), s 36(7). (2) The question whether the land is needed or likely to be needed for an "essential public purpose" within the meaning of s 36(1)(d), must be determin ed at the date of the claim. (3) The provision of a public cemetery is an "essential publi c purpose" within s 36(1)(d) even though similar facilities are provided by the private sec tor. DEERUBBIN LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1997) 95 LGERA 353 (NSW Land & Environment Ct, Lloyd J). 127. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Whether needed as residential lands Ministerial opinion Whether court on appeal bound by .] Held: (1) On an appeal to the Land and Environment Court un der the Aboriginal Land Rights Act 1983 (NSW), s 36(6), the onus of proof is not dischar ged automatically by proving that the Minister has formed the opinion that the lands are needed or likely to be needed as residential lands. The Court's function is to determin e whether the conditions in the definition of "claimable Crown lands" are satisfied as at the date of claim, unfettered by the opinion of the Minister. (2) Where the evidence showed only th at at the relevant date there was an acknowledgement in public planning documents of the c apacity of the relevant land for future urban development, the relevant Minister had not di scharged the onus of proving that at the relevant date the claimed lands were not "claimable Crown lands", and the Court could satisfy itself on the evidence that the conditions specified in s 36(1)(b1) were fulfilled. DARUK LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT [NO 2] (1995) 89 LGERA 194 (NSW Land & Environment Ct, Bignold J). 128. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Use Occupation .] Held: (1) For the purposes of establishing whether land is "claimable Crown land" under s 36(1) of the Aboriginal Land Rights Act 1983 (NSW ), use and occupation are not synonymous. (2) If the court finds that the land is occup ied at the relevant time it will follow that it is not claimable Crown land. (3) Mere propr ietorship is not sufficient to establish occupancy. It is more relevant to consider whether there is a person or body exercising control over and undertaking maintenance responsibilities on the land. (4) If the finding is that it was not occupied at the relevant time it may be necessary , depending on the circumstances, to consider whether it was lawfully used at that time. In thi s respect the section seems to contemplate that there may be lawful use of land which is not o ccupied. [(1990) 72 LGRA 177 revd.] [Earlier proceedings see (1990) 71 LGRA 201.] MINISTER ADMINISTERING CROWN LANDS (CONSOLIDATION) ACT V TWEED BYRON LOCAL ABORIGINAL LAND COUNCIL (1992) 75 LGRA 133 (NSW Sup Ct CA). 129. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Use Occupation .] Held (by majority), that the words "used" and "occu pied" in s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) mean actually used and a ctually occupied in the sense of being used in fact, and occupied in fact, and to more t han a merely notional degree. [(1992) 76 LGRA 337 revd.] DARUK LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1993) 30 NSWLR 140; 79 LGERA 341 (NSW Sup Ct CA). 130. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land Lawful use or occupation Validity of grant of permissive occupancy .] The New South Wales Aboriginal Land Council made a claim to Crown lands under the Aboriginal Land Rights Act 1983, s 36(5). The claim was refused due to the purpo rted grant by the Secretary of the Western Lands Commission of a permissive occupancy of th e land. On appeal to the Land and Environment Court the claim was allowed. On further ap peal, Held, allowing the appeal: (1) Any doubt as to the power to grant a permissive o ccupancy of Crown land in the Western Division of the State under the Crown Lands Consolidat ion Act 1913, s 136K, was resolved by the Western Lands Act 1901, s 45, which made it cl ear that s 136K was to operate retrospectively and prospectively. (2) A presumption of regu larity applied to prove that the Secretary of the Western Lands Commission, who execute d the grant of the relevant permissive occupancy, had been duly delegated to do so by the Minister under s 17A of the Crown Lands Consolidation Act 1913 and regs 4(35) and 4B ther eunder. (3) The land was not claimable land within the Aboriginal Land Rights Act 1983, s 36(5), as it was "occupied" pursuant to the permissive occupancy. [(1986) 59 LGRA 318 revd.] MINISTER FOR NATURAL RESOURCES V NEW SOUTH WALES ABORIGINAL LAND COUNCIL (1987) 9 NSWLR 154; 62 LGRA 409 (NSW Sup Ct CA). 131. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Claimable Cr own land No Gazette notification authorising dealing .] An Aboriginal land counc il made a claim under the Aboriginal Land Rights Act 1983 (NSW) in respect of land origina lly acquired by the Commonwealth for defence purposes in 1913 but later purchased by the State of New South Wales as Crown lands within the Crown Lands Consolidation Act 1913 (NSW). Held, dismissing the claim, that, there having been no notification by th e minister in the Government Gazette authorising the sale or lease of the land, at the time th e subject claim was made, such lands could not be lawfully sold or leased under the Crown Lands Consolidation Act and the land was then not "claimable Crown lands" within the A boriginal Land Rights Act, s 36. GANDANGARA LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1997) 41 NSWLR 459; 94 LGERA 43 (NSW Sup Ct CA). 132. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Land not "lawfully used or occupied" Existing mining lease Mining not commenced .] Held: (1) Where at the time a land claim was made under the Aboriginal Land Rights Act 1983 (NSW), the land was subject to a mining lease for a specific purpose but not act ually being mined and the time for development consent had not arrived under the Environment al Planning and Assessment Act 1979 (NSW), s 76(2), the land was not claimable Crow n land because it was "lawfully used" within the Aboriginal Land Rights Act, s 36(1)(b) . (2) The coming into force of the Environmental Planning and Assessment Act did not conve rt lawful passive use of the land into unlawful use. [Earlier proceedings see (1993) 31 NSWLR 106.] MINISTER ADMINISTERING THE CROWN LAND ACT V NEW SOUTH WALES ABORIGINAL LAND COUNCIL [NO 2] (1997) 42 NSWLR 641; 96 LGERA 254 (NSW Sup Ct CA). 133. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Disposal of land Power of local Aboriginal land council Validity .] Held, that the Aborigin al Land Rights Act 1983 (NSW), s 40D(1)(b), which empowers a local Aboriginal land counc il, subject to the provisions of any other Act, to dispose of land vested in it if t he New South Wales Aboriginal Land Council has approved of the proposed disposal, is not inva lid as being inconsistent with the Racial Discrimination Act 1975 (Cth). NEW SOUTH WALES ABORIGINAL LAND COUNCIL V WORIMI LOCAL ABORIGINAL LAND COUNCIL (1994) 84 LGERA 188 (NSW Land & Environment Ct, Bannon J). 134. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Existing min ing lease Mining not commenced .] Held: (1) If, when a land claim is made under s 36 of the Aboriginal Land Rights Act 1983 (NSW), the lands claimed are by force of cl 8 of Sch 4 not claimable Crown lands, the Minister is bound by s 36(5) to refuse the claim regardless of the fact that at some later time when the subject lease, licence or permissive o ccupancy ceases to be in force, cl 8 will not apply to the lands, and the Minister has no power to treat a claim made for lands when they are not claimable Crown lands as if it were a cla im made and suspended until such time as cl 8 no longer applies. (2) Section 45 of the A ct is not concerned with whether, when a claim under s 36 is made, lands are claimable Cro wn lands but with what passes by the transfer of lands when a claim under s 36 is granted . Section 45(12) contemplates the existence and continuance of authorities and other right s under the Mining Act 1973 (NSW) in respect of lands transferred to Aboriginal Land Council s under s 36 of the Aboriginal Land Rights Act and enables mining operations pursuant to s uch authorities and rights and any renewals of them to be continued without the need for consent under s 45(4). (3) Section 45 of the Aboriginal Land Rights Act does not qualify s 36(1)(b) to read "are not lawfully used or used only for mining purposes". Crown lands not b eing used for any purpose, mining or otherwise, when a claim is made, may be claimable Cro wn lands, but Crown lands lawfully used for any purpose, including mining purposes, when a claim is made cannot be. (4) The phrase "lease, licence or permissive occupancy" in cl 8 of Sch 4 to the Aboriginal Land Rights Act is appropriate for tenures under the Crown Lands Consolidation Act 1913 (NSW) and the Western Lands Act 1901 (NSW) and inappropri ate to describe forms of tenure derived under the Mining Act. (5) Whether lands reserve d for future mining are presently being used for mining within the meaning of s 36(1)(b) of t he Aboriginal Land Rights Act involves examination of factors such as the physical layout of the lands and their contiguity to existing mining operations, the particularity of the plan of the future mining, and the conformity of that plan, temporally and otherwise, to conventional practice in the industry for the extension of mining operations into unmined are as and, in the present case, the approval in 1976 under the Mining Regulations 1974 (NSW) of th e amalgamation or aggregation of two mining leases thereby permitting labour and l abour expenditure for both to be deployed in any part of the amalgamated leases, the c ritical question being whether the lands, taken as a whole, had been devoted to mining p urposes rather than whether they were being immediately physically used for those purpos es. But the use must be more than notional and be present use when the claim is made rather than contemplated or intended use. (6) It is not possible to determine whether lands were being lawfully used within the meaning of s 36(1)(b) of the Aboriginal Land Rights Act without taking into account the purpose for which it is claimed they were being used. Th e purpose will dictate the degree of immediate physical use required to decide whether the y were actually used in more than a notional sense. (7) Where the Land and Environment Court had applied a test of immediate physical use in respect of the question whether the claimed lands were being lawfully used at the date on which the claim was made the matter shou ld be remitted for redetermination by the Land and Environment Court in accordance wit h the appropriate test. [(1992) 78 LGERA 1 revd.] MINISTER ADMINISTERING CROWN LANDS ACT V NEW SOUTH WALES ABORIGINAL LAND COUNCIL (1993) 31 NSWLR 106; 80 LGERA 173 (NSW Sup Ct CA). 135. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Building wit h minimal physical occupation pending sale .] Following the departure of the Edu cation Department from a large city building, there was minimal physical occupation by six staff members together with services for utilities, security, parking and furniture st orage. The site was being actively marketed by agents, nationally and internationally, with supe rvised access to the whole of the building for prospective buyers, their engineers and archite cts. Held: (1) "Use" and "occupation" in the context of the definition of "claimable Crown land s" in s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) includes two separate conc epts, one of which may influence the interpretation of the other; since one may lawfully u se land without physically occupying it, "occupation" may be liable to a narrower interp retation than might be appropriate if the word "use" had been omitted from the definition. (2) In so far as the building was occupied at all, the occupation was so slight as to be insuffic ient to constitute occupation as required by the definition in s 36(1)(b). (3) Consideri ng cumulatively all of the facts relating to the building at the date of the applic ation, the whole of the land was then being lawfully used in a manner sufficient to remove it fro m the definition of "claimable Crown lands". NEW SOUTH WALES ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1992) 76 LGRA 192 (NSW Land and Environment Ct, Stein J). 136. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Whether amendment operates retrospectively .] Held, that s 36(5A) of the Aboriginal La nd Rights Act 1983 (NSW) cannot be applied to claims lodged prior to its enactment in 1986 . LA PEROUSE LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1991) 74 LGRA 176 (NSW Land and Environment Ct, Bannon J). 137. Aboriginal Land Rights Act 1983 (NSW) Claim to Crown land Transfer to Aboriginal Land Council Land under Western Lands Act Estate to be transferre d Amendment of Act after claim but before grant .] Section 36(9A), inserted in t he Aboriginal Land Rights Act 1983 in 1986, provides that any transfer under the Ac t of land to which the Western Lands Act 1901 applies should be effected by the granting of a lease in perpetuity under that Act. In 1984 the applicant made a claim for land in the We stern Division. In 1987 the Minister approved the claim. The applicant sought an order that the Minister grant the claim by transferring the land in fee simple, as was provided by s 36 before the 1986 amendment. Held: (1) The applicant had an accrued right under th e Aboriginal Land Rights Act, s 36, to have a transfer of the land in fee simple. (2) The quantum of the title to be transferred was an estate in fee simple. [(1988) 64 LGRA 240 revd.] NEW SOUTH WALES ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING THE CROWN LANDS (CONSOLIDATION) ACT AND THE WESTERN LANDS ACT (THE WINBAR CLAIM [NO 3]) (1988) 14 NSWLR 685; 66 LGRA 265 (NSW Sup Ct CA). 138. Aboriginal Land Rights Act 1983 (NSW) Aboriginal Land Rights Regulation 1983 (NSW) Aboriginal Land Council Elections Validity .] Held: (1) The common law relating to elections is applicable to elections under the Aboriginal Land R ights Act 1983 (NSW) and the Aboriginal Land Rights Regulation 1983 (NSW) in so far as they mak e provision for the election of councillors of the Aboriginal Land Council (NSW). (2) Where it had been established that a sufficiently large number of votes had been discarde d under the regulations because of a polling error which could lead to the identity of the v oter being known, the proper course, if the number of discarded votes was sufficient for th e court to conclude that the result may have been affected, was to declare the election voi d. (3) Notwithstanding the absence of secrecy provisions in the Act and regulations, th e court should not inspect the ballot papers. DAVISON V ELECTORAL COMMISSIONER OF NEW SOUTH WALES (1992) 74 LGRA 246 (NSW Land and Environment Ct, Cripps J). 139. Aboriginal Land Rights Act 1983 (NSW) Aboriginal Land Rights Regulation 1983 (NSW) Aboriginal Land Council Elections Regional representative Whether eligible for election .] Held: (1) An application, under s 7(2)(b) of the Abor iginal Land Rights Act 1983 (NSW), to be listed on the roll for the local Aboriginal Land Co uncil area, made outside a time limitation period specified in a notice convening an electio n for a regional representative of the New South Wales Aboriginal Land Council, is not i nvalid provided it is lodged prior to the holding of a properly convened meeting at whi ch it is to be considered. (2) The effect of cl 22(4) and (5) of the Aboriginal Land Rights Reg ulation 1983 (NSW) is inconsistent with ss 6(3), 7(2)(b), 26 and 27 of the Aboriginal Land Ri ghts Act and they are therefore ultra vires. (3) An election of a regional representative for the New South Wales Aboriginal Land Council whose qualification to vote was based on enrolment under cl 22(4) of the Aboriginal Land Rights Regulation was void. The only remedy was to hold a new election because a recount eliminating the wrongfully elected candidate woul d not determine the true intent of the voters. CONNOLLY V ELECTORAL COMMISSIONER (NSW) (1992) 76 LGRA 104 (NSW Land and Environment Ct, Pearlman J). 140. Aboriginal Land Rights Act 1983 (NSW) Aboriginal Land Rights Regulation 1996 (NSW) Aboriginal Land Council Meeting Validity Meeting to consider membership by association applications Global rejection Membership giving vo ting rights for regional council elections .] A large number of applications for me mbership by association of the respondent Aboriginal Land Council were made by prisoners. Me mbership conferred a right to vote for a representative councillor on the New South Wales Aboriginal Land Council. The respondent convened a meeting which rejected the applications on a global basis. The applicant claimed that the meeting was invalid and as a conseq uence any subsequent election for the regional councillor would also be void, and sought i njunctive and declaratory relief. The respondent objected to the court's jurisdiction. Held: ( 1) The proceedings fell within the jurisdiction of the court pursuant to the Land and E nvironment Court Act 1979 (NSW), s 20(2). The proceedings challenged the validity of a meet ing called pursuant to the Aboriginal Land Rights Regulations 1996 (NSW), reg 42. They disp uted an election within the Aboriginal Land Rights Act 1983 (NSW), Pt 4, Divn 2B. (2) Th e notice of meeting was ambiguous by referring to "associate membership" but even a cursory reading would reveal that the meeting was going to deal with membership by association o f the respondent council. (3) Within the Aboriginal Land Rights Regulations, reg 25, p rescribing model rules for each Local Aboriginal Land Council, the meeting was an ordinary meeting and did not fall within cll 13 or 14 of the model rules. (4) Under the Aborigina l Land Rights Act, s 8(4), the meeting was entitled to consider several items of business. (5) The duty of the respondent at the meeting was to either accept or reject the applications consid ering the matters specified in s 7(2)(b). The meeting considered the applications and on t he ground that there was an absence of sufficient information about the element of associa tion with the area, which was a relevant consideration, rejected the applications. (6) There w as no obligation to consider each application separately. BURNUM BURNUM V GANDANGARA LOCAL ABORIGINAL LAND COUNCIL (1997) 93 LGERA 148 (NSW Land & Environment Ct, Pearlman CJ). 141. Aboriginal Land Rights Act 1983 (NSW) Aboriginal Land Rights Regulation 1996 (NSW) Aboriginal Land Council Creation of local Aboriginal land council area .] Held, that the Aboriginal Land Rights Act 1983 (NSW), s 5(1), does not require t he creation of a regional Aboriginal land council prior to the constitution of a local Abori ginal land council under the Aboriginal Land Rights Regulation 1996 (NSW), cl 6. BRIGGS V LOCKWOOD (1998) 98 LGERA 186 (NSW Land & Environment Ct, Pearlman J). 142. Aboriginal Land Rights Act 1983 (NSW) Enforcement of rights, etc Juris diction of Land and Environment Court .] Held, that an application for a declaration o f trust in respect of land vested in an Aboriginal land council under the Aboriginal Land R ights Act 1983 (NSW) is not a claim to enforcement of a right, obligation or duty conferre d under the provisions of the Aboriginal Land Rights Act and is not therefore within the sta tutory jurisdiction conferred by s 20 of the Land and Environment Court Act 1979 (NSW).
NEW SOUTH WALES ABORIGINAL LAND COUNCIL V WORIMI LOCAL ABORIGINAL LAND COUNCIL (1993) 80 LGERA 46 (NSW Land and Environment Ct, Stein J). 143. Aboriginal Land Rights Act 1983 (NSW) Land and Environment Court Declaration of right to claimable land Jurisdiction .] Held, that the Land a nd Environment Court of New South Wales does not have jurisdiction to make declarat ions of right in relation to claimable Crown land under the Aboriginal Land Rights Act 1 983 (NSW), s 36, for the reason that the legislature, by providing in s 36 of the Act the e xclusive scheme for the making and determination of land claims must be taken to have impliedly ousted the jurisdiction of the Court to make declarations in respect of the very same matte rs that are fundamental to the working out of the legislative scheme created by the Act. [Further proceedings see Tweed Byron Local Aboriginal Land Council v Minister Administering Crown Lands Act [No 3] (1995) 89 LGERA 220.] TWEED SHIRE COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1995) 89 LGERA 187 (NSW Land & Environment Ct, Bignold J). 144. Aboriginal Land Rights Act 1983 (NSW) Land and Environment Court Pract ice and procedure Originating process Aboriginal land council election Alleged ly invalid election of member Originating process drafted by non-lawyer Suffici ency Aboriginal Land Rights Act 1983, s 27AC .] GRIFFEN V GRIFFITH (1996) 90 LGERA 374 (NSW Land & Environment Ct, Pearlman J). 145. Aboriginal Land Rights Act 1983 (NSW) Land and Environment Court Pract ice and procedure Costs .] Held, that there was no jurisdiction in the Land and Environment Court to make an order for costs in respect of an order made under t he Aboriginal Land Rights Act 1983 (NSW) which had been minuted and perfected. BIRRIGAN GARGLE LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1993) 80 LGERA 389 (NSW Land and Environment Ct, Bannon J). 146. Aboriginal Land Rights Act 1983 (NSW) Appeals to Land and Environment Co urt Parties Joinder of local council .] Held, that the right of appeal pursuan t to the Aboriginal Land Rights Act 1983 (NSW), s 36(6), permits only two parties to the appeal, the Aboriginal Land Council and the Minister. There is no power in the court to perm it the joinder of other parties such as a local government body. [(1995) 89 LGERA 220 affd.] TWEED SHIRE COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1996) 92 LGERA 80 (NSW Sup Ct CA). 147. Aboriginal Land Rights Act 1983 (NSW) Appeals to Land and Environment Co urt Costs .] Held, that the proper principle to be applied by the Land and Envir onment Court in the exercise of its discretion under the Land and Environment Court Act 1979 (NSW), s 69, as to costs in appeals under the Aboriginal Land Rights Act 1983 (N SW), s 36(6), ought to be that no order for costs should be made unless the circumstanc es are exceptional. BIRRIGAN GARGLE LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT [NO 2] (1993) 81 LGERA 137 (NSW Land and Environment Ct, Pearlman J). 148. Aboriginal Land Rights Act 1983 (NSW) Appeals to Land and Environment Co urt Costs Exceptional or special circumstances .] Held, that generally, in th e absence of exceptional or special circumstances which may concern the conduct of a party to the litigation, there should be no order for costs in appeals under s 36 of the Abor iginal Land Rights Act 1983 (NSW), whether the result is that the claim be granted in whole or in part or refused. NARROMINE LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING CROWN LANDS ACT (1993) 79 LGERA 430 (NSW Land and Environment Ct, Stein J). 149. Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth)
Decision by Aboriginal and Torres Strait Islander Commission to allocate large p roportion of funds available for land acquisition in two years for acquisition of land in Nor thern Territory Court's jurisdiction to review decision Decision unreasonable Improper exe rcise of power .] The Board of Commissioners of the Aboriginal and Torres Strait Island er Commission decided to set aside $10 million for purchases of land by Aboriginals in the Northern Territory and $2 million for other national purchases in each of the tw o years following the introduction of the Land Fund and Indigenous Land Corporation (ATS IC Amendment) Act 1995 (Cth). The applicants challenged that decision. Held: (1) Th e court did not have jurisdiction under the Administrative Decisions (Judicial Review) A ct 1977 (Cth) to review the Board's "decision". What was involved was not itself a decis ion. The relevant decision under an enactment which would be capable of review under the Administrative Decisions (Judicial Review) Act would be a decision, in due cours e, determining to grant or not to grant money to an applicant. (2) The court did no t have jurisdiction under the Judiciary Act 1903 (Cth), s 39B, because the jurisdiction al element was merely colourable. The relief sought was a writ of prohibition directed towa rds the Board's Chief Executive Officer, who was joined as a party to obtain jurisdictio n. (3) However, the application was treated as a case involving federal jurisdiction so as to permit consideration of an attracted claim. (4) The Board's decision to set aside in ea ch of two years $10 million of the $12 million to be allocated in that year for land acquisition to persons seeking to acquire land in the Northern Territory was a decision so unreasonable in the administrative law sense that it amounted to an error in law. The making of such a decision operated to preclude consideration of applications received from persons outside the Northern Territory. (5) The decision was an improper exercise of power. NEW SOUTH WALES ABORIGINAL LAND COUNCIL V ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION (1995) 59 FCR 369; 131 ALR 559; 38 ALD 573 (Fed Ct of Aust, Hill J). [Discussed in note, 3 AJ Admin L 229.] [3.50-3.53] Divn 3. Under Native Title Act 1993 (Cth) [3.50] A. Generally 150. "Native Title" Connection with land or water .] Held, that the definit ion of "native title" contained in the Native Title Act 1993 (Cth), s 223(1), does not require that a physical connection with lands or waters be established. RE NORTHERN TERRITORY OF AUSTRALIA (1995) 119 FLR 239 (Cth Native Title Trib). 151. Nature of native title Recognised by, but not institution of, common law
Extinguished by unqualified grant in fee simple Total extinguishment not mere suspension No revival of native title where land reverting to Crown .] The a ppellants, as representatives of the Larrakia people, sought to show native title to land n ear Darwin. The land was part of that granted in 1882 by the Governor of the Province of Sou th Australia to B. The grant was made in pursuance of the Northern Territory Land Act 1872 (S A), s 8, which empowered the Governor on behalf of the Crown to grant "in fee simple ... any waste land". The grant to B was expressed to be to him "his heirs and assigns for ever ". The land relevant to the appellants' claim was acquired by the Commonwealth in 1927 in pu rsuance of the Lands Acquisition Act 1906 (Cth) for the purpose of a quarantine station. Se ction 16 of the latter Act had the effect that the land became vested in the Commonwealth fr eed of trusts and interests "to the intent that the legal estate therein ... shall be vested i n the Commonwealth". In 1956 the land was appointed to be a leprosarium; in 1980 that appointment and also that for a quarantine station were revoked. In 1996 the gov ernment of the Northern Territory caused the land to be subdivided into 15 parcels of which eight were already the subject of Crown lease at the time the appellants' application was l odged with, and accepted by, the Registrar under the Native Title Act 1993 (Cth), s 63. In t he Federal Court, the primary judge dismissed the application. The present appellants appea led to the Full Court of the Federal Court, whereupon the matter was, in part, removed into the High Court and an order made pursuant to the Judiciary Act 1903 (Cth), s 18, that it be determined by a Full Bench. Held: (1) Native title is extinguished by a grant in fee simple . The rights given by such a grant are inconsistent with native title holders continuing to h old any of the rights or interests which together make up native title. Per curiam Native tit le is neither an institution of the common law nor a form of common law tenure but it is recognis ed by the common law. (2) Native title to the subject land was not, and could not be, revi ved when the land came to be held again by the Crown. Native title rights were extinguished, not merely suspended, by the grant of freehold title to B. (3) As, in the present case, the re was no reservation or qualification on the grant to B in 1882, that grant was wholly in consistent with the existence thereafter of any right of native title. The primary judge had acc ordingly been correct in dismissing the application and the present appeal must also be dismis sed. (4) There was no substance in a submission that the primary judge had erroneously inverted the statutory order for disposing of native title claims by his decision, before any exercise of the right to negotiate, that the appellants' claim to native title must fail. That f ollowed from the procedure adopted by the appellants in seeking relief by way of interlocutory in junction which obliged them to demonstrate a sufficiently arguable case to obtain that re lief. The appellants' further step of seeking final relief including declarations of right also required the primary judge to decide whether the claims made were plainly bad. Per curiam T he issue whether native title exists in relation to the subject land having been tendered as an issue by the appellants in the proceedings they instituted, there is obvious difficulty i n their contention that this issue was not open to dispute on a motion either for injunc tion or for summary dismissal. (5) When the Northern Territory refused to give the appellant s an undertaking not to issue further Crown lease of freehold title to the land subdi vided in 1996, it did not thereby threaten an act that would enliven the statutory right to neg otiate. The injunctions sought by the appellants could not be said to be for the protection or preservation of that right. Per curiam The Registrar's administrative act of accepting an a pplication does not put the question of title beyond debate on an application by a register ed native title claimant for injunction or on an application to dismiss summarily an action inst ituted to obtain relief of that kind. [Earlier proceedings see (1998) 152 ALR 477.] FEJO (ON BEHALF OF LARRAKIA PEOPLE) V NORTHERN TERRITORY (1998) 72 ALJR 1442; 156 ALR 721; [1998] HCA 58 (HC). 152. Preservation of native title rights and interests Fishing rights .] Th e applicant was found guilty under the Sea Fisheries Regulations 1962 (Tas) of taking undersize abalone. On a motion for review, he claimed that his taking of the abalone was not unlawful by reason of his native title rights and interests under the Native Title Act 1993 (Cth), or alternatively, a common law customary right. Held, dismissing the motion: (1) It was necessary to identify the claimed right to fish pursuant to some traditional law and custom. There was no evidence that, since time immemorial, fishing for abalone had been a central and signific ant part of Aboriginal custom in the sense that it was an element of a custom integral to th e distinctive culture of a group of Aboriginal people to which the ancestors of the applicant belonged. (2) A custom is a particular practice that has existed in a defined locality since b efore living memory. The claimed custom must be confined to an ascertainable area and a defin ed ascertainable group of persons before it will become part of the common law. DILLON V DAVIES (1998) 156 ALR 142 (Tas Sup Ct, Underwood J). 153. Queensland Power of Queensland Parliament to enact laws extinguishing na tive title Agreement authorised by enactment itself having force of enactment Operating to extinguish native title Legislature owing neither fiduciary duty nor procedura l fairness to individuals Court not to go behind enactments .] The Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Q) authorised the Premier of Queensl and to make with the named company an agreement scheduled to the Act such that, under s 3: "Upon the making of the Agreement the provisions thereof shall have the force of law as though the agreement were an enactment of this Act". An agreement was made accor dingly and the fact proclaimed by the Executive Council. The effect was to confer on th e company for 84 years a special bauxite mining lease over designated land to which the ap pellants claimed native title. Held: (1) The appellants' claim that the agreement was in breach of fiduciary duty and its execution a denial of procedural fairness, could not be s ustained. It was not open to the court to go behind the legislation, and to permit a statute to b e attacked on the grounds of alleged preliminary default or impropriety would undermine and frustr ate the clear purpose of the legislation. If the appellants lost rights, that was a nece ssary result of a statute the constitutional validity of which had not been impugned. (2) The word "authorised" in s 2 of the Act was appropriate to the relationship between the legislature an d the Executive Council and indicated that the agreement referred to was one which the legislatu re expected to be made. For this purpose, "authorise" was not limited to meaning "sanction", "approve", "countenance" or "permit". (3) The lease to which the agreement related was vali d as being part of the essential purpose of an instrument having express statutory authorit y. (4) By analogous reasoning, an "access agreement" in pursuance of the Aurukun Associate s Agreement Act 1975 (Q) was to be treated as if an enactment of legislature of Qu eensland, and was accordingly valid and effective to extinguish native title. [(1996) 63 FCR 450; 134 ALR 637 set aside in part.] [Earlier proceedings see (1994) 49 FCR 1; 120 ALR 465.] WIK PEOPLES V QUEENSLAND (1996) 187 CLR 1; 71 ALJR 173; 141 ALR 129 (HC). [Discussed in articles, 3 ALB (No 89) 20; 11 APLB 49; 16 AMPLA 27, 44; 19 Law So c Bulletin (SA) (No 6) 10; 3 UNSWLJ Forum 2, 3, 5, 8, 10, 12, 14; 24 Brief (No 6) 9; 21 MULR 343.] 154. Western Australia No total extinguishment of native title on establishme nt of colony Gradual extinguishment on parcel by parcel basis State Act purporting to eff ect extinguishment and reconstitution of title Inconsistent with federal laws Ac cordingly ineffective .] On 1 January 1994 the Native Title Act 1993 (Cth) commenced to operate. It specified 1 July 1993 as the date on and after which native title could be extin guished by the enactment of a law that satisfied conditions prescribed by the Act (s 11). The L and (Titles and Traditional Usage) Act 1993 (WA) purported to extinguish native title and re place it with statutory rights of traditional usage within a regime prescribed by that Ac t. In particular, s 5 purported to confirm retrospectively the validity of grants of title made af ter the Racial Discrimination Act 1975 (Cth) came into operation where those grants sought to e xtinguish or impair native title. The State challenged the validity of the Commonwealth na tive title legislation. Interested parties challenged the validity of the State legislation . In the High Court three such matters were conflated and questions were reserved for the opin ion of the Full Court. Held: (1) Having regard to the circumstances, revealed by history an d contemporary documents, surrounding the settlement of Western Australia and its establishment as a colony, the submissions of the State, that the Crown original ly intended a general extinguishment of native title to or over all land within the colonial b oundaries defined in Captain Stirling's commission and instructions, could not be sustaine d. The Crown's sovereign power was intended only to be directed to granting land to imm igrant settlers, extinguishing native title on a parcel by parcel basis. No global exti nguishment was contemplated or effected. Per curiam There is no difference in point of law re lating to native title between the establishment of the Colony of Western Australia and th e establishment of the Colony of New South Wales. (2) The Land (Titles and Traditi onal Usage) Act, s 5, was not invalid as being beyond legislative power, but it had n o legal operation and was ineffective because of inconsistency offensive to the Constitu tion, s 109. (3) The Land (Titles and Traditional Usage) Act, s 7, was similarly ineffective for inconsistency with the Racial Discrimination Act, s 10(1). In all respects, whet her under the terms of the Land (Titles and Traditional Usage) Act, the Mining Act 1978 (WA), the Petroleum Act 1967 (WA), or the State provisions for the granting of compensatio n on compulsory acquisition of land, there was a demonstrable discrimination between the standing and entitlements of indigenous people vis-a-vis those of other people. The prospective operation of the State Act was destroyed by the inconsistency thus c reated with the rights conferred by the Racial Discrimination Act. (4) The Native Title Act was prima facie supported by the Constitution, s 51(xxvi) (power to make special laws for people of any race). (5) The Native Title Act was not invalid as purporting to control the exe rcise by a State of its legislative power or to render State laws invalid contrary to the Constit ution, s 107. (6) The Native Title Act was not invalid as creating an impermissible discrimination against Western Australia or an impermissible impairment of the ability of Western Austr alia to function as a State, for the Act did not purport to affect the machinery of the government of the State or obtrude upon the constitution of the State's three branches of gove rnment. (7) The Native Title Act, s 12, which purported to enact that "Subject to this Act, the common law of Australia in respect of native title has, after 30 June 1993, the force o f a law of the Commonwealth" was invalid as either purporting to confer legislative power on th e courts or as lacking constitutional support. Its invalidity did not affect the validity of any other provision of the Act. WESTERN AUSTRALIA V COMMONWEALTH (1995) 183 CLR 373; 69 ALJR 309; 128 ALR 1 (HC). [Discussed in articles, 69 ALJ 397; 22 Brief (No 4) 6; 3 ALB (No 73) 4, 8; 14 AMPLA 108; and in note, 3 APLJ 142.] 155. Native Title Tribunal determination In relation to unopposed claimant an d non-claimant applications Registration of determinations with Federal Court To have effect as if order of court Provisions invalid .] Held, that the Native Titl e Act 1993 (Cth), Pt 6, Divn 5, Subdivn E (comprising ss 166, 167 and 168), is invalid. It purports, contrary to the Constitution, to authorise the National Native Title Tribunal, w hich is not a court under ss 71 and 72 of the Constitution, to exercise part of the judicial p ower of the Commonwealth. [(1995) 121 FLR 87 affd in part.] FOURMILE V SELPAM PTY LTD (1998) 80 FCR 151; 152 ALR 294 (Fed Ct of Aust FC). 156. Challenge to proceedings in Native Title Tribunal before Federal Court A pplication to remove into High Court Issues and facts not sufficiently determined Appli cation rejected as premature .] Held, that where an appeal from the Native Title Trib unal to the Full Court of the Federal Court, as to matters arising under the Native Title Ac t 1993 (Cth), is sought to be removed into the High Court, removal would be refused where find ings of fact at first instance are challenged on appeal, and the High Court, in attempti ng to deal with unresolved issues, might be led to make a premature ruling lacking the clear aut hority demanded in the public interest. [Further proceedings see (1995) 61 FCR 1; 132 ALR 565.] NORTH GANALANJA ABORIGINAL CORPORATION V QUEENSLAND (1995) 69 ALJR 569 (HC). 157. Parties to application for determination of native title Standing "Int erest" .] Held: (1) The definition of "interest" in the Native Title Act 1993 (Cth), s 253 , does not apply to the word "interests" where it is used in connection with parties in ss 68(2)( a) and 84(1) and in the related provisions of ss 66(1)(a), 66(2), 68(2), 69(1), 167(4), 168(2)(c) and 169(3). The definition of "interest" in s 253 only applies when "interest" is used "in relat ion to land or waters". It is not used in that way in s 68(2)(a) or in any of the related provi sions dealing with parties. (2) An interest sufficient to give a person the right to become a party to an application for the determination of native title should be greater than that of a member of the general public. (3) The interest need not be proprietary or even legal or eq uitable in nature. BYRON ENVIRONMENT CENTRE INC V ARAKWAL PEOPLE (1997) 78 FCR 1; 96 LGERA 1; 148 ALR 46 (Fed Ct of Aust FC). 158. Representation of parties Access to court hearings by members of public .] Held: (1) Apart from any specific power that may be conferred by the Native Title Act 1993 (Cth), the court does not have the authority to deny the right of a party to be represe nted by a barrister or solicitor of the party's choice and a fortiori does not have the po wer to deny a party the right to be represented by a barrister or solicitor by reason of the g ender of the barrister or solicitor. (2) If the court is to conduct its business on Aborigina l land at the request of, and to meet the convenience of, native title applicants, access to t he court hearings by any member of the public should be unrestricted and not be granted u pon specific request. Any member of the public is entitled to be in attendance and i s under no obligation to identify himself or herself. YARMIRR V NORTHERN TERRITORY (1997) 143 ALR 687 (Fed Ct of Aust, Olney J). 159. Permissible future acts Grant of mining leases Tribunal power to impos e condition of payment of compensation .] The State of Western Australia applied to the Native Title Tribunal for determinations pursuant to the Native Title Act 1993 ( Cth), s 38, in relation to the proposed grant of mining leases. The proposed mining leases rela ted to land that was the subject of registered native title claims made by the applicant. Th e grant of the leases would be permissible future acts within s 26(2)(a) of the Act. The Tribun al decided that it did not have power to determine that compensation be paid to the native title claimants other than in accordance with Pt 2, Divn 5 of the Act. It imposed cond itions requiring the parties to negotiate in relation to a range of matters before deve lopmental or constructive mining or constructive activity were undertaken by the mining lease holder. Held: (1) Section 38(1)(c) of the Act gave the Tribunal power to impose a condit ion requiring the determination of compensation otherwise than in accordance with th e procedure and criteria in Pt 2, Divn 5. (2) The Act authorised the Tribunal to m ake only one binding and conclusive determination before a permissible future act was done. ( 3) Conditions imposed by the Tribunal were not within its power under s 38. Those c onditions were capable of leading to the grant of the mining lease, notwithstanding that a greement could not be reached on outstanding matters, thus defeating the evident purpose of s 38 of the Act that the arbitral body not leave the outstanding issues between the parties unresolved. EVANS V WESTERN AUSTRALIA (1997) 77 FCR 193 (Fed Ct of Aust, Nicholson J). 160. Extinguishment of native title .] Held, that once native title has been extinguished, the issue has come to an end and there can be no revival of that title under the common law. The ordinary usage of the word "extinguish" favours a meaning that supports an e nd without any means of survival or revival. FEJO V NORTHERN TERRITORY (1998) 152 ALR 477 (Fed Ct of Aust, O'Loughlin J). [3.51-3.53] B. Applications to Native Title Tribunal [3.51] (i) Nature of Proceedings 161. Jurisdiction of Tribunal .] Held, that when a party to proceedings befor e the National Native Title Tribunal challenges its jurisdiction or authority, it is t he duty of the Tribunal to make due inquiry about whether it has that jurisdiction or authority . Similarly, it is the function of the Federal Court, on review, to decide that matter for itsel f. MINERALOGY PTY LTD V NATIONAL NATIVE TITLE TRIBUNAL (1997) 150 ALR 467 (Fed Ct of Aust, Carr J). 162. Government party's obligation to negotiate Determination by National Nat ive Title Tribunal if failure to reach agreement Preconditions for application to Tribun al .] Held: (1) Compliance with the Native Title Act 1993 (Cth), s 31(1)(b), which imp oses an obligation to "negotiate" in good faith, is a condition precedent to the making of an application to the National Native Title Tribunal under s 35 of the Act. (2) The Tribunal has jurisdiction to determine whether the government party has complied with s 31(1) (b), that is, has negotiated in good faith with the native title parties and the grantee parti es with a view to obtaining the agreement of the native title parties to the doing of the act or t he doing of the act subject to conditions. WALLEY V WESTERN AUSTRALIA (1996) 67 FCR 366; 137 ALR 561 (Fed Ct of Aust, Carr J). [Discussed in article, 3 CDRJ 169.] 163. Government party's obligation to negotiate Determination by National Nat ive Title Tribunal if failure to reach agreement Preconditions for application to Tribun al .] Held: (1) The Native Title Act 1993 (Cth), s 31(1)(b), requires that the governm ent party make every reasonable effort to negotiate and to reach agreement with the native title parties. (2) To determine whether the government party has negotiated in good faith for t he purpose of s 31(1)(b) it is necessary to look at the conduct of the party as a whole. (3 ) If a State uses the procedures of the Act to ensure validity of its titles then it is bound to f ollow the procedures laid down by the Act. It cannot enter the right to negotiate procedur e and then decide that because it has a policy on extinguishment it will not negotiate but seek to have the issue determined by the Tribunal. (4) The conduct of the grantee party and t he native title party in the negotiation process may be relevant in deciding whether the governm ent party has fulfilled its obligations to negotiate in good faith. (5) It is not a condit ion precedent to the making of an application for a future act determination under s 35 of the Act th at the native title party and the grantee party negotiate in good faith. WESTERN AUSTRALIA V TAYLOR (1996) 134 FLR 211 (Cth Native Title Trib). 164. Requirement that claim prima facie sustainable How relevant opinion form ed By Registrar and presidential member of National Native Title Tribunal Ex parte n ature of proceedings Information by applicants only relevant information to be consider ed Where claim fairly arguable, Federal Court's jurisdiction not to be foreclosed b y Tribunal as judicial determination Related questions of law not to be decided administrati vely Registrar and presidential member misdirecting themselves as to opinion to be fo rmed .] The present appellants applied under the Native Title Act 1993 (Cth), s 63(1), f or determination of native title to land in north-west Queensland. Mining companies (the second respondents) submitted to the Registrar of the National Native Title Trib unal a letter contending that any native title existing over that land had been extinguished b y the grant of pastoral leases. Copies of official documents, said to support the contention, w ere supplied. Through the Carpentaria Land Council, the present appellants claimed that native title had not been extinguished. The Registrar, having formed the opinion that the appella nts' claim could not be made out (a requirement of s 63(1) of the Act), referred the matter to the President of the Tribunal (a requirement of s 63(2) of the Act). The President a greed with the Registrar's decision, basing his opinion on "evidence of the extinguishment of n ative title by the grant of pastoral leases over the land". Interested parties were advised and given the opportunity of making representations (in conformity with s 63(3) of the Act). A fter considering these representations, the President ruled that he was not satisfied that a prima facie claim could be made out, but that he was satisfied that any subsisting nat ive title had been extinguished by pastoral leases. He directed the Registrar not to accept th e application of the present appellants (s 63(3)(c) of the Act). They appealed unsuccessfully to the Full Court of the Federal Court of Australia. On their application for special leave to appeal to the High Court, and the simultaneous appeal on the granting of leave, it was Held (b y majority): (1) The Registrar and the President had respectively misdirected themselves as t o the opinion they had to form. The information and material furnished by the present responde nts were irrelevant to that opinion. The only question posed by s 63 for consideration wa s whether, on the information and material furnished by the applicants in and with their appli cation, prima facie their claim could be made out. Per majority Unless the Act is read with an understanding of the novel legal and administrative problems involved in the sta tutory recognition of native title, its terms may be misconstrued. In the present case an inversion of the statutory order for disposing of claims, by submitting the claim to judicial determination before the stage of negotiation is reached, had occurred because of a mistaken a ppreciation of the effect and operation of the Act. The ex parte procedure specified by the Act makes no provision for any person but the applicant to have any right to be heard or to f urnish information at the stages of the application covered by s 63(3). (2) There was a further misunderstanding of the administrative nature of the opinion required to be form ed for the purposes of s 63. Given the jurisdiction conferred by the Act (s 74) on the Fede ral Court, s 63 is not readily to be construed as authorizing the administrative rejection of an application where, on the face of the application and its supporting material, a claim is fa irly arguable, for that would virtually amount to a proleptic exercise of the Federal Court's j urisdiction. Here, the President, without being invested with relevant judicial power, effect ively determined the application which otherwise might have been resolved by agreement between the "parties" to the application or by determination by the Federal Court. (3) T he structure of the Act revealed a legislative intention that opposed applications go to the Fed eral Court for determination, only unopposed applications being determined finally by the Tribu nal. It would subvert that legislative intention were the Tribunal to be permitted to de termine questions of law concerning, and otherwise foreclose the statutory regime govern ing, opposed applications. Per majority In the context of the Act, which is regula ting the procedure for determining novel issues of native title, it would be surprising i f a question of law that is not settled but is critical to the making of a valid claim to native title could be decided administratively so as to preclude an applicant from having the question decided by the Federal Court in proceedings which would be binding on all interested partie s. (4) As the information supplied to the Registrar by the present respondents was insufficien t to establish that the subject land was included in any valid lease, the Full Court of the Fed eral Court was in error alike in adopting the evidence accepted by the Registrar and the Presid ent as the basis of findings of fact and in omitting to correct the misdirections of the Re gistrar and of the President in the opinions they had to form. The appeal would accordingly be allowed, and the Registrar of the Tribunal directed to accept the application. [(1995) 61 FCR 1; 132 ALR 565 revd.] NORTH GANALANJA ABORIGINAL CORPORATION V QUEENSLAND (1996) 185 CLR 595; 70 ALJR 344; 135 ALR 225; 40 ALD 129 (HC). 165. Requirement that claim prima facie sustainable Grant of Crown land to Commonwealth Leasehold grant to Commonwealth Presumption against extinction of native title Referral to presidential member .] Held: (1) It is not to be pr esumed that where the Crown in right of the Commonwealth is the recipient of a grant of Crow n land by the Crown in right of the State it is intended that underlying native title be e xtinguished. Accordingly, a grant to the Crown, in the case of land, is not, on the face of i t, inconsistent with the survival of any native title rights and interests. (2) There is an over arching presumption against extinguishment of any underlying native title in a case wher e the Crown in right of the State has granted a lease to the Crown in right of the Commonwea lth with rights of exclusive possession. (3) The question facing a presidential member to whom the registrar has referred an application under the Native Title Act 1993 (Cth), s 6 3, is whether or not the member is of the same opinion as the registrar. RE GURUBANA-GUNGGANDJI PEOPLES (1995) 123 FLR 462 (Cth Native Title Trib). 166. Power of Federal Court to preserve subject matter of claim pending determi nation .] Held: (1) The Federal Court has jurisdiction to preserve the subject matter of a n application to the Native Title Tribunal, pursuant to the Native Title Act 1993 (Cth), pendi ng the determination of that application. The making of an application under the Native Title Act and the benefits that would flow from registration of a native title are matters arising under that Act so that the protection of those rights is within the jurisdiction confe rred on the Federal Court by the Native Title Act, s 213(2). (2) The Federal Court's jurisdi ction to grant interlocutory relief, pending determination of an application under the Native T itle Act, is not exclusive of the jurisdiction of the Supreme Court of a State, and proceedin gs may be transferred pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth ), s 5(4). DJAIGWEEN V DOUGLAS (1994) 48 FCR 535 (Fed Ct of Aust, Carr J). 167. Acceptance by Native Title Registrar Review of Registrar's decision Po wers and duties of Registrar .] Held: (1) The acceptance by the Native Title Registrar of a native title determination application is a "decision made under an enactment" within t he meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3(1). (2) Th e Registrar is an officer of the Commonwealth within the meaning of the Judiciary Act 1903 ( Cth), s 39B. The Federal Court is entitled to review a decision of the Registrar to acce pt a native title determination application. (3) The beneficial nature of the Native Title A ct 1993 (Cth), the contents of the preamble, and the methods of operation as set out in ss 82 a nd 109, all indicate that the Registrar should be permitted to perform his statutory obligat ions with a degree of flexibility that is in harmony with these mandates. (4) The Registrar has no power to reject an application unless acting under the direction of a presidential mem ber. NORTHERN TERRITORY V LANE (1995) 59 FCR 332; 138 ALR 544; 39 ALD 527 (Fed Ct of Aust, O'Loughlin J). 168. Acceptance by Native Title Registrar Not putting question of title beyon d debate Applicants proceeding by way of interlocutory injunction and for declaration of right Consequences of adopting that procedure Need to demonstrate arguable case for relief Primary judge having to establish whether claims plainly bad Application corre ctly dismissed .] The appellants, as representatives of the Larrakia people, sought to show native title to land near Darwin. The land was part of that granted in 1882 by t he Governor of the Province of South Australia to B. The grant was made in pursuance of the Nor thern Territory Land Act 1872 (SA), s 8, which empowered the Governor on behalf of the Crown to grant "in fee simple ... any waste land". The grant to B was expressed to be to him "his heirs and assigns for ever". The land relevant to the appellants' claim was acqu ired by the Commonwealth in 1927 in pursuance of the Lands Acquisition Act 1906 (Cth) for th e purpose of a quarantine station. Section 16 of the latter Act had the effect tha t the land became vested in the Commonwealth freed of trusts and interests "to the intent t hat the legal estate therein ... shall be vested in the Commonwealth". In 1956 the land was ap pointed to be a leprosarium; in 1980 that appointment and also that for a quarantine station w ere revoked. In 1996 the government of the Northern Territory caused the land to be subdivide d into 15 parcels of which eight were already the subject of Crown lease at the time the a ppellants' application was lodged with, and accepted by, the Registrar under the Native Tit le Act 1993 (Cth), s 63. In the Federal Court, the primary judge dismissed the application. The present appellants appealed to the Full Court of the Federal Court, whereupon the matter was, in part, removed into the High Court and an order made pursuant to the Judiciary Act 1903 (Cth), s 18, that it be determined by a Full Bench. Held: (1) Native title is extinguishe d by a grant in fee simple. The rights given by such a grant are inconsistent with native title holders continuing to hold any of the rights or interests which together make up native title. Per curiam Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. (2) Native title to the subject l and was not, and could not be, revived when the land came to be held again by the Crown. Nati ve title rights were extinguished, not merely suspended, by the grant of freehold title t o B. (3) As, in the present case, there was no reservation or qualification on the grant to B in 1882, that grant was wholly inconsistent with the existence thereafter of any right of nati ve title. The primary judge had accordingly been correct in dismissing the application and the present appeal must also be dismissed. (4) There was no substance in a submission that t he primary judge had erroneously inverted the statutory order for disposing of native title claims by his decision, before any exercise of the right to negotiate, that the appellants' cl aim to native title must fail. That followed from the procedure adopted by the appellants in seeking relief by way of interlocutory injunction which obliged them to demonstrate a sufficiently arguable case to obtain that relief. The appellants' further step of seeking final relief including declarations of right also required the primary judge to decide whether the clai ms made were plainly bad. Per curiam The issue whether native title exists in relation to t he subject land having been tendered as an issue by the appellants in the proceedings they insti tuted, there is obvious difficulty in their contention that this issue was not open to dispute o n a motion either for injunction or for summary dismissal. (5) When the Northern Territory refused to give the appellants an undertaking not to issue further Crown lease of freehold title to the land subdivided in 1996, it did not thereby threaten an act that would enliven t he statutory right to negotiate. The injunctions sought by the appellants could not be said t o be for the protection or preservation of that right. Per curiam The Registrar's administr ative act of accepting an application does not put the question of title beyond debate on an application by a registered native title claimant for injunction or on an application to dismis s summarily an action instituted to obtain relief of that kind. [Earlier proceedings see (1998) 152 ALR 477.] FEJO (ON BEHALF OF LARRAKIA PEOPLE) V NORTHERN TERRITORY (1998) 72 ALJR 1442; 156 ALR 721; [1998] HCA 58 (HC). 169. Non-acceptance by registrar Referral to presidential member "Prima fac ie" claim Elements of .] Held: (1) The Native Title Act 1993 (Cth), s 63, requires the registrar to accept an application which complies with the formal requirements of s 62 unless of the opinion that the application is frivolous or vexatious, or that "prima facie" th e claim cannot be made out. (2) A claim prima facie cannot be made out if at first sight or as a matter of first impression it could not succeed. (3) The applicants are not obliged to lodge evi dence in support of the application to make out a prima facie case. However, the registra r may, but is not obliged to, make inquiries or receive information to determine whether it ca n be said at the outset that a claim could not be made out. These inquires may include land t enure and land tenure history searches and receiving advice on the plausibility of a claim from an anthropological perspective. (4) The presidential member to whom an application is referred by the registrar will apply the same test as the registrar applies under s 63(1) (a) in deciding whether or not he or she is of the same opinion as the registrar. The presidenti al member may, however, find that prima facie a claim cannot be made out on grounds other than or additional to those relied upon by the registrar. (5) An applicant who is invite d, under s 63(3), to show the presidential member that a prima facie claim can be made out must show that evidence exists or can be obtained which is capable of establishing each of the elements of native title. It does not require production of the evidence itself. (6) For the purpose of showing that a prima facie claim can be made out it is not necessary for the app licant to show that it has evidence to negative extinguishment by legislative or executive act. However, the presidential member may have regard to evidence of extinguishing ev ents in determining whether a prima facie claim can be made out. (7) The presidential me mber, in deciding whether a prima facie claim can be made out, can form a concluded view on a question of law which if decided one way would be fatal to the application. (8) The issues to be addressed by the presidential member in deciding whether a prima facie claim can be made out are not limited to those upon which the registrar formed the opinion th at prima facie a claim could not be made out. (9) The issues to be addressed by the appli cants for the purpose of showing that a prima facie claim can be made out will be: (a) the exi stence or availability of evidence capable of justifying a finding (extinguishment apart) that native title exists; and (b) the effect of the known land tenure history on the continuance o f native title. [Affd by (1995) 61 FCR 1; 132 ALR 565.] [Further proceedings see (1995) 124 FLR 1; 129 ALR 118.] RE WAANYI PEOPLE'S NATIVE TITLE APPLICATION (1994) 129 ALR 100 (Cth Native Title Trib). 170. Non-acceptance by registrar Referral to presidential member "Prima fac ie" claim Elements of .] Held: (1) The presidential member or registrar has a discreti on, in considering an application under the Native Title Act 1993 (Cth), s 63, particul arly when on notice of interests said to be adverse to the claim, to obtain such evidence as may then be available going to the issue whether the application is frivolous or vexatious o r whether prima facie the claim cannot be made out. Such a course is within the ambit of h is administrative discretion to inform himself as he thinks fit. (2) In acting unde r s 63(3), the presidential member is not limited to the same subject matter and grounds as the registrar. (3) A decision of the presidential member under s 63(3) is not an exercise of ju dicial power. No final decision is made which determines or regulates the future rights of the parties. A decision whether or not to accept an application and the question whether a prim a facie case exists involve no determination of native title as between subjects. [Set aside by (1996) 70 ALJR 174.] [Revd by (1996) 185 CLR 595; 70 ALJR 344; 135 ALR 225; 40 ALD 129.] [Earlier proceedings see (1995) 69 ALJR 569.] [Re Waanyi People's Application (1994) 129 ALR 100; and (1994) 124 FLR 1; 129 AL R 118 affd.] NORTH GANALANJA ABORIGINAL CORPORATION V QUEENSLAND (1995) 61 FCR 1; 132 ALR 565 (Fed Ct of Aust FC). 171. Non-acceptance by registrar Referral to presidential member Practice a nd procedure .] Held: (1) The scheme of the Native Title Act 1993 (Cth), Pt 3, is that the requirements in s 62 must be complied with by an applicant, but a non-complying applicant is to be given an opportunity to rectify the position. If the application does n ot contain all information known to the applicant about interests over the claimed land, the ap plicant is to be given an opportunity to remedy the deficiency before the presidential member can direct that it not be accepted. (2) The statutory obligation created by s 64(2)(a) will be met only where an applicant is advised, with reasonable clarity, what he must do in order to satisfy the presidential member that the requirements of s 62 are complied with. (3) The app licant must satisfy the presidential member that a prima facie claim can be made out that th e applicant is a person entitled to rights and interests in relation to the land and waters cla imed, that are recognised by the common law of Australia. (4) The legislation is clearly remedi al in character and thus should be construed beneficially, so as to give the most comp lete remedy which is consistent with the actual language employed. KANAK V NATIONAL NATIVE TITLE TRIBUNAL (1995) 61 FCR 103; 132 ALR 329 (Fed Ct of Aust FC). 172. Evidence Burden of proof Power of Tribunal to obtain evidence .] Hel d: (1) There is no burden of proof, evidential or otherwise, which falls on any of the parties in future act determination inquires. The Native Title Tribunal should adopt a comm onsense approach to evidence. (2) Subject to requirements of natural justice, in the cou rse of an inquiry the Tribunal can, in appropriate cases, conduct inquiries and obtain evi dence itself but is not under a general obligation to do so. As a rule of practice the Tribun al will rely principally on the parties to the inquiry to produce the evidence. WESTERN AUSTRALIA V THOMAS (1996) 133 FLR 124 (Cth Native Title Trib). 173. Evidence Orders restricting access to gender-restricted evidence .] He ld: (1) The general right of a party to be represented by the counsel or solicitor of its ch oice must give way to the overriding principle of protecting the integrity of the judicial proc ess. The requirements of natural justice do not involve an absolute right to the legal ad viser of a party's choice. (2) The Court has power to order that evidence be taken only in the presence of a limited class of persons or that the evidence so taken will not be dissemin ated other than to a defined class of persons. (3) However, the Court will not, as a matter of c ourse, make an order restricting the hearing of evidence in a native title case to persons of a particular gender, perhaps excluding the clients from knowledge of that evidence as well as limiting knowledge of the evidence to persons of a particular gender. It will be only whe re the interests of justice dictate that course that such an order will be made. WESTERN AUSTRALIA V WARD (1997) 76 FCR 492; 145 ALR 512 (Fed Ct of Aust, FC). 174. Notice of application .] Held, that a failure by the National Native Tit le Registrar to give notice under the Native Title Act 1993 (Cth), s 66(2)(a), of an inquiry to a representative body, where such a body has not been determined by the federal Minister for Abor iginal Affairs at the time of notice, does not give rise to an invalidity in the inquir y. RE CLARKSON (1994) 120 FLR 353 (National Native Title Trib). 175. Notice of application .] Held: (1) The language of the Native Title Act 1993 (Cth), s 66(1)(a), and the scope and object of the Act lead to the conclusion that the pa ragraph is mandatory in the sense that subsequent acts done under the Act are invalid if th ere is non-compliance with it. (2) Compliance with s 66(2)(a) is mandatory because it i dentifies those interests which must be notified pursuant to s 66(1)(a) in order for the r egistrar to be "taken to have given notice to all persons whose interests may be affected by a determination in relation to an application". (3) Notification to the public pursuant to s 66( 2)(b) cannot satisfy the mandatory obligations arising pursuant to s 66(1)(a) in respect of a n interest in s 66(2)(a). WMC RESOURCES LTD V LANE (1997) 143 ALR 200 (Fed Ct of Aust, Nicholson J). [3.52] (ii) Expedited Procedure 176. Proposed future act Test Nature of future act Major disturbance to l and or waters Burden of proof .] Held: (1) When making a determination under the Na tive Title Act 1993 (Cth), s 237, regard must be had to the nature of the future act and the rights and obligation conferred by it rather than attempting to make a predictive factu al finding as to what may be "likely" to happen. (2) The expression "major disturbance" in s 2 37(c) should be understood as an ordinary English term and be given its ordinary meaning as u nderstood by the whole Australian community, including Aboriginal people. In assessing whe ther an act involves a major disturbance or creates relevant rights, it is appropriate to ta ke into account the views of the Aboriginal community and native title holders. (3) In the case of a non-juridical act, such as an activity, the burden of adducing evidence of the n ature of the activity will fall on the party seeking to have the act qualify for the expedite d procedure. The burden will be confined to establishing the nature of "the act" and not to issue s of predictive assessment. [Cheinmora v Striker Resources NL (1996) 142 ALR 21 revd in part.] DANN V WESTERN AUSTRALIA (1997) 144 ALR 1 (Fed Ct of Aust FC). 177. Proposed future act Test Right to negotiate Future act determination Power to impose conditions Compensation Where no determination of native title Assessment of compensation .] Held: (1) The future act and right to negotiate provisions contained in the Native Title Act 1993 (Cth) should be construed beneficially, c onsistent with the language used and having regard to the overall purpose of the provision s in balancing the rights of native title parties and the broader community. (2) For the purposes of the Act, the grant of a mining lease is a permissible future act comprising the grant of a mining lease together with the rights attached to that lease and the exercise of those rights by the lessee. (3) It is not necessary to establish that native title does or may e xist before the Tribunal has jurisdiction to deal with a future act determination application. ( 4) A future act determination under s 38 involves weighing the various criteria contained in s 3 9 by giving proper consideration to them on the basis of the evidence before the Tribunal. ( 5) The Tribunal is not empowered to determine that a future act relating to the grant o f a mining lease may be done subject to conditions appropriate to exploration and which req uire the parties to negotiate if a notice of intent is lodged, and to return to the Tribu nal for a determination appropriate to productive mining if no agreement is reached within a certain time. (6) The question of compensation payable in relation to a determination th at a future act, relating to the grant of a mining lease, may be done arises at the time of the grant of the mining lease. (7) In a future act determination inquiry where there has been no determination of native title, the Tribunal may make a determination under s 38(1)(c) that the future act may be done on condition that an amount of compensation be paid into trust in ac cordance with s 41(3). (8) The amount of compensation payable in relation to the grant of a mining lease in Western Australia pursuant to an order under s 38(1)(c) must be assesse d by reference to the criteria contained in the Mining Act 1978 (WA), s 123. WESTERN AUSTRALIA V THOMAS (1996) 133 FLR 124 (Cth Native Title Trib). 178. Proposed future act Test Right to negotiate Direct interference with community life Major disturbance to land or water "Land" .] Held: (1) The expression "directly interfere with the community life" for the purposes of the Native Title Act 1993 (Cth), s 237(a), means interference to a native title party's community 's presence or activity on the relevant land by virtue of their native title rights and interes ts, caused by some physical activity in the exercise of the rights given by the grant of the right to mine. (2) Section 237(c) of the Act requires as assessment of the likelihood of major dist urbance of the particular land concerned resulting from the proposed act, judged by the standar ds of reasonable people in the broader community. (3) The word "land" contained in s 2 37(c) refers to ground especially with reference to quality, character or use. RE NYUNGAH PEOPLE (1996) 132 FLR 54 (Cth Native Title Trib). 179. Proposed future act Test Right to negotiate.] Held: (1) A proper con struction of the Native Title Act 1993 (Cth), s 237, must have regard to the purpose of s 32(4), the terms of s 26(4) which specify the limitations on the Commonwealth Minister's po wer to exclude a future act from the operation of the subdivision, and s 39, which sets out matters the tribunal must take into account in making a substantive determination under s 38 of the Act, namely, whether the proposed future act is to be prohibited, permitted or p ermitted subject to conditions. (2) Section 237 requires an assessment to be made of the future act according to its nature, and, where the future act is the creation of a right to mine, by having regard to the potential consequences made possible by the exercise of that right . That is to say, the section asks what the future act does according to the nature of the ri ghts it creates. (3) The operation of ss 32 and 237 of the Act is restricted to those cases in wh ich it is patent that no question required to be taken into account under s 39 on an application made under s 35 can be raised as a serious issue. WESTERN AUSTRALIA V WARD (1996) 70 FCR 265; 141 ALR 753 (Fed Ct of Aust, Lee J). 180. Proposed future act Rights of persons having interest in land in questio n Requirement to give notice .] Held: (1) A person who asserts a claim to native title in an application given to the Native Title Registrar, and who is recorded in the regi ster as the person who is taken to be the claimant, thereupon becomes a registered native ti tle claimant in relation to the land or waters in question. (2) A Native Title Tribunal membe r considering an application for a future act determination has no authority to make a judgmen t as to the propriety of the acceptance of a native title determination application. (3) In considering an application for a future act determination the Tribunal is bound under the Nativ e Title Act 1993 (Cth), s 109, to allow any individual Aboriginal or Torres Strait Islander having any relevant interest in the land in question to be heard in response to the applica tion, and this is whether or not the individual, group or organisation happened to be a native tit le party for the purposes of s 29 or s 30 of the Act. (4) Consideration of the requirement to giv e notice under ss 29 and 30 of the Act. RE ASSOCIATED GOLD FIELDS NL (1995) 125 FLR 1 (Cth Native Title Trib). 181. Proposed future act Rights of persons having interest in land in questio n Proposed compulsory acquisition of native title rights and interests Purpose o f acquisition .] Held: (1) The permissible future act to which the Native Title Act 1993 (Ct h), s 26, refers is not the mere act of compulsory acquisition: it is more. It must be the compulsory acquisition of native title rights and interests, it must be for the necessary p urpose and it must be implemented through a "Compulsory Acquisition Act", a term that is defined in s 253. (2) The Lands Acquisition Act 1978 (NT) is a "Compulsory Acquisition Act". (3) The " persons" referred to in the Native Title Act, s 26(2)(d), do not have to be in existence or identified at the time of the notice of intended acquisition. If they exist and make the neces sary application, then they will be "grantees". But nowhere does the legislation cont emplate that any such person must exist at or prior to the time of the notice. A government p arty is not obliged, at the time of giving notice in accordance with ss 29 and 26, to identi fy the third party or parties upon whom it will be conferring rights or interests in relation to the land concerned. (4) The relevant purpose of acquisition, being to confer rights or in terests in relation to the land concerned on persons other than the government party, must be the main purpose. There cannot be any second, independent purpose, although there can be other uses that are adjuncts to the main purpose. (5) The "purpose" of the acquisition must be examined and tested by the fact finding tribunal. RISK (ON BEHALF OF LARRAKIA PEOPLE) V WILLIAMSON (1998) 155 ALR 393 (Fed Ct of Aust, O'Loughlin J). 182. Proposed future act Rights of persons having interest in land in questio n Proposed grant of extension of term of exploration licence .] Held: (1) Only t hose "permissible future acts" which are covered by the Native Title Act 1993 (Cth), s 26(2), fall within the "right to negotiate" regime. (2) For an act to be a "permissible futu re act", it must first be a future act. Thus, when s 26(1) applies Subdivn B to permissible futur e acts which "are covered by s 26(2)" it first refers to a genus of acts (permissible future acts) and then, by describing certain species of those within that genus in s 26(2), causes Subdivn B to apply to them. (3) The proposed extension of the term of the applicant's exploration lice nce was a "future act" because it was not a "past act" as defined in s 228 and because it validly affected native title within the meaning of s 233(1)(c)(i). (4) The rights conferred by t he original exploration licence did not by necessary implication extinguish any native title rights. MINERALOGY PTY LTD V NATIONAL NATIVE TITLE TRIBUNAL (1997) 150 ALR 467 (Fed Ct of Aust, Carr J). 183. Proposed future act Rights of persons having interest in land in questio n Proposed grant of mineral exploration licence Interference with community life of native title holders Ministerial discretion to grant entry permit .] Held: (1) The expression "community" contained in the Native Title Act 1993 (Cth), s 237(a), means people living together in a particular locality rather than community defined by reference to the traditions and customs of native title parties. (2) The fact that the grant of an entry per mit under the Aboriginal Affairs Planning Authority Act 1972 (WA), s 31, depends on ministeria l discretion is not sufficient to conclude that the regulatory regime is ineffecti ve for the purpose of the Native Title Act, s 237. There would need to be evidence that the minister was exercising the discretion in such a way that there was likely to be the interfer ences or disturbances referred to in s 237. RE CHEINMORA (1996) 129 FLR 223 (Cth Native Title Trib). 184. Proposed future act Rights of persons having interest in land in questio n Proposed grant of mineral exploration licence Interference with areas or sites of particular significance .] Held: (1) The word "community" in the Native Title Act, s 237( a), may refer to a body of people having a religion, profession and so on in common, eve n if not living in the same locality. Where it can be shown that there is a community of native title holders based on their having customs and traditions in common then their commun ity life could be interfered with in a non-physical way within the meaning of s 237(a) of the Act. (2) The word "directly" in s 237(a) does not mean solely caused by. (3) For the purp ose of s 237(b) evidence of indirect or remote interference with the sites of particular significance may be sufficient to enable the Tribunal to find that the expedited procedure is not attracted. SMITH V CRA EXPLORATION PTY LTD (1996) 133 FLR 251 (Cth Native Title Trib). 185. Proposed future act Rights of persons having interest in land in questio n Proposed grant of mining leases Determination that act may or may not be done
Compensation Tribunal's power to impose conditions .] Held: (1) The National Native Title Tribunal's duty in making a determination under the Native Title Act 1993 (Cth), s 38(1), requires a weighing of the various effects and interests referred to in s 39 of that Act in accordance with the circumstances before it, and no one effect or interest is to be afforded any greater weight than any other. (2) The effect of the proposed act referred t o in s 39(1)(a) of the Act was in this case the combined effect of the grant of a right to mine and the exercise by a grantee party of the rights to mine under it. (3) For the purposes of the Native Title Act, the effect of the grant of a mining lease made under the Mining Act 1 978 (WA) is the creation of a single right to mine. (4) In making a determination under the Native Title Act, s 38(1), in relation to a proposed act to grant a mining lease, the questio n whether or not it is likely that the grantee parties would conduct actual mining operations on any of the tenements is irrelevant. (5) The Tribunal is not empowered to determine that com pensation be payable pursuant to a condition of a determination that a proposed act may be done other than in accordance with the Native Title Act, Divn 5. (6) The Tribunal's power t o impose conditions pursuant to the Native Title Act, s 38(1)(c), is not confined to dete rmining conditions which are capable of specific performance as contracts or those which are capable of enforcement as contracts. (7) Section 39(1)(a)(vi) requires the Tribunal to t ake into account, when making a determination, the effect of the proposed act on the natu ral environment viewed both from the native title party's perspective and from the p erspective of the broader community. RE KOARA PEOPLE (1996) 132 FLR 73 (Cth Native Title Trib). 186. Proposed future act Rights of persons having interest in land in questio n Proposed grant of mining leases Burden of proof Disturbance to land or water s .] Held: (1) The proposed grant of an exploration licence falls within the definiti on of "permissible future acts" in the Native Title Act 1993 (Cth), s 235, because it is an act which could be done in relation to the land or waters concerned if the relevant native title holders instead held ordinary title to that land or the land adjoining or surrounding th e waters. (2) No burden of proof, nor any evidential burden of a legal nature, lies on any party to proceedings before the Native Title Tribunal inquiring into the matters referred to in s 237 . (3) The expression "does not" in each subsection of s 237 must be read as meaning "is no t likely to". (4) In the context of s 237(a), there is no justification for requiring a direct interference with "community life" also to be a physical interference. (5) Section 237(c) does not refer to the standards of the native title holders. The standards of the Australian community as a whole are to be taken into account. (6) In inquiring and determining whether there is likely to be any interference with areas or sites of particular significance, the Tribunal ma y take into account the effectiveness of the Aboriginal Heritage Act 1972 (WA). WARD V WESTERN AUSTRALIA (1996) 69 FCR 208; 136 ALR 557 (Fed Ct of Aust, Carr J). 187. Proposed future act Creation of right to mine Compulsory acquisition o f native title rights Pipeline licence .] Held: (1) The grant of a licence to carry g as from the gas well to consumers is not the creation of right to mine within the meaning of the Native Title Act 1993 (Cth), s 26(2)(a). (2) Neither the Petroleum Act 1923 (Q), nor any prov ision of it, falls within the meaning of the definition of a "Compulsory Acquisition Act" con tained in the Native Title Act, s 253. Accordingly, the grant of a pipeline licence under the Petroleum Act is not a compulsory acquisition of native title rights within the meaning of the Native Title Act, s 26(2)(d). SMITH V TENNECO ENERGY QUEENSLAND PTY LTD (1996) 66 FCR 1 (Fed Ct of Aust, Drummond J). [Discussed in article, 17 Proctor (No 1) 26.] 188. Proposed future act Objectors Burden of proof Interference with comm unity life Sites of particular significance Major disturbance to land or waters .] Held: (1) Objectors to the adoption of the expedited procedure in relation to a future act are required to satisfy the Tribunal by evidentiary material that the Native Title Act 1993 (Cth ), s 237, does not apply to that act. (2) Activities such as hunting and gathering fall within the notion of physical interference with the life of the community for the purpose of s 237. ( 3) The word "particular" in s 237(b) means different from the ordinary, or especial, rather than specified. (4) The expression "major disturbance" in s 237(c) refers to a physical disturba nce which must be a major disturbance by the standards of the broader community. (5) Plant s for food or medicine which are gathered in the traditional way cannot be considered to be a "crop" for the purpose of the Mining Act 1978 (WA), s 20(5)(a). (6) An Aboriginal burial gr ound is not a "burial ground" within the meaning of the Mining Act, s 20(5)(d). However, an Aboriginal burial ground would normally be a site of particular significance within the mea ning of the Native Title Act, s 237(b). RE SMITH (1995) 128 FLR 300 (Cth Native Title Trib). 189. Proposed future act Objectors Burden of proof.] Held: (1) A native t itle party objecting to the inclusion of a future act in an expedited procedure has the bur den of proving by evidentiary material that the Native Title Act 1993 (Cth), s 237, does not ap ply to the act. (2) For the purpose of s 237 the expression "the act does not involve major dist urbance" refers to the particular permissible future act which is then being processed un der subdivn B and concerns itself with activities permitted by that future act, and not some o ther permissible future act which may in some way be causally connected with it. RE WALJEN PEOPLE (1995) 125 FLR 245 (Cth Native Title Trib). 190. Proposed future act Objectors Right to negotiate .] Held: (1) A nati ve title party who successfully objects to the expedited process should be entitled to a period of negotiation under the Native Title Act 1993 (Cth) before facing a determination process under s 35 of the Act. (2) The Native Title Act is legislation which is remedial in nature. Accordingly, the Native Title Tribunal is required to give a beneficial interpre tation of any provision that deals with rights of native title parties where the legislature h as provided for such rights. RE MIRIUWONG and GAJERRONG PEOPLES (1996) 128 FLR 90 (Cth Native Title Trib). 191. Proposed future act Objectors Proposed grant of exploration, prospecti ng and miscellaneous licences Major disturbance to land .] Held: (1) Miscellaneous licences under the Mining Act 1978 (WA), s 91(6), such as a licence for the construction of pipelines, roads, and powerlines, are included in the Native Title Act 1993 (Cth), s 26(2), and the right to negotiate procedures apply. (2) Major disturbance to land in s 237(c) is to b e considered according to the standards of the broader community. Spiritual and cultural, as well as physical, matters are relevant aspects of the community life of the native title party. RE TJUPAN PEOPLES (1996) 134 FLR 462 (Cth Native Title Trib). [3.53] (iii) Determination of Native Title 192. Jurisdiction of Federal Court Native title not to be re-established afte r extinguishment .] Held: (1) Notwithstanding the breadth of jurisdiction confer red on the Federal Court by the Federal Court of Australia Act 1976 (Cth), the jurisdiction expressly conferred by the Native Title Act 1993 (Cth), ss 24(2), 213, 213(2), is limited to matters arising under that Act itself. Such jurisdiction does not extend to determining that native title existed at certain times. (2) The Native Title Act, s 213(1), confers no jurisdi ction on the Federal Court, it merely governs the exercise by the Court of a jurisdiction whi ch it acquires elsewhere. (3) The notion of re-establishment of native title is unsupported by authority and inconsistent with the very concept of native title. To succeed in a claim under the Native Title Act, s 24(2), the claimant would need to demonstrate not re-establishment, but extinguishment of title. YUIN COUNCIL OF ELDERS ABORIGINAL CORPORATION V NEW SOUTH WALES (1995) 60 FCR 501 (Fed Ct of Aust, Lockhart J). 193. Determination that native title does not exist Unopposed application .] Held: (1) The width of the definition "determination of native title" in the Native Title Act 1993 (Cth), s 225, encompasses a determination that native title does not exist in respect o f a particular area of land or waters. (2) An inquiry into an unopposed application should deci de whether or not the conditions specified in s 70 for making the determinations sought are satisfied. (3) The National Native Title Tribunal must first be satisfied that the applicant ha s made out a prima facie case for a determination in the terms sought by the applicant. The s econd condition is whether the determination is just and equitable in all the circumst ances. RE RJ HOWARD INVESTMENTS PTY LTD (1995) 122 FLR 23 (Cth Native Title Trib). 194. Judgment in rem or in personam .] Held: (1) The Native Title Act 1993 (C th) operates to give effect in rem to a decision of the Federal Court made in procee dings commenced by application to the National Native Title Tribunal under s 13(1) of the Act and then transferred to the Federal Court under s 74. (2) Approved determinations of native title by the Tribunal, the Federal Court and recognised State and Territory bodies, as prescribed in Pts 3 and 4 of the Act, all have the character of judgments in rem. All such dec isions will thus be public acts affecting the status of the lands and not mere determination s of rights with respect to those lands recognised by the general law as arising out of priv ate arrangements between citizens. (3) Only determinations of native title made by t he High Court in actions in which the existence or non-existence of that title is an ult imate issue in the litigation, rather than merely an incidental issue that arises in the course of determining the ultimate issue, will operate in rem. (4) Decisions with respect to native ti tle by the Federal Court that cannot be "approved determinations of native title" because t hey are made in proceedings that are not instituted by application to the Tribunal under s 13 (1) of the Act do not operate in rem. [Further proceedings see (1996) 63 FCR 450; 134 ALR 637; and 187 CLR 1; 71 ALJ R 173; 141 ALR 129.] WIK PEOPLES V QUEENSLAND (1994) 49 FCR 1; 120 ALR 465 (Fed Ct of Aust, Drummond J). 195. Determination of issue separately as preliminary issue of law Whether na tive title extinguished by pastoral lease .] Held: (1) Severance of the trial procedure i nto a separate hearing of preliminary questions pursuant to the Federal Court Rules (Cth), O 29 , r 2(a), may be the appropriate course to follow to expedite the resolution of litigation and to prevent unnecessary costs being incurred. However, unless the facts underlying the quest ion to be determined are fully found, or agreed, there will be no utility in embarking upo n a separate hearing of the question. (2) The issue as to whether native title was extinguish ed by pastoral lease was not an appropriate issue to be determined as a preliminary question of law. Determining whether it was the intention of the Crown to extinguish any part of native title that could not be exercised consistently with the rights granted to the lessee o f a pastoral lease, would require material facts to be found, or agreed, as to the nature of the exercise of the relevant incidents of native title. That would involve evidence of the form and degree of traditional use of, and access to, the land of the pastoral lease and assessment of how that use or access, stood with the use of the land for pastoral purposes. WARD V WESTERN AUSTRALIA (1995) 40 ALD 250 (Fed Ct of Aust, Lee J). 196. Offshore areas Coastal seas and waters Nature and extent of native tit le rights .] Held: (1) The Native Title Act 1993 (Cth) discloses an intention to recognise and protect native title in accordance with the Act, both onshore and offshore. (2) It would be contrary both to international standards and the values of the common law for the common law to recognise a native title right which conflicts with Australia's international ob ligation to permit innocent passage of the ships of all States through its territorial seas. The applicants' claimed exclusive right of possession and occupation of the claimed area and the claimed right to control access of others to the waters of the area failed the test of s 223(1)(c) of the Act and could not be recognised as native title rights and interests. (3) The ri ght to fish, being a public right, was enjoyed equally by the applicants as by all other members of the public. The applicants were not required to have licences to exercise their native title rights of hunting and fishing. (4) No native title rights in minerals on or below the seab ed survived the acquisition by the Crown of full ownership of minerals. (5) The native title rig hts and interests of the common law holders in relation to the sea and seabed within the claimed area were affected by, and to the extent of any inconsistency must yield to, all righ ts and interests in relation to the sea and seabed within the claimed area which existed pursuant to valid laws of the Commonwealth and of the Northern Territory. YARMIRR V NORTHERN TERRITORY (1998) 156 ALR 370 (Fed Ct of Aust, Olney J). 197. Extinguishment of native title By constitution of public road Determin ation that claim to native title not be accepted where no prima facie case .] Held: (1) W here the Crown, acting under statutory authority, constitutes wastelands of the Crown as a public road, that is, as a road open to immediate use as such by the public, that is an act that will, in all save an exceptional case, be wholly inconsistent with any continuing right t o enjoy native title in those lands. (2) The president of the National Native Title Tribunal do es not exercise judicial power in determining, pursuant to the Native Title Act 1993 (Cth), s 63 (3), that, prima facie, a claim to native title cannot be made out and, in consequence, giv ing a direction to the registrar not to accept the application, if he confines his inv estigation to the materials furnished by the applicant in support of the application, and if he al so limits his assessment of that material to determining whether or not the applicant has a fa irly arguable case, in fact or law, to the native title claimed. [(1995) 121 FLR 87 affd in part.] FOURMILE V SELPAM PTY LTD (1998) 80 FCR 151; 152 ALR 294 (Fed Ct of Aust FC). [4] Pt III. Reserves. 28. Representative action Declaration as to illegality of revocation of reser ves Whether special interest in proceedings .] Held: (1) The Aborigines Protection Act 1909 (NSW) (now repealed), the Aborigines Act 1969 and the Crown Lands Consolidation Act 1913 provide no right to a member of a class to bring proceedings to enforce com pliance with the provisions of legislation enacted for the benefit of a class because no where in such legislation is there evinced any intention to confer any enforceable rights upon either the Aboriginal community as a whole or the individual members thereof. (2) In procee dings for a declaration, inter alia, that certain Aboriginal reserves had been illegally rev oked, a person who was born an Aboriginal but with no association with any of the reserves in q uestion, nor any association with any of whatever may have been the possible detrimental cons equences of revocation of the reserves, lacked any "special interest" in the subject matt er of such proceedings which would otherwise give him the necessary locus standi to bring t hem. COE V GORDON [1983] 1 NSWLR 419 (NSW Sup Ct, Lee J). 29. Queensland Mining on Aboriginal reserves Powers of Director of Aborigin al and Islanders Advancement Profits of mining Benefit of Aboriginals of State gene rally Effect of Aurukun Associates Agreement Act 1975 .] The relevant Crown land was reserved by Orders in Council made pursuant to s 334 of the Land Act 1962 for a public purpose described as: "reserve for the benefit of the Aboriginal inhabitants of the State, Aurukun". It was placed under the control of the Director of Aboriginal and Isla nders Advancement as trustee. Section 29 of the Aborigines Act 1971 prohibited prospec ting or mining on an Aboriginal reserve without the approval and permission of the trust ee or the Minister, and s 30 authorized the trustee to enter into such agreements concerni ng mining on reserves as he thought fit. Section 30(2) stated that an agreement might include provision for participation by the trustee in the profits of mining ventures on the reserve "f or the benefit of Aborigines resident on the reserve, or other Aborigines as the agreement provide s". The director entered into an agreement consenting to bauxite mining in the reserve u pon terms which included payment of a share of profits to him "on behalf of Aborigines" ge nerally. The Aurukun Associates Agreement Act 1975 validated and gave the force of law to a f ranchise agreement between the State of Queensland and the mining companies, which govern ed the terms of the mining lease and adopted the agreement with the director. Held: (1) The provisions in the director's agreement for participation in profits were authori zed by s 30(2) of the Aborigines Act 1971, which should be construed as allowing participation for the benefit of Aboriginals whether resident on the reserve or not, and leaving it to the director to make such provision on behalf of Aboriginals as he thought fit to include in the Agreement. (2) Even if the Orders in Council reserving the land at Aurukun created a public charitable trust, the words of the reservation showed that such a trust would exist for the benefit of the Aboriginal inhabitants of the State generally, and not solely for the residents. It would follow that an agreement entered into for the benefit of Aboriginals generally would no t be in breach of the trust. Moreover, even if the trust was in some sense for the benef it of residents, the power to enter into the present agreement was expressly given to the directo r by s 30(2) of the Aborigines Act in such terms that it was not possible to say that the pow er was held in trust for the residents of the reserve. That Act gives the director an administr ative power to constitute a public charitable trust for Aboriginals of the State. (3) Although the effect of the Aurukun Associates Agreement Act was not to confer the force of law on the direc tor's agreement as though it were part of the enactment, the agreement was recognised by the Act as a valid and subsisting agreement. DIRECTOR OF ABORIGINAL AND ISLANDERS ADVANCEMENT V PEINKINNA (1978) 52 ALJR 286; 17 ALR 129 (PC). [Discussed in notes, 52 ALJ 239; 122 S J 95 .] 30. Northern Territory Power to authorize entry To revoke authorization J udicial nature of power .] The Social Welfare Ordinance 1964, by s 17(1) provides that "the Administrator, the Director and a welfare officer" may authorize a person to ent er and remain on a reserve. Under s 18(5) a power to authorize a person to enter or remain on a reserve includes a power to revoke "the authorisation". Held: (1) The power given by s 1 7(1) is given to each of the persons mentioned therein: it is not a power which must be exerci sed by them all acting together. (2) Section 18(5) does not give a welfare officer power to revoke an authorization which he has not given. (3) The person seeking to revoke an author ization under s 18(5) is obliged to act judicially, that is, he must, inter alia, inform the person authorized of his intention and the reasons therefor and give him an opportunity to make representations against revocation of the authorization. GILLESPIE V FORD (1978) 46 FLR 297; 19 ALR 102 (NT Sup Ct, Forster CJ). 31. Northern Territory "Reserve" .] By s 7 of the Social Welfare Ordinance 1964, "reserve" means land which is proclaimed to be a reserve for the purposes of the Ordinance and includes any land declared by s 6 to be a reserve for the purposes of the Or dinance. By s 6(1)(b) of the Ordinance, where land was, at any time prior to the commencement of the Ordinance, proclaimed to be reserved for the use and benefit of the Aboriginal n ative inhabitants of the Territory that land is a reserve for the purposes of the Ordi nance unless it has ceased to be so reserved by virtue of a later proclamation. Held: (1) The fi rst part of the definition of "reserve" in s 7 of the Ordinance contemplates a proclamation whic h provides that the land is to be a reserve for the purposes of the Social Welfare Ordinanc e and unless it is so expressed the land in question cannot be a reserve under that part of the definition. (2) The qualification contained in s 6(1) of the Ordinance is applicable only to lan d which ceased to be reserved prior to the commencement of the Ordinance. Per Blackburn J Even if the qualification in s 6(1) of the Ordinance did cover a cessation occurring after the commencement of the Ordinance it does not apply where a later proclamation simultaneously revokes an earlier reservation and re-reserves the subject land. GRANT V ADAMS (1967) 10 FLR 329 (NT Sup Ct, Blackburn J). 32. Northern Territory Entry without authority prohibited Whether "public p lace" .] By s 5 of the Police and Police Offences Ordinance 1923 a "public place" is defi ned as, inter alia, any place to which access is permitted to the public (whether upon conditi on or under permit or authority, by payment of money or otherwise). Ss 17 and 18 of the Soci al Welfare Ordinance 1964 provide that, with certain exceptions, a person shall not enter u pon a reserve, within the meaning of the Ordinance, except by authority and further provide for the punishment of offenders by fine and by imprisonment. Held, that a "reserve", wit hin the meaning of the Social Welfare Ordinance, is not a "public place" within the mean ing of the Police and Police Offences Ordinance. MYERS V SIMPSON (1965) 6 FLR 440; [1965] ALR 1148 (NT Sup Ct, Bridge J). 198. Plaintiff lessee of traditional lands from Aboriginal Lands Trust Defend ant member of plaintiff corporation Extent of rights conferred by membership on individua l members as regards occupancy of land .] The plaintiff was a body incorporated under th e Aboriginal Councils and Associations Act 1976 (Cth) and leased land from the Abo riginal Land Trust. The defendant, a member of the plaintiff, came to live in a house on the land. As a result of a dispute between family members, the plaintiff sought an order for vacant possession of the house and an injunction restraining the defendant from enterin g upon the land. Held: (1) The defendant having been given a contractual licence revocable at law rather than a licence creating an interest of a proprietary nature, the plaintiff was e ntitled to terminate the licence and to recover possession. (2) The defendant's membership of the plaintiff did not entitle him to reside and be housed on the land which was the subject of the lease. (3) The plaintiff was entitled to an order that the defendant deliver up possession of the house and to an injunction restraining the defendant from residing on the land o ther than in accordance with terms and conditions approved by the plaintiff. NYUL NYUL ABORIGINAL CORPORATION V DANN (1996) 133 FLR 359 (WA Sup Ct, Owen J). [5] Pt IV. Relics and Heritage Protection. 33. Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) Whether for benefit of Aboriginals as a class Locus standi .] Section 21 of the Archaeol ogical and Aboriginal Relics Preservation Act 1972 provided that a person who wilfully or n egligently defaced or damaged or otherwise interfered with a relic or carried out an act li kely to endanger a relic should be guilty of an offence. The terms "archaeological relic " and "relic" were defined by s 2 to include a relic pertaining to the past occupation by the Aboriginal people of any part of Australia, whether or not the relic existed prior to the o ccupation of that part of Australia by people of European descent, and without affecting the gener ality of the foregoing, included any Aboriginal deposit, carving, drawing, skeletal remains a nd anything belonging to the total body of material relating to that past Aboriginal occupat ion of Australia, but not a body or the remains of a body interred in a cemetery, buria l ground or place of burial after the year 1834, or a handiwork made for the purposes of sal e. Persons who claimed to be descendants and members of the Gournditchjmara aboriginal peop le and custodians of the relics of those people according to their laws and customs whi ch relics were of cultural and spiritual importance to them Held to have standing to comme nce an action to restrain another citizen from contravening s 21 of the Act. ONUS V ALCOA OF AUSTRALIA LTD (1981) 149 CLR 27; 55 ALJR 631; 36 ALR 425 (HC). [Discussed in note, 8 Mon LR 186.] 34. Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) Endanger ing relics Issue of permit to develop land .] Section 21 of the Archaeological and Abor iginal Relics Preservation Act 1972 provides that "A person who wilfully or negligently defaces or damages or otherwise interferes with [an Aboriginal] relic or carries out an act likely to endanger a relic shall be guilty of an offence against this Act". Section 22 pro vides that "a person shall not disturb or excavate any land for the purpose of uncovering or d iscovering a relic without first receiving the consent of the Minister". By s 22(2) the Minis ter has power to grant a permit to "uncover or expose any relic or to excavate for any relic". Se ction 23(2) provides that where a relic is discovered in the course of any construction or e xcavation on any land, the discovery must be reported to the Director of Conservation. The di rector is required to preserve discovered relics if he considers them to be worthy of pres ervation. R owned land under which there were Aboriginal relics. On appeal to the Planning A ppeals Board he was granted a permit to develop the land. On an order nisi to review, H eld, making absolute the order nisi and setting aside the determination of the board: (1) Th e phrase "excavate for any relic" in s 22(2) means "lay bare a relic by digging". (2) Sec tion 21 constitutes an absolute prohibition of the activities therein enumerated pertain ing to relics. It is in no way qualified by the provisions of ss 22 and 23. It follows that the pr oposed development would constitute an unlawful use of the land and the permit should h ave been refused. Per Kaye J The effect of ss 21 and 23 is to prevent a landowner from developing his land even where the relic discovered on the land is of insufficient quality to warrant its preservation. WALKER V SHIRE OF FLINDERS [1984] VR 409; (1984) 53 LGRA 285 (Vic Sup Ct, Kaye J). 35. Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) Portable relics Lodgment in National Museum of Victoria Lending of relics .] Held: (1) The Archaeological and Aboriginal Relics Preservation Act 1972, s 20A, requires port able Aboriginal relics which are the property of the Crown to be retained in the cust ody of the National Museum of Victoria unless the Minister otherwise determines. (2) "Lodge " in s 20A means to place, deposit, put and cause to remain in a specified place of custody or security. (3) Where the Minister had not determined that the Council of the Museum of Vict oria might lend out any of the portable relics, the council's action in lending some portab le relics to interested persons was contrary to s 20A and should be restrained by injunction.
BERG V COUNCIL OF MUSEUM OF VICTORIA [1984] VR 613 (Vic Sup Ct, Nicholson J). 199. Heritage protection Statute not expressly binding Crown Application to vacant Crown land .] Section 17 of the Aboriginal Heritage Act 1972 (WA) makes it an offence, without stipulated authorization, to excavate, destroy, damage, conceal or alter sites to which the Act applies. As undisputed evidence established that the land area of Wester n Australia is 93 per cent Crown land, most of those sites necessarily are on Crown land. The A ct is not expressed to bind the Crown or its instrumentalities. On the question whether th e Act applies to building works undertaken on a site within the application of the Act by the Western Australian Development Corporation as an agency of the Crown, Held: (1) In moder n circumstances, a stringent and rigid test for determining whether the general wo rds of a statute are to be read down so as to exclude the Crown is unacceptable. (2) Cons iderations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a leg islative intent so to do by express words or "necessary implication". Where such a legisl ative intent appears when the relative legislation is construed in a context including the pr esumption against the Crown's being so bound, that intent must prevail. (3) Earlier judici al statements to the effect that it must be manifest from the terms of the statute itself that it s general words were intended by the legislature to bind the Crown, or that its purpose would be frustrated unless the Crown were bound, should be read as applying to the particular statut ory provisions involved in the cases in which they were made. (4) In the context of the clear applicability of the Aboriginal Heritage Act to the Crown land, the conclusion i s inevitable that the general words of s 17 apply indifferently to natural persons including government employees and agents of government instrumentalities. Observations on the applic ation of the present decision to legislation passed before, and to legislation passed aft er, its publication. [1990] WAR 87 revd.] BROPHO V WESTERN AUSTRALIA (1990) 171 CLR 1; 64 ALJR 374; 93 ALR 207 (HC). [Discussed in articles, 64 ALJ 527; 20 UWALR 688, 710.] 200. Heritage protection Ministerial power to make declarations protecting ar eas and objects Partly displaced as to specific area by repealing Act Repealing Act supported under same head of power as Act repealed Laws as to "people of any race for wh om it is deemed necessary to make special laws" How construed .] Before its statutory amendment, following an enabling referendum in 1967, s 51(xxvi) of the Constitut ion conferred on the Parliament legislative power with respect to: "The people of an y race[, other than the aboriginal race in any State,] for whom it is deemed necessary to make special laws." By that amendment, the words here enclosed in brackets were omitted. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) confers on the Min ister power to make declarations for the protection and preservation of "significant Aborigi nal area[s]" (ss 9, 10) and of "significant Aboriginal object[s]" (s 12). The quoted expressi ons are defined (s 3). That Act was qualified by the Hindmarsh Island Bridge Act 1997 (Cth), the effect of s 4 of which was to preclude the Minister's making any declaration in relation to th e construction of a bridge, and related works, at Hindmarsh Island in South Australia, upon an area claimed by the plaintiffs to be of particular significance to them in accordance with th eir traditions. On the reserved question, whether the 1997 Act was invalid as being unsupported by the Constitution, s 51(xxvi), or any other head of Commonwealth legislative power, H eld (by majority): (1) The effect of the 1997 Act being only a partial repeal of the 198 4 Act, the legislative power supporting it was the same as that supporting the 1984 Act. In other words, the power to make laws includes a power to unmake them. Per Brennan CJ and McHug h J To the extent that a law repeals a valid law, the repealing law is supported by the head of power which supports the law repealed unless there be some constitutional limita tion on the power to effect the repeal in question. Here, the 1997 Act has no effect or oper ation other than reducing the ambit of the 1984 Act; s 51(xxvi) of the Constitution accordin gly supports it. Per Gaudron J Section 51(xxvi) of the Constitution not only authorises the 1984 Act, but also authorises its partial repeal. Per Gummow and Hayne JJ The plaintiffs ' submission, that the 1997 Act lacked "a sufficient level of generality" to found support in the Constitution, s 51(xxvi), would, if accepted, cripple the reach of relevant legi slative powers and imperil the validity of the 1984 Act itself. (2) The validity of the 1997 Ac t was further confirmed by looking to the Act's operation and effect and the subject matter of the power invoked to support it in other words, it had the character of a law "with resp ect to ... the people of any race for whom it is deemed necessary to make special laws". Here, the only effect of the Act was partially to exclude the operation of the 1984 Act in rela tion to the Hindmarsh Bridge area. Per Gummow and Hayne JJ The plaintiffs' submissions wer e not persuasive, that "special" in s 51(xxvi) gave the paragraph a "fluctuating conte nt" and "purposive aspect" so as to permit only of a purpose of the 1997 Act that did no t "discriminate against" their race. Once it is accepted, as the authorities have done, that a law may make provision for some only of a particular race, it follows that a valid l aw may operate differentially between members of that race. Here, the judgment as to wh at is "deemed necessary" is that of the Parliament. (3) The impugned Act was not inval id as wanting legislative power for its enactment. Consideration of comparable interna tional law, particularly in relation to the rules of construction that give paramountcy in A ustralia to the laws of the Commonwealth or of a State, while seeking, so far as their language permits, to ensure conformity and not conflict with the principles of international law. Dis cussion, without resolution, of the question whether the amended form of s 51(xxvi) of th e Constitution would support only those "special laws" that were for the "benefit" of indigenous races. Per Gaudron J The words "for whom it is deemed necessary to make special laws" must be given some operation, and that operation works as a limit to the power conferred by s 51(xxvi). The paragraph does not authorise special laws affecting rights and obligations in areas in which there is no relevant difference between the people of the race to whom the law is directed and the people of other races. The test applicable is w hether the relevant law is reasonably capable of being viewed as appropriate and adapted to a real and relevant difference which the Parliament might reasonably judge to exist. Prima facie, s 51(xxvi) at present only authorises laws operating to the benefit of the indigen ous. Per Gummow and Hayne JJ The text of s 51(xxvi) is not limited by any implication o f a "benefit", and a constitutional text is not to be hedged about by limitations un expressed therein. The omission of any specific reference to providing "benefits" is consi stent with a wish of the Parliament to avoid later definitional argument in the legislature a nd the courts as to the scope of its legislative power. Per Kirby J The power in s 51(xxvi) doe s not extend to the enactment of laws detrimental to, or discriminatory against, the people o f any race by reference to their race. That conclusion is reinforced by the resolute steps tak en by international law to forbid and prevent detriment to, and adverse discrimination against, people by reference to their race. KARTINYERI V COMMONWEALTH (1998) 72 ALJR 722; 152 ALR 540; [1998] HCA 22 (HC). 201. Heritage protection Heritage site Ministerial power to permit or refus e development on site Claimant with spiritual interest in land Right to be hea rd .] Held, that an Aboriginal person who had no more than a spiritual or "emotional a nd intellectual" interest in land the subject of a notice of recommendation for pro posed works under s 18 of the Aboriginal Heritage Act 1972 (WA), while he had sufficient int erest to give rise to a common law duty to be afforded an opportunity to be heard on the subje ct of the development or the prospective development of the site by the Aboriginal Cultura l Materials Committee at the recommendation level, did not have a sufficient or additional i nterest which would have accorded to him an opportunity to be heard by the Minister at t he decision-making level. WESTERN AUSTRALIA V BROPHO (1991) 5 WAR 75; 74 LGRA 156 (WA Sup Ct FC). 202. Heritage protection Heritage site Declaration to provide for protectio n of site Jurisdiction to make declaration Requirement for Minister to "consider" repres entations .] The Minister for Aboriginal and Torres Strait Islander Affairs made a declarat ion under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10, which would prevent construction of the Hindmarsh Island bridge for a period of 25 yea rs. Prior to making the declaration the Minister had received an anthropologist's report. A s ubject which became known as "women's business" was dealt with in that report, annexed to whi ch were representations relating to it. The "women's business", however, was contained i n secret envelopes annexed to the report. Although the Minister did not read the informat ion in the envelopes, he relied heavily on the subject of "women's business" in his decisio n. The Minister issued two sets of reasons for his decision in relation to the s 10 dec laration and the first of these made no reference to the subject of the representations and there was evidence that the representations were not available to the Minister or his staff until t he day preceding the making of the declaration, and that the Minister's schedule on the 24 hours preceding the making of the declaration required that the Minister rely heavily on staff assis tance to give consideration to the representations. The trial judge held that the Minister did not "consider" the report and any representations attached to the report as required by s 10(1) (c). Further, it was not a proper exercise of power on the part of the Minister to rely so heavil y on the subject of "women's business", yet deny himself access to the secret envelopes. On appeal, Held, dismissing the appeal, the trial judge had not erred. [Chapman v Tickner (1995) 55 FCR 316; 87 LGERA 291; 133 ALR 74; 37 ALD 1 affd.] [Earlier proceedings see (1995) 40 ALD 87.] TICKNER V CHAPMAN (1995) 57 FCR 451; sub nom NORVILL V CHAPMAN 89 LGERA 1; 133 ALR 226 (Fed Ct of Aust FC). 203. Heritage protection Heritage site Declaration to provide for protectio n of site Jurisdiction to make declaration Requirement for Minister to "consider" repres entations Role of reporter .] The Federal Minister for Aboriginal and Torres Strait Is lander Affairs appealed against an order setting aside his decision to make a declarati on under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10. The declaration prohibited the development of land for five years. The Minister appe aled. Held, dismissing the appeal: (1) The provision for notification to the public made by the Act is no substitute for what natural justice would require to be given to those who might be directly affected by a declaration. The purposes, as well as the nature, of the statutory provisions are different from those of natural justice. The statutory provision aims to ensure a widely diffused public participation, so as to garner all the knowledge of the communit y. The principle of natural justice aims, on the other hand, to focus on those particul ar individuals whose interests or legitimate expectations may be affected by the making of a de claration. (2) The reporter appointed for the purposes of s 10 may well be involved in a pr ocess of fact-finding which places the reporter in dialogue with those whose interests ma y be affected and with state governments, or their agencies, which administer other legislatio n having similar purpose. So understood, to afford them the opportunity to contradict or comment upon issues raised which have the potential to influence the Minister's decision is consistent with and not at odds with the reporting and decision-making process envisaged by s 10 of the Act. (3) The process undertaken by the reporter is likely to prove a fluid one. Not all information received will fall within a range which either the reporter, the app licants, or those whose land or other interests might be affected, can predict. (4) In the p resent case, the assurances given by the reporter could be taken to have created a legitimate exp ectation in the minds of the lessees and the representatives of the state. It was not necess ary for applicants for judicial review to show that the matters which they had not had t he opportunity to contradict did in fact work to their prejudice. (5) Urgency canno t generally be allowed to exclude the right to natural justice. (6) The Minister's duty under s 10(1)(c) of the Act to "consider" both the report and the representations received by the report er attached to the report is a personal non-delegable task, and a failure to carry it out may r esult in the Minister's decision being set aside. (7) The trial judge was correct in holding that there had not been the necessary consideration of the representations. [(1994) 49 FCR 507; 88 LGERA 7; 34 ALD 192 affd.] MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS V WESTERN AUSTRALIA (1996) 66 FCR 40; sub nom MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (CTH) V DOUGLAS 43 ALD 203 (Fed Ct of Aust FC). 204. Heritage protection Heritage site Declaration to provide for protectio n of site Jurisdiction to make declaration Procedure for obtaining representations Ade quacy of notice .] The Minister for Aboriginal and Torres Strait Islander Affairs commi ssioned the preparation of a report for the purposes of the Aboriginal and Torres Strait Isl ander Heritage Protection Act 1984 (Cth), s 10(4). The reporter published a notice required by s 10(3) of the Act, inviting interested persons to make representations identifying the area wh ose preservation and protection was in question as "significant Aboriginal areas". A n aspect of particular significance was what became known as the secret "women's business". The reporter was not aware of this aspect at the time of publication of the notice, and accordingly, the notice did not address the issues of its significance or the nature or exten t of the perceived threat. The Minister made a declaration under s 10 of the Act, which w ould prevent construction of a bridge for a period of 25 years. The trial judge held that the published notice failed sufficiently to identify the area that was to be the sub ject of the report and it failed to apprise the interested members of the public of the information to which they were entitled, being the significance of the "women's business" and the nature a nd significance of the threat to it. The reporter, on becoming aware of the new iss ues, could have continued her reporting functions, ignoring the subject of women's business , or advertised afresh with the new advertisement containing the required information . The inadequacy of the notice meant that interested persons were denied natural justi ce and that the Minister lacked jurisdiction to make the s 10 declaration. On appeal, Held, dismissing the appeal, the trial judge had not erred. [Chapman v Tickner (1995) 55 FCR 316; 87 LGERA 291; 55 FCR 316; 37 ALD 1 affd.] [Earlier proceedings see (1995) 40 ALD 87.] TICKNER V CHAPMAN (1995) 57 FCR 451; sub nom NORVILL V CHAPMAN 89 LGERA 1; 133 ALR 226 (Fed Ct of Aust FC). 205. Heritage protection Heritage site Declaration to provide for protectio n of site Minister's power to make declaration Nature of power .] Held: (1) The purpos e of a declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Prot ection Act 1984 (Cth) is to preserve the status quo of a significant Aboriginal area under immediate threat of injury or desecration until the Minister decides whether to make a mor e permanent declaration under s 10. (2) Like an interlocutory injunction, a s 9 declaration will be made in circumstances of urgency where the issues and conflicting interests cannot be fu lly examined. (3) By its nature, an emergency declaration under s 9 is a discretiona ry remedy vested in the Minister. The two matters specified in s 9(1)(b) are conditions pr ecedent to the exercise of the power to make emergency declarations, but the Minister's satisfa ction that they exist does not automatically lead to the making of a declaration. (4) Secti on 9(3) empowers the Minister to extend the term of a declaration "if he is satisfied th at it is necessary to do so". The language of that provision demonstrates that the power to extend is facultative, not imperative, and it would be odd if the power to make the initia l declaration were not also facultative. WAMBA WAMBA LOCAL ABORIGINAL LAND COUNCIL V MINISTER ADMINISTERING ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT 1984 (1989) 23 FCR 239; 86 ALR 161 (Fed Ct of Aust, Lockhart J). 206. Heritage protection Heritage site Declaration to provide for protectio n of site Minister's power to make declaration Nature of power Power of Federal Court to order Minister to make declaration .] Held: (1) The Federal Court does not have powe r, at a final hearing, to order the Minister for Aboriginal and Torres Strait Islander A ffairs to make a declaration under the Aboriginal and Torres Strait Islander Heritage Protectio n Act 1984 (Cth), s 9(1). The Minister may, in his discretion, refrain from making a declar ation even though he is satisfied as to the matters referred to in s 9(1)(b)(i) and (ii). ( 2) Neither the Federal Court of Australia Act 1976 (Cth), s 23, nor the Administrative Decision s (Judicial Review) Act 1977 (Cth), s 16(1)(d), empowers the Court to make an order at an in terlocutory stage which could not be made at a final hearing. TOOMELAH BOGGABILLA LOCAL ABORIGINAL LAND COUNCIL V MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (1996) 69 FCR 306; 140 ALR 620 (Fed Ct of Aust, Foster J). 207. Heritage protection Heritage site Declaration to provide for protectio n of site Exercise of ministerial discretion .] Held: (1) The Aboriginal and Torres Stra it Islander Heritage Protection Act 1984 (Cth) is clear in its purposes, broad in its applic ation and powerful in the provision it makes for the achievement of its purposes, which ar e to preserve and protect places, areas and objects of particular significance to Aborigines. (2) Although the Minister may refuse to make a declaration in the exercise of the discretion the Act confers upon him, and the exercise of that discretion may well involve the consi deration of competing interests, the proper exercise of the discretion requires that the Min ister consider the matters to which s 10(1)(b) directs attention. (3) The Act requires the Mini ster to consider whether an area that is the subject of a valid application is a signifi cant Aboriginal area and whether it is under threat of injury or desecration, and in all such ca ses there is an obligation to obtain a report under s 10(4) and to consider the report and any r epresentations attached to it. [(1993) 40 FCR 165 affd.] TICKNER V BROPHO (1993) 40 FCR 183; 114 ALR 409 (Fed Ct of Aust FC). 208. Heritage protection Heritage site Declaration to provide for protectio n of site Report to Minister prior to making of declaration Person nominated by Minister to report Federal judge purportedly nominated Incompatibility of role of reporter with functions of judge holding office under Constitution, Ch III Nomination ineffective .] The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10, has the effect of empowering the relevant Minister to appoint a person to make a report in resp ect of an application under the Act seeking the preservation or protection of a specified area from injury or desecration. The section requires a reporter to follow stated procedur es and deal with stated matters. The second defendant, a Federal Court judge, was purportedl y nominated by the Minister to make a report within the application of s 10. The nomination was not in the capacity as judge but as an individual to perform the function of reporter. On a challenge to the nomination as representing a function constitutionally incompatible with the holding of office as a judge appointed under the Constitution, Ch III, Held: (1) The fun ction of reporter under s 10 of the Act was not one which the Minister could properly nom inate a Ch III judge to perform, nor one which such a judge was capable of accepting. Obser vations on the separation of the functions of government under the Constitution, with parti cular reference to the constitutional imperative of separation of judicial from politi cal functions in a federal system; and a summary given of the tests to be applied. (a) Bearing in mind that public confidence in the independence of the judiciary is achieved by a separati on of the judges from the persons exercising the political functions of government, no fun ctions can be conferred on a Ch III judge that would breach the separation. (b) The separation of judicial from political functions is not, however, so rigid as to preclude the conferring by consent on a Ch III judge of certain kinds of non-judicial powers, and there is no incompat ibility in cases where true judicial independence is to be observed. Instances of the latter kind are the appointment of judges as Royal Commissioners, or as presidential members of the Administrative Appeals Tribunal. (2) A report under s 10 of the Act is no more t han a condition precedent to the exercise of the Minister's power under the section to make a declaration. It follows that the function of a reporter under the section is not performed by way of independent review of the exercise of ministerial power: rather it is an integral part of the process of such exercise of power. The embarrassment of appointing a Ch III judge is demonstrated by the facts that the reporter might be removed by the Minister bef ore the report is made, denied the usual judicial protections, and reduced to a position equivalent to that of a ministerial adviser. Surmounting these is the consideration that the d ecisions made by the reporter are political in character breaching the separation of functions and being clearly incompatible with holding of judicial office under Ch III. Per Brennan C J, Dawson, Toohey, McHugh and Gummow JJ Evidently the criteria of incompatibility here enunciated have not always been observed in practice. But disconformity of pract ice with constitutional requirement is no inhibition against truly expounding the text an d implications of the Constitution. (3) The nomination of the second defendant as a reporter un der s 10 of the Act was ineffective. WILSON V MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (1996) 70 ALJR 743; 138 ALR 220 (HC). 209. Heritage protection Heritage site Declaration to provide for protectio n of site Consideration to be given to State laws and court decisions in making declaratio ns .] The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs overrode State decisions consenting to the development of land. It was submitted that the Commo nwealth Minister erred in law and failed to take into account relevant matters in relati on to State law and court proceedings. Held: (1) The Commonwealth Minister was not bound to take into account the existence of Western Australian Supreme Court proceedings and views expressed by the judges when refusing interlocutory relief before making an emer gency declaration. (2) The intent of the Aboriginal and Torres Strait Islander Heritag e Protection Act 1984 (Cth), ss 9 and 10, is to allow the Commonwealth Minister to intervene to protect a site in a case in which he or she takes a view of the relevant public and privat e interests different from that taken by the State Minister. (3) Where the evidence could re asonably satisfy the Minister that the whole of the land was of significance as an Aborig inal heritage site and the law of Western Australia provided for excision of a certain part of that land, the Commonwealth Minister's failure to find that the law of Western Australia provid ed effective protection did not involve error of law and was not unreasonable or otherwise pe rverse. [Earlier proceedings see (1994) 49 FCR 507; 88 LGERA 7; 34 ALD 192.] WESTERN AUSTRALIA V MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (CTH) (1995) 37 ALD 633 (Fed Ct of Aust, Carr J). 210. Heritage protection Heritage site Declaration to provide for protectio n of site Procedural fairness Reasonable opportunity to present case .] The Commonweal th Minister for Aboriginal and Torres Strait Islander Affairs made two interim decl arations and a permanent declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 9 and 10, overriding State decisions consenting to the develo pment of land. The declarations were challenged on the ground of procedural fairness. Hel d: (1) The decisions affected the rights, interests and legitimate expectations of the Stat e and the developers. In the absence of clear contrary statutory intention in the Act, the y had a right to be accorded procedural fairness. (2) It would not have been inconsistent with th e purposes of the Act to have required the Minister to have given the State and the developers a reasonable opportunity of presenting their case against the making of the first declaration . (3) In relation to the first declaration the circumstances were not of such great urgency that i t was impracticable for the Commonwealth Minister to inform the State and the develope rs that he had been asked to make an emergency declaration and to give them an opportunity to make submissions on that matter. (4) In relation to the permanent declaration, proced ural fairness was denied to the State in the failure to provide copies of reports and submissi ons to give it the opportunity to comment on the matters raised therein. (5) It was not necessa ry to show that the matters which were not put to the applicants, and which they were denie d the opportunity to contradict, did work to their prejudice. (6) The Minister could n ot rely on urgency for denying the State and the developers reasonable opportunity to be he ard in opposition when the Minister had not made arrangements for the reporting procedu re to be put in place urgently and to move it along expeditiously. (7) Declarations shoul d be made in relation to the first and second declarations and the third declaration should b e set aside to refer the matter to the Commonwealth Minister for further consideration to enabl e procedural fairness to be extended to the State and the developers. [Earlier proceedings see (1994) 49 FCR 507; 88 LGERA 7; 34 ALD 192.] WESTERN AUSTRALIA V MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (CTH) (1995) 37 ALD 633 (Fed Ct of Aust, Carr J). 211. Heritage protection Heritage site Declaration to provide for protectio n of site Delegation of decision-making function Requirement to consider representations .] In considering a permanent declaration made by the Commonwealth Minister for Aborig inal and Torres Strait Islander Affairs under the Aboriginal and Torres Strait Island er Heritage Protection Act 1984 (Cth), doubts arose as to whether or not the Minister "consi dered" representations attached to a particular report. Held, that the decision to make the declaration was one that had to be made by the Minister personally and could not be delegate d. Furthermore, s 10(1)(c) of the Act requires the Minister to consider any represe ntations attached to reports. By reason of omissions from the statement of reasons, it co uld be inferred that the Minister did not consider the representations as he was requir ed to do by s 10(1)(c). The finding of non-compliance with the requirements of s 10(1)(c) prov ided a basis for setting aside the declaration on the ground of invalidity under the Administ rative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(b). [Earlier proceedings see (1994) 49 FCR 507; 88 LGERA 7; 34 ALD 192.] WESTERN AUSTRALIA V MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (CTH) (1995) 37 ALD 633 (Fed Ct of Aust, Carr J). 212. Heritage protection Heritage site Reinstatement after alteration Whe ther consent required .] Held, that a person who alters or excavates an Aboriginal site without the statutory consent of the trustees or the Minister under s 16 or s 18 of the Aboriginal Heritage Act 1972 (WA) is not entitled under the Act, without more, to attempt t o reinstate the site. VAN LEEUWIN V DALLHOLD INVESTMENTS PTY LTD (1990) 71 LGRA 348 (WA Sup Ct, Ipp J). 213. Heritage protection Prohibition on "divulging" contrary to traditions What constitutes "divulging" Aboriginal Heritage Act 1988 (SA), s 35 .] [Earlier proceedings see (1995) 64 SASR 551; and (1995) 64 SASR 558.] ABORIGINAL LEGAL RIGHTS MOVEMENT INC V SOUTH AUSTRALIA [NO 3] (HINDMARSH ISLAND CASE) (1995) 64 SASR 566 (SA Sup Ct, Matheson J). 214. Heritage protection Prohibition on "divulging" contrary to traditions Authorizations Validity Whether authorization racially discriminatory Proc edure for authorization .] Held: (1) The Aboriginal Heritage Act 1988 (SA), s 35(2), is valid. The Racial Discrimination Act 1975 (Cth), ss 9 and 10, could not apply to an authori zation made under the Aboriginal Heritage Act, s 35(2). (2) Where, due to failure to provide adequate time for consultation, the relevant process of consultation provided under s 13 had not been followed, any authorizations issued under s 35(2) were invalid. (3) Failure to a dequately identify the material, the subject of an authorization, rendered the authorizati on defective. [Earlier proceedings see (1995) 64 SASR 551.] [Further proceedings see (1995) 64 SASR 566.] ABORIGINAL LEGAL RIGHTS MOVEMENT INC V SOUTH AUSTRALIA [NO 2] (1995) 64 SASR 558 (SA Sup Ct FC). 215. Offences Knowingly causing or permitting damage to relics Conservation agreements Rural land Conservation agreement permitting grazing Damage to relics in work undertaken to improve grazing capacity of land Defences .] A conserv ation agreement under the National Parks and Wildlife Act 1974 (NSW), s 90, permitted grazing but prohibited development without approval of the Director of National Parks an d Wildlife, and provided that no activity should be undertaken in the conservation zone whic h would cause disturbance to the ground surface, without approval of the minister. The o wner of a grazing property carried out land improvement work, using a bulldozer and other farm equipment, which damaged Aboriginal rock relics, without first obtaining the con sent of the Director. Held: (1) The conservation agreement, in permitting "grazing", did not permit the land improvement work, involving as it did disturbance to the ground surface to improve the grazing capacity, which had given rise to the damage complained of. (2) A "defen ce" of honest claim or right, asserting an honest belief that the conservation agreemen t gave the right to carry out the subject damaging activities, had not been made out. (3) T he requisite "knowledge" for the purposes of the offence of "knowingly causing damage to a re lic" under s 90, is actual knowledge, extending to the nature, quality, quantity and locati on of the relevant relics. (4) Failure to make relevant inquiry of the minister or the Nat ional Parks and Wildlife Service in order to obtain detailed knowledge in respect of the relics was "wilful blindness" and, in the circumstances, tantamount to having actual knowledge of t he nature, quality, quantity and location of them on the subject land. [Further proceedings see (1995) 89 LGERA 116.] DIRECTOR OF NATIONAL PARKS & WILDLIFE V HISTOLLO PTY LTD (1995) 88 LGERA 214 (NSW Land & Environment Ct, Bignold J). 216. Offences Knowingly causing or permitting damage to relics Penalty Ru ral land Conservation work Damage to relics Costs .] Held: (1) Where a grazi er was convicted of knowingly causing or permitting damage to relics under the National Parks and Wildlife Act 1974 (NSW), s 90, in relation to three offences he should be fined $10,000 for the first offence, $15,000 for the second offence and $15,000 for the third offe nce. (2) An appropriate order for costs under the Land and Environment Court Act 1979 (NSW), s 2, was that the defendant pay the prosecutor's reasonable costs in a sum agreed or, fai ling agreement, as determined by the court under s 52 of the Act, any such determinat ion to be preceded by a reference to the registrar for assistance in taxing or assessing a ny bill of costs. [Earlier proceedings see (1995) 88 LGERA 214.] DIRECTOR OF NATIONAL PARKS & WILDLIFE V HISTOLLO PTY LTD (1995) 89 LGERA 116 (NSW Land & Environment Ct, Bignold J). [6-8] Pt V. Crimes by Aboriginals Generally see CRIMINAL LAW.. [6] Divn 1. Criminal Liability 36. Generally Right of Aboriginals to protection of criminal law Colony of New South Wales founded by settlement .] On a charge of murder it was argued for the def ence that the court had no jurisdiction if, as was alleged, the defendant was a member of the Aboriginal race of Australia. Held: (1) The colony of New South Wales was founde d by settlement, not conquest or cession. Upon settlement, there was, in the colony, only one sovereign, namely the King of England, and only one law, namely English law; and , upon settlement, in consequence of instructions from the King to Governor Phillip, th e Aboriginal people in the colony became the subjects of the King and, as such, were not only entitled to the protection of the law, but became liable for breach of the King's peace in a ccordance with the law. (2) From the foregoing, it follows (a) that the Aboriginal people of Au stralia are not a sovereign people, but are subject, in New South Wales, to New South Wales law; and (b) that the English law brought to Australia, including New South Wales, applies to all residents of New South Wales, and not only to British settlers. (3) The court, therefore, had jurisdiction to try the accused on the indictment preferred against him, whether he was an Aboriginal or not, and whether the deceased named in the indictment was an Abori ginal or not. R V WEDGE [1976] 1 NSWLR 581 (NSW Sup Ct, Rath J). [Discussed in note, 50 ALJ 49 6.] 37. Generally.] Aboriginals are subject to the laws of the colony, and there is no difference between an offence committed by them upon a white man and an offence upon another Aboriginal. R V MURRELL (1836) 1 Legge 72 (NSW Sup Ct FC). 38. Generally.] The laws of Victoria are binding on all persons within the co lony, including uncivilised Aboriginals. R V PETER 29 June 1860 Argus (Newspr) (Vic) (Vic Sup Ct FC). 39. Generally Aboriginal living in uncivilised state Manslaughter of Aborig inal woman .] The prisoner, an Aboriginal, killed an Aboriginal woman, his lubra, a nd was convicted of manslaughter. There was no evidence that either of the natives had become civilised or had changed their habits or modes of life so as to be supposed to h ave voluntarily subjected themselves to British laws. Held, that the jurisdiction of the Supreme Court extends to all persons within the colony and the conviction was right. R V JEMMY 7 September 1860 Argus (Newspr) (Vic) (Vic Sup Ct FC). 40. Discharging firearm on land occupied by another person Reservation in fav our of Aboriginal inhabitants Authorization to kill for food Defence .] The appel lant had shot and killed a kangaroo on land occupied by another person under a pastoral l ease. The appellant was an Aboriginal man of the Aranda tribe and the land in question was Aranda land in accordance with Aboriginal tradition. The kangaroo had been killed for f ood for the appellant and his relatives. The appellant was charged with discharging a firear m on land owned and occupied by another person contrary to s 94 of the Firearms Act 1979 ( NT). On appeal against conviction and sentence the appellant relied upon, inter alia, s 94(3) which provided that it was a defence to a prosecution under sub-s (1) that the defenda nt was authorized by or under another law in force in the Territory to discharge the fi rearm. Section 24(2) of the Crown Lands Act 1931 provided that if a pastoral lease contained a reservation in favour of Aboriginal inhabitants of the Northern Territory then that reservat ion, inter alia, enabled such Aboriginal inhabitants who in accordance with Aboriginal tradition were entitled to inhabit the land, subject to any other law in force in the Northern Territory, to take or kill food or for ceremonial purposes animals ferae naturae on the leased land . The pastoral lease in question contained a reservation in favour of the Aboriginal inhabitant s of the Northern Territory. Held, allowing the appeal and quashing the conviction: (1) T he kangaroo is an animal ferae naturae. (2) The right to take or kill for food or ceremonial purposes includes the right to kill by shooting. (3) The Firearms Act 1979 was assented t o after the Crown Lands Act 1931 came into force. The Firearms Act 1979 was thus passed agai nst the background of permission for the appellant and people like him to take wild anim als on their own country and must be read subject to that permission. CAMPBELL V ARNOLD (1982) 56 FLR 382; 13 NTR 7 (NT Sup Ct, Forster CJ). 217. Extinguishment of customary criminal law No room for argument that relev ant Commonwealth or State laws inapplicable to Aboriginal person Basic principle o f equality before law Necessary result that different criminal sanctions not app licable to different persons for same conduct .] A statement of claim materially alleged: "10. The Parliaments of the Commonwealth of Australia and of the States lack the power to legislate in a manner affecting aboriginal people without the request and consent of the a boriginal people. 11. Further and in the alternative, if the Parliament of the Commonwealt h or of a State legislates in a manner affecting aboriginal people the law in so far as it relates to aboriginal people is of no effect until it is adopted by the aboriginal people w hom, or whose land, it purports to effect (sic)." Held: (1) The New South Wales legislature, s ubject to the Constitution Act 1902 (NSW), has plenary legislative power leaving no room for t he contention that its laws could not apply to particular inhabitants of, or to par ticular conduct occurring within, the State. (2) No reasonable cause of action was disclosed by the claim that the Commonwealth and State legislatures lacked power to legislate over Aborigina l people. Per curiam There is nothing in Mabo v Queensland [No 2] (1992) 175 CLR 1 to su pport the notion that Commonwealth and State Parliaments lack legislative competence t o regulate or affect the rights of Aboriginal people, or the notion that the application of the laws of those Parliaments is in any way subject to acceptance, adoption, request or cons ent of those people. (3) Nothing in Blackstone's celebrated maxim as to the reception of Engl ish laws in new colonies supported the contention that the criminal statutes of New South Wa les did not apply to persons of Aboriginal descent. Per curiam (a) It is a basic principle that all people should stand equal before the law. A construction which results in different cri minal sanctions applying to different persons for the same conduct offends that princi ple. The presumption applies with added force in the case of the criminal law, which is i nherently universal in operation, and the aims of which would otherwise be frustrated. (b) Even if it be assumed that Aboriginal customary criminal law survived British settlement in Au stralia, it was extinguished by the passage of criminal statutes of general application. Eng lish criminal law did not, and Australian criminal law does not, accommodate an alternative bo dy of law operating alongside it. (4) Accordingly, the statement of claim would be struck out in pursuance of the High Court Rules (Cth), O 26, r 18, as not disclosing a reasona ble cause of action, and the action would be dismissed. WALKER V NEW SOUTH WALES (1994) 182 CLR 45; 69 ALJR 111; 126 ALR 321; sub nom R V WALKER 76 A Crim R 173 (HC). [Discussed in article, 20 Alt LJ 39.] 218. Defence of duress Based on customary law .] Consideration of whether a defence of duress could be raised on the basis of Aboriginal customary law. R V WARREN (1996) 88 A Crim R 78 (SA Sup Ct FC). 219. Defence of claim of right Relevance of customs of Aboriginal community . ] Section 54 of the Fauna Conservation Act 1974 (Q), with some exceptions, makes i t an offence to take or keep prescribed fauna unless a licence or other authority und er the Act was held. Section 22 of the Criminal Code provides that ignorance of the law does no t excuse an act or omission that would otherwise constitute an offence "but a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud". The appellant had unsuccessfully appealed to the Full Cou rt of the Supreme Court of Queensland against penalties imposed on him by a magistrate on convicting him of offences against s 54 of the Fauna Conservation Act in having kept plain turkeys (bustards) without a licence. The appellant had argued that being an Abo rigine and pursuing a particular life style gave him entitlement as a claim of right to tak e and keep the birds. By special leave he further appealed to the High Court. Held, allowing th e appeal in part and quashing the conviction: (1) The defence of an honest claim of right wa s not available as s 22 of the Criminal Code had no application to s 54 of the Fauna C onservation Act. Per Brennan J The gist of the offences created by s 54 was the physical d estruction or control of fauna. Infringement of the rights of the Crown was not an element of any offence created by s 54. It was immaterial for the purposes of s 54 whether or not fauna was the property of the Crown in pursuance of s 7 of the Act or otherwise. Standing alon e, s 54 did not create an offence relating to property. (2) The magistrate had misdirected h imself in regarding the statutes as obliging him to impose, in addition to a fine, double the amount of royalty payable as a mandatory, rather than as a maximum, penalty, and that misd irection suggested the grounds for his proceeding to a conviction rather than to a discha rge under the discretionary provisions of s 657A of the Criminal Code. [[1987] 2 Qd R 490 revd in part.] WALDEN V HENSLER (1987) 163 CLR 561; 61 ALJR 646; 29 A Crim R 85; 75 ALR 173 (HC). [Discussed in article, 29 ALB 14; 9 QL 180.] 220. Shucking abalone contrary to fisheries regulation Claim to traditional n ative right to fish, sell and harvest .] A member of the Aboriginal community, who had been c harged under the Fisheries and Oyster Farms (General) Regulation 1989 (NSW) with having more than the permitted quantity of abalone in his possession, argued unsuccessfully in his defence in the Local Court that he had a traditional right to fish in the relevant water s and that this right constituted a native title recognised at common law under the principles o f Mabo v Queensland [No 2] (1992) 175 CLR 1. His summons to the Supreme Court seeking sta tutory prohibition was also unsuccessful. On appeal, Held, dismissing the appeal, that the appellant had failed to establish that he was exercising a traditional fishing right becau se (leaving aside the question of genealogy) he gave no evidence of: (a) (by Gleeson CJ and Priest ley JA) any recognizable system of rules governing the taking of abalone; nor (b) (by the Co urt) how his activities fell within the scope of such rules. Per Kirby P The common law rec ognises a right to fish as a type of native title. Per Priestley JA The best way for com mon law native title claims to be pursued will be through the provisions and procedures of the Native Title Act 1993 (Cth). For example, s 223(2) puts beyond doubt the inclusion of hunting , gathering and fishing rights within the meaning of native title. There is no direct author ity for this at common law. Observations (by Kirby P) on the application of the presumption or i nference of continuance in the proof of genealogies back to before 1788 for the purposes of native title. Observations (by Kirby P) on the effect of the Fisheries and Oyster Farms (General) Regulation on traditional fishing rights. [(1993) 70 A Crim R 28; 6 BPR 13,639 affd.] MASON V TRITTON (1994) 34 NSWLR 572; 84 LGERA 292 (NSW Sup Ct CA). [7] Divn 2. Evidence and Procedure 41. Anunga Rules Confessions and admissions Admissibility Guidelines for interrogation by police .] Statement by the judges of the Supreme Court of the Northern Territory of their views as to guidelines, material departure from which by the police in questioning Aboriginals and European or Asiatic migrants, will probably lead to rejection on the trial of the person questioned of evidence of the interrogation, whether ora l or a written record of interview. The guidelines relate to presence of an interpreter and som e person in whom the person questioned has confidence and by whom he will feel supported, th e caution against self-incrimination, the character of the questions asked, continued inve stigation of the offence after confession, questioning of a subject when ill, drunk or tired or for an unreasonably long time, legal assistance when sought, and removal of clothing fo r examination. R V ANUNGA (1976) 11 ALR 412 (NT Sup Ct, Forster J). 42. Anunga Rules Effect Applicability .] Held: (1) The rules or guideline s enunciated in R v Anunga (1976) 11 ALR 412 (the Anunga Rules) are directed to po lice officers, not to stifle or impede police function, but to promote efficiency of investigation. The rules have not changed the law relating to the admissibility of evidence. (2 ) The Anunga Rules are not absolute and do not apply to every situation involving the questio ning of Aboriginals. Many Aboriginals in the Northern Territory are not subject to the d isadvantages which the Supreme Court had in mind when the rules were pronounced. But in the a bsence of evidence as to those issues (which may justify admission of confessions where the rules have not been adopted) such confessions should not, in the face of the accused's objections, be admitted in evidence. COULTHARD V STEER (1981) 12 NTR 13 (NT Sup Ct, Muirhead J). 43. Anunga Rules Voluntary statements by accused Voluntariness Prisoner's friend .] The appellant had been convicted on a count of sexual intercourse without c onsent. He appealed on the ground that evidence consisting of conversations between the app ellant and police officers and his record of interview was inadmissible on the basis of inv oluntariness or ought to have been excluded in the exercise of discretion. Held, dismissing the appeal: (1) The appellant had had an adequate understanding of English and the interview had not been unfair because of the absence of an interpreter. (2) Even if the appellant had b elieved that he was compelled to attend the police station, there was nothing to suggest that he had been overborne; the interview was not conducted oppressively. (3) While the appellant had not been properly cautioned, it had been made known to him that he was not obliged t o answer questions. (4) The failure on the part of the interviewing officer to use the te rm "rape" in describing the allegations against the appellant did not result in the evidence being inadmissible; any more specific description of the offence than that given might have confused rather than clarified the issue for the appellant. (5) The guidelines s tated in R v Anunga (1976) 11 ALR 412 were not rules of law, and a breach of them did not automatically result in inadmissibility. The relevant legal question was one of voluntariness. The guideline requiring the presence of a "prisoner's friend" did not require th at persons interrogated be in a position of practical equality with an average English spea king person of English descent. There was no obligation on the interviewing officer to choose a n appropriate prisoner's friend, the choice was that of the interviewee. GUDABI V THE QUEEN (1984) 1 FCR 187; 12 A Crim R 70; 52 ALR 133 (Fed Ct of Aust FC). [Discussed in note, 8 Crim LJ 373.] 44. Anunga Rules Admission of guilt or confession High school student .] The appellant, a 15 year old Aboriginal, had been convicted by a Children's Court of attempting to break and enter a dwelling house with intent to commit a felony therein. Evid ence was led that he had attended high school for a year. The Crown case rested on a confessi on by the defendant before S, the police detective in charge of the case. Prior to this, C , a solicitor for a "legal service", had been informed of an investigation involving the appellant b y R, a field officer of that legal service. C had asked S if he or another legal practitioner could be present should a statement be taken from the appellant. S agreed to this. C had not been directly instructed by the appellant. S subsequently interviewed the appellant but no leg al representative was present, although a friend of the appellant, H, was in attend ance. It was admitted that S had not contacted C to inform him of the interview. Neither the appellant nor H had asked to see a solicitor. Counsel for the appellant had submitted to the m agistrate that the evidence be excluded on the grounds that (a) it would be unfair to admit the statement, (b) such an admission would contravene the "spirit and intent" of R v Anunga (19 76) 11 ALR 412, and (c) the confession had been improperly obtained. Held, dismissing the a ppeal: (1) Although the solicitor had been properly instructed it could not be said the adm ission of the confession was unfair since no actual or even potential injustice was caused to the appellant. As the solicitor would not have advised the appellant not to answer the question s and as there was no issue as to voluntariness, the end result of the interview would not have been any different if the solicitor had been present. (2) The "Anunga Rules" did not prov ide a basis for rejecting the confession. The evidence was that the appellant had attended a hig h school and this was unchallenged. It was also relevant that H was present at the interview. (3) The evidence had not been obtained improperly nor unlawfully. Such evidence would on ly rarely be excluded on the sole ground that it was made in circumstances of illegality. It must be inferred from the fairly indiscriminate use in earlier decisions of references t o unlawfully, improperly and unfairly obtaining evidence that the relevant vice in the conduct of those charged with law enforcement is whatever right minded members of the community w ould see as requiring encouragement. Per Nader J It would be a mistake to construe these reasons as implying that police can wilfully disregard an arrangement made with a solicitor for the solicitor's presence at an interview with any confidence that a confessi on so emanating therefrom will be admitted into evidence. D (A CHILD) V MCKINLAY (1984) 70 FLR 241; 31 NTR 1 (NT Sup Ct, Nader J). 45. Anunga Rules Non-compliance .] Held, that where the caution administere d to an Aboriginal failed to comply with the Anunga Rules as the accused was not asked t o explain his understanding of the caution, no interpreter was obtained and no prisoner's friend was present, there was such a departure that the court could not be satisfied that t he confession was voluntary. R V JABARULA (1984) 11 A Crim R 131 (NT Sup Ct, Muirhead J). 46. Confessions Discretion of judge to reject Questioning Aboriginal Cond uct of police .] In rejecting the evidence of conversations between the accused and t he investigating police officers, Held, that the factors which led to this decision were the failure to make an appropriate inquiry regarding the birth date of the accused, the fail ure to make an appropriate inquiry regarding his racial origin, the consequent failure to take into account the orders laid down by the authorities for the investigation by the police of alleg ations against young persons or Aboriginals, the state of intoxication of the accused and the f act that he had been left for some time in scanty wet clothing. R V CLEVENS (1981) 55 FLR 453; 37 ACTR 57 (ACT Sup Ct, Kelly J). 47. Confessions Discretion of judge to reject Questioning Aboriginal Poli ce circular dated 24 March 1975 (SA) Effect Tendency of some Aboriginals to fee l compelled to answer questions .] Per Wells J The police circular entitled Ab original Legal Rights Movement Field Officers and Police Liaison Officers (dated 24 Mar ch 1975), should be regarded as similar to the so called Judges' Rules promulgated in 1912, that is not as inflexible rules of law, any breach of which would automatically vitia te a confession or admissions, but as setting general standards of reasonableness and fairness w hich are to be applied with due regard to the exigencies of each particular situation, and as p art of the material upon which the trial judge resolves the issues of voluntariness, and wh ether in the exercise of his discretion, he will exclude the confessional material. Circumsta nces may vary enormously with the person about to be questioned. In relation both to the quest ions of voluntariness and discretionary exclusion of a confession, the irresistible comp ulsion felt by many Aboriginals to answer questions even when they comprehend intellectually th at they do not have to answer, is not decisive against admission in evidence unless the det ermination resulted from a threat or inducement held out contrary to the Judges' Rules, but it is a matter to be taken into account by the trial judge with all other relevant material. Th e material portions of the circular so referred to are set out in an appendix to the judgme nt of Wells J. R V WILLIAMS (1976) 14 SASR 1 (SA Sup Ct, Wells J). 48. Confessions Challenge to voluntariness Practice for Crown to begin .] Per Muirhead J Where Aboriginals of varying degrees of sophistication and familiar ity with English are concerned it is a sound and fair rule of practice, where a challenge to voluntariness is made, that the Crown should begin. FRY V JENNINGS (1983) 25 NTR 19 (NT Sup Ct, Muirhead J). 49. Admission of guilt or confession Accused not capable of understanding pro ceedings when called on to plead Procedure .] Section 612 of the Criminal Code (WA) p rovides that when it is uncertain for any reason whether an accused person called on to plead is capable of understanding the proceedings at the trial so as to be able to make a proper defence, a jury is to be empanelled to determine whether he is capable. A tribal Aboriginal was arraigned on a count of murder. When he was asked to plead it was apparent t hat even with the aid of an interpreter it was not possible adequately to communicate wit h him, or to convey to him in his own language the meaning of "unlawful", "guilty", and "not guilty". The accused however said sufficient to show that he had a general idea of where he w as and that he knew it was wrong to kill, and that he could go to prison. Held, that the cas e was one for application of s 612 of the Criminal Code. Per Wickham J It would only be afte r a finding under s 612 that the accused was capable, that questions under s 49 of the Abori ginal Affairs Planning Authority Act 1972 would arise. R V GRANT [1975] WAR 163 (WA Sup Ct, Wickham J). 50. Admission of guilt or confession Admissibility in evidence Inquiry from Aboriginal in chambers Procedure Proof of making admission or confession E ffect of denial by Aboriginal .] The Crown case against an Aboriginal charged with r ape included evidence of two alleged confessions, one a written statement signed by him, the other consisting of an interrogation by a police officer. For the purpose of sat isfying himself in accordance with s 34(1)(a) of the Aboriginals Preservation and Protection Act 1939 (Q), the trial judge conducted an inquiry in chambers as a result of which he was qui te satisfied that the written statement was made by the accused and made quite freely without duress or pressure. As to the oral admissions made in the course of the interrogation, the accused denied making most of the statements, but satisfied the judge of a number of mat ters relevant to the question whether the oral admissions were made. At the inquiry the judge had a copy of the depositions of the police officer taken on the proceedings for committal. The evidence was admitted. Held: (1) Section 34(1)(a) presupposes the making of a confession, and then imposes an obligation on the trial judge to determine its voluntariness. The sec tion intended to exclude admissions made under any kind of pressure, and whether pressure was used should be ascertained from the Aboriginal only; the question whether a statement was made was not intended to be ascertained in the same way. The trial judge should first ascertain whether the alleged confession or admission was made; proof of the making may be obtained otherwise than from the Aboriginal, and if the defence alleges that an alleged c onfession should not be admitted apart from s 34, the matter must be inquired into. When t his has been done, the inquiry under s 34 should proceed. (2) The course followed by the tria l judge did not conform with the provisions of s 34(1)(a), but as he was quite satisfied tha t the confessions were not obtained by pressure of any kind, and were understood by th e accused, and because there was clear proof aliunde of their making, no substantial miscar riage of justice arose from the course taken. R V SAUNDERS [1965] Qd R 409 (Q Ct of Cr App). 51. Admission of guilt or confession Admissibility in evidence Inquiry from Aboriginal in chambers What constitutes confession .] The accused was charge d with robbery with violence and convicted of stealing. The trial judge examined the ac cused in his chambers under the provisions of s 34(1)(a) of the Aboriginals Preservation and Protection Act 1939 (Q) and rejected evidence of a confession. However he did allow evidenc e to go to the jury which tended to show that on the day in question the accused had no mon ey before the alleged robbery and that he had money after it. Held, that the evidence shou ld have been rejected by the trial judge. Per Mack J The word "confession" (in s 34(1)(a)) has the common law meaning and includes any statement obtained from the prisoner which w ould lead to the inference of guilt or which would tend to prove it. Per Hart J (Phil p ACJ concurring) All things that are really connected with the confession should be rejected under s 34(1)(a). R V LINDSAY [1963] Qd R 386 (Q Ct of Cr App). 52. Admission of guilt or confession Admissibility in evidence Inquiry from Aboriginal in chambers Denial of making confession "Pressure of any sort" .] Held, that on an inquiry under s 34(1)(a) of the Aboriginals Preservation and Protecti on Act 1939 (Q), the judge must first be satisfied that the admission or confession was in f act made. Where an Aboriginal consistently denies having made the confession it is impossi ble for the judge to be satisfied that the confession was made. Section 34 must be liberally construed as being intended to confer the greatest possible protection on a class of person w ho, for one reason or another, it may be thought need more protection than other members of the community "Pressure of any sort" includes some sort of pressure which would fall short of that which would render the confession involuntary. R V KINA [1962] Qd R 139; 56 QJPR 142 (Q Sup Ct, Gibbs J). 53. Admission of guilt or confession Admissibility in evidence.] Section 60 (1) of the Native Administration Act 1905 (WA) provides: "No admission of guilt or confessi on before trial shall be sought or obtained from any native charged or suspected of any of fence punishable by death or imprisonment in the first instance. If any such admission or confession is obtained it shall not be admissible or received in evidence". Held : (1) The words "admission of guilt or confession" cover not only a case where all the ele ments of the crime are admitted: they are sufficiently wide to include any statement which is incriminating in a material particular. (2) The word "obtained" in connotation w ith "sought" means there must be implied some sort of positive activity and not a mere passiv e reception of information freely tendered by an accused or suspected native without encoura gement or inquiry of any sort being made to him. In ascertaining in a particular case whet her a statement obtained has been obtained contrary to the section much depends upon t he person who gets it and the place where and time he gets it. Statements made to officers of the police force must on nearly every occasion be suspect. In the case of statements made t o others than members of the police force, the trial tribunal should be careful to see that th ese are not obtained really through some activity in getting them. Per Wolff J Where, for example, some incriminating object is discovered in consequence of an admission made by a native, that object would not necessarily be rendered inadmissible in evidence. LOUIS V THE KING (1952) 53 WALR 81 (WA Sup Ct FC). 54. Admission of guilt or confession Charge not proceeded with Admissibilit y in subsequent affiliation proceedings .] Section 60(1) of the Native Administrati on Act 1905 (WA) provides: "No admission of guilt or confession before trial shall be sought or obtained from any native charged or suspected of any offence punishable by death or impri sonment in the first instance. If any such admission or confession is obtained it shall not be admissible or received in evidence". A police constable, in the course of his duty of obtainin g evidence against a half-caste Aboriginal suspected of the criminal offence of having carn al knowledge of a girl under 16 years of age, obtained a confession from the suspected person that he was responsible for the girl's condition of pregnancy. The criminal charge was not p roceeded with. On a subsequent application by the mother of the child for an affiliation order against him under the Child Welfare Act 1907 it was sought to use the confession so obta ined. Held, that such confession was inadmissible. THOMSON V BROCKMAN (1939) 42 WALR 36 (WA Sup Ct FC). 55. Plea of guilt or confession Want of understanding Statutory duty to ref use to accept Duty of court to examine defendant .] The Aboriginal Affairs Planning Authority Act 1972 (WA), s 49(1), provides that in proceedings for an offence pu nishable with imprisonment for six months or more, the court shall refuse to admit a plea or admission of guilt or confession "in any case where the court is satisfied on ex amination of the accused person" that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged or of the proceedings i s or was not capable of understanding the plea, admission or confession. Held, that s 49(1) b y implication places upon the court, before accepting a plea of guilty and whenever it should reasonably appear that the accused person may be within the statutory description, a duty t o exercise the power to examine the accused person so that it can be satisfied that such is not the case. Per curiam This may be said to be an extension of the rule that when a statute con fers an authority to do a judicial act in a certain case, it is imperative on those so a uthorized to exercise the authority when the case arises. It is an extension in the sense tha t in a situation in which whether the case has arisen or not can only be ascertained by the exerc ise by the court and on its own initiative of an inquisitorial power then, if there exists any reason for supposing that it might be such a case, it is imperative that that power be exer cised. The practical difficulties involved in the exercise of the power before admitting in to evidence an out-of-court confession have no bearing upon the existence of the duty. In a Pet ty Sessions case if the power to examine is exercised then that fact and the result should a s a matter of practice be noted on the charge sheet. SMITH V GRIEVE [1974] WAR 193 (WA Sup Ct, Burt J). 56. Plea of guilty by native Duties of protector approving plea of guilty W estern Australia .] The three appellants and one other were charged with stealing and receiving. All the accused were natives within the meaning of the Native Administration Act 1905. All the accused pleaded guilty. The plea was approved by the protector and was accep ted by the court and each of the accused was sentenced to six months' imprisonment. Held, t hat a protector of natives approving a plea of guilty by a native has not carried out his statutory duty unless, before doing so, he has satisfied himself not only of the actual gu ilt of the accused, but also as to the existence of admissible evidence to establish such g uilt. The provisions for the protection of natives contained in s 60 of the Native Adminis tration Act 1905, considered. BOLTON V NEILSON (1951) 53 WALR 48 (WA Sup Ct, Dwyer CJ). 57. Unsworn evidence of Aboriginals .] The receipt of unsworn evidence of Abo riginals considered by Windeyer J. DA COSTA V THE QUEEN (1968) 118 CLR 186; 42 ALJR 184 (HC). 58. Proof of marriage Alleged marriage between Aboriginals .] The unsworn e vidence of an Aboriginal woman was received under the Evidence Consolidation Act (Vic) o n a trial of an Aboriginal for murder, though the woman described herself as the prisoner' s "lubra" and as "married" to him, there being no other evidence of marriage. R V NEDDY MONKEY (1861) 1 W & W (L) 40 (Vic Sup Ct FC). 59. Proof of marriage Alleged marriage between Aboriginals .] A witness aga inst the prisoner, an Aboriginal, was a half-caste woman, who was living with the prisone r as his wife. She stated that the prisoner had another wife, but that polygamy was usual amongst the Aboriginals, and that there was no marriage ceremony. The prisoner having been c onvicted, the point was reserved whether the evidence of this witness had been rightly rec eived. Held, that the court will not recognize the marriage of Aboriginals, who have no laws of which we know anything, so as to be able to come to a determination as to whether the rel ationship of husband and wife exists. The conviction was upheld. R V COBBY (1883) 4 LR (NSW) 355; Tarl 179 (NSW Sup Ct FC). 221. Police interrogation Propriety Prisoner's friend Explanation of role by police .] Held: (1) A police officer interviewing an accused Aboriginal person should, a s a minimum, explain that the function of a prisoner's friend is, first, to act in a n advisory role to the accused and, secondly, to assist him in his understanding of the matters whi ch the police wish to speak to him about. (2) The accused should be told that preferably a pri soner's friend should be someone who is able to speak the same language as he can and someone w ho is also reasonably fluent in the English language, and that the prisoner's friend s hould be someone that the accused trusts and has confidence in and will feel supported by . (3) The accused should also be told that he will be afforded the chance to speak private ly to the prisoner's friend if he wishes to do so before any formal record of interview ta kes place. He should also be told that his choice should be someone who is aware of his rights and of the rights and duties of police in interviewing suspects, that he should be someone independent of the police and someone not likely to be afraid of the police and someone not involved in the investigation either as a suspect or as a witness. R V WEETRA (1993) 93 NTR 8 (NT Sup Ct, Mildren J). 222. Stay of proceedings Absence of legal representation Need to show absen ce of representation not due to fault of accused .] R V BATISTE (1994) 35 NSWLR 437; 77 A Crim R 266 (NSW Ct of Cr App). [Discussed in note, 20 Crim LJ 48.] 223. Anunga Rules Confessions and admissions Admissibility .] After a voi re dire hearing, the Commissioner ruled a confession made by the appellant to be admissi ble, but did not give reasons for the ruling. The appellant was of Aboriginal descent and the voire dire hearing raised issues of voluntariness, fairness and lack of comprehension of the confession. On appeal, Held, allowing the appeal: (1) Even if there had not been a voire dire hearing, there was an obligation cast on the Commissioner to consider whether th e confession was voluntarily made and whether there was fairness having regard to the guidelines in R v Anunga (1976) 11 ALR 412. There were also significant obligati ons cast by the Aboriginal Affairs Planning Authority Act 1972 (WA), s 49. (2) By failing to provide reasons for ruling the evidence admissible, it could not be said that the Commis sioner gave his decision in accordance with the appropriate legal principles. In the circums tances, failure to give reasons constituted a miscarriage of justice. WEBB V THE QUEEN (1994) 13 WAR 257; 74 A Crim R 436 (WA Ct of Cr App). 224. Anunga Rules Confessions and admissions Admissibility Effect of bre ach of guidelines .] An Aboriginal accused was interviewed without his demonstrating, through explaining the caution in his own words, that he understood that he did not have to answer questions. Also, he was not fully informed of his right to a prisoner's friend, instead being told that the Aboriginal officer present may be able to explain matters to him. Held, allowing the appeal, quashing the conviction, acquitting and discharging the accused: (1) If the appellant did not know at the time he made the admissions that he had the right to speak or to be silent, that lack of knowledge did not per se render his admissions involunta ry, though it "may be of practical or evidentiary significance" in determining whether he spok e in the exercise of a free choice. (2) It was not shown that the magistrate was wrong in concluding that the admissions were made voluntarily; the admissions were thus admissible i n evidence as a matter of law. (3) The failure to comply with the spirit of the Anunga guid elines, and of the Police General Orders, and the failure to comply with the Police Administrat ion Act 1979 (NT), s 40, did not render the appellant's voluntary admissions unreliable in an y way; accordingly they should not have been excluded from the evidence on the basis th at their reliability was dubious. Reception into evidence of the admissions did not invol ve a risk of the appellant being improperly convicted. (4) The public interest that the Anung a guidelines and the matters in Police General Order Q2 be observed in the investigation of c rime in this case outweighed the goal of bringing this particular wrongdoer to conviction and punishment. The police conduct in this case was unlawful and improper when measu red by the Police Administration Act 1979 (NT), s 40, and the Anunga guidelines and the convictions were obtained at an unacceptable price having regard to contemporary community standards as indicated by the Anunga guidelines and the Police General Orders. The admissions should have been excluded in the exercise of the "overall discret ion". DUMOO V GARNER (1998) 7 NTLR 129 (NT Sup Ct, Kearney J). 225. Anunga Rules Confessions and admissions Admissibility Administratio n of caution Traditional Aboriginal with understanding of everyday English .] Hel d, that it is not enough that an Aboriginal suspect being interrogated have an understandin g and an ability to converse in the English language, particularly if he or she has appar ently lived a more traditional lifestyle. To such a person the standard caution may well be be wildering and an understanding of everyday English may not be enough when concepts such as tho se lying behind the caution are a consideration. The application of the Anunga Rules in s uch circumstances is very important. R V ECHO (1997) 6 NTLR 51 (NT Sup Ct, Martin CJ). 226. Anunga Rules Confessions and admissions Admissibility Guidelines fo r interrogation by police .] Held, that the observations of the court in Gudabi v The Queen (1984) 1 FLR 187 about the change in social conditions and values since 1976, mu st not be so applied that the Anunga guidelines (R v Anunga (1976) 11 ALR 412) are not obs erved in many cases where it is necessary that they be observed. In a situation where peo ple with a limited understanding of English are to be interrogated, the use of a competent interpreter should be more the rule than the exception it appears to have become. Equally, i n court, when witnesses of this type are called to give evidence, in general the services of a competent and experienced interpreter should be utilised. R V MARTIN (1991) 105 FLR 22 (NT Sup Ct, Kearney J). 227. Anunga Rules Confessions and admissions Admissibility Guidelines fo r interrogation by police .] Held: (1) While it is true that it is not always ne cessary to have an interpreter present whenever an accused person's English is less fluent than that of the average white person of English descent, where an Aboriginal accused is having d ifficulties repeating back in his own words the effect of the caution, the police should obt ain an interpreter. (2) The fairness discretion empowers the court to exclude a stateme nt voluntarily made in circumstances where the accused shows on the balance of probabilities th at it would be unfair to the accused to use his statement against him; unfairness is not con cerned so much with whether the police acted unfairly, but whether the accused's right to a fair trial would be jeopardised. R V NINNAL (1992) 109 FLR 203 (NT Sup Ct, Mildren J). 228. Anunga Rules Confessions and admissions Admissibility Guidelines fo r interrogation by police Cross-examination in record of interview .] Held: ( 1) The mere fact that an accused person is not fully aware of his legal rights does not nece ssarily mean that his confession is not voluntary in the legal sense. The argument that a fre e choice could not be made unless the choice was an informed choice is not supported by authori ty. (2) The most important part of guideline 3 of the Anunga rules is that the interrogation should not proceed until the accused, an Aboriginal, has an understanding of his right to r emain silent. (3) The mere fact that a cross-examination occurs does not necessarily mean that the accused's will was overborne, nor should it always result in rejection of any pa rt of the record of interview, even in the exercise of judicial discretion. R V NUNDHIRRIBALA (1994) 120 FLR 125 (NT Sup Ct, Mildren J). 229. Anunga Rules Confessions and admissions Admissibility Prisoner's fr iend Tape recording of interview .] The accused, an Aboriginal, was charged with mu rder. On arrest and charge the accused nominated a prisoner's friend who was present duri ng the record of interview. As to the propriety of the questioning of the accused by po lice, Held: (1) As long as questioning of an accused does not bear upon matters which, if answer ed, could provide admissions by the accused which could be used against him, a police offi cer may ask questions to ascertain the general background of the accused before administerin g the caution. The Anunga Rules are there to assist the police in conducting their inq uiries in such a manner as to ensure fairness to the accused, while at the same time not unduly inhibiting the investigative process. They are not rules of law, and are not drafted with t he same precision as might be expected of a statute. (2) The choice of prisoner's friend must be left entirely to the person about to be interviewed, once it has been explained to hi m that the purpose of the prisoner's friend is to give support or help. Rule 29.4 of the Po lice Commissioner's Standing Orders provides a second string to the bow should, for i nstance, the court decide that the first friend was somehow inappropriate. No more is achieve d by having a second friend unless the person chosen is also the accused's choice. In the pr esent case, there was no material which warranted the conclusion that the accused's choice o f prisoner's friend was likely to be productive of any unfairness to him. (3) While it is no doubt desirable for the police to record the instructions to prisoner's friend on tape, the word "record" in cl 25 of the Police General Orders does not mean "tape record", and any form of record will comply with that clause. (4) The Anunga Rules do not require the police to advis e legal aid agencies (or any other solicitor) that an arrest has been made or that the polic e intend to conduct a record of interview. ROSTRON V THE QUEEN (1991) 1 NTLR 191 (NT Ct of Cr App). 230. Intent Evidence of Aboriginal custom and practice Admissibility Expe rt evidence .] The appellant was convicted of the murder of A, who died from the result of a knife wound inflicted by him. They were Aborigines and there had been a relation ship between them. The appellant testified that when he wounded A he meant only to "c ut" her on the arm or ribs in order to make her return to him. The trial judge rejected evi dence proposed to be called from the appellant that (a) in the past he had received wounds and made light of them; and (b) inflicting wounds was a method of domestic discipline in the Abori ginal community. He also rejected proposed evidence from a sociologist that (c) some A boriginal communities believed men had a right to wound as a means of punishing women with whom they had a domestic relationship; (d) such wounding was not intended to be serio us; and (e) such injuries were accepted in the community. Held: (1) The evidence was inadmis sible and correctly rejected by the trial judge. (2) Section 245 of the Criminal Code (Q), which recognised as lawful the use of reasonable force in certain circumstances, did n ot extend to husbands vis-a-vis their wives. The Code prevailed over any community practice t hat might exist. Further, the Racial Discrimination Act 1975 (Cth) would prevent recogniti on of any such practice in the Aboriginal community. (3) The experiences of the appellant were incapable of establishing an entitlement on his part to test the will of others. (4) The inquiry that the jury was required to undertake went to the accused's intent and was wit hin the range of common experience. Therefore evidence of custom or practices and beliefs was not admissible. (5) The intention of the appellant was a matter to be decided by the jury and not one open to expert testimony. R V WATSON [1987] 1 Qd R 440; (1986) 22 A Crim R 308; 69 ALR 145 (Q Ct of Cr App ). 231. Confessions Voluntariness and discretion Questioning children of Abori ginal extraction Conduct of police .] The accused, all of whom were of Aboriginal descent and under 18, were charged with rape. Each was questioned by police officers. Th ey were warned, but the investigating officers did not make sure that the warnings were understood. The interviews were conducted in the presence of two Justices of the Peace who w ere members of the community to which the accused belonged, one of whom was related by marriage to the complainant, neither of whom spoke to the accused during the int erviews and one of whom lacked understanding of parts of the interviews. Held: (1) The confe ssions attributed to each of the accused, having regard to the circumstances in which t hey were said to have been made, and the mental capacities and ages of the accused, were not v oluntary and should be excluded. (2) A child, especially an Aboriginal child, should be t old that he had a choice to remain silent; otherwise it was difficult to see how a court cou ld ever be satisfied that he had freely chosen to speak. If he was to be told, he must be t old in a way which he would understand. Care must be taken to explain the matter to him and h is comprehension tested to ensure that the advice had been assimilated. (3) The pol ice should have provided persons at each interview who would have taken an active role, par ticularly privately explaining the right of silence, and the police should have then asked a few simple questions designed to test each suspect's understanding of the position and reco rded the questions and answers. (4) The mothers or de facto guardians of the accused coul d have been advised of the right of silence and then each could have been left to explain th e position to the relevant suspect. The superior knowledge of the community members came only from their close association with authority. The strength of the parents or guardians would have been their parental concern. The matter went to voluntariness, but with even mor e force to the discretions. R V W [1988] 2 Qd R 308 (Q Sup Ct, Dowsett J). 232. Confessions and admissions Records of interview Discretion to exclude .] Held (by majority), that where a confession had been voluntarily made by an accu sed who was affected by alcohol, the fact that the police had failed to obtain evidence of the blood alcohol level of the accused at the time of making the confession meant that the accused had been deprived of evidence which could be relevant at the trial concerning his co ndition at the time the statements were taken. This lack of evidence was exacerbated by the fac t that the accused was a disadvantaged person with a low IQ and was entitled, under the Abo riginal Affairs Planning Authority Act 1972 (WA), s 49, to the admission of guilt being given scrutiny by the court. In those circumstances, the trial judge had correctly exe rcised his discretion to exclude the evidence. R V WILLIAMS (1992) 8 WAR 265 (WA Sup Ct FC). 233. Plea of guilt or confession Want of understanding Statutory duty to re fuse to accept Dismissal of complaint before plea taken .] A Children's Court magist rate dismissed complaints made under s 89(1) of the Road Traffic Act 1974 (WA), invok ing s 49(1) of the Aboriginal Affairs Planning Authority Act 1972. On the return of an order nisi, Held (making the order absolute): (1) Section 49(1) is not relevant until a plea has been offered. That position had not been reached on the instant facts. (2) The questi on of fitness to plead by reason of mental retardation should have been pursued by the magistrate following established principle. (3) Section 49 does not in any event empower the dismissa l of a complaint, but allows a court in an appropriate case to refuse to accept a plea of guilty or to refuse to accept out of court admissions or confessions. ROAST V BYNDER [1988] WAR 217 (WA Sup Ct, Olney J). 234. Conspiracy to supply Supply to conspirator for resale Whether substant ive offence Whether offence known to law .] T appealed against conviction for co nspiring to supply a prohibited drug. The conspiracy alleged was that X would supply T wi th heroin and T would then sell it to others. The sale agreement between X and T was estab lished but there was no direct evidence of any intention in X that T would resell. On appea l it was alleged that if the conduct fell within the wide definition of "supply" in the P oisons Act 1966 (NSW) it would constitute a substantive offence and could not be the subject of a conspiracy charge. Held, allowing the appeal: (1) A mutual intention between A and B that B should supply drugs to a third party does not, without more, constitute "agreeing to su pply" as defined in the Poisons Act. It may constitute agreeing that B should supply, whi ch is not the same thing. The charge did not allege an offence unknown to law. There could be many circumstances in which persons might agree that one should sell something to the other who should then sell it to someone else. Such an agreement goes beyond "agreeing to supply" within the Poisons Act and may properly be charged as a conspiracy. R V TRUDGEON (1988) 39 A Crim R 252 (NSW Ct of Cr App). 235. Drunkenness in public place "Drunk" Question of fact Matters to be established Liquor Act 1912 (Q), s 81 .] IBBOTSON V JUNKER [NO 2] (1990) 11 Qld Lawyer Reps 125 (Q Dist Ct). 236. Bail Release for traditional tribal punishment .] An Aboriginal offend er charged with murder sought release on bail in order to submit to traditional tribal puni shment. The punishment had potential to inflict serious injury but the applicant was prepare d to submit to it for the welfare of his community. Held, refusing the application: (1) An appl icant who is charged with murder has the burden under the Bail Act 1982 (NT), s 7(2), of pers uading the court that, on the balance of probabilities, bail should not be refused. (2) Sec tion 24 of the Act provides exclusive criteria for bail. (3) The potential beneficial effects o f traditional punishment which may flow to an Aboriginal community are not a consideration in determining an application for bail. (4) A person cannot lawfully consent to pun ishment which would cause grievous harm and may result in death. (5) A judge should not structure his judgment to facilitate an unlawful act, especially before a person has submi tted to the sentence imposed by law. (6) Bail should not be granted due to the applicant's r ecord of failing to answer bail and the applicant's need for physical protection. R V BARNES (1997) 96 A Crim R 593 (NT Sup Ct, Bailey J). [8] Divn 3. Sentence 60. Factors to be considered Relevance of tribal punishment .] The appellan ts, who were Aboriginals, were found by a magistrate to have indecently assaulted a youn g Aboriginal girl. Following the offence they were banished from the community by their local council for 12 months but were later allowed to return after five or six months. The magistrate considered that the community had taken a most lenient view of the of fences. Held: (1) What is appropriate punishment in any particular case must turn on a c onsideration of all the circumstances of the case, including circumstances special to the off ender himself, particularly circumstances that may call for some tempering of the strict demand s of justice. (2) In fixing penalty, a court should take into account the fact that the offend er, by his actions, has brought on himself the anger of members of his community and that, as a result, he has received, or is likely to receive punishment of some kind or other at the ir hands. (3) In fixing penalties the magistrate failed to take the fact of banishment into accou nt or to pay sufficient regard to it. These were therefore proper cases in which to interfere with the sentences imposed. ATKINSON V WALKELY (1984) 27 NTR 34 (NT Sup Ct, O'Leary J). 61. Factors to be considered Relevance of tribal punishment Conviction for manslaughter .] The appellant, a full blood tribal Aboriginal appealed against a sentence of imprisonment for four years for manslaughter. The appellant was to undergo tr aditional tribal punishment upon release and would therefore be punished twice. Held, that as there was no identifiable error in the sentencing judge's reasons and as the sentence itself was not one from which error might be inferred, the appeal should be dismissed. Per curi am To acknowledge that some form of retribution may be exacted by an offender's own co mmunity is not to sanction that retribution. It is to recognize certain facts which exis t only by reason of that offender's membership of a particular group. Such facts are material facts which courts are bound to take into account when imposing sentence. JADURIN V THE QUEEN (1982) 7 A Crim R 182; 44 ALR 424 (Fed Ct of Aust FC). 62. Factors to be considered Conviction for murder Mitigation of penalty Native law or custom .] The three respondents were all Aboriginals who had been convi cted of murder and sentenced to 12 year terms of imprisonment with non-parole periods of five years and six months. The Crown appealed against the inadequacy of these sentences. He ld, dismissing the appeals: (1) Section 6A of the Criminal Law Consolidation Act 187 6 (NT) removed any doubt there might have been of the power of the court to receive and consider evidence of native law or custom where relevant and applicable but where there i s no such evidence the power to impose a sentence which in all the circumstances was just and proper remained. (2) The power vested in the court by s 6A to receive "any evidence whi ch might be tendered in mitigation of penalty" was intended to ensure that the opening words of s 6A were not taken to limit the evidence which might have been placed before the cou rt. (3) It was for the judge to consider what was just and proper in the circumstances, not constrained by the existence of a mandatory life sentence for non-Aboriginals. [R v Herbert (1983) 23 NTR 22 affd.] R V SAMPSON (1984) 68 FLR 331; 53 ALR 542 (Fed Ct of Aust FC). 63. Factors to be considered Special problems living on reserves Explanatio n of conduct .] N, an Aboriginal, who was chairman of the council of an Aboriginal community reserve, was summarily convicted of unlawful assault on one C, a white departmental officer on the reserve, by spitting at him, and was sentenced to tw o months' imprisonment with hard labour. The assault had occurred during an emotional conf rontation by N on the front steps of C's house on the reserve, when N, inter alia, told C that he should get off the reserve and that all whites should get off the reserve. The evidence before the magistrate showed that N and his fellow Aboriginals living on the reserve were d eeply upset at their "paternalistic treatment" by the white authorities in charge of the res erve and that N had been elected to the council on a platform of self-management of the reserve. In imposing sentence, the magistrate did not refer to the submission of N's counsel that N's conduct could be attributed to the frustration and emotional concern engendered in him by thes e matters. N applied for leave to appeal against the sentence on the ground that it was manif estly excessive. The Court of Criminal Appeal proceeded, in erroneous exercise of the power conferred by s 668E(3) of the Criminal Code (Q), to increase the sentence withou t formally granting leave to appeal, and imposed the maximum one that might be imposed on s ummary conviction. In doing so, the court did not refer to the submission of N's counse l as to the special problems experienced by Aboriginals living on the reserve. Application f or special leave to appeal to the High Court having been granted on the ground of the proce dural error and the appeal having been allowed, Held: (1) (by the whole court) The special p roblems experienced by Aboriginals living on the reserve was a factor to be taken into a ccount in imposing sentence. (2) (by Gibbs CJ and Wilson J (Murphy and Brennan JJ dissenti ng)) There was nothing to show that the magistrate (or the Court of Criminal Appeal) had not given proper consideration to that factor, and, in the circumstances, the proper course was to substitute for the order of the Court of Criminal Appeal an order that the appli cation for leave to appeal to that court be refused. Emotional distress which explains crim inal conduct as a mitigating factor in determining sentences, considered by Brennan J. NEAL V THE QUEEN (1982) 149 CLR 305; 56 ALJR 848; 7 A Crim R 129; 42 ALR 609 (HC). 64. Factors to be considered Relevance of wishes of tribal community .] The appellant had pleaded guilty to a charge of manslaughter and was sentenced to imprisonment for a term of seven years, six months. He appealed against the severity of this senten ce. The appellant, a man from a remote Aboriginal community, had stabbed and killed a "t ribal brother" after a fight in which he had been punched and abused by the deceased. Soon afterwards other members of the tribal community who had learnt of the killing a ttacked the appellant with spears, badly injuring him. Although the infliction of the injuri es was a form of customary retribution, there was no evidence that it had occurred in accordan ce with tribal law. Members of the tribal community had expressed the wish that the appellant b e banished from the community for three years or more, rather than be imprisoned. Held, all owing the appeal and varying the sentence to a four year suspended sentence subject to con ditions: (1) The fact that the appellant had been severely injured by members of his communit y as a result of his crime was a matter properly to be taken into account in determinin g the appropriate sentence. (2) In view of the time the appellant had already spent in prison and the injuries he had received, a sentence of the kind suggested by his community was an appropriate penalty according to general sentencing principles. MAMARIKA V THE QUEEN (1982) 63 FLR 202; 5 A Crim R 354; 42 ALR 94 (Fed Ct of Aust FC). 65. Crimes of violence Range of penalties developed .] Held, that crimes of violence by Aboriginals, when they occur on Aboriginal reserves and after the consumption of alcohol, have been dealt with by the courts of Queensland more leniently or symp athetically than has been the case with offences of a similar nature committed by Europeans, and a range of appropriate sentences has been fixed and ought to apply. R V FRIDAY (1984) 14 A Crim R 471 (Q Ct of Cr App). 237. Special interests of community of which offender member Relevance Offe nce of assaulting police .] The appellant was an Aboriginal aged 17 at the time of th e offence who resided in a community where alcohol was a problem, even though it was an of fence to bring liquor into the community. The appellant appealed against sentences of thr ee months for assaulting a constable and one month to be served concurrently for assaultin g a police aid. At the time of the offences he was heavily intoxicated. It was the communit y's wish that the appellant should complete the terms of imprisonment fixed by the magistrate. Held, allowing the appeal and substituting a term of imprisonment of two months: (1) T here can be no general judicial policy applying throughout the Northern Territory that assau lting police is an offence where there is a presumption that the appropriate disposition is a ga ol term. Each case has to be individually assessed. (2) It is appropriate for the court to tak e into account the special interests of the community of which the offender is a member, and to tak e into account the wishes of that community so long as they do not prevail over what mi ght otherwise be a proper sentence. (3) Both assaults were equally serious and the s ame penalty should have been imposed to be served concurrently in respect to both. ROBERTSON V FLOOD (1992) 111 FLR 177 (NT Sup Ct, Mildren J). 238. Juvenile offender Relevant principles Serious assault .] A juvenile of Aboriginal descent appealed against sentences of detention for two offences of a ssault. She was around the age of 15 when the offences were committed. Held: (1) Even in cas es of what might be regarded as serious assaults, there are a large variety of circumstance s in which assaults take place and it cannot be that all assaults regarded as being serious must be visited with imprisonment. The general principles relating to the sentencing of offender s must be applied to each case. (2) It is well entrenched in the criminal law that there i s an essential difference between children and adults when they come before a court exercising criminal jurisdiction. It is often the case, as here, that the offending is explicable, i n part, at least, by difficult personal circumstances, immaturity and the growing-up process. (3) The punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as possibly to destroy the results of the appellant's efforts in relation to rehabi litation. M V HILL (1993) 114 FLR 59 (NT Sup Ct, Martin CJ). 239. Juvenile offender Presentence report Need for further education .] H eld: (1) Where the information before a sentencing court is inadequate in respect of an o ffender's prior convictions, his family and other personal matters, it is the duty of the court to exercise its powers under the Juvenile Justice Act 1983 (NT), s 44, to require the minist er, or such other person as he thinks fit, to furnish a report relating to the appellant. (2 ) It was an erroneous exercise of the sentencing discretion to consider that an Aboriginal o ffender of 15 years of age would be better off institutionalised to obtain training and skills which would assist him to return to the community, as that denied the offender the opportuni ty for those things to occur within the community itself. NELSON V CHUTE (1994) 72 A Crim R 85 (NT Sup Ct, Martin CJ). 240. Factors to be considered in determining sentence Violent offences Cons umption of alcohol Offences on Aboriginal reserve Deterrence .] Consideration and discussion of the need to impose a custodial sentence upon Aboriginal offenders who commit crimes of violence, especially by using knives upon women and children living wi th the offenders, upon Aboriginal reserves. R V BULMER (1986) 25 A Crim R 155 (Q Ct of Cr App). 241. Factors to be considered in determining sentence Tribal Aboriginal Les ser penalty due to disadvantage .] Held, that the court cannot, as a general rule, impose the same penalties, at least for some offences, on tribal Aborigines living among a tribal community with no advantages in their life or background as one would impose on a person living a comfortable life in city suburbs. HOUGHAGEN V CHARRA (1989) 50 SASR 419 (SA Sup Ct, Bollen J). 242. Factors to be considered in determining sentence Member of deprived and dysfunctional community .] Held, that a submission that an Aboriginal offender who was convicted of three counts of rape should receive a lower sentence than might oth erwise be the case because he and his victim lived in a deprived and dysfunctional communi ty where alcohol abuse and violent crime were more prevalent and more tolerated than in t he general community, the latter not being established by evidence and not being a matter o f which the court could take judicial notice, was not a consideration which should lead nece ssarily to a lower sentence being imposed. Consideration and discussion of the issues that ar ise when sentencing Aboriginal offenders. R V DANIEL [1998] 1 Qd R 499; (1997) 94 A Crim R 96 (Q Sup Ct CA). 243. Factors to be considered in determining sentence Member of deprived and dysfunctional community Relevance of tribal punishment .] Held, that a sent encing judge is entitled to have regard not only to the interests of the wider communit y, but also to the special interests of the community of which the respondent is a member. Obse rvations (by Mildren J) on taking Aboriginal "pay back" into account in sentencing. R V MINOR (1992) 105 FLR 108; 59 A Crim R 227; 79 NTR 1 (NT CA). 244. Factors to be considered in determining sentence Member of deprived and dysfunctional community Relevance of tribal punishment .] Held, that when considering matters of traditional Aboriginal law and custom it is preferable if this evidence comes from a representative group of Aboriginals rather than one individual. Abo riginals may give such evidence together rather than separately on sentence provided that the Crown consents. The prospect of the traditional punishment of spearing in the thigh be ing imposed on the prisoner on his release was a factor to be taken into account on reductio n of sentence but the court strongly deprecated such acts of traditional punishment. R V WILSON (1995) 81 A Crim R 270 (NT Sup Ct, Kearney J). 245. Factors to be considered in determining sentence Member of deprived and dysfunctional community Relevance of tribal punishment Information receive d informally .] Held: (1) The views, wishes and needs of the Aboriginal communit y, of which the offender is a member, are relevant considerations, such as the wish th at the offender not be imprisoned but returned to the community and dealt with in the t raditional way, although they cannot prevail over what is a proper sentence. (2) It is no l onger satisfactory for information of these views and wishes and proposed tribal punis hment to be placed before the court in an informal manner. Such information should be provid ed in the form of affidavits or statutory declarations served upon the Crown. (3) The Crow n has no duty to make positive inquiries as to these matters and place that information b efore the court. (4) When information is received informally, the judge should not ignore it, but draw to counsel's attention the need to make further submissions and allow the opport unity to call evidence. MUNUNGURR V THE QUEEN (1994) 4 NTLR 63 (NT Ct of Cr App). 246. Factors to be considered in determining sentence Relevance of Aboriginal community attitudes .] J, an 18-year-old Aboriginal man, pleaded guilty to unl awfully damaging property and unlawfully using a motor vehicle. He was sentenced to eigh t months' imprisonment. Held, allowing appeals against sentence: (1) The rules of natural justice had been breached because the magistrate had relied on his views and the wishes of t he Aboriginal community in which J lived without affording J the opportunity to be heard on them. (2) It is fundamental that the court should not pay any attention to publi c pressure when considering what sentence to impose. To do so is an abdication of the judic ial function and gives rise to the possibility of injustice. JOSHUA V THOMSON (1994) 119 FLR 296 (NT Sup Ct, Kearney J). 247. Factors to be considered in determining sentence Relevance of Aboriginal community attitudes Use of Royal Commission report into Aboriginal deaths in custody Proper source for community attitude .] R V TELFORD (1996) 86 A Crim R 427 (Vic Sup Ct CA). 248. Factors to be considered in determining sentence Relevance of Aboriginal community attitudes Customary law .] Held: (1) The customary criminal law o f Aboriginal people was extinguished by the passage of criminal statutes of genera l application, but facts and circumstances arising from the operation within Abori ginal communities of practices affecting an offender may be relevant circumstances in the sentencing process. (2) It was relevant to sentencing that an Aboriginal offende r had accepted obligations and had been subjected to discipline within her community a nd in that way had assisted the restoration of peace in that community. (3) The wishes of t he relevant Aboriginal community were matters in mitigation. R V MIYATATAWUY (1996) 6 NTLR 44; 87 A Crim R 574 (NT Sup Ct, Martin CJ). 249. Factors to be considered in determining sentence Aboriginal background Effect of alcohol .] Consideration and discussion of the relevance of an offender's A boriginal background where offences of aggravated sexual assault were committed while the offender was affected by alcohol and whether those matters were mitigating factors. ROGERS V THE QUEEN (1989) 44 A Crim R 301 (WA Ct of Cr App). 250. Factors to be considered in determining sentence Aboriginal background Effect of alcohol Personality factors .] The applicant, a 25-year-old Kimberley Ab origine, pleaded guilty to charges of sexual assault (Criminal Code (WA), s 324D) and agg ravated sexual assault (Criminal Code (WA), s 324E) committed 14 days apart, upon the sa me victim. Sentences of imprisonment of four and six years were directed to be serv ed cumulatively, and the applicant was to be eligible for release on parole. At the time of the offence the applicant suffered from a paranoid psychosis, due partly to personal ity factors and exacerbated by alcohol. He had pleaded guilty and expressed remorse for his offences, and had no significant prior record of personal violence. On appeal, Held, allow ing the appeal: (1) Drunkenness is not normally an excuse or mitigating factor, but in t he circumstances the applicant's abuse of alcohol reflected the socio-economic circ umstances and the environment in which he had grown up and should be taken into account. ( 2) Account ought to be taken of the impact of a sentence on an Aboriginal person in the light of his social and cultural background. (3) The alcohol abuse exacerbated personalit y factors, which produced a diminished culpability. (4) The sentence of 10 years contravene d the totality principle and did not afford proper regard to the ethnic, environmental and cultural matters pertaining to Aborigines. (5) An appropriate total sentence was six year s. JULI V THE QUEEN (1990) 50 A Crim R 31 (WA Ct of Cr App). 251. Factors to be considered in determining sentence Age Rehabilitation .] W, an Aboriginal, pleaded guilty to rape. At the time of the offence he was aged 16 ye ars 8 months, and his victim was almost 13 years old. The crime was at the lower end of the sc ale of seriousness. W had demonstrated remorse and his childhood had been deprived. Aft er the offence his circumstances had changed for the better. Held, in imposing a head s entence of imprisonment for four years with release upon a bond after six months: (1) The f undamental purpose of the criminal law is to protect the community. This protection is prim arily achieved by making the punishment fit the offence and the offender. When imposin g sentences, the courts must have regard to the need for general deterrence, but t he protection of the community is also contributed to by the successful rehabilitation of offe nders. (2) Of considerable relevance was W's age at the time of the offence. However, in cases where a serious crime such as rape has been committed, the need for a term of actual imp risonment is often necessary notwithstanding that the offender is being treated as a juvenile . (3) There was no need to take into account any element of self-deterrence. There was a serious risk that prospects of rehabilitation would be significantly impaired by a long period of imprisonment. Neither home detention, nor a period of detention in a juvenile detention centre was appropriate. R V WILLIAMS (1992) 109 FLR 1 (NT Sup Ct, Mildren J). 252. Factors to be considered in determining sentence Aggravated assault and criminal damage Whether sentence manifestly excessive .] The appellant was a full-blo od Aboriginal with no previous convictions. He pleaded guilty and was convicted of two counts of aggravated assault and two counts of aggravated criminal damage. Although the re was no injury to any person, the offences were unprovoked and without warning and exten sive damage to the victim's house and to a vehicle was caused. The sentence imposed w as 12 months' imprisonment with release after four months. Held, dismissing the appeal against sentence: (1) It could not be considered that there was any denial of natural ju stice to the appellant. The magistrate had not overlooked any of the matters relevant to the appellant's personal circumstances and had not failed to give sufficient weight to the appel lant's prior good character and the fact that he was a first offender. (2) It was not appropr iate to compare the sentence imposed with the maximum of the court's jurisdiction. (3) Even allo wing for the fact that the appellant was an Aboriginal and a member of a section of the commu nity for whom special leniency had always been shown, it had not been demonstrated that t he penalties imposed were manifestly excessive. GADATJIYA V LETHBRIDGE (1992) 106 FLR 265 (NT Sup Ct, Mildren J). 253. Factors to be considered in determining sentence Assault inflicting seri ous wound Deterrence .] The appellant, an Aboriginal man, assaulted his wife with a kn ife, causing a deep cut on her face. The appellant's wife had been involved in a sexu al relationship with his brother. The magistrate imposed a sentence of 18 months' i mprisonment with a non-parole period of eight months. Held, dismissing the appeal: (1) There are offences in which the deterrent purpose of punishment must take priority over mitigating factors. (2) It had not been shown that the magistrate's discretion miscarried nor had it been s hown that the sentence which he imposed was manifestly excessive. NAJPURKI V LUKER (1993) 117 FLR 148 (NT Sup Ct, Martin CJ). 254. Factors to be considered in determining sentence Arson Aboriginal cust omary beliefs Belief fire would release spirit of dead friend Intellectual disabil ity Psychiatric illness Sentence reduced .] R V GOLDSMITH (1995) 65 SASR 373 (SA Sup Ct FC). 255. Carnal knowledge of animal Sentence of imprisonment .] The appeal was against a sentence of imprisonment for 14 days, imposed for having carnal knowledge of a n animal. The offence was committed by a 37 year old Aboriginal man in public. He had a pr oblem with alcohol, and had not previously been sentenced to a term of imprisonment. H eld, dismissing the appeal: (1) Being affected by alcohol does not set an accused per son apart from the general community. (2) In relation to rehabilitation, the normal practi ce in the Court of Summary Jurisdiction and also in the Supreme Court of the Northern Territory is to have some form of acknowledgement from the appropriate organization that they would b e prepared to accept the offender, before any such order is made. In the circumsta nces the magistrate did not err by failing to explore more fully the prospects of rehabil itation. (3) The magistrate's assessment of the community outrage at this type of offence being c ommitted in public was correct. It could not be considered that he erred at law or that the penalty imposed was manifestly excessive. WOOD V CHUTE (1993) 111 FLR 420 (NT Sup Ct, Thomas J). 256. Alcohol abuse Violence against women Error to treat Aboriginal offende rs as class Duty to protect women from domestic violence .] R V WOODLEY (1994) 76 A Crim R 302 (WA Ct of Cr App). 257. Alcohol abuse Violence against women Public interest in rehabilitation
Similar serious offences Using weapon to prevent apprehension .] Held, that where an Aboriginal offender's prior criminal record could not be described as constitute d by "similar serious offences" the sentencing judge ought to have had regard to the principle s stated in R v Fernando (1992) 76 A Crim R 58. R V STONE (1995) 84 A Crim R 218 (NSW Ct of Cr App). 258. Hearing deficiencies endemic Disproportionate numbers in prison Intell ectually handicapped .] Discussion (by Kirby ACJ) of the difficulty in sentencing perso ns with intellectual deficits, and the sentencing of Aboriginals generally, the fact tha t many suffer from hearing deficiencies and that they are disproportionately represented in th e prison system. R V RUSSELL (1995) 84 A Crim R 386 (NSW Ct of Cr App). [9] Pt VI. Crimes in Relation to Aboriginals Discrimination offences see DISCRIMINATION LAW. Offences in relation to sale of liquor to Aboriginals see LIQUOR LAW.. 66. Unauthorized person remaining within limits of Aboriginal reserve Non-Abo riginal husband of Aboriginal woman Validity of regulations .] Reg 18 of the Aborigi nes Regulations 1957 (Vic) provides: "No person other than a member or officer of th e Board or a member of the police force carrying out the duties of his office shall enter o r be upon or remain within the limits of any reserve unless he (a) is an Aborigine to whom a current permit to reside on such reserve has been issued by the Board or is the wife or a relative of such Aborigine authorized under these regulations to live with him on the reserv e". Reg 11 provides: "The Board may issue to any Aborigine a permit to reside on a specifie d reserve for such period and subject to such conditions as may be specified in the permit, an d such permit shall be sufficient authority for the wife of the Aborigine and his children or stepchildren not being over the age of 18 years to live with him on the reserve". A court of pett y sessions dismissed an information against the defendant, the non-Aboriginal husband of an Aboriginal woman who held a current permit to reside on a reserve, for having remained on a n Aboriginal reserve, on the ground that the reference to the wife of an Aborigina l in reg 11 should be treated as applying, mutatis mutandis, to the case of the husband of a female Aboriginal. Held: (1) The defendant ought to have been convicted. (2) Regulation s 11 and 18 were not invalid on the ground of unreasonableness. OGILVIE V LOWE [1963] VR 225 (Vic Sup Ct, Sholl J). 67. Entry upon place where natives congregated .] Section 39 of the Native Administration Act 1905 (WA) provides: "It shall not be lawful for any person, o ther than a superintendent or protector, or a person acting under the direction of a superin tendent, or under a written permit of a protector, without lawful excuse, to enter or remain or be within or upon any place where natives are camped or where any natives may be congregat ed or in the course of travelling in pursuance of any native custom". Held, that in s 39 the words "congregated" and "travelling" are both governed or modified by the words "in pu rsuance of any native custom"; and that the section does not make it an offence to be or re main without lawful excuse in any place where natives might congregate independently of the p urpose for which the natives came together. [(1946) 49 WALR 1 revd.] HODGE V NEEDLE (1947) 20 ALJ 499; 49 WALR 11 (HC). 68. Persuading native to "leave any lawful service" Temporary withdrawal from service Persuasion to take part in strike .] MCKENNA V FLETCHER (1947) 20 ALJ 498 (HC). 69. Being found upon place where Aboriginals are camped .] The defendants, wh o were Afghan carriers camped at a Government well, were visited at night by two Aborig inal women living at an Aboriginals' camp about two miles distant, and the four perso ns were found by the police at about 3.30 am a short distance from the Afghans' camp, th e women lying with the accused in their blankets. Held, that the place where the parties were found was not a place where Aboriginals were camped, and that the defendants could not be convicted of an offence under s 36 of the Aborigines Act 1905 (WA) of having bee n found upon a place where Aboriginals were camped. AHMED DEAN V WATTS (1910) 12 WALR 190 (WA Sup Ct FC). [10] Pt VII. Other Matters. 70. Community Services (Aborigines) Act 1984 (Q) Trust area Voters' roll Preclusion of voter from election under Local Government Act 1936 Validity .] Held, that s 19(b) of the Community Services (Aborigines) Act 1984 is not invalid by r eason of s 10 of the Racial Discrimination Act 1975 (Cth) as persons affected by the operat ion of s 19(b) of the Community Services (Aborigines) Act are not deprived of nor limited in the enjoyment of their rights to participate in local government elections or to tak e part in the conduct of public affairs at local government level. SMALLWOOD V QUEENSLAND [1985] 1 Qd R 477 (Q Sup Ct, Kelly J). 71. Custody Mixed racial children Relevance of Aboriginality and connection s Neither culture preferred Welfare of children paramount Negative attitude of European father .] A European father sought custody of his three part-Aboriginal childr en. The mother of the children, who was part-Aboriginal, sought to maintain the children 's contact with their cultural heritage whilst the father expressed a negative view of that heritage and contact with it. The trial judge expressed no view on the issue and granted cust ody to the father. On appeal, Held: (1) There is no prima facie rule that the welfare of ch ildren from mixed racial parentage will be served better by being placed in the custody of e ither the Aboriginal parent or the European parent. (2) Where the children are of mixed ra cial marriage and have been brought up in contact with two differing cultural heritag es cultural factors must be given weight when determining the welfare of those children. (3) (Evatt CJ dissenting) The fact that the trial judge expressed no concluded view about the Aboriginal connection of the children and the father's negative attitude towards it was not a ground for determining that the trial judge had erred and did not establish a basis to inte rfere with the trial judge's exercise of discretion. IN THE MARRIAGE OF GOUDGE (1984) 54 ALR 514; 9 Fam LR 500; [1984] FLC 79,313 (Fam Ct of Aust FC). [Discussed in article, 35 ICLQ 461.] 72. Adoption Proposed inter-racial adoption of ex-nuptial child Custody sou ght by Aboriginal father .] The plaintiff, a member of the Aboriginal community, as t he putative father of an ex-nuptial child, sought an order for custody of that child. The mo ther, a member of the white community, resided in the same town and had consented to the adopti on to the child. The proposed adoptive parents were a white couple. Held: (1) While overse as studies indicate reasonable prospects that under the circumstances studied trans-racial adoptions are likely to be successful, such conclusions can only be applied with caution to th e adoption of Aboriginals in Australia by white parents and further verification is necessary. (2) A child's part-Aboriginal inheritance is not in itself a reason for placing him with an Ab original family. Prima facie, if there were no relatives with whom he could be placed, th ere is no reason why Aboriginal foster or adoptive parents should be preferred to white. ( 3) Justice to the mother may demand that the child not reside in the same community as she doe s, a community which is very conscious of the difference between Aboriginals and non-Aboriginals and in particular when the mother's relatives are racially preju diced. But, nonetheless, the court is required to regard the welfare of the child as the fir st and paramount consideration. That being so, there is no way in which the mother's position can be accommodated if custody is awarded to the father. (4) In all the circumstances i t would be to the benefit of the child particularly in the development of his personality and coming to terms with his mixed racial inheritance in being brought up with the love and ca re of his father, grandparents and relatives. F V LANGSHAW (1983) 8 Fam LR 833 (NSW Sup Ct, Waddell J). 73. Proof of marriage .] See [7]. 74. Damages Personal injury Pain and suffering and loss of amenities of lif e Loss of cultural fulfilment Relevance in assessing damages .] The plaintiff was a full-blood Aboriginal who suffered personal injury when he was struck by a motor vehicle ow ned and driven by the defendant. The defendant admitted liability leaving the court to a ssess damages. Evidence disclosed that the plaintiff's injuries would prevent him from engaging in full tribal initiation, rights and ceremonies. This would cause him substantial loss of status in his tribe as well as a loss of actual formal rights. Held, that damages assessed for pain and suffering and loss of amenities of life should include a component for loss of c ultural fulfilment. DIXON V DAVIES (1982) 17 NTR 31 (NT Sup Ct, O'Leary J). 75. Charitable purposes Gift for benefit of Aboriginal women .] The testatr ix, by a will dated 7 June 1946, gave the whole of her estate to her trustee upon trust a fter paying debts etc to pay the balance then remaining to the Australian Aboriginal League to be applied "for the benefit of Aboriginal women in Victoria". The testatrix died in 1970. H eld: (1) Australian Aboriginals are now (as they were formerly) a class of persons in nee d of protection and assistance, as appears from legislation passed and organisations formed for their assistance, and the gift was a valid charitable gift. (2) The expression " Aboriginal women" in the will was not limited to Aboriginal women of full blood. RE BRYNING [1976] VR 100 (Vic Sup Ct, Lush J). 76. Declaration that person is a ward .] It is not necessary, before a person can be declared a ward under s 14(1) of the Welfare Ordinance 1953 (NT), that he should have had notice of the proposed declaration and an opportunity to show cause against it, or that there should have been examination or investigation of his individual case. NAMATJIRA V RAABE (1959) 100 CLR 664; 33 ALJR 24; [1959] ALR 690 (HC). 77. Declaration that person is a ward Appeal Onus of proving ward stands i n need of special care or assistance Whether all matters for consideration required to b e established .] Section 32 of the Welfare Ordinance 1953 (NT) provides that a person declar ed to be a ward under the provisions of s 14(1) of the Ordinance may appeal against his dec laration as a ward to the Wards Appeal Tribunal set up by the Ordinance. Section 36(1) of the Ordinance provides: "If the Tribunal, having heard the evidence adduced on the appeal, is not satisfied that the appellant, by reason of (a) his manner of living; (b) his inability w ithout assistance adequately to manage his own affairs; (c) his standard of social habi t and behaviour; and (d) his personal associations, stands in need of such special car e or assistance as is provided for under this Ordinance, it may make an order revoking the decla ration by which the appellant was declared to be a ward". Held, that the onus rests upon t he respondent to such an appeal to show that the appellant is a person who, by reason of the m atters stated in paras (a) to (d) of s 36(1), stands in need of special care or assistance. Fu rther, that s 14(1) (giving power to the Administrator to declare wards) and s 36(1) should be so co nstrued as to combine for circumspect consideration by the relevant authority all the various stated personal matters and yet permit any decision creating or sustaining wardship to be based on all, or on only one or some, of those matters. Per curiam The legislature has recognised that, however beneficial and desirable wardship status may be for one so backwar d as to need the protection accompanying the Ordinance, it would be unjustifiably humiliating and oppressive for one advanced beyond that need. That status was never designed to be applied or continued indiscriminately in respect of all Aboriginals or all persons of an y other class but only if and when and for so long as justified by the needs of particular ind ividuals. RE APPEAL BY DINGLE (1962) 3 FLR 226 (NT Wards Appeal Tribunal). 78. Aborigines Welfare Board (NSW) .] The exemption of the Crown contained in s 5 of the Landlord and Tenant (Amendment) Act 1948 does not apply to the Aborigines We lfare Board. The board has, by the Aborigines Protection Act 1909 been constituted as a body corporate with powers and functions in relation to which it acts with a substant ial degree of independence, and in accordance with its own discretion. This independence is su ch that it is impossible to regard the board as a mere servant or agent of the Crown, or as a branch or department of the Government. ABORIGINES WELFARE BOARD V SAUNDERS (1961) 78 WN (NSW) 664; [1961] NSWR 917 (NSW Sup Ct, Walsh J). 79. Exclusion from institution Validity of regulations .] By regulation mad e under the Aborigines Act 1911 (SA) the Chief Protector was empowered, if he were of opinio n that the presence of an Aboriginal within an Aboriginal institution was inimical to disci pline and good order, to deliver a notice in writing to the Aboriginal forbidding him to b e within any Aboriginal institution. Section 38 of the Act authorizes the Governor to make re gulations prescribing matters necessary and convenient for carrying out the Act, including regulations for the control, care, and education of half-castes in Aboriginal institutions a nd for the supervision of such institutions. Held, that the regulation in question was not ultra vires as being inconsistent with the Act, or in excess of the regulation-making power, or unreasonable or oppressive. The Chief Protector must act on an opinion arrived at reasonably and fairly and with full knowledge of the circumstances of the individual case. BRAY V MILERA [1935] SASR 210 (SA Sup Ct, Richards J). 259. Customary law Tribal customs Relevance Prohibition of publication of name of deceased Aboriginal .] Held: (1) In criminal proceedings, when there is a p lea of guilty, the facts orally presented to the court from the bar table by the prosecutor and admitted by the accused are "evidence" within the meaning of s 57 of the Evidence Act 1939 ( NT). (2) The meaning to be given to the expression "likely to offend against public decen cy" in s 57(1) of the Act is that which would be generally regarded by the public, or a s ignificant section of it, as lacking in propriety or good taste, or unbecoming, or unseemly . (3) Accordingly, the court took judicial notice of the fact that it is extremely off ensive to most Aboriginal Territorians, and contrary to most tribal customs, to speak of a dead man by his name. Accordingly, publication of a deceased Aboriginal person's name was lackin g in propriety and quite offensive to a significant section of the Northern Territory 's community. The name of the deceased could form the subject of a suppression order under s 5 7(1)(a) of the Act. R V BARA BARA (1992) 2 NTLR 98; 87 NTR 1; sub nom R V B 111 FLR 463 (NT Sup Ct, Mildren J). 260. Customary law Tribal customs Relevance Form of judgment Successful prosecution by several applicants Court accommodating request to express judgm ent according to Aboriginal law and custom .] Counsel invited the court to express its judgment, in an action involving breaches of copyright law, in terms which defin ed the aggregate liability of each respondent to the Aboriginal applicants as a group, rather than as individual judgments in favour of each applicant, in accordance with Aboriginal law and custom. Held, so far as the procedural rules and practice of the court permit, t he court should accommodate the applicants' request. [Revd in part by (1996) 66 FCR 474; 136 ALR 327; 34 IPR 11; [1996] AIPC 37,227 (91-219).] MILPURRURRU V INDOFURN PTY LTD (1994) 54 FCR 240; 130 ALR 659; 30 IPR 209; [1995] AIPC 39,051 (91-116) (Fed Ct of Aust, von Doussa J). [Discussed in article s, 20 Alt LJ 7, 36; [1995] A & ELR 17; and in notes, 17 EIPR 61; 25 Q Law Soc J 444; 17 Sy d LR 591.] 261. Customary law Tribal customs Artwork incorporating ritual knowledge of clan Copyright owned by artist member of clan No communal title in copyright work .] The applicants alleged that an Aboriginal clan had the right to permit and contr ol the production and reproduction of artistic works under the clan's law and custom. T he artist, a member of the clan, had succeeded in proceedings for infringement of his copyrig ht in a painting incorporating ritual knowledge of the clan. Held: (1) Evidence of custo mary law may be used as a basis for the foundation of rights recognised within the Austra lian legal system. However, to conclude that the clan were communal owners of the copyright in the existing work would ignore the provisions of the Copyright Act 1968 (Cth), s 8, and involve the creation of rights in indigenous peoples which are not otherwise recognised by the legal system of Australia. (2) The facts of the sale of the painting and the retention of the proceeds for his own use were inconsistent with there being an intention on the part of t he artist to create an express trust for the clan. (3) Equity imposed on the artist obligatio ns as a fiduciary not to exploit the artistic work in a way that was contrary to the laws and cust om of the clan and, in the event of infringement by a third party, to take action to restrain a nd remedy infringement. BULUN BULUN V R & T TEXTILES PTY LTD (1998) 157 ALR 193; 41 IPR 513 (Fed Ct of Aust, von Doussa J). 262. Customary law Coroners Autopsy Application for order that no autopsy be performed Court's discretion Relevance of Aboriginal cultural and religious law .] The plaintiff was an Aboriginal. His child died suddenly when 10 days old. There were no suspicious circumstances. The police report concluded that the death was possibl y due to Sudden Infant Death Syndrome. The plaintiff applied for an order under the Coron ers Act 1985 (Vic), s 29(4), that no autopsy be performed on the grounds that Aboriginal cultural and religious law prohibited the mutilation of a body. Held, making the order: (1) T he court had to balance the interests of the child's parents in being permitted to follow and maintain their Aboriginal culture and law against the interests of the community to ascertain t he cause of an otherwise unexplained death. (2) Great weight should be given to the cultural an d spiritual laws and practices of the various groups forming our society and great care shou ld be taken to ensure that their laws and practices, if otherwise lawful, are not disregarde d or abused. (3) In the absence of suspicious circumstances, all available evidence suggesting th at the child died of natural causes, and probably from Sudden Infant Death Syndrome, the righ ts of the parents to be spared further grief outweighed the interests of the community to ascertain the actual cause of death. GREEN V JOHNSTONE [1995] 2 VR 176 (Vic Sup Ct, Beach J). 263. Customary law Coroners Coroner directing post-mortem examination Objection on cultural grounds .] Held: (1) Under the Coroners Act 1996 (WA), s 37, the court may order that a post-mortem not be performed if that is desirable in the circumstances. The court is exercising the jurisdiction afresh and it is not sit ting as an appeal court from the coroner. (2) Where there were no suspicious circumstances and the parents and relatives, who were Aboriginals, opposed a post-mortem on cultural and spiri tual grounds, it was proper to make an order that no post-mortem occur. RE UNCHANGO; EX PARTE UNCHANGO (1997) 95 A Crim R 65 (WA Sup Ct, Walsh J). 264. Confidentiality Breach of Aboriginal law to disclose material to women o r uninitiated Aboriginal men Production and inspection of documents Public int erest immunity .] The Minister for Aboriginal and Torres Strait Islander Affairs, th e respondent, made certain decisions pursuant to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The applicants sought review of those decisi ons. The respondent was only prepared to release a certain report subject to women and un initiated Aboriginal males not having access to certain portions of it. It was submitted t hat the restricted material was "men's business" and that such production would violate Aboriginal law. Held: (1) Assuming, without deciding, that public interest immunity extende d to the restricted material, it was necessary to weigh a number of countervailing elemen ts of public interest in determining whether the material should be produced. The elements to be weighed included: (a) the public interest in achieving justice between the parties, incl uding proper preparation and presentation of each party's case; (b) the public interest that certain types of information may not be produced if the information or its sources are not adequa tely protected; (c) the interest of the Aboriginal peoples concerned, Yawuru Peoples, in not having sensitive information disclosed; (d) the public interest that women shoul d not be the subject of discrimination; (e) the extent to which the restricted material had a lready been made available for inspection by certain female representatives of the applicant s; and (f) the late stage in the proceedings that the issue had arisen. (2) Confidentiality is not a separate head of privilege but is a relevant consideration when public interest immunity is claimed. (3) The interests of justice required that the report be produced for the inspec tion of counsel and solicitors engaged on behalf of the applicants (save that only one of such p ersons shall be a female) and the anthropologist and historian (being male persons) advising the applicant's solicitors. WESTERN AUSTRALIA V MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (1994) 54 FCR 144 (Fed Ct of Aust, Carr J). [Discussed in note, 3 ALB (No 69) 17.] 265. Confidentiality Breach of confidence Meeting of Aboriginal men with pu blic servants To discuss dispute between two Aboriginal tribes Criticism of membe rs of one tribe Confidentiality of comments Liability of State for breach of confi dence .] At a meeting with public servants regarding a dispute between two Aboriginal tri bes, three Aboriginal men expressed themselves strongly and forthrightly. One expression am ounted to a curse on members of one of the tribes. Their views were incorporated into a re port, which was leaked by an unknown servant of the Aboriginal Heritage Branch. Held: (1) Th e statements made were of a confidential nature. The circumstances of the communic ation were such as to impose an obligation of confidence: a private meeting from which the press was excluded, to enable officials to hear the views of certain people, so that t hey could advise the minister. It would have been clear that views so freely expressed sho uld not be disclosed to the community. It was not necessary that it should be expressly sta ted that the meeting was to be held in confidence. The plaintiffs suffered detriment, in that the Aboriginal community in Port Augusta was outraged by their remarks, and each pla intiff suffered public criticism. Thus the elements of a cause of action in breach of c onfidence were all present. (2) The information was disclosed without the State's authorit y. There was no wrongful act by an employee in the course of his employment, and so the State was not vicariously liable. Accordingly, the State was not in breach of confidence. COULTHARD V SOUTH AUSTRALIA (1995) 63 SASR 531; [1995] Aust Torts Reports 62,184 (81-326) (SA Sup Ct FC). 266. Non-proprietary rights At common law Right to fish As defence to cha rge Whether native title at common law .] A member of the Aboriginal community, wh o had been charged under the Fisheries and Oyster Farms (General) Regulation 1989 (NSW ) with having more than the permitted quantity of abalone in his possession, argued uns uccessfully in his defence in the Local Court that he had a traditional right to fish in the relevant waters and that this right constituted a native title recognised at common law under th e principles of Mabo v Queensland [No 2] (1992) 175 CLR 1. His summons to the Supreme Court seek ing statutory prohibition was also unsuccessful. On appeal, Held, dismissing the app eal, that the appellant had failed to establish that he was exercising a traditional fishing r ight because (leaving aside the question of genealogy) he gave no evidence of: (a) (by Gleeso n CJ and Priestley JA) any recognizable system of rules governing the taking of abalone; nor (b) (by the Court) how his activities fell within the scope of such rules. Per Kirby P The common law recognises a right to fish as a type of native title. Per Priestley JA The best way for common law native title claims to be pursued will be through the provisions and procedures of the Native Title Act 1993 (Cth). For example, s 223(2), puts beyond doubt the inclusion of hunting, gathering and fishing rights within the meaning of native title. There is no direct authority for this at common law. Observations (by Kirby P) on the application o f the presumption or inference of continuance in the proof of genealogies back to befo re 1788 for the purposes of native title. Observations (by Kirby P) on the effect of the Fis heries and Oyster Farms (General) Regulation on traditional fishing rights. [(1993) 70 A Crim R 28; 6 BPR 13,639 affd.] MASON V TRITTON (1994) 34 NSWLR 572; 84 LGERA 292 (NSW Sup Ct CA). 267. Non-proprietary rights At common law Right to fish As defence to cha rge Evidentiary burden on defence .] Held: (1) Where Aboriginals who were charged with offences under the Fisheries Act 1905 (WA), s 9(1), raised a defence that they w ere exercising native title fishing rights, the evidentiary burden of establishing t hat defence rested upon them. (2) A defence of native title fishing rights recognised at com mon law pursuant to the principles established in Mabo v Queensland [No 2] (1992) 175 CL R 1, requires evidence which goes to each of the facts necessary to establish native title. It is not necessary that the evidence be such as to establish the defence on the balance o f probabilities, but it must be such as to raise a reasonable doubt as to guilt. T he onus would then be on the Crown to negative the claim. (3) Section 56(1) does not specifica lly recognise native title to fish. [(1995) 82 A Crim R 318 affd in part.] DERSCHAW V THE QUEEN (1996) 90 A Crim R 9 (WA Sup Ct FC). 268. Non-proprietary rights At common law Right to fish As defence to cha rge under Fisheries Act Statute preserving customary rights Evidentiary burden o n defence .] Held: (1) Where a group of Aboriginal people were engaged in the ordinary a ctivity of fishing, not fishing for, or as members of, any particular original Aboriginal c ommunity, in contravention of a ministerial order under the Fisheries Act 1905 (WA), s 9(1), it could not be said that they were exercising a native title to fish within s 56(1) of the A ct. (2) While s 56(1) specifically preserves Aboriginal native title to fish where a defence is based on such a claim there is an evidentiary burden upon the defendants to adduce evidence to s ubstantiate the claim. SUTTON V DERSCHAW (1995) 82 A Crim R 318 (WA Sup Ct, Heenan J). 269. Legal aid Discretion of Land Councils to grant legal aid Application f or Land Council to pay costs Application to amend notice of appeal as to costs .] He ld: (1) There is nothing in the Aboriginal Land Rights (Northern Territory) Act 1976 (Ct h) which confines the power of a Land Council to grant legal aid to hearings before the A boriginal Land Commissioner or to hearings before the Land Council itself. (2) Section 23( 1)(f) of the Act creates no duty to provide legal aid in proceedings in the Supreme Court: it merely confers a discretion. (3) If a new point raised in an application to amend a not ice of appeal is a question of law dependent upon the construction of a document or statute, it m ay be expedient in the interests of justice to allow the point to be argued. However, the circumstances which permit this are exceptional. (4) In circumstances where an A boriginal group sought to amend their notice of appeal to argue that the Northern Land Cou ncil should pay their costs on an indemnity or party and party basis, by reason that the lit igation should be characterised as concerning the identity of the beneficiaries of a trust, no exceptional circumstances had been shown which would permit the amendment. [(1996) 5 NTLR 109; 132 FLR 40; 108 NTR 1 affd.] NOY V TAPGNUK (1997) 6 NTLR 118; 138 FLR 205 (NT CA). 270. Rating of land Corporate bodies providing housing for Aborigines Chari table purposes "Public charity" within Act Exempt from rating .] Held: (1) Land leased by the respondent associations and used as town camps providing housing for Aborigi nal people at Alice Springs was used for the purposes of a public charity within the meanin g of the Local Government Act 1985 (NT), s 97(1)(d), and was not ratable land. (2) On app eal from the Local Government Tribunal under s 240 of the Act, the Supreme Court has powe r to give effect to its decision which in this case was to quash and set aside the decisio n by the Tribunal. The powers of the court extend to what is incidental to giving effect to the decision. [(1996) 132 FLR 1 affd in part.] ALICE SPRINGS TOWN COUNCIL V MPWETEYERRE ABORIGINAL CORPORATION (1997) 139 FLR 236; 94 LGERA 330; 115 NTR 25 (NT CA). 271. Acquisition of land Compensation Interested person Custodian of land .] Held: (1) A person considering himself obliged to act as a custodian of lands in which other Aboriginal people had physical, cultural or spiritual association is not an "int erested person" within the Lands Acquisition Act 1989 (Cth), s 127. (2) A person who is an assoc iate member of an Aboriginal tribe but has no interest in the subject land as a nativ e or traditional title holder, does not have an interest for the purpose of s 127 of the Act. (3) Per Merkel J An interested person for the purposes of s 127 is a person who has a bona fide a nd genuine claim to be the holder of an interest or interests in particular land and in rel ation to which a claim for compensation has been made or may be made under the Act. The interest claimed is one which is to be an interest as defined in s 6 and which may be acquired un der s 17 of the Act. [Earlier proceedings (1995) 61 FCR 103; 132 ALR 329.] KANAK V COMMONWEALTH PIPELINE AUTHORITY (1997) 73 FCR 198; 154 ALR 156 (Fed Ct of Aust FC). 272. Aboriginal Development Commission Act 1980 (Cth) Powers of Commission Direction by Minister Validity .] The applicant contended that directions ma de by the respondent were invalid as ultra vires the powers conferred on the respondent un der the Aboriginal Development Commission Act 1980. The directions concerned the provisi on of information and co-operation by the applicant in relation to the formation of a new statutory body, the Aboriginal and Torres Strait Islander Commission. Held, that the direc tions given by the respondent were general directions related to the exercise by the applica nt of its powers and accordingly fell within the power conferred on the respondent by s 11 (1) of the Act. ABORIGINAL DEVELOPMENT COMMISSION V HAND (1988) 15 ALD 410 (Fed Ct of Aust, Davies J). 273. Aborigines Welfare Board Responsibilities As statutory guardian Prov iding custody, maintenance and education Whether fiduciary duty .] A woman of Abor iginal descent, born in 1942, was placed at birth in a home for Aboriginal children by the Aborigines Welfare Board. A few years later she was moved by the Board to a home for "white" children because she was fair-skinned. She claimed that it was not until 1991 that she came to realise her borderline personality disorder was the result of her childh ood experiences. She therefore sought an order for an extension of time under the Li mitation Act 1969 (NSW), in order to proceed against the relevant authorities for negligence, breach of duty and wrongful detention. Her notice of motion was rejected. On appeal, Held (by majority), allowing the appeal: (1) The Limitation Act does not apply to a cause of action for equitable relief, including relief for a breach of fiduciary duty, except by ana logy. However, analogous application of the statute does not necessarily mean exact application of its terms. (2) In the present case, the Aborigines Welfare Board was in the nature of a sta tutory guardian of the plaintiff and thus arguably had a fiduciary duty in providing fo r her custody, maintenance and education. Per Priestley JA This case seems pre-eminently of t he kind where a broad approach should be taken to questions of arguability of legal prop ositions which may be novel but which require careful consideration in the light of chang ing social circumstances. WILLIAMS V MINISTER, ABORIGINAL LAND RIGHTS ACT 1983 (1994) 35 NSWLR 497 (NSW Sup Ct CA). 274. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Powers o f Commission Directions by Minister Validity .] The Aboriginal and Torres St rait Islander Commission Act 1989 (Cth), s 12(1), confers power on the Minister to gi ve general directions to the Aboriginal and Torres Strait Islander Commission. Held: (1) Al though s 12(1) contains no limitation as to the functions and powers to which a general d irection by the Minister can relate, the power to give directions is subject to an important limitation resulting from the use of the word "general". (2) A power to give "general direc tions" in accordance with which a body such as the Commission must exercise powers conferr ed upon it by the parliament may well fall short of permitting directions that have the practical effect of giving to another person what amounts to the capacity to veto the exercise, i n a particular case, of any of the powers conferred. (3) Although limitations on the exercise o f a power can result from the proper exercise of a power to give general directions, it is qui te another thing for the limitations to be accompanied by the committal of elements of the exerci se of the power to another person. ABORIGINAL LEGAL SERVICE LTD V MINISTER FOR ABORIGINAL & TORRES STRAIT ISLANDER AFFAIRS (1996) 69 FCR 565; 139 ALR 577; 45 ALD 235 (Fed Ct of Aust FC). 275. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Rules .] Held, that regional council election rules made by the Minister pursuant to the Aboriginal and Torres Strait Islander Commission Act 1989 were " the Regional Council election rules in force at the beginning of the election period " within s 100, despite the fact that they ceased to have effect before the date on which the el ection was held. THORPE V MINISTER FOR ABORIGINAL AFFAIRS (1990) 26 FCR 325; 97 ALR 543 (Fed Ct of Aust FC). 276. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Standing of Commissioner of Aboriginal and Torres Strait Islander Commission to challenge decision of Regional Council .] Held: (1) Subject to a situation in which an elected representative can show a special interest of his own that h as been affected by a decision or an activity of the elected body (or its delegate), the representative's membership of such a body is by itself insufficient to confer standing on him to challenge the actions of the body (or its delegate). (2) The applicant, a Commissioner of the Aboriginal and Torres Strait Islander Commission, had no standing to challenge the respondent's decision to provide funding to the Brisbane Aboriginal Legal Service. The absence of any aut hority effective at law to entitle the applicant to challenge the respondent's decision in his own name was one reason why he lacked standing. ROBINSON V SOUTH EAST QUEENSLAND INDIGENOUS REGIONAL COUNCIL OF ABORIGINAL & TORRES STRAIT ISLANDER COMMISSION (1996) 70 FCR 212; 140 ALR 641; 45 ALD 251 (Fed Ct of Aust, Drummond J). 277. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Unqualified candidate Power of court to declare candidate not du ly elected Procedure to fill vacancy .] A was declared elected as a member of a regional council ward. However, he was not entitled to vote or stand for election in that ward as he did not reside there. Held: (1) The term "illegal practice" contained in the Abo riginal and Torres Strait Islander Commission Act 1989 (Cth), Sch 4, cl 12(3)(b), is a defin ed expression, carrying with it no necessary inference of moral blame. The acceptan ce by the returning officer of the nomination and his participation involved a contraventi on of s 102(1) and therefore amounted to an "illegal practice" for the purposes of Sch 4, cl 12 (3)(b). (2) A was declared not duly elected. The conditions in Sch 4, cl 12(3)(b), were satisf ied in that the result of the election was affected and it was just that A should be declared no t to be elected because the electorate ought not to have forced upon it a representative who was ineligible for election. (3) The vacant position to which A was declared elected should be filled by a further count or recount of the votes already cast. PETTIT V ATKINSON (1994) 50 FCR 174 (Fed Ct of Aust, Gray J). 278. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Disputed election "Aboriginal person" Who is .] The result o f a regional election was contested on the basis that the respondent was not qualifi ed to stand for election because he was not an "Aboriginal person" for the purposes of the Abori ginal and Torres Strait Islander Commission Act 1989 (Cth). As to the meaning of "Aborigin al person", Held: (1) In order for someone to be described as an "Aboriginal person" within the meaning of that term in the Act, some degree of Aboriginal descent is essential, althoug h by itself a small degree of such descent is not sufficient. A substantial degree of Aborigin al descent may, by itself, be enough to require a person to be regarded as an "Aboriginal p erson". (2) Where a person is either wholly of Aboriginal descent or where the degree of Abo riginal descent is so substantial that the person possesses what would be regarded by th e generality of the Australian community as clear physical characteristics associated with Ab originals that the person would be described in ordinary speech as "Aboriginal", the perso n may be regarded as an "Aboriginal person" for the purposes of the Act. It is racial ori gin, not external physical appearance, that governs whether a person is "Aboriginal" for the purpo ses of the Act. (3) The less the degree of Aboriginal descent, the more important cultural circumstances become in determining whether a person is "Aboriginal". GIBBS V CAPEWELL (1995) 54 FCR 503; 128 ALR 577 (Fed Ct of Aust, Drummond J). 279. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Disputed election Counting of votes Drawing of lots No provi sion for Illegal practice rendering election void .] On an election petition disp uting the election of candidates the electoral officer had, in counting the votes, resolve d an equality by drawing lots to exclude candidates or to produce a candidate with an absolute ma jority of votes. Held: (1) Neither the Aboriginal and Torres Strait Islander Commission Ac t 1989 (Cth), the rules contained in Sch 3 to the Act, the zone election rules, nor the common law, authorised the drawing of lots to resolve situations of equality of votes. (2) S chedule 3, cl (3), of the Act is to be interpreted by reference to the Acts Interpretation Act 1901 (Cth), s 23(b), so that the words "the candidate who has received the fewest preference votes" s hould be read so as to include all candidates who have received the same number of first preference votes where that number is the fewest first preference votes received. (3) Even though the electoral officer had acted bona fide, the failure to use the required procedure to count the votes and to allocate preferences and the use of a method contrary to that provi ded by the Act and Sch 3, amounted to a contravention of the Act and an "illegal practice" suff icient to declare the candidate to be not duly elected if the result of the election was l ikely to be affected and it was just to make such an order. (4) In the circumstances, it sho uld be declared that the candidate was not duly elected. MAM V DELANEY (1994) 53 FCR 481; 85 LGERA 180 (Fed Ct of Aust, Cooper J). 280. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Disputed election Absolute majority of votes .] Held, that the requirement in the Aboriginal and Torres Strait Islander Commission Act 1989 (Ct h), Sch 3, that a candidate obtain an "absolute majority of votes" does not mean that to be elected a candidate must obtain an absolute majority of all votes cast in the election, bu t simply that, at some stage of the count (under the system envisaged in Sch 3), he must obtain mo re than half of the unexhausted votes. WATSON V MAM (1995) 57 FCR 400 (Fed Ct of Aust, Cooper J). 281. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Disputed election Petition When petition filed "Election per iod" Grounds for filing .] Held: (1) For the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), Sch 4, cl 3, an election petition is "filed" when it is physically delivered to the court office and appropriate fees are handed over. ( 2) A Regional Council election is susceptible to review upon a petition being lodged in accord ance with the Act and Sch 4, cl 4, within 40 days of the last day on which any poll is declare d in relation to any region in a round of Regional Council elections. (3) Failure of a presiding officer to comply with the provisions of the election rules relating to the issue of voter card envelopes amounted to a contravention of r 108 and was an illegal practice sufficient to f ound an order. (4) For the purposes of Sch 4, cl 10(12)(3), the court must be satisfied that th e result of the election was "likely" (meaning a real or not remote chance or possibility, regar dless of whether it is less or more than 50 per cent) to be affected and it is just (that is "right and fair, having reasonable and adequate grounds to support it, well founded and conformab le to a standard of what is proper and right") to make one or other of the available dec larations. AUSTRALIAN ELECTORAL COMMISSION V LALARA (1994) 53 FCR 156; 85 LGERA 168 (Fed Ct of Aust, O'Loughlin J). 282. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Error or omission by polling officer Whether result of election affected .] Held: (1) A polling official who bona fide acts on a representation that a per son is eligible to vote and who reasonably fails to make further inquiry does not commit an erro r or make an omission within cl 14(1) of Sch 4 of the Aboriginal and Torres Strait Islande r Commission Act 1989 (Cth). (2) For an election to be avoided pursuant to cl 14(1) it must b e shown that any error or omission on the part of the officer has affected the result of the election. It is insufficient that it may have affected the result. WASAGA V TAHAL (1991) 33 FCR 438 (Fed Ct of Aust, Spender J). 283. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Error or omission by polling officer Result of election likely t o be affected Powers of court .] Under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), Sch 4, the Regional Council Election Rules prescribed the method of conducting elections and voting for regional councillors. In an electi on held under the Act, 164 of 194 voters who attended a particular polling booth detached the original of a voter detail slip from the voter card envelope given to each voter, under s 73(4 ), and placed the slip in the envelope to which it had been attached (together with the ballot paper), in consequence whereof the votes of those 164 were excluded from scrutiny and count ing. Held: (1) Failure of voters to comply with the relevant rules, and failure of th e relevant liaison officers to conduct supervisory procedures in accordance with the rules, constituted "illegal practices" within the meaning of Sch 4, cl 12, of the Act: "illegal pra ctices" being for that purpose mere contraventions of the rules. (2) There had also been an error or omission by a polling officer or officers, within the meaning of Sch 4, cl 14. (3) In the circumstances, these irregularities were likely to have affected the result of the election and may have affected the result of the election. (4) The court had power, by virtue of cll 1 0(1)(j), 10(2), 12, 14 and 23 of Sch 4, to have regard to the fact that there were lawful and pr actical means of saving the election which justified the directing of a fresh scrutiny and cou nt rather than declaring the election totally void. AUSTRALIAN ELECTORAL COMMISSION V GORDON (1994) 85 LGERA 77 (Fed Ct of Aust, Foster J). 284. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Error in prescribed polling procedures Power of court to rectify .] Held: (1) The opening words of the Aboriginal and Torres Strait Islander Commiss ion Act 1989 (Cth), Sch 4, cl 10(1), provide the court with all the ordinary powers of a court of disputed returns under the common law of elections. (2) The common law of electi ons gives to the court all necessary and reasonable powers to protect the integrity of the franchise. In particular, it is within the court's power to determine whether the election was properly conducted and, if it was not, to order such steps as should reasonably be taken to correct the situation. [Further proceedings see (1994) 54 FCR 383.] AUSTRALIAN ELECTORAL COMMISSION V TOWNEY (1994) 51 FCR 250 (Fed Ct of Aust, Foster J). 285. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Discretion of court to void election Error or omission .] Held : (1) The court should not consider exercising its discretion to void an election under th e Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) if it is satisfied that the error or omission complained of did not affect the result of the election. (2) In exercis ing that discretion, the court must consider whether any proposed order is just and suffi cient. To be sufficient, it is necessary for the order to be appropriate in all the circumsta nces. (3) Schedule 4, cl 12(3), of the Act limits the court's discretion to declare an ele ction void on the ground of any "illegal practice" unless it is satisfied that the result of the e lection is likely to be affected and that it is just that the election should be declared void. AUSTRALIAN ELECTORAL COMMISSION V LANDY (1994) 54 FCR 440 (Fed Ct of Aust, Lee J). 286. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Validity Secrecy requirements .] Held, that a question whether elections for a regional council were validly conducted according to the secrecy requirements of the Aboriginal and Torres Strait Islander Commission Act 1989 is not a questi on respecting the qualifications of the elected members of the regional council. No r is it a question respecting vacancies, that being historically an aspect of disqualifica tion from, or termination of, membership. [Further proceedings see (1992) 35 FCR 485; 107 ALR 514.] BLURTON V MINISTER FOR ABORIGINAL AFFAIRS (1991) 29 FCR 442; 101 ALR 350 (Fed Ct of Aust, French J). 287. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Validity Secrecy requirements .] Held: (1) The purpose of t he secret ballot, in relation to parliamentary, local government and union election s, is to encourage voters to exercise a choice for their preferred candidate free from th e possibility that any social, economic, physical or other sanctions may be applied to them fo r voting or not voting in a particular way. (2) The mechanism adopted must enable the electo r to cast a vote in private, that is to say, without disclosing it to any other person, and must enable the anonymity of that vote to be protected. (3) Physical isolation of the voter and a system for separating or keeping separate the voter's identity and the record of the vote c ast are essential elements of the modern understanding of the secret ballot. (4) The system of vot ing adopted by the relevant Regional Council Election Rules provided for physical isolation of the elector at the point at which the vote was cast but did not keep separate the record of the vote cast from information about the identity of the voter. The ballot paper was sealed in an envelope bearing the voter's name and address. Separation occurred when the ballot paper was taken out of the envelope for scrutiny. In the meantime, however, the elector was requ ired, after having cast a vote, to leave in the hands of a third party, information about hi s identity and the vote that was cast. This was not a secret ballot as required by s 109 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), and the election was void. [Earlier proceedings see (1991) 29 FCR 442; 101 ALR 350.] [Further proceedings see (1992) 36 FCR 152; 112 ALR 603.] YARRAN V BLURTON (1992) 35 FCR 485; 107 ALR 514 (Fed Ct of Aust, French J). 288. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Validity Secrecy requirements .] Held: (1) A ballot conducted utilizing a procedure whereby voter information is recorded on a counterfoil attached to a ballot paper, which is separated from the ballot paper before the ballot paper is place d in the ballot box, answers the description of a secret ballot. [Earlier proceedings see (1992) 35 FCR 485; 107 ALR 514.] YARRAN V BLURTON [NO 2] (1992) 36 FCR 152; 112 ALR 603 (Fed Ct of Aust, French J). 289. Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Regional councils Elections Declaration that void Effect Declaration of poll Immediate v acancy in seats .] Held: (1) When an election held under the Aboriginal and Torres St rait Islander Commission Act 1989 (Cth) has been declared void by the court, then the declarat ion of the poll must be regarded, at least from the date of the court's order, as a nullity . (2) A declaration by the court that an election held under the Act is void effectively creates an immediate vacancy in the seats of the persons elected. [Earlier proceedings see (1992) 35 FCR 485; 107 ALR 514.] YARRAN V BLURTON [NO 2] (1992) 36 FCR 152; 112 ALR 603 (Fed Ct of Aust, French J). 290. Aboriginal Land Council (NSW) Entitlement to bring defamation action .] The question referred for determination to the Court of Appeal was whether the New S outh Wales Aboriginal Land Council, constituted as a body corporate by the Aboriginal Land Rights Act 1983 (NSW), could maintain an action for defamation in respect of imp utations that it conspired to pursue a native title claim which it knew to be fraudulent and supported it with bribery and corruption. Held (by majority): (1) The Aboriginal Land Rights Act established a system of local government for aborigines who reside in a Local Ab original Land Council area or a Regional Aboriginal Land Council area. Consideration of corresponding provisions in the Aboriginal Land Rights Act and the Local Governm ent Act 1993 (NSW). (2) The present case was covered by the decision in Ballina Shire Co uncil v Ringland (1994) 33 NSWLR 680 which denied local government corporations any righ t to sue for defamation even when it caused financial loss. Accordingly, the question referred should be answered "no". NSW ABORIGINAL LAND COUNCIL V JONES (1998) 43 NSWLR 300; 97 LGERA 322; 27 ACSR 656 (NSW Sup Ct CA). 291. Aboriginal aide Aide appointed by Police Commissioner Termination of employment "Employee" Relevance of ILO Termination of Employment Convention Relevance of recommendation concerning termination at initiative of employer Relevance of regulations excluding "employees" Aide was person whose employmen t terminated within meaning of legislation Industrial Relations Act 1988 (Cth), ss 170CA, 170EA .] WARD V COMMISSIONER OF POLICE (1998) 80 IR 1; 151 ALR 604; [1998] AILR 506 (3-767) (Fed Ct of Aust, Moore J). 292. Community Services (Torres Strait) Regulations 1985 (Q) Elections Qualifications "Resided continuously in the area" What constitutes .] The applicant was a candidate for election as a member of an Island Council. He was born on th e relevant island and had lived there all his life, except for a period of eight years duri ng which he worked on a railway construction project, and other periods when he left the isl and to dive for trochus, which was a common calling in the area. During two periods which oc curred less than 24 months prior to the nomination day for the election, namely between 12 F ebruary 1990 and 16 March 1990, and between 22 March 1990 and 19 June 1990, he was absen t from the island diving for trochus. During those periods he maintained a home on the island but his wife and child left the island to live at a place near where he was diving, and his mail was directed to that place. Held, that in the circumstances, the applicant had resid ed continuously in the area for not less than 24 months prior to the nomination day for an elect ion for the purposes of the Community Services (Torres Strait) Regulations 1985 (Q), reg 8(1 )(a), and was therefore qualified for election. RE KIWAT [1993] 2 Qd R 531 (Q Sup Ct, Dowsett J). 293. Aboriginals Ordinance 1918 (NT) Chief Protector of Aboriginals Powers of Under ordinance To undertake care, custody or control of "any aboriginal or ha lf-caste" Validity .] Under the Constitution, s 122, the Parliament may make laws "for the government of any territory", the Northern Territory being within the section's application. The Aboriginals Ordinance 1918 (NT), s 6(1), conferred on the Chief Protector a power "to undertake the care, custody, or control of any aboriginal or half-caste" subject to his holding the opinion that it was "necessary or desirable in the interests of the aborigin al or half-caste for him to do so". Section 67 conferred on the Administrator of the Territory a regulation-making power "for the effectual carrying out of this Ordinance". On a challenge to those and other provisions of the Ordinance as being ultra vires and not a valid law for the government of the Northern Territory, Held, that the Constitution, s 122, confer red unrestricted legislative power, and the challenge to the validity of the Ordinan ce failed. Per Brennan CJ The challenged sections, being expressed to advance the interests o f the "aboriginals and half-castes" of the Northern Territory, were clearly supportabl e as laws made for the government of the Northern Territory, finding their constitutional authority in s 122. All that is needed to attract the support of s 122 to a law enacted by the Parliament is a sufficient nexus between the law and the Territory. Per Dawson J (McHugh J agree ing) The plaintiffs' submission, that the challenged sections were not appropriate or adapted to the government of the Territory, must be rejected. That test is generally unsuitable , and particularly so in relation to a power like that under s 122 which is not confin ed by reference to subject matter. In this case there can be no doubt about the sufficient nexus or connection between the law and the Territory. Per Toohey J The test of proportionality is inappropriate to assess whether a law is one for the government of a territory. It is hard to see why the present Ordinance does not answer the description of a law for the gover nment of the Northern Territory since it relates to an aspect of government and bears dir ectly and only on certain inhabitants of the Territory by reference only to places and circumst ances within the Territory. Per Gaudron J No question here arises as to proportionality. Th e Ordinance was a law for the government of the Northern Territory and was authorised by s 1 22. Any invalidity is to be found in the constitutional limitations considered elsewhere . [Earlier proceedings see (1995) 69 ALJR 885.] KRUGER V COMMONWEALTH (1997) 190 CLR 1; 71 ALJR 991; 146 ALR 126 (HC). [Discussed in article, 4 ILB (No 6) 22.] 294. Aboriginal Co-operative Society Status as public benevolent institution for local government rating purposes .] Held: (1) Land which was occupied and intended t o be acquired by a Community Advancement Society under the Co-operation Act 1923 (NSW ), the objects of which included the relief of poverty, sickness, destitution, dist ress, suffering, misfortune or helplessness of needy members of the Aboriginal community in the p articular area, was a public benevolent institution and as such exempt from rating. (2) Th e requirement that any surplus land be held in perpetuity for the use and benefit of Aboriginals in Australia made it clear that such land must be held on a charitable trust and the current disadvantaged position in Australia of Aboriginals was such that any valid chari table trust for their benefit must also be for public benevolent purposes. [(1991) 73 LGRA 178 affd.] [Further proceedings see (1995) 86 LGERA 430.] MACLEAN SHIRE COUNCIL V NUNGERA CO-OPERATIVE SOCIETY LTD (1994) 84 LGERA 139 (NSW Sup Ct CA). 295. Aboriginal corporations Power to contract Agreement to sell land Abo riginal Councils and Associations Act 1976 (Cth) .] BAXTER V MARRA WORRA ABORIGINAL CORPORATION (1988) 5 SR (WA) 42 (WA Dist Ct). 296. Aboriginal corporations Land owned by Liability to pay land rates .] Held: (1) The applicant was a public benevolent institution because its predominant purpos e was to foster, advance, improve and maintain the general well-being and welfare of Abor iginals. Its main objective was the relief of poverty by fostering, advancing, improving and maintaining the well-being and welfare of Aboriginals through providing low-cost housing and it was the intent of the other objects to increase Aboriginal welfare and well-being. (2) T he fact that a few housed members of the applicant were employed while the majority were welfar e recipients did not mean the land owned by the applicant was not used in a manner required by the Local Government Act 1993 (NSW), s 556(h). Accordingly, the land was used by or occupied for benevolent purposes. GUMBANGERRII ABORIGINAL CORPORATION V NAMBUCCA COUNCIL (1996) 131 FLR 115 (NSW Land & Environment Ct, Stein J). 297. Aboriginal corporations Requirements for .] Discussion of requirements for incorporation of an Aboriginal association under the Aboriginal Councils and Ass ociations Act 1976 (Cth), ss 43, 45 and 46. Per curiam the concept that a corporation th e subject of the Corporations Law may also be an Aboriginal association eligible for incorpor ation under the Act, and thereafter be no longer subject to the Corporations Law, but subjec t only to the provisions of the Act, is inconsistent with the provisions and intent of the Cor porations Law. WHITBY V DEPUTY COMMISSIONER OF TAXATION (1996) 20 ACSR 247 (WA Sup Ct FC). 298. Aboriginal corporations Incorporation of Aboriginal associations Compr omises or arrangements with creditors Applicability of provisions of Corporations Law relating to voluntary administration .] Held, that there is no reason to doubt that the re ference in the Aboriginal Councils and Associations Act 1976 (Cth), s 62 to provisions in the C orporations Law "relating to compromises and arrangements" includes arrangements contemplate d by the Corporations Law, Pt 5.3A. [Further proceedings see (1996) 22 ACSR 253.] RE DEERAL ABORIGINAL & TORRES STRAIT ISLANDERS CORPORATION (1996) 70 FCR 229; 140 ALR 83; 22 ACSR 97 (Fed Ct of Aust, Kiefel J). 299. Aboriginal Corporation for Sporting and Recreational Activities Nature o f corporation "Public authority under the Commonwealth" .] The question to be determined was whether the Aboriginal Corporation for Sporting and Recreational Activities was an authority or body constituted by or under a law of the Commonwealth or a Territory within the meaning of the Crimes Act 1914 (Cth), s 3. Held: (1) The definition m ust be limited by its context. The proper distinction is between a private corporation not being a "public authority" under the Commonwealth and a government instrumentality which is. The precise mode of incorporation is not decisive. (2) On the evidence, the Corporat ion was not "a public authority under the Commonwealth". R V HALL (1992) 106 FLR 458 (ACT Sup Ct, Higgins J). 300. Contributory funeral benefits scheme Legality of scheme .] The plainti ffs challenged the legality of the operation of a contributory funeral benefit schem e proposed to be carried on pursuant to a deed of trust and a management agreement to which th e first and second defendant were parties. The first defendant was a local Aboriginal land c ouncil constituted as a body corporate by the Aboriginal Land Rights Act 1983 (NSW), s 6. The second defendant was constituted as a body corporate under s 22 of the same Act. Neither defendant was a "funeral contribution fund" within the meaning of the Funeral Fu nds Act 1979 (NSW). The relevant minister declared that the first defendant was exempt f rom the application of s 11 of the latter Act. Critical to the financial viability of th e scheme was an indemnity provided to the first defendant by the second defendant. Held: (1) The second defendant did not have the legal capacity to give the indemnity. To indemnify a local Aboriginal land council against liabilities arising out of the operation by that council of an "enterprise" under the Aboriginal Land Rights Act, s 12(d)(ii), did not fall wit hin any of the functions described in s 23(f) and (h) of that Act, nor was it "necessary for, o r incidental to, the exercise of" any such function for the purposes of the Interpretation Act 19 87 (NSW), s 50(1)(e). (2) Per curiam A declaration by the minister under the Funeral Funds Act, s 11, must relate to "a person" or "a class of persons". There is no provision permitt ing a declaration relating to a person to be conditional or limited so as to be effect ive only where that person is exercising a particular legal capacity, for example, as trustee o f a particular trust. Nor is there any legitimate basis in that Act for implying the existence of a power to make the minister's declaration of a person under s 11 subject to any such condi tion or limitation. [Earlier proceedings see (1997) 41 NSWLR 494; 93 LGERA 345.] ABORIGINAL COMMUNITY BENEFIT FUND PTY LTD V BATEMANS BAY LOCAL ABORIGINAL LAND COUNCIL (1997) 42 NSWLR 593; 96 LGERA 138; 24 ACSR 662 (NSW Sup Ct, McLelland CJ). 301. Aboriginal Lands Trust (WA) Application of public health laws to .] He ld, that the Health Act 1911 (WA), s 99, is not binding on the Aboriginal Lands Trust as an instrumentality of the Crown. Semble, the Aboriginal Lands Trust cannot be compe lled to provide sanitary conveniences on Trust land. ATYEO V ABORIGINAL LANDS TRUST (1996) 93 LGERA 57 (WA Sup Ct, Templeman J). 302. Aboriginal sacred sites Undue offence Evidence of Aboriginal beliefs Anthropological evidence Objection to grant of liquor licences Liquor licenc es refused .] [Earlier proceedings see (1993) 9 SR (WA) 228; and (1994) 10 SR (WA) 61.] RE BLUEGATE NOMINEES PTY LTD [NO 3] (1994) 10 SR (WA) 130 (WA Liquor Licensing Ct). 303. Aboriginal sacred sites Undue offence Evidence of Aboriginal customs a nd traditions Objection to grant of liquor licence Evidence of custom and tradi tion conditionally admitted .] [Further proceedings see (1994) 10 SR (WA) 130.] RE BLUEGATE NOMINEES PTY LTD [NO 2] (1994) 10 SR (WA) 61 (WA Liquor Licensing Ct). 304. Custody of children Aboriginality Relevance to welfare of child Admi ssibility of expert evidence .] Held, that expert evidence of the difficulties faced by Aboriginal children raised in a non-Aboriginal background is a relevant issue for the deter mination of what is in the best interests of an Aboriginal child. It is the role of a separa te representative to present such evidence to the court in an appropriate case. Consideration of t he issues involved. RE B (1995) 127 FLR 438; 19 Fam LR 594; [1995] FLC 82,389 (92-636) (Fam Ct of Aus t FC). 305. Custody of children Cultural heritage Cultural differences of indigeno us people Specificity of Tiwi island heritage .] An Aboriginal Tiwi mother and a relat ive appealed from a trial judge's award of custody to a non-relative Aboriginal pers on with whom the child was residing in Darwin. Held, allowing the appeal: (1) In balanci ng the relevant factors under the Family Law Act 1975 (Cth), s 68F(2)(f), the trial jud ge had taken into account and balanced one Aboriginal environment against the other which err oneously treated the respective Aboriginal people as largely culturally homogeneous. The proper approach required the trial judge to balance an Aboriginal environment on the on e hand and the specific Aboriginal Tiwi environment which was the child's own distinctive c ultural heritage. (2) Per curiam There are difficulties in the application of the Act to cultural systems of family care which, like the Tiwi culture, contemplate circumstances w here the child will live and be cared for within a kin network. RE P (1997) 21 Fam LR 486; [1997] FLC 83,973 (92-741) (Fam Ct of Aust FC). 306. Death in custody Failure of hospital to provide treatment Wrongful det ention by police Insensitive handling of identification of body Family's pathological grief .] The plaintiffs were the mother and brothers of a young Aboriginal man who hanged himself in a police station cell. The young man was suffering alcohol withdrawal symptom s, and hallucinating. He was taken by his brother to hospital. The nursing sister read his records, which revealed a previous hospital admission, but instead of being treated he wa s turned over to the local police, who locked him in a dark cell. He had committed no offence. The family were not told he was in gaol. Later the brothers were asked to identify the body , which was in a van at the roadside. After the death, the plaintiffs suffered from sleeplessne ss, bad dreams and excessive drinking. The mother never went fishing or hunting again. Held, th at when the community constrains the liberty of a citizen, it assumes a heavy burden to ensu re his safety. The instructions of the Commissioner of Police as to checking on persons in cust ody in like circumstances were not followed. The roadside identification was insensitive and indefensible. The medical evidence that all plaintiffs suffered prolonged and pa thological grief should be accepted. Liability between the hospital and the police service should be apportioned as 50 per cent in respect of each defendant. QUAYLE V NEW SOUTH WALES [1995] Aust Torts Reports 62,792 (81-367) (NSW Dist Ct).