ABORIGINES

[Supplemented to January, 1999]

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).