CATCHNORDS Administrative law - order to enter and remain upon privately owned lands - s.51 Aboriginal Land Rights (N.T.) Act - whether section authorizes the making of orders affecting the rights of third parties - extent of power conferred upon the Aboriginal Land Commissioner - whether unreasonable exercise of power Aboriginal Land Rights (Northern Territory) Act, 1976 s.51 Administrative Decisions (Judicial Review) Act, 1977 s.5 ANTHONY LAGOON STATION PTY. LIMITED and EVA DOWNS PASTORAL COMPANY PTY. LIMITED Vv. THE HONOURABLE MR JUSTICE MAURICE, ABORIGINAL LAND COMMISSIONER and THE NORTHERN LAND COUNCIL No. NT G5 of 1986 Morling J. 9 September 1986 Vo. ee a . Darwin. ° 24007 wus FEDERAL Govat e= AUSTRANAT @ PRINCIPA ' REGISTH SS IN THE FEDERAL COURT OF AUSTRALTA NORTHERN TERRITORY DISTRICT REGISTRY No. NI G5 of 1986 ee eww GENERAL DIVISION BETWEEN : ANTHONY LAGOON STATION Pry LIMITED and EVA DOWNS PASTORAL COMPANY PTY LIMITED Applicants AND: THE HONOURABLE MR JUSTICE MAURICE, ABORIGINAL LAND COMMISSIONER and THE NORTHERN LAND COUNCIL Respondents MINUTE OF ORDER JUDGE MAKING ORDER 3 Morling J. DATE OF ORDER : 9 September 1986 WHERE MADE : Darwin THE COURT ORDERS AS FOLLOWS: i. Application dismissed. 2. Applicants to pay the costs of the application, including the costs of the interlocutory application. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NI G5 of 1986 ) GENERAL DIVISION ) BETWEEN: ANTHONY LAGOON STATION PTY LIMITED and EVA DOWNS PASTORAL COMPANY PTY LIMITED Applicants AND: THE HONOURABLE MR JUSTICE MAURICE, ABORIGINAL LAND COMMISSIONER and THE NORTHERN LAND COUNCIL Respondents MORLING J. 9 September 1986 REASONS FOR JUDGMENT This claim raises for consideration a short but important question as to the extent of the powers conferred on the Aboriginal Land Commissioner by s.51 of the Aboriginal Land Rights (Northern Territory) Act 1976, ("the Land Rights Act"). That section provides that the Commissioner "may do all things necessary or convenient to be done for or in connexion with the performance of his functions". The question is not free from difficulty but I shall give my decision on it without delay because the interests of the parties requires urgent resolution of the question. Section 49 of the Act provides that there shall be an Aboriginal Land Commissioner. A person may not be appointed as the Commissioner unless he is a Judge of the Supreme Court of the Northern Territory (s.53). On application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being, inter alia, umalienated Crown land it is the function of the Commissioner to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land (s.50(1)(a)(i)) and to report his findings to the Minister and to the Administrator of the Northern Territory (s.50(1)(a)(id)). Where the Commissioner finds that there are Aboriginals who are the traditional Aboriginal owners of the land he is to make recommendations to the Minister for the granting of the land or any part of it in accordance with the provisions of the Act (s.50(1l)(a)(ii)). As well as having other functions referred to 1n s. 50(1) the Commissioner may, with the approval of the Minister, perform any function that may be conferred on him by a law of the Northern Territory (s.50(2)). Section 54 authorizes the Commissioner by notice in writing, to require a person whom he believes to be capable of giving information relating to a matter being inquired into by him to attend before him and answer questions in relation to that matter and to produce such documents and records as are specified in the notice. The facts giving rise to the present application which is brought pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 may be briefly stated. There are pending before the Commissioner two applications brought by the Northern Land Council. The applications are known as the "Wombaya claim" and the "Anthony Lagoon claim". It is one of the functions of the Northern Land Council to assist Aboriginals claiming to have a traditional land claim to an area of land within its area in pursuing the claim; in particular, by arranging for legal assistance for them at its expense (38.23(1)(f)). For the purpose of pursuing the Wombaya land claim the Northern Land Council applied to the Commissioner for an order authorizing it and members of its staff and others to enter upon the applicants' lands for the purpose of gathering and recording information necessary to enable it to comply with certain general practice directions given by the Commissioner. These practice directions require a Land Council sponsoring a land claim on behalf of Aboriginals to perform a great deal of preparatory work before the Commissioner embarks upon the hearing of the claim. This preparatory work includes the gathering of ethnographic data and site information. The Wombaya claim area is surrounded by alienated Crown land held under pastoral lease. There appear to be no public roads leading to the claim area. When the application came before him the Commissioner took the view that it was 3. necessary for the Northern Land Council and those assisting it in the presentation of the Wombaya claim to visit the claim area and sites relevant to the claim. It appears that whilst most, if not all, of these sites are likely to be on the claim area itself there is a possibility that some may be on adjoining lands held by the applicants under pastoral leases. The Commissioner decided that s.51 authorized him to make the order sought. This decision, which was conceded to be an administrative decision for the purposes of the Administrative Decisions (Judicial Review) Act, was attacked by counsel for the applicants principally on the ground that it was not authorized by s.51 and that the Commissioner therefore did not have jurisdiction to make it. Alternatively, it was argued that the decision was an improper exercise of the power conferred by s.51. The order made by the Commissioner took the form of an order authorizing the Northern Land Council, "by its staff and consultants, together with such Aboriginal informants and claimants as required" to enter and remain upon such areas of Anthony Lagoon and Eva Downs Stations as might be necessary to gain access to the Wombaya claim area and other areas described in the order. It is relevant to note that some of the areas were described in paragraph (k) of the order in the following terms: "Such areas of Anthony Lagoon and Eva Downs Stations as may contain 'sites of significance' of relevance to and associated with the Wombaya/Anthony Lagoon Land Claim." The order limited the authority to enter and remain upon the areas "for the purpose of gathering and recording information necessary to enable the (Northern Land Council) to comply with certain practice directions published by the Aboriginal Land Commissioner ... insofar as those directions apply to the traditional land claim known as the Wombaya and Anthony Lagoon Area land claims". The order authorized the Northern Land Council, "where strictly necessary ... to cut fences, install gates, and draw water from bores and/or waterholes". The order was expressed to be made subject to a number of terms and restrictions designed to protect the applicants' interests. These terms and restrictions required the Northern Land Council to give 7 days written notice before entry onto the occupants' properties, to immediately restore fences where cut to their former condition, and to restrict travel across the applicants' properties to existing roads and tracks where reasonably possibile. It was a further term of the order that the Northern Land Council should be responsible and indemnify the applicants for any loss or damage caused by entry upon their lands pursuant to the order, such damage to be proved to the satisfaction of the Commissioner. The central question for determination in the present case is the meaning of s.51 and the extent of the power it confers on the Commissioner. That question must be determined as a matter of construction having regard to the character of the Land Rights Act as a whole and the nature of its provisions - see Morton v The Union Steamship Company of New Zealand Limited(1951) 83 CLR 402 at 410. Statutory provisions authorizing the making of regulations or the doing of acts for purposes necessary or expedient for the administration of an Act are not uncommon and have been considered in many cases. Some of these cases are referred to in Shanahan v Scott (1956-1957) 96 CLR 245 at 250, where the effect of them is described by Dixon C.J., Williams, Webb and Fullagar JJ. as follows: "The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorize the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends." See also Utah Construction and Engineering Pty. Limited v Pataky (1966) AC 629 at 640. The Land Rights Act makes far reaching provisions for grants of land for the benefit of Aboriginais, for the establishment of Aboriginal Land Trusts and Aboriginal Land Councils and, in Part V, for the appointment of an Aboriginal Land Commissioner. Sections 50 and 51 are in the following terms: "50. (1) The functions of the Commissioner are - (a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals - (i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and (ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12; (b) to inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and to report to the Minister and to the Administrator of the Northern Territory, from time to time, the results of his inquiries; {c) to establish and maintain a register of the traditional land claims referred to in paragraph (b); (d) to advise the Minister in connexion with any other matter relevant to the operation of this Act that is referred to the Commissioner by the Minister; and (e) to advise the Minister and the Administrator of the Northern Territory in connexion with any other matter relating to land in the Northern Territory that is referred to the Commissioner by the 7. Minister with the concurrence of the Administrator of the Northern Territory. (1A) For the purposes of sub-section (1), land in the Alligator Rivers Area (No. 3) that is alienated Crown Land in which all estates and interests not held by the Crown are held by the Director shall be deemed to be unalienated Crown land. (2) The Commissioner may, with the approval of the Minister, perform any function that may be conferred on him by a law of the Northern Territory. (3) In making a report in connexion with a traditional land claim the Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters: (a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part; (b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to elther in whole or in part; (c) the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage 1n the region; and (d) where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned. (4) In carrying out his functions the Commissioner shall have regard to the following principles: (a) Aboriginals who by choice are living at a Place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place; (b) Aboriginals who are not living at a piace on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place." "Sl. The Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his functions." It is obvious that the preparation of an application under 3.50 may well require persons to visit the lands under claim. Where, as in the present case, land under claim is difficult of access it may well be necessary or convenient to cross other lands to gain access to the claimed area. Unless such other lands can be crossed, the making of an application and the inquiry by the Commissioner into its validity may he frustrated. In these circumstances, it seems to me that unless there is to be found in the Land Rights Act a clear indication to the contrary, s.51 should be construed as authorizing the making of orders of the kind made by the Commissioner in the present case. In his careful argument counsel for the applicants argued that the presence in the Act of s.54 which authorizes the Commissioner to, in effect, require persons to attend before him to give evidence or produce documents is an indication that s.5l1 was not intended to authorize the making of orders affecting the rights of strangers to the land claim. He further argued that s.54 is otiose if s.5l1 has the effect of empowering the Commissioner to make orders affecting the rights of strangers. Reference was also made to 3.27 which, in terms very similar to s.51, empowers a Land Council to do all things necessary or convenient to be done for or in connexion with the performance of its functions. It was argued that it can hardly have been intended by the legislature that a Land Council should have power to do things affecting the rights of strangers. I appreciate the force of this latter argument and I am bound to say it has caused me to hesitate before reaching the conclusion that 5.51 authorizes the Commissioner in a proper case to make an order permitting entry upon privately owned lands. However, the manifest inconvenience and difficulty in achieving the purposes of the Land Rights Act which would flow from a narrow construction of s.51 outweighs the weight which might otherwise be given to the argument. As Mr Justice Murphy said in Re Kearney (Aboriginal Land Commissioner); Ex parte Northern Land Council (1984) 58 ALJR 218 at 222: "The Land Rights Act should be interpreted and applied beneficially towards land rights claims." It is true, as counsel for the applicants submitted, that there 1S a presumption that legislation will not be construed as encroaching on rights, including property rights, of the individual and that a statute will normally be construed un favour of the individual - see Federal Commissioner of Taxation v The Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 at 508-509 per Mr Justice Stephen and 10. Allen v Thorn Electrical Industries Limited (1968) 1 QB 487 at 505 per Lord Justice Danckwerts, and Melbourne Corporation v Barry (1922) 31 CLR 174 at 206. Nevertheless, the statute may show an intention to override private rights - Slattery v Naylor (1888) AC 446 at 449 and Broadcasting Company of Australia Pty Limited v The Commonwealth (1935) 52 CLR 52. It 1s necessary to balance the individual's rights against the more general interests with which the Act is intending to deal. In the present case I think that the common law right of the land owner not to have his land entered without his consent must yield to the power of the Commissioner to permit entry of his land where that is necessary or convenient in connexion with the performance of his functions under the Land Rights Act. The question of the ambit of the Commissioner's powers under s.51 has not been the subject of any decided authority, although it has been considered by Toohey J.1n his capacity as Aboriginal Land Commissioner 1n a decision given on 2 April 1982 in an application for discovery in the Kenbi (Cox Peninsula) Land Claim. His Honour decided that 1t was within the powers conferred upon him by s.51 to make an order that the Northern Territory Government give discovery of documents relating to the making of certain town planning regulations which, 1f valid, had a material bearing on the question of whether the land claimed was unalienated Crown land to which s.50(1)(a) of the Land Rights Act applied. His Honour said: ll. "It is true that what is sought is in the nature of discovery, but the real question is whether to make the orders applied for is to do something necessary or convenient to be done in connection with the performance of the Commissioner's functions. "That does not mean functions at large; the matter is not to be resolved in some abstract way. I am not asked to lay down practice directions or define the ambit of my powers. What I have to determine is whether in the circumstances of the present case such an order is necessary or convenient in connection with the performance of the function spelled out in s. 50(1)(a) of the Act, ascertaining whether there are traditional Aboriginal owners of an area of unalienated Crown land." His Honour decided that in the circumstances of the matter before him the making of the order against the Northern Territory Government would be doing something which was necessary or convenient in connexion with the performance of his function of deciding whether the land claimed was unalienated Crown land for the purposes of s.50(1) of the Act. The decision affords support for the view that s.51 authorizes the making of an order affecting the rights of third parties. It 1s not uncommon for statutes to empower judges of courts to make rules regulating the practice and procedure of that court and prescribing matters necessary or convenient to be prescribed for the conduct of the business of the court. Such provisions have commonly been regarded as empowering judges to make rules pursuant to which orders affecting the rights of strangers to litigation before the court may be made. Thus s.59 of the Federal Court of Australia Act 1976 provides that the Judges of the Federal Court may make Rules of Court, 12. not inconsistent with the Act, making provision for the practice and procedure to be followed in the Court and in relation to all matters and things "necessary or convenient to be prescribed for the conduct of any business of the Court". Pursuant to 3.59 a rule has been made - Order 17 rule 1 - providing inter alia that the Court may make orders for the inspection of any property including land and authorizing any person to enter any land for the purpose of getting access to the property. In Territory Ford Pty Limited v Michalowsky (30 October 1981, unreported) a Full Court of the Federal Court - Muirhead, Keely and Deane JJ - held that s.86 of the Supreme Court Act, which 1s in similar terms to s.59 of the Federal Court of Australia Act, authorized the making of a rule requiring a stranger to litigation to make discovery. This decision affords persuasive authority for the view that Order 17 rule 1 is a valid exercise of the rule making power conferred by s.59 of the Federal Court of Australia Act. section 51 is not greatly dissimilar in its effect from a provision such a s.59 of the Federal Court of Australia Act. I donot find it surprising that the Commissioner has been given power similar to that given to courts to enable him to perform his functions under the Land Rights Act. It may be inferred that the legislature was more ready to grant the power which I think is granted by s.51 because the holder of the power also holds the office of a Judge of the Supreme Court. 13. For those reasons I am of the, opinion that the principal argument advanced on behalf of the applicants must fail. Counsel for the applicants presented an alternative argument that even if the Commissioner had power to make an order authorizing entry upon his clients' lands the inclusion in the order of paragraph (k), to 'which I have already referred, was an unreasonable exercise of the power. I cannot accept this argument. It is common ground,that sites situated off a claimed area may be relevant to the land claim itself. It is not to be supposed that the Northern Land Council will make unnecessary use of the authority given to it to enter the applicants' lands. The Commissioner has reserved liberty to apply in his order, and if it is suggested that the Northern Land Council does make unnecessary use of the applicants' lands then resort may be had to the liberty to apply to correct that situation. For these reasons I am of the opinion that the application must be dismissed with costs. The applicants must pay the costs of the application, including the costs of the interlocutory application. I certify that this and the thirteen (13) preceding pases are a true copy of the Reasons for Judcment herein of his Honour Hr. Justice mMorling. Me , Mees Associate Dated: 4 September 1986 14,