Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

GLEN RICHARD WILLIAMS APPELLANT

AND

WRECK BAY ABORIGINAL COMMUNITY COUNCIL & ANOR RESPONDENTS

Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4 13 February 2019 C5/2018

ORDER

1. Appeal allowed.

2. Set aside the order in paragraph 2 of the order of the Court of Appeal of the Supreme Court of the Australian Capital Territory made on 23 October 2017 and, in its place, order that the order in paragraph 1 of the order of the Supreme Court of the Australian Capital Territory made on 25 August 2016 be set aside, and, in its place, order that questions 3 and 4 in the amended special case be answered as follows:

Question 3

[I]s the Residential Tenancies Act 1997 (ACT), in whole or in part, a law which is not capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?

Answer

Yes, the Residential Tenancies Act 1997 (ACT), in part, is a law that is not capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth).

Question 4

If the answer to Question 3 is "yes", to what extent does the Residential Tenancies Act 1997 (ACT) not apply to Aboriginal Land for the purposes of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?

Answer

The Residential Tenancies Act 1997 (ACT) does not apply to Aboriginal Land for the purposes of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) to the extent that s 8(1)(a) read with Sch 1, cl 72 and further read with s 9 of the Residential Tenancies Act 1997 (ACT) would prohibit subletting, and ss 54 and 128 operate upon that prohibition, on Aboriginal Land.