Land and Environment Court New South Wales Medium Neutral Citation: La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 5 Hearing dates: 3 and 4 March 2011 Decision date: 27 January 2012 Jurisdiction: Class 3 Before: Sheahan J Davis AC Decision: (1)The appeal is upheld. (2)The land subject of ALC 24210 being Lot 1, DP 13091, is "claimable Crown land" for the purposes of s 36(1) of the Aboriginal Land Rights Act 1983. (3)The land subject of the claim is, therefore, to be transferred to the La Perouse Local Aboriginal Land Council in fee simple within two months of these orders. (4)Each party is to pay its own costs of these proceedings. (5)Exhibits returned. Catchwords: ABORIGINAL LAND RIGHTS - appeal against refusal of land claim - claimable Crown land - whether land being lawfully used or occupied - notional use and/or occupation insufficient Legislation Cited: Aboriginal Land Rights Act 1983 Imperial Acts Application Act 1969 Randwick Local Environmental Plan 1998 Cases Cited: Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Housing Commission of New South Wales v Falconer & others [1981] 1 NSWLR 547 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No.2) [2001] NSWCA 28; (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2009) 171 LGERA 56; [2009] NSWCA 352 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 Minister for Natural Resources v New South Wales Aboriginal Land Council and Another (1987) 9 NSWLR 154 Mundey v Askin [1982] 2 NSWLR 369 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 New South Wales Branch of the Australian Medical Association v Minister for Health and Community Services (No 2) (1992) 26 NSWLR 114 Rann v Olsen [2000] SASC 83; (2000) 172 ALR 395 Category: Principal judgment Parties: La Perouse Local Aboriginal Land Council (Applicant) Minister Administering the Crown Lands Act (Respondent) Representation: Mr M Wright (Applicant) Dr J Renwick (Respondent) Chalk & Fitzgerald (Applicant) I V Knight (Respondent) File Number(s): 30404 of 2010 Judgment Introduction 1This is an appeal under s 36(6) of the Aboriginal Land Rights Act 1983 ('the Act') against a decision by the Respondent, the Minister Administering the Crown Lands Act, on 4 March 2010 to refuse Aboriginal Land Claim ('ALC') 24210. 2I acknowledge at the outset the assistance I have received from Acting Commissioner Davis in deciding the appeal. 3The claim was lodged by the Applicant, La Perouse Local Aboriginal Land Council, on 16 February 2010, and received by the Registrar under the Act on 17 February 2010 - the parties agree that the relevant " date of claim " is the latter. 4An earlier claim for the same land (ALC 18488) was lodged on or about 27 July 2009, and refused on 8 December 2009. That refusal was not appealed. 5The claim concerns land on which the former Malabar Police Station was located, and the Minister's ground of refusal was that the subject land was " lawfully used and occupied " for the purposes of policing, at the date of the claim, and was, therefore, not "claimable Crown Land " within the meaning of s 36(1)(b) of the Act. The Minister bears the onus of establishing that negative. The Evidence 6The evidence relied upon during the hearing consisted of a tender bundle each from the Applicant ( Exhibit A1 ) and Respondent ( Exhibit R1 ), and the affidavits of: (1) Chris Ingrey - Deputy Chair of the Applicant Land Council (2) Superintendent Alan William Baines - Liaison Officer at the New South Wales Police Force Property Group, and a police officer of 40 years standing (3) Superintendent Peter Gerard McErlain - Commander of the Easter Beaches Local Area Command from January 2008 to December 2009 (4) Superintendent Gavin Michael Dengate - Acting Local Area Commander, Eastern Beaches from 31 January 2010, subsequently confirmed in the position (5) Terence Patrick Carroll - Strategy and Asset Manager of United Group Services ('UGS'), a contractor (part of United Group Limited) providing property management services to the New South Wales Police Force. 7All four police witnesses were cross-examined. The Site 8The subject land ('the Site') is Lot 1 in DP 113091, otherwise known as 1234-1236 Anzac Parade Malabar. It appears to have been resumed for police purposes in 1948. It is of an irregular quadrilateral shape and has a frontage to Anzac Parade to the west and Ireton Street to the east. It is bounded on the north and south by residential properties containing single detached dwellings, and is zoned Residential A. 9The Site accommodates two house-type buildings - the former police station itself (towards the southern boundary) and the associated former lock-up keeper's residence or " duty officer's house " (located towards the northern boundary). Dengate described the improvements in detail (pars 21 and 22). The lock-up keeper's residence has been vacant from 1 February 2010, due to its " unsafe " condition ( Exhibit A1 , tab 3, p3), but it is the subject of a heritage listing under Randwick Local Environmental Plan 1998. The Anzac Parade frontage of the Site is unfenced. 10Until 30 June 2009, the site was used as a 24 hour-a-day police station, and also as a base for other police teams and operations. More evidence of the use of the site prior to the claim date is detailed below. The parties agreed that the Site should, preferably, be treated as one, but Mr Wright, counsel for the Applicant, had a back-up position that, if use were relevantly established only for the station building, the land on which the northern building stands should be granted to the Applicant. The Facts 11On 25 March 2009, McErlain was informed that Malabar Police Station would be closed as part of a decision included in a State Government mini-budget for the 2009-10 financial year ( Exhibit A1 , tab 1, and Baines, par 6). A sale price in the order of $1M was expected. 12On 30 March 2009, as part of a consultative process to divest the Site, Baines sought the views of McErlain, who replied on 31 March (Baines, Annexure 'A'): I have no issues with the divestment. We may have some political backlash from local members and the community in general however if you give me a proposed date I will prepare a strategy for the announcement . 13On 1 May 2009, McErlain advised the Central Metropolitan Region Business Unit that he had " no objections to the proposed divestment " of the Site, and that it would have " little or no effect on crime prevention/reduction or customer service ". (McErlain, Annexure 'B'). 14Until 30 June 2009, operations at the Site consisted of one general duties officer staffing the counter 24 hours a day (two officers in 12 hour shifts), and the work of the Pro-Active Crime Team ('PAC Team'), consisting of 15 to 20 officers. 15The Police Station was closed to the public from about 6am or 6.30am 30 June 2009, with the general duties officers relocating to Maroubra Police Station. The members of the PAC Team were to be relocated to Randwick Police Station prior to the sale of the Site - it appears that this occurred in late August 2009 ( Exhibit A1 , tab 26); the Team was still working out of the Site in July/August of 2009 (Baines, Annexure 'R'). 16McErlain deposed (par 9) that he " would have preferred to keep the venue and use it for storage or other operational uses as the need arose ". However, UGS began preparing the Site for sale, a process which included the cancellation of utilities, removal of police files, and the removal of police signage, " eagle phone ", etc. Carroll deposed in detail to the role played by UGS. Ministerial approval was obtained, agents were appointed, and a marketing campaign began on 18 August, with a view to the Site being auctioned on 17 September 2009 (Baines, par 8, and Exhibit A1 , tab 15). There was evidence of some public disquiet about the sale ( Exhibit A1 , tab 20, p25). 17On 27 July 2009, ALC 18488 was lodged for the Site. 18On 14 September 2009 ( Exhibit A1 , tab 21), while carrying out its final due diligence searches, UGS became aware of ALC 18488, and cancelled the auction, if not the proposed " sale " itself (c.f. Baines, par 13). 19Soon afterwards a decision was made that the Site would need to be used, in order for ALC 18488 to be successfully resisted. An internal briefing note for the Minister, dated 15 September 2009 and written by Emmanuel Varipatis, General Manager of the NSW Police Force Property Group ( Exhibit A1 , tab 26, fol 35), noted that: NSWPF will defend the claim on the grounds that the building was in use at the time of the claim. Having the claim taken off the title will take sometime and if the Minister refuses the application to have the claim lifted, the applicant has the right of appeal... The risk is that whilst the current claim could be rejected on the grounds the site was in use at the time the claim was made, there is nothing preventing a further claim. Therefore, NSWPF will need to examine as a matter of priority options for using/re-occupation of the premises . 20On 17 September 2009 the Minister for Police was quoted in the media as saying " the Station is closed and sale is being handled by the property group and there will be no change to that situation " (See Exhibit A1 , tabs 28-30, especially p39). 21Also on 17 September 2009, McErlain (Annexure 'H') said he would not " be doing anything unless the Deputy (or equivalent) directs me ". Also on 17 September 2009, Mr Varipatis wrote to McErlain (McErlain, Annexure 'I'), saying: Given the recent developments with the Malabar sale, and the potential risks to our asset, we need to ensure we manage the appropriate use of the site in a manner which will keep the site operational and in use. We obviously don't have BTS services to the site, however, could still ensure the use for both buildings for such things as storage, team meetings, training days or as needed for a command post. Peter, I understand this is a hindrance, however would greatly appreciate your assistance in setting up what can be achieved as soon as possible in this regard and be able to record or log such use in the event it is required for verification down the track . 22McErlain wrote to Assistant Commissioner Carmine (Frank) Mennilli on 17 September 2009 (Annexure 'J'), referring to the Varipatis letter, and asked: "... do I have to comply with this? The place is an OH&S nightmare... its (sic) been stripped of everything" . Assistant Commissioner Mennilli confirmed (ibid) that McErlain was required to comply with the direction on 18 September 2009 and said: Unfortunately we have very little options (sic) available to us. We need to show that we still use the premises or otherwise the appeal on the claim of the land will fail. My view is that we use it for storage and if need me (sic) occasionally, even if a car crew just works out of there every now and then. Or even as a command post for briefing for operation etc. As long as we can indicate what we are using it for . 23McErlain gave evidence, both in his affidavit (par 15) and in cross-examination, that he was reluctant to apply resources to use the Site: " I believed it was a waste of time and resources to go back into the venue and make it fully operational only to move out again after the sale ". 24Following receipt of Mennilli's email, McErlain decided that, if the Site were to be maintained, and kept in an operational state, it could (par 18) " serve as a useful temporary resource that could be utilised virtually immediately should the need arise ". He deposed (pars 19-20): 19. I was of the opinion that in the short term the station was suitable for briefings and as a stand down point and should be made available to be used for these purposes by Mobile Supervisors (supervisors of car crews) and their teams, Vikings (high visibility policing units) and Strike Force Taipan (special highway patrols deployed by the Traffic Service Command). The characteristics of Malabar Police Station that make it suitable as a briefing point include its large central meeting room, off the street parking and a rear entry that is accessible from a small residential street. The kitchen and bathrooms also make the Station suitable as a stand down point, that is, somewhere officers can go to regroup, have a meal, and use the toilet if need be. 20. I also decided that Malabar Police Station would be used, when required, for other police operations, such as by Strike force teams for a 'form up point' or as a forward command post. Due to the nature of police work it is convenient to have stations that are not permanently staffed and that are kept available for various police operations. I thought that, in the short term, Malabar Police Station would be particularly useful for police operations at the Southern end of the Command, for example search warrant operations or high risk operations. The rear access and parking makes Malabar Police Station particularly suitable for such operations as it provides covert access . 25McErlain gave officers of his command, on 18 September 2009, directions to use the Site. The Duty Officer's Shift Synopsis of that date (McErlain, Annexure 'K'), recorded: The Commander has indicated that the Malabar PS is to be used (as per his memo) for operational deployment, Vikings etc. The phone may be reinstalled as soon as TONIGHT and the Telstra techs do not need to gain access. There is no access from the front of the premises. The large room just inside the rear entrance appears to offer the best operational support. The phone (only one handset left on front desk) and any subsequent phone and computer connection should be in that room. 26Inspector Shane Woolbank acted immediately on that direction. Arrangements were made to clean the premises, services were restored, and appropriate security measures were introduced. Officers were briefed and instructed to visit the site daily and record their attendances in a register (McErlain, Annexures 'L' and 'BB'). A copy of the register is annexed to McErlain's Affidavit, with entries between 25 September 2009 and 6 December 2009, and then between 31 May 2010 and 12 August 2010 (Annexure 'AA'). 27Carroll wrote the following on 18 September 2009 to Mr Varipatis ( Exhibit A1 , tab 31): At the time of the claim we were using for its intended use, hence this claim should easily be defeated. We do need to occupy it as once the claim is knocked back they can lodge a new claim. If a SIM use is out we will have to put BTS back in and send a GD down there 9.00 to 5.00 as was the case at Kogarah - a small price to pay to protect $1.0M ... This also highlights the need for Police to remain in occupation until the exchange date ... (During cross-examination, Mr Carroll explained that 'SIM' meant simulated training, 'BTS' business technology services, and 'GD' general duties officer). 28Also on 18 September 2009, but rather contentiously in terms of the hearing of this appeal, the then Minister for Police and local Member of Parliament for the Site, the Hon Michael Daley MP, appeared before a meeting of the NSW Parliament's General Purpose Standing Committee No 3, and was questioned about the closure of the Malabar Police Station. (See [73] below). 29Between 3 and 6 December 2009, McErlain commanded 'Operation Silva", a four day police operation during the Australian Golf Open (held at the NSW Golf Club at La Perouse). Traffic police and other officers on traffic marshalling duties, under the command of Sergeant Karen Griffiths (some 10-14 officers per day over the operation - see McErlain, Annexure 'CC', fols 72-75), attended briefings, meal breaks and de-briefs at Malabar Police Station during the operation. McErlain gave evidence that he operated mainly from the golf course, but was present at the Site at some point during the operation. However, the only attendance noted in the register over those four days is that of Sergeant Griffiths. 30On 8 December 2009, ALC 18488 was refused . 31McErlain went on leave on 20 December 2009, and was relieved late 2009 or early 2010 by Superintendent Alan Sicard, before being transferred to South West Region on 30 June 2010, and replaced at Eastern Beaches by Dengate, on 1 February 2010. Dengate deposed (par 13) to having queried, on his arrival, in reference to the Site, why the department would " sell an asset like that". 32On 16 February 2010, Mr Ingrey visited the Site, and took several photographs which he annexed to his affidavit. Some show the lawn overgrown, with weeds growing through the concrete driveway (Photographs 5 to 7), whilst others showed doors and windows boarded up (Photographs 3 and 4). Ingrey has been familiar with the Site for many years, and deposed (pars 9-11) that the station appeared " run down compared to how I remember it ", that the external police station signage on the building (but not on a pole outside) had been removed, and that: ...it did not look to me that it was being used or that it was being maintained because: a.it was unattended; b.the gardens were overgrown; c.the lawns in the front and sides of the building were overgrown and not maintained; d.the yellow pages had not been collected; e.it did not appear secure as the front screen door was only boarded up; and f.all signs had been removed. There were marks on the wall near the front door to show that a sign had been removed there. The blue sign that I remember being out the front of the building was also not there. 33On 16/17 February 2010, ALC 24210 was lodged . 34Under the so-called Falconer principle, evidence of facts or events which post-date the claim is admissible, on questions such as use or occupation as at the date of claim, if it serves not to " prove a hindsight, but confirm a foresight ": Housing Commission of New South Wales v Falconer & others [1981] 1 NSWLR 547, at 558. 35On 4 March 2010, ALC 24210 was refused . 36On or about 18 March 2010, Mr Varipatis became aware of ALC 24210 (see Exhibit A1, tabs 35-37). In an email to Assistant Commissioner Catherine Burn on 18 March (tab 37), he noted that there is a four month appeal period, and that any divestment would need to wait four months after refusal of ALC 24210. 37Dengate deposed (par 33) that, as at the date of his affidavit (27 September 2010), he was in the process of attempting to turn the Site into a " domestic violence support location ", where police officers and others can work on the welfare of victims. He deposed that he had attended the site on 28 June 2010 with Assistant Commissioner Mennilli to inspect the premises and " discuss this plan ". 38He also deposed (pars 34-38) to plans to use the Site for strike force teams for police in his own and other Local Area Commands, and for storage purposes (pars 39-43). He noted, rather paradoxically (in par 34), that the site is " in a good position in terms of being close to Local Area Commands... but is also out of the way ...". He also deposed (pars 41-42) to the use of the property under his command to store seized motor vehicles - one on 5 July 2010 and another on 9 July 2010. In cross-examination, he accepted that the duty officer's residence had not been used in the period between 1 February 2010 and 31 May 2010. 39Various invoices for services (water, electricity, telephone, security, cleaning, rubbish removal, gardening, air conditioning, and fire protection) were annexed to various affidavits, and were relied upon in the Minister's submissions. The Statutory Framework 40The preamble to the Act expresses its remedial nature and intention. In Minister for Natural Resources v New South Wales Aboriginal Land Council and Another (1987) 9 NSWLR 154, Kirby P said, at 157: The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgement, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia . 41The Court of Appeal has held that because of that beneficial and remedial character, " exceptions to the right to make claims on Crown land should be narrowly construed ": Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No.2) [2001] NSWCA 28; (2001) 50 NSWLR 665 at 674; New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 (" Wagga Wagga "), at [21]. 42Section 36 of the Act establishes the regime by which land can be claimed in order to achieve the aims of the legislation. Subsection (1) contains the grounds upon which lands become " claimable Crown lands ". Relevantly for this case, s 36(1)(b) provides that " claimable Crown lands " means lands that " are not lawfully used or occupied ", as at the date of claim : New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (' Winbar No 3' ) (1988) 14 NSWLR 685, per Hope JA at 691F. 43If the Minister fails to satisfy the Court that (parts of) the claimed land is not " claimable Crown lands ", then the claimant is entitled to have (those parts of) the land transferred to it, pursuant to Winbar No 3 (per Hope JA at 692D-693D). Competing Submissions 44The Applicant, represented by Mr Wright, submits that the Minister cannot discharge the onus of proof in relation to the lawful use or occupation of the Site, as no purpose is identified, and, at the date of claim, the Site did not present as an asset that NSW Police had any intention of keeping, because it was closed, unattended, poorly maintained, and the land was in the process of being sold. It was land that was surplus to government purposes and, therefore, precisely the type of land which would be expected to be available to claim under the Act: Wagga Wagga , at [24]. 45The Minister, represented by Dr Renwick, contends that the use and occupation of the Site, although conceded to have changed from that of a 24 hour-a-day police station, to use for a variety of policing purposes, neither " notional " nor " minimal " in his submission, precludes it from being claimed pursuant to s 36(1)(b) of the Act. 46Until 6.30 am on 30 June 2009, the Site was used as a police station with a 24 hour counter staff and a pro-active crime team of some 15-20 officers based there. From June 2009 until approximately 18 August 2009, the PAC Team continued to operate out of Malabar Police Station. Thereafter, until approximately 29 August 2009, the police continued to use the station building for storage. 47In late August 2009, police officers stopped occupying the station in preparation for the sale of the premises scheduled for 17 September 2009, so that real estate agents could perform inspections of the premises with interested buyers without interruption or risk to police business, and the confidentiality of policing work. During this period the station continued to have furnishings, including police desks and chairs. The premises were locked and the entire back area of the land was fenced with a locked gate. This building had a continuous supply of utilities and was serviced by consistent contracted cleaning and maintenance. 48Alleged " policing uses " included storage, team meetings, training days, a base for car crews to work out of, and, as needed, use as a command post. Police officers routinely attended the station, including on inspections to determine the safety of the location. There was no interference with the premises in order to maintain their readiness for police operations, and maintenance personnel apparently were not accompanied into the building. As already noted, it was used as a command post etc. for the golf, 3 to 6 December 2009. 49The Minister submits that the following other evidence establishes " occupation ": (1)water and electricity utilities were always maintained; (2)the phone line was reconnected and computer terminals restored; (3)security codes and alarm system changed by Alsec Security; (4)urgent cleaning and then routine cleaning. 50After Operation Silva the premises continued as a site for operations, strike forces, briefings and storage. The lawn and gardens were also attended to, including in February 2010. 51Dr Renwick refers to the " use " of the Site, as at the date of claim, in the same context of Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 (" Newcastle Hospital "), in which the High Court held that the surrounding grounds of a hospital purposely kept in their natural state were being used or occupied by the hospital. It was submitted that, even after Operation Silva, the Site continued to be used by making it available for police operations, strike forces, briefings, taking of witness statements and storage. Dr Renwick drew the analogy of the army's requirement to have land available for training, which would only be used from time to time as the need arose. 52Dr Renwick also referred to the decision of Stein J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (" Education "), where it was held (at 199) that use or occupation of those premises was evidenced by a combination of factors. This included the occupation of the premises by six officers, ongoing maintenance of services, cleaning being provided, a security firm being employed, the storage of items (although it was in the process of being removed), and the internal car parking being utilised. 53The Minister submits that because of the limited time between the two claim dates, there is limited evidence of " use ". However, it was submitted that the use or occupation of the Site is supported by evidence such as the maintenance of services and utilities, the maintenance of landscaping and routine cleaning, and the use of security services to protect the premises, and that the factual circumstances in Education are analogous to the present case . 54Mr Wright submitted that " use or occupation " requires more than simple availability for use or occupation. T here is no evidence of any decision to reverse the decision to sell, but rather the auction was cancelled and marketing suspended because of the land claims. Any " use " of the Site, at the date of claim, was directed only to a future sale, and it was not a bona fide use for policing purposes. It was merely " notional " use to defeat the claims. The property had been long identified for sale and, but for the two land claims, the sale would have proceeded: Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 , at 164D-E per Priestley JA, with whom Cripps JA agreed, and Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106, at 108 D-E per Priestley JA (see also Sheller JA at 119G). The Minister is required to prove a use " to more than a merely notional degree ". 55Once the PAC Team vacated the premises in August 2009, and the use of the lock-up keeper's house and garage for storage ended, the Site ceased to be " used " beyond a notional degree, and the one building that was being used was " effectively vacated and... stripped out prior to the auction ". At the latest it ceased to be used to more than a notional degree after 6 December 2009 when the last " use " of the building for anything remotely connected to a " policing purpose " was recorded, and the strategy to defend the land from claim was effectively abandoned at the conclusion of Operation Silva. With no officers stationed at the Site the Minister relied on visitation. Those officers who visited were directed to register, but there are no entries in the register between 1 December 2009 and 30 May 2010. 56Wagga Wagga was appealed unsuccessfully to the High Court: Minister Administering the Crown Land Act v New South Wales Aboriginal Land Council (" Wagga HCA ") [2008] HCA 48 237 CLR 285. The High Court held (majority judgment at [76]) that " transitory visits " did not constitute " use " for the purposes of s 36(1)(b), and that those visits " concerned the land in the sense that they were directed towards its sale ... [and] did not amount to a use of the land ". 57So the inspections in the present case do not constitute " use " or " occupation " to more than a " notional degree ". On the contrary, the inspections and one-off use were " so miniscule, insignificant or token as to be disregarded " having regard to the views of Tobias JA in Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 (" Bathurst ") at [161]. Mr Wright also refers to my decision of New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 where, at [143], I used the words " limited, casual, and sporadic activity... insufficient to engage the lawful use or occupation exception to claimability " (subsequently approved and upheld on appeal in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2009) 171 LGERA 56; [2009] NSWCA 352). 58The Applicant also submitted that, despite the receipts for services such as gardening and cleaning, the photographs taken by Mr Ingrey are inconsistent with the assertion that the grounds were being well maintained. There is no evidence of any of the claimed or planned uses ever being commenced. Once the lock-up keeper's residence was cleared, there has been no evidence of use, merely keeping it " available for operational use " (e.g. McErlain, T3.3.11, p26, L21). As Mr Wright submitted (T4.3.11, p20, LL1-5): Nothing happened in the lock up keeper's house after the place was emptied out for sale. It was never repaired. It was never maintained. There's no evidence at all that it was even cleaned. The only evidence you have about maintenance is in relation to the police station. There is no separate designation for that building. We're told it's unsafe. 59Dengate's plans for using the Site are no more than expressions of hope and intention. Education ought to be disregarded, in light of the negative treatment of it by Tobias JA in Wagga Wagga, where his Honour said (at [84]): Although as Stein J noted (at 199), questions of fact and degree are inevitably involved in such a case, in my respectful opinion the Department of Education decision fell on that side of the line which mandated a finding that the nature and quality of the use of the building in question was not such as to attract the exclusion in s 36(1)(b) of the ALRA . Its use, such as it was, was essentially related to maintaining the building for the purposes only of sale which, in my view, was not a use which was capable of rendering the building non-claimable. The use of a "miniscule" area of its floor space and the central parking area by six employees pending their relocation and by persons associated with the sale of the building was no more than notional. Accordingly, were it necessary to decide the question, I would regard that case as wrongly decided. However, it is sufficient to conclude that it is clearly distinguishable on its facts from the present case. Consideration 60Steps taken in respect of sale of land do not amount to its use. Wagga HCA decided (at [77] per Hayne, Heydon, Crennan, and Keifel JJ) that: ... neither the decision to realise this land, nor the steps taken within the administration of government to achieve that end, which were all steps that occurred away from the land, constituted use of the land . 61In considering the phrase " not lawfully used or occupied " in the context of the Act, their Honours also said (at [69]): First, nothing that was said in the earlier decisions of the Court of Appeal, and nothing that is said in these reasons, should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands. Secondly, as Mason P rightly said, "use" is a protean word. Thirdly, recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas... 62In Newcastle Hospital , whilst dealing with the issue of rating exemptions for land, the High Court considered the phrase " used or occupied ". Whilst distinguishing " use " from " occupation ", noting that conduct may be both, Kitto J found (at 507-8, omitting citations) that " occupation " connoted more than " legal possession " and required " permanence " and/or some degree of " continuity ": The three elements, legal possession, conduct amounting to actual possession, and some degree of permanence, seem to me to be involved in the word 'occupy' as used in the Local Government Act (NSW). So the courts of that State appear to have considered ... the necessity for something beyond proprietorship, 'some physical act of occupation'; and ... that occupation would appear to be something which is definite in its purpose and, to some extent at any rate, continuous. The word "used", on the other hand, does not involve more than physical acts by which the land is made to serve some purpose. The acts no doubt must be recurring, but the notion of continuity or permanence is absent. 63The facts of Newcastle Hospital can be distinguished from the present situation, as the land in that case had a degree of connection with the purpose of the hospital - some of the land involved, being beyond the curtilage of the hospital buildings, served a useful related purpose, e.g. providing a serene and quiet environment for patients. In the present case, on the other hand, the subject land is isolated, and any intention to use it has not been demonstrated. The use to which it has been put is for the purpose of defeating the land claim, to facilitate the sale. 64The Minister contends that both Wagga Wagga and Wagga HCA are decisions not only more binding on this court than Stein J's decision in Education , but stand for a narrower view than it expressed. Certainly there are differences in fact which distinguish Education from the present case. Firstly, the premises in that case were occupied on a more substantial basis (six officers). Secondly, the improvements in this case have fallen into a state of disrepair, as evidenced by the photographs of Mr Ingrey. Further, Stein J rejected a submission by the Minister that the mere act of locking up would amount to lawful use or occupation (at 198), but His Honour thought that one could lawfully use without physically occupying. He said (at 199 - emphasis added by us): Something more than a mere locking of a decommissioned building must be required. It is of course difficult to say with any precision where the line should be drawn and each case must very much depend upon its own facts and circumstances. Questions of fact and degree will inevitably arise for consideration. However, there are in this case a number of facts relied on by the Minister as constituting a lawful use of the land. In addition to the minimal physical occupation , there is the continued maintenance and cleaning of the whole of the building. Its services and utilities were also maintained . Additionally, there was the active marketing of the building by the agents which involved not infrequent access being given to prospective lessees and their consultants. All of these activities were occurring at the relevant time of claim. Moreover, the building was controlled by security personnel and the central car parking area was utilised, including by the Lands Department. Office furniture was still stored in part of the building although being progressively removed. It may be doubted that any of these matters taken individually may amount to a lawful use of the land . For example, the mere endeavour to sell land may not amount to a use of the land as land. However, the various factors may obviously be considered cumulatively since they were all occurring at the relevant time of the land claim. When so considered, it is my opinion that they add up to a sufficient 'use' of the whole of the land to satisfy the definition and remove it from the category of claimable Crown land . I am satisfied that the Minister has established that the land was being lawfully used at the date of the land claim. Accordingly, it is unnecessary to explore the alternative claim to 'part' of the land which must fail for the same reason. 65As noted above ([59]), Tobias JA suggested (in Bathurst, at [161]) that Stein J might have adopted a threshold test of whether the use is " so miniscule, insignificant or token as to be disregarded ", but later authorities, particularly those dealing with the sale of properties, such as Wagga Wagga , have applied a higher threshold than that, and have held that a use or occupation beyond a notional degree is required: see, e.g., Wagga Wagga at [80]. In all these circumstances we do not rely upon Education in deciding this appeal . 66In Bathurst , Tobias JA said (at [158]-[160]): 158. ... I would refer again to the judicial gloss placed upon the words of s 36(1)(b) to the effect that the occupation of the claimed land must be an actual occupation which, as a matter of degree, is more than nominal or notional. As I have sought to point out at [120] above, there is a difficulty in identifying what is an occupation which, although an actual physical occupation, is only nominal or notional. 159. On the basis of what fell from Kirby J in Wagga Wagga, nominal or notional use or occupation is one which is only intended in the future or is a potential use or occupation which has not yet been translated into an actual use or occupation. If this be correct, then a notional or nominal use or occupation is, in effect, a constructive, as distinct from an actual, use or occupation being a form of occupation rejected as satisfying s 36(1)(b) by Priestley JA in Daruk at 162. Kirby J seems, therefore, to have conflated the two concepts which would not appear to accord with Priestley JA's approach in Daruk. 160. There is no express majority decision as to the meaning of the limitation which Priestley JA sought to impose in Daruk. The joint judgment of the High Court in Wagga Wagga did not, at least expressly, mention the matter although their Honours' third point as articulated at [69] of their judgment would seem to indicate that it was not considered to be a relevant consideration although it might be regarded as subsumed in their Honours' description of their third point. I would, if permitted, prefer the approach of Kirby J to the effect that a notional or nominal use or occupation is one which is not an actual use or occupation but only one which is constructive. This accords more with the statutory text which ascribes to language its ordinary meaning rather than using words as terms of art. 67Many of the visits by officers, prior to Operation Silva, some of which visits were registered as " inspections ", should be characterised as miniscule or insignificant, as they only involved officers providing access to the Site for cleaning and service staff. Much of the evidence relied upon for use prior to ALC 24210 is merely contextual, and does not discharge the onus of the Minister to prove that the land was being lawfully used and occupied. 68The use of the Site for Operation Silva is also to be considered in light of the directives for senior officers that it be utilised to defeat the land claim, as suggested in the memorandum of 15 September 2009, and it was not suggested in any of the evidence that a decision was made not to proceed with divestment. However, under s 36(1)(b), it is actual use or occupation as at the claim date that is relevant. 69There is a distinct lack of evidence, post Operation Silva, and certainly around the time ALC 24210 was made, of the Site being used or occupied beyond a notional degree. It was not until police became aware of the claim, that visits to the Site were noted in the register on a regular basis. There is also no evidence of any plans or intentions to use the Site for policing purposes developing or materialising during this period, including the possible uses to which Dengate has deposed. 70Intention to use the property is what Tobias JA in Bathurst and Kirby J in Wagga Wagga discussed as notional rather than actual use, and Dengate's active consideration of possible use occurred months after claim, and so does not support the assertion that the property was being used or occupied at the relevant date. Likewise, the storage of vehicles, documents and uniforms after the date of claim amount to no more than notional use. 71Visits by officers to maintain a level of possession to exclude others, or to do security checks, and visits by cleaning and maintenance contractors, are transitory visits which do not amount to use or occupation beyond a notional degree. Despite the invoices for maintenance and other services, asserted as showing that the Site was maintained (mostly post the date of claim), so that it could be used at short notice for police work, the photographs taken by Mr Ingrey on the day before the claim, while they do not lead to the conclusion the property could not be used for policing purposes, portray a general lack of maintenance as at the date of the claim. 72The Minister was allowed to include in his case some post-claim evidence, but, even so, has failed to discharge the onus on himself to establish use and occupation. Parliamentary Privilege 73Apart from the general difficulty of parties' relying on post-claim evidence, there was a particular objection by the Minister, in this case, to evidence regarding an event which actually occurred prior to the date of claim. 74The Minister objected to the Applicant's tender of an extract of a Hansard recording of a meeting of the General Purpose Standing Committee No 3 in the NSW Parliament on 18 September 2009 ( Exhibit A1 , tab 32), on the grounds that the tender infringes Parliamentary Privilege. 75The Hon Michael Gallacher MLC, then the Shadow Minister for Police in the State Opposition, asked the Hon Michael Daley MP, then Minister for Police in the State Government, and the local Member for the Site: Irrespective of whether the local Aboriginal land council claim lodged by the New South Wales Aboriginal Land Council is successful, is it fair to say that the Malabar police station will not be reinstated as a fully functioning police station? 76In reply, the Minister responded that Malabar Police Station had been closed on 1 July 2009. It had provided only counter service for about a decade prior to its closure. At that time it was almost exclusively used for bail reporting, and " since the closure of the station the two officers have been assigned to proactive and/or street patrols ", a better use of resources. When asked if he would make representations to have Malabar Police Station reopened, he answered " No " (tab 32, p44, [28] above). 77The Minister's objection to the tender relies upon Article 9 of the Bill of Rights 1688 (Imp), which is imported into the law of NSW by virtue of s 7 and Schedule 2 of the Imperial Acts Application Act 1969. Article 9 states (in modern language): The freedom of speech in debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. 78The Minister submitted that, even though these proceedings are in Class 3, where the rules of evidence do not apply, parliamentary privilege is not simply a rule of evidence, but a constitutional principle for which the purpose is to preserve the proper functioning of Parliament. Dr Renwick referred to Rann v Olsen [2000] SASC 83; (2000) 172 ALR 395 where it was said at [117]: There is no doubt that preserving the freedom of speech in Parliament is what underlies s16 of the Privileges Act. But there is another fundamental principle embedded in Article 9 and in s49 of the Constitution, and underlying s16. This principle was identified by the Privy Council in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332 as follows: 'In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges ... As Blackstone said in his Commentaries on the Laws of England, 17th ed (1830), vol 1, p163: 'the whole of the law and custom of Parliament has its original from this one maxim,' that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.' 79The Applicant submits that its tender of tab 32 does not offend any rules in relation to parliamentary privilege, because it goes simply to proof of an historical fact, namely that a statement about a government decision was made in a Parliamentary proceeding - Mundey v Askin [1982] 2 NSWLR 369, at 373 - and it is not used to question that statement, or impugn the motive for it, to the detriment of the privilege. It also submitted that the underlying truth of the Minister's assertions recorded in the Hansard is borne out by other evidence before the court. 80In New South Wales Branch of the Australian Medical Association v Minister for Health and Community Services (1992) 26 NSWLR 114, Justice Hungerford found (according to the headnote): (2) A record of proceedings in Parliament may be admitted into evidence without breaching parliamentary privilege for the limited purpose of proving that certain things were said in those proceedings. Thus a Public Accounts Committee report is admissible to prove objective events, for example, that certain submissions and statements were made to the committee, for this does not involve any questioning of the motives, intentions or reasoning of the committee itself. (3) But a Public Accounts Committee report ought not to be tendered for the purpose of establishing the accuracy of the facts and conclusions stated therein, as this would give rise to a critical examination of its content and the committee's performance. In the result the report would be "impeached or questioned", and parliamentary privilege breached. 81Whilst I accept the tender, and the submissions (1) that it is used only to prove the fact of the parliamentary exchange rather than proof of the asserted fact, and (2) that the assertion sought to be proven is evidenced in other material tendered as evidence, the Hansard extract can have limited weight in the circumstances. Ultimately, the extract, and any assertions relating to the relevant Minister, do not address the issue of whether the land was " lawfully used or occupied " at the date of the claim. Conclusion and Orders 82As the Minister has failed to establish the Site was being lawfully used and occupied as at 17 February 2010, the Applicant must succeed in its appeal under s 36(6) of the Act. 83Accordingly, the orders of the Court are: (1) The appeal is upheld. (2) The land subject of ALC 24210 being Lot 1, DP 13091, is "claimable Crown land" for the purposes of s 36(1) of the Aboriginal Land Rights Act 1983. (3) The land subject of the claim is, therefore, to be transferred to the La Perouse Local Aboriginal Land Council in fee simple within two months of these orders. (4) Each party is to pay its own costs of these proceedings. (5) Exhibits returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 January 2012