2004FCAFC0164 - Summary

FEDERAL COURT OF AUSTRALIA

State of South Australia v Honourable Peter Slipper MP

[2004] FCAFC 164

ADMINISTRATIVE LAW – compulsory acquisition of land – review of decision to issue certificate of urgency – proposed nuclear waste repository – whether open to Minister to be satisfied of ‘urgent necessity for the acquisition’ – whether open to the Minister to be satisfied ‘it would be contrary to public interest’ for acquisition to be delayed

ADMINISTRATIVE LAW – procedural fairness – giving of the acquisition certificates – whether right to procedural fairness excluded as a matter of statutory construction – assistance derived from extrinsic materials in providing context in which Act to be construed – whether a situation of exceptional urgency such that the exercise of the s 24 and s 41 powers conjointly obviated procedural fairness requirement

STATUTORY CONSTRUCTION – Lands Acquisition Act 1989 – s 42 and s 24 – whether proposed creation by State of public park capable of giving rise to ‘urgent necessity for the acquisition’ – whether operation of the Act according to its terms can constitute an ‘urgent necessity for the acquisition’ – whether operation of Act according to its terms can be ‘contrary to the public interest’

STATUTORY CONSTRUCTION – Lands Acquisition Act 1989 – s 24 – whether service on persons affected by the certificate a prerequisite to exercise of power of compulsory acquisition

CONSTITUTIONAL LAW – compulsory acquisition – whether Minister exercised statutory power in a manner inconsistent with will of the legislature – whether statutory power used to avoid legislative restriction on power of compulsory acquisition – whether statutory power used for improper purpose

NATIVE TITLE – acquisition of native title rights and interests – exceptions to right to negotiate – whether duty to communicate a ‘statement’ as to the purpose of acquisition – whether a nuclear waste repository an ‘infrastructure facility’

Lands Acquisition Act 1989 (Cth) ss 22-39, 41, 42, 45

Native Title Act 1993 (Cth) Subdivision P of Division 3 of Part 2, s 253

Annetts v McCann (1990) 170 CLR 596 cited

B v Auckland District Law Society [2004] 1 NZLR 326 cited

Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 cited

Commissioner of Police v Tanos (1958) 98 CLR 383 cited

Craig v State of South Australia (1995) 184 CLR 163 cited

Durayappah v Fernando [1967] 2 AC 337 cited

J Wattie Canneries Ltd v Hayes (1987) 74 ALR 202 cited

John v Rees [1970] Ch 345 cited

Johns v Australian Securities Commission (1993) 178 CLR 408 cited

Kioa v West (1985) 159 CLR 550 applied

Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 cited

Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 cited

Minister for Aboriginal and Torres Strait Islanders Affairs v State of Western Australia (1996) 67 FCR 40 cited

Mobil Oil Australia v Federal Commissioner of Taxation (1963) 113 CLR 475 cited

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 applied

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited

Regina v Secretary of State for the Home Department; Ex Parte Fire Brigades Union [1995] 2 AC 513 discussed

Repatriation Commission v Gordon (1990) 26 FCR 569 cited

Rose v Bridges (1997) 79 FCR 378 cited

State of Western Australia v Native Title Registrar (1999) 95 FCR 93 cited

The Queen v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170 referred to

Macquarie Dictionary 2^nd Edition

Oxford English Dictionary 2^nd Edition

STATE OF SOUTH AUSTRALIA v HONOURABLE PETER SLIPPER MP AND COMMONWEALTH OF AUSTRALIA

S 852 of 2003

MARK MCKENZIE v HONOURABLE PETER SLIPPER MP AND COMMONWEALTH OF AUSTRALIA

S 856 of 2003

BRANSON, FINN and FINKELSTEIN JJ

24 JUNE 2004

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 852 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	STATE OF SOUTH AUSTRALIA APPELLANT
AND:	HONOURABLE PETER SLIPPER MP FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGES:	BRANSON, FINN AND FINKELSTEIN JJ
DATE OF ORDER:	24 JUNE 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge on 8 December 2003 be set aside and in their place it be ordered that orders in the nature of certiorari issue quashing:

(a) the certificate of urgency issued by the First Respondent under s 24 of the Lands Acquisition Act 1989 (Cth) (LAA) in relation to the proposed acquisition by the Commonwealth of Australia of all the interests in land comprising a site for the establishment of a National Radioactive Waste Repository (‘Site 40a’);

(b) the declaration made by the First Respondent under s 41(1) of the LAA that all interests in land comprising Site 40a are acquired by the Commonwealth;

(c) the certificate of urgency issued by the First Respondent under s 24 of the LAA in relation to the proposed acquisition by the Commonwealth of Australia of all interests in land (excluding any part of an easement granted to WMC (Olympic Dam Corporation) Pty Ltd) comprising an access corridor to Site 40a (‘the access corridor’);

(d) the declaration made by the First Respondent under s 41(1) of the LAA that all interest in the land comprising the access corridor are acquired by the Commonwealth.

3. The respondents pay the costs of the appellant at first instance and on appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 856 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MARK MCKENZIE APPELLANT
AND:	HONOURABLE PETER SLIPPER MP FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGES:	BRANSON, FINN AND FINKELSTEIN JJ
DATE OF ORDER:	24 JUNE 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge on 8 December 2003 be set aside and in their place it be ordered that orders in the nature of certiorari issue quashing:

(b) the declaration made by the First Respondent under s 41(1) of the LAA that all interests in land comprising Site 40a are acquired by the Commonwealth;

(d) the declaration made by the First Respondent under s 41(1) of the LAA that all interest in the land comprising the access corridor are acquired by the Commonwealth.

3. The respondents pay the costs of the appellant at first instance and on appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 852 of 2003 S 856 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF SOUTH AUSTRALIA

APPELLANT

AND:

HONOURABLE PETER SLIPPER MP

FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARK MCKENZIE

APPELLANT

AND:

HONOURABLE PETER SLIPPER MP

FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGES:	BRANSON, FINN AND FINKELSTEIN JJ
DATE:	24 JUNE 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

BRANSON J:

INTRODUCTION

1 The announcement made on 9 May 2003 by the Commonwealth Minister for Science that the national repository for the safe disposal of Australia’s low level radioactive waste would be at a site 20 kilometres east of Woomera in South Australia (‘Site 40a’) unleashed a flurry of political and legal activity on the part of the Government of South Australia. As a direct result of that activity the Commonwealth moved in purported reliance on s 24 and s 41 of the Lands Acquisition Act 1989 (Cth) (‘the Lands Acquisition Act’) to acquire immediately all interests in Site 40a and in an access corridor to Site 40a (‘the Corridor’) by compulsory process. These appeals concern the validity of those purported acquisitions. For convenience of expression they will hereafter be referred to simply as acquisitions.

2 The issues required to be determined on these appeals are almost exclusively issues concerning the proper interpretation of provisions of the Lands Acquisition Act and, to a lesser extent, the Native Title Act 1993 (Cth) (‘the Native Title Act’). The merits of the decision to locate a national repository for the disposal of radioactive waste at Site 40a are not open to be reviewed by this Court. Nothing contained in these reasons for judgment should be understood as reflecting in any way on the merits of that decision.

parties

3 In appeal No S 852 of 2003 the State of South Australia (‘South Australia’) is the appellant. In appeal No S 856 of 2003 Mark McKenzie (‘Mr McKenzie’) is the appellant. Mr Mackenzie is the registered native title claimant in relation to a native title claim made by the Kujani (‘the Kujani Claim’). Site 40a and the Corridor are within the area covered by the Kujani Claim.

4 The Honourable Peter Slipper MP in his capacity as Parliamentary Secretary to the Commonwealth Minister for Finance and Administration is the first respondent in both appeals. It is accepted that the first respondent was authorised to exercise the powers vested in ‘the Minister’ by the Lands Acquisition Act. The Commonwealth of Australia (‘the Commonwealth’) is the second respondent in each appeal.

Statutory Scheme

Lands Acquisition Act

5 The Lands Acquisition Act was enacted following the publication by the Australian Law Reform Commission (‘ALRC’) of Report No 14 entitled Lands Acquisition and Compensation (‘the ALRC Report’). Many provisions of the Lands Acquisition Act reflect recommendations contained in the ALRC Report which included as an appendix a draft Bill for an Act proposed to have the short title Lands (Acquisition and Compensation) Act 1980 (‘the Draft Bill’).

6 The main features of the new law proposed by the ALRC were relevantly summarised in the ALRC Report as follows:

‘Acquisition powers

(i) Extent of power. The Commonwealth should be empowered, as now, to acquire land by agreement or by compulsory process. That power should not extend to land which is or is part of a public park, public recreation ground, national park, conservation park, forest reserve, wildlife sanctuary or the like unless an inquiry has been held under the Environment Protection (Impact of Proposals) Act 1974 (Cwlth).

(ii) Right to independent review. Generally, acquisition should not proceed until after appropriate information has been supplied to the affected owner and he has had the opportunity to seek independent review of the proposal. However, two exceptions are appropriate. The first is where there is urgent necessity for the use of the land or a need to maintain the secrecy of information which would be prejudicial to the security, defence or international relations of Australia. In those cases the Minister should be free to certify the position to Parliament and to proceed without affording the opportunity for review. The second case is where land has already been advertised for sale or lease and is presently on the market.

Pre-acquisition procedures

(iii) Information to owners. Except in the two situations just mentioned, the Minister, before acquiring land (whether by compulsory process or ‘voluntary’ agreement), should serve upon those persons having an interest in the land a declaration containing information regarding the proposal, the reasons for selection of the land and a statement in plain English of the rights of the owner. A copy of the declaration should be published in the Commonwealth Gazette and in a local newspaper. Subject to the noted exceptions the land should not be acquired until 28 days after service of the declaration.

(iv) Application for review. Generally, any person having an interest in the land should be entitled to apply to the Administrative Appeals Tribunal for review of the proposal to acquire his land. Upon application for review the Minister should be precluded from acquiring until after the review is completed. Two exceptions should be made: where there has already been an inquiry under the Environment Protection (Impact of Proposals) Act 1974 and where the Minister certifies urgent necessity or security reasons to Parliament.’

(references to paragraphs of the Report and clauses of the Draft Bill deleted)

7 Part V of the Lands Acquisition Act, which is comprised of ss 22-39, is concerned with pre‑acquisition procedures. It reflects broad acceptance by the Parliament of the recommendations of the ALRC identified above. Section 22 provides for the Minister to declare in writing that, in effect, the acquisition of an interest in land is under consideration. The section provides for certain minimum information to be included in the declaration and for a copy of the declaration to be given ‘to each person whom the Minister believes, after diligent inquiry, to be a person affected by the declaration …’.

8 Section 23 provides for publication of the declaration in the Gazette and, if practicable, in a newspaper circulating in the district in which the relevant land is situated.

9 Section 24 is concerned with acquisition in circumstances in which an independent review of the proposal to acquire is inappropriate. It is appropriate to set out s 24 in full:

‘(1) Where, in relation to the proposed acquisition of an interest in land by an acquiring authority, the Minister is satisfied that:

(a) there is an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration; or

(b) to require the making of a pre-acquisition declaration in respect of the proposed acquisition would result in a disclosure of information that would be prejudicial to the security, defence or international relations of Australia;

the Minister may certify in writing that he or she is so satisfied.

(2) The certificate may include such information relating to the proposed acquisition as the Minister considers appropriate.

(3) If the Minister gives a certificate, the interest may be acquired by the acquiring authority without the preparation of a pre-acquisition declaration.

(4) The Minister shall:

(a) cause a copy of the certificate to be laid before each House of the Parliament within 3 sitting days of that House after the giving of the certificate; and

(b) as soon as practicable, cause a copy of the certificate to be served on each person whom the Minister believes, after diligent inquiry, to be a person affected by the certificate.

(5) The Minister may cause a copy of the certificate to be published in the Gazette, in a newspaper circulating in the district in which the land is situated, or in both the Gazette and such a newspaper.

(6) The certificate ceases to be in force if:

(a) the interest is acquired under this Act;

(b) the certificate is revoked; or

(7) For the purposes of this Act, a person shall be taken to be affected by the certificate if, and only if:

(a) the person is an owner of the interest in land to which the certificate relates (in this subsection called the certificate interest); or

(b) the person is an owner of some other interest in land that, if the certificate interest were acquired by compulsory process, would be in whole or in part divested, extinguished or diminished because of paragraph 41(4)(b).’

10 The language of s 24(1)(a) may be contrasted in one respect with the language of the analogous provision in the Draft Bill. Whereas s 24(1)(a) speaks of ‘an urgent necessity for the acquisition’ the Draft Bill spoke of ‘the urgent necessity for using the land’.

11 Section 25 provides that a pre-acquisition declaration in respect of land ceases to have effect immediately upon the giving of a s 24 certificate in respect of the same land.

12 Sections 26 and 27 provide for reconsideration by the Minister of the decision to make the pre-acquisition declaration.

13 Sections 28-33 provide for review by the Administrative Appeals Tribunal of the pre‑acquisition declaration and for the Tribunal to make a recommendation to the Minister that the declaration be confirmed, revoked or varied in a way specified by the Tribunal. If the Minister rejects the recommendation of the Tribunal a statement of the reasons for the rejection is to be laid before each House of the Parliament.

14 Section 39 provides that where a copy of a pre-acquisition declaration or a certificate under s 24 ‘has been given to a person’, that person must disclose the existence of the declaration or certificate before entering into any agreement in respect of his or her interest in the land.

15 Section 41, which is in Part VI of the Lands Acquisition Act, provides for acquisition by compulsory process. The section relevantly provides:

‘(1) If, in relation to the acquisition of an interest in land by an acquiring authority:

(a) a pre-acquisition declaration has become absolute and is in force; or

(b) a certificate has been given under section 24;

the Minister may, subject to section 42, declare, in writing, that the interest is acquired by the acquiring authority by compulsory process.

(2) The declaration shall:

(a) identify the land concerned; and

(b) specify the public purpose for which the interest is being acquired.

(3) A copy of the declaration shall be published in the Gazette and, if practicable, in a newspaper circulating in the district in which the land is situated.

(4) On the publication in the Gazette of a copy of the declaration, the interest is, by force of this Act:

(a) vested in the acquiring authority; and

(b) freed and discharged from all other interests and from all trusts, restrictions, dedications, reservations, obligations, mortgages, encumbrances, contracts, licences, charges and rates.’

16 Section 42, which is central to the dispute between the parties, provides as follows:

‘The Minister may not make a declaration under subsection 41(1) regarding an interest in land that consists of, or is in, a public park unless the Government of the State or Territory in which the land is situated has consented to the acquisition of the interest.’

17 Section 45 provides:

‘Once an interest in land has been acquired by compulsory process, the acquisition is not affected by any later failure to comply with a requirement of this Part that relates to the acquisition.’

Native Title Act

18 Division 3 of Part 2 of the Native Title Act is intended to implement one of the main objects of the Native Title Act, namely:

‘to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings’ (see s 3(b)).

19 Subdivision P of Division 3 of Part 2 of the Native Title Act (‘Subdivision P’) is concerned with rights to negotiate. Section 25, which is the opening section of Subdivision P, relevantly provides:

‘(1) In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:

…

(b) certain compulsory acquisitions of native title rights and interests; …

(2) Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.

…

(4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.

….’

20 Section 26 relevantly provides:

‘…

(1) This Subdivision … applies to a future act if:

(a) Subdivision M (which deals with acts that pass the freehold test) applies to the act; and

(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and

…

(iii) the compulsory acquisition of native title rights and interests, unless:

(A) the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on the Government party and the Government party makes a statement in writing to that effect before the acquisition takes place; or

(B) the purpose of the acquisition is to provide an infrastructure facility; or

….’

21 Section 253 of the Native Title Act provides, amongst other things, that unless the contrary intention appears:

‘infrastructure facility includes any of the following:

(a) a road, railway, bridge or other transport facility;

(b) a jetty or port;

(d) an electricity generation, transmission or distribution facility;

(e) a storage, distribution or gathering or other transmission facility for:

(i) oil or gas; or

(ii) derivatives of oil or gas;

(f) a storage or transportation facility for coal, any other mineral or any mineral concentrate;

(g) a dam, pipeline, channel or other water management, distribution or reticulation facility;

(h) a cable, antenna, tower or other communication facility;

(i) any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines in writing to be an infrastructure facility for the purposes of this paragraph.’

BACKGROUND FACTS

22 There is little, if any, dispute between the parties concerning the factual background to these appeals.

23 In 1985 the Commonwealth/State Consultative Committee on Radioactive Waste Management recommended a national program to identify potential suitable sites for a national near‑surface radioactive waste repository. The site selection process commenced in 1992 and in 1998 the Commonwealth selected the central‑north region of South Australia as the preferred area for more detailed investigation.

24 Consultation in the central‑north region of South Australia commenced in 1998 and geological and hydro‑geological assessments commended in 1999. In July 2001 the then Commonwealth Department of Industry, Science and Resources commissioned the preparation of an Environmental Impact Statement. In July 2002 the National Radioactive Waste Repository Draft EIS (‘the Draft EIS’) was released for public comment. In January 2003 the Supplement to the Draft EIS (‘the Supplement’) was published. Apparently the Draft EIS and the Supplement together constitute the Final EIS in respect of the proposed national radioactive waste repository.

25 On 7 May 2003 the Commonwealth Minister for the Environment and Heritage gave approval under the Environmental Protection And Biodiversity Conservation Act 1999 (Cth) for the establishment, operation and decommissioning of a repository at either of two sites, namely Site 40a and a nearby site known as Site 45a (‘Site 45a’).

26 On 9 May 2003 the Commonwealth Minister for Science (‘the Minister for Science’) made the announcement referred to in [1] above. On the same day the Premier of South Australia announced that the Government of South Australia would do all that it could to oppose the establishment in South Australia of the proposed repository.

27 By letter dated 26 May 2003 the Crown Solicitor of the State of South Australia (‘the Crown Solicitor’) wrote to the Commonwealth Minister for Finance and Administration (‘the Minister for Finance and Administration’). The letter, formalities aside, was in the following terms:

‘I understand that you are the Minister of the Commonwealth responsible for the administration of the Lands Acquisition Act 1989, (“Act”) and that you are likely to be called upon to exercise powers under that Act to acquire certain land in Arcoona Station in this State (“the land”) for the establishment of a nuclear waste storage facility.

As you know, the Act confers on persons affected by proposals to acquire land extensive rights of consultation reconsideration and review. The State of South Australia will seek to make full use of its rights under the Act in relation to the proposed acquisition of the land which is land of the Crown in right of the State of South Australia the subject of a pastoral lease which confers limited rights to the lessees for grazing purposes.

The Act contains certain provisions which confer upon you the power to make decisions which have the effect of curtailing the rights of reconsideration and review. However, all of the powers conferred under the Act are subject to your obligations to exercise those powers in accordance with law.

I am instructed to seek your formal assurance that all decisions you make in relation to this matter will be made in accordance with law, and in particular that, before purporting to make any decision that affects the rights of the Crown in right of South Australia, (whether arising under the Act or otherwise at law) you will give notice of the proposed decision to the Government of South Australia and provide it a reasonable opportunity to make submissions in relation to the matter, and otherwise observe the rules of procedural fairness.’

28 On 2 June 2003 the Crown Solicitor wrote again to the Minister for Finance and Administration. The letter of 2 June 2003 was in the following terms:

‘I refer to my letter dated 26 May 2003 which was sent by facsimile to your office on that day. I have not received any reply.

As you are aware, this is a matter of the greatest importance to the Government of South Australia. In the absence of a response from you to my letter the Government of South Australia is proceeding on the basis that a pre‑acquisition declaration will be made under s 22 of the Lands Acquisition Act (Cth) (“the Act”) in due course.

I have become aware of various media reports of statements by you as a result of which I respectfully submit that it may be inappropriate for you to make any decisions under the Act in relation to this matter on account of prejudgment. I expect to be able to make a submission to you setting out the reports I refer to and the reasons why I say they found an application for disqualification by next week.

In the meantime, I ask you to advise when it is expected that a pre‑acquisition declaration may be made. The Government of South Australia intends to exercise its rights under sections 26 and 28 of the Act at the appropriate time. The Government strongly believes that it should have the fullest opportunity to convey the views of the people of South Australia on this matter, and wishes to have ample time to prepare the best possible submissions for reconsideration and review.

I look forward to hearing from you.’

29 On the same day (ie 2 June 2003) the South Australian Minister for Environment and Conservation made a Ministerial Statement in the State Parliament by which he gave notice that on the following day he would introduce the Public Park Bill 2003 (‘the Public Park Bill’) with the intention of creating parks at Site 40a and Site 45a. The Public Park Bill was introduced into the South Australian House of Assembly on 3 June 2003.

30 A Ministerial briefing paper dated 5 June 2003 advised the Minister for Finance and Administration that the South Australian Government was seeking to exploit s 42 of the Lands Acquisition Act. The briefing paper included the following paragraph:

‘The Public Parks [sic] Bill 2003 has still to be passed by the SA Parliament, which is unlikely to consider the Bill again until the end of June 2003 based on their current sittings schedule. At the same time, the SA Government has the option, if it wishes, of arranging a special sitting of the Parliament to consider the Bill. If a special sitting was not called, the Bill would pass through the legislative processes, and if it was not defeated, it is expected that it would become law in early July 2003.’

31 On 18 June 2003 the Minister for Science wrote to the Minister for Finance and Administration requesting that he declare, pursuant to s 41 of the Lands Acquisition Act, that Site 40a and the Corridor are acquired by the Commonwealth by compulsory process and that, prior to making the declaration, he give certificates pursuant to s 24 of the Lands Acquisition Act.

32 By letter dated 24 June 2003 the Minister for Finance and Administration wrote to the first respondent referring to him the request from the Minister of Science for action to be taken under the Lands Acquisition Act to acquire Site 40a and the Corridor.

33 A Ministerial briefing paper dated 25 June 2003 recommended that the first respondent sign the instruments provided to him that had been drafted in reliance on s 24 and s 41 of the Lands Acquisition Act.

34 On 26 June 2003 the South Australian House of Assembly adjourned until Monday, 14 July 2003 at 2.00 pm. On the same day the South Australian Legislative Council adjourned until Monday, 7 July 2003 at 2.15 pm. The Public Park Bill had not at that time been debated by either of the Houses of the South Australian Parliament.

35 On 3 July 2003 the Crown Solicitor received a reply from the Minister for Finance and Administration to his earlier letters. The reply was relevantly in the following terms:

‘The Act is the usual basis for the acquisition by the Commonwealth of interests in relation to land. Ministerial powers under the Act can be exercised by any of the three Ministers appointed to administer the Department of Finance and Administration.

When the Act applies, it stipulates procedures that apply before the Commonwealth acquires an interest.

The Commonwealth will, of course, act in accordance with any applicable legal obligations if it undertakes a process for acquiring land.’

36 On 7 July 2003 the first respondent signed certificates in respect of Site 40a and the Corridor respectively in the following terms:

‘I hereby certify, pursuant to the provisions of subsection 24(1) of the Lands Acquisition Act 1989, that in relation to the proposed acquisition by the Commonwealth of Australia of all the interests (including all native title rights and interests (if any) and all mineral rights) in the land described hereunder, I am satisfied that there is an urgent necessity for the acquisition of those interests and that it would be contrary to the public interest for the acquisition to be delayed by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration.

And I state on behalf of the Commonwealth of Australia, for the purpose of sub‑subparagraph 26(1)(c)(iii)(A) of the Native Title Act 1993, that the purpose of the compulsory acquisition of all native title rights and interests (if any) in relation to the land described hereunder is to confer rights or interests in relation to the land on the Commonwealth of Australia.’

37 Immediately thereafter the first respondent signed declarations in respect of Site 40a and the Corridor respectively in the following terms:

‘I hereby declare, pursuant to the provisions of subsection 41(1) of the Lands Acquisition Act 1989, that all the interests (including all native title rights and interests (if any) and all mineral rights) in the land described hereunder are acquired by the Commonwealth of Australia by compulsory process for the following public purpose:

The disposal of low level and short‑lived intermediate level radioactive waste that is produced or acquired by the Commonwealth in the exercise of the executive power of the Commonwealth.

38 The certificates referred to in [36] and the declarations referred to in [37] were published in Special Gazette No S266 dated 7 July 2003. By letters dated 7 July 2003 the first respondent advised South Australia and Mr McKenzie respectively of the acquisitions and provided them with copies of the certificates and the declarations. It may be inferred from the terms of the letter to Mr McKenzie, which was received in evidence before the primary judge, that the letters were signed, and thus necessarily posted, after the publication of Special Gazette No S266.

39 By letter dated 8 July 2003 the South Australian Minister for Environment and Conservation, in reliance on s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’), asked the first respondent to provide a statement setting out, in relation to his decision to give the certificates under s 24(1) of the Lands Acquisition Act, his findings on material questions of fact and the evidence or other material on which those findings were based and the reasons for his decision. In response to that request the first respondent provided a statement dated 7 August 2003.

40 The statement of the first respondent dated 7 August 2003 refers to the proposal of the South Australian Government to make Sites 40a and 45a ‘public parks’ for the purposes of the Lands Acquisition Act and to the tabling on 3 June 2003 of the Public Park Bill in the South Australian House of Assembly. The statement records a finding that there was a substantial chance that the Public Park Bill would pass given that legislation that sought to prevent the establishment of a national repository in South Australia had previously been enacted by the South Australian Parliament. The statement also refers to the lengthy process that had preceded the identification of Sites 40a and 45a as sites suitable for the proposed repository and to the unsatisfactory arrangements that would need to be made for the storage of low‑level radioactive waste should a fresh search need to be undertaken for an alternative site.

41 The critical paragraphs of the statement of the first respondent are [32]-[35] which are in the following terms:

‘32. In light of my findings in paragraph 25-31 above, I found that if the acquisition of the interests in land described in paragraph 3 above did not proceed immediately and before the relevant land became a public park, a likely consequence would have been that the national repository project would not have been able to proceed in accordance with the approval given under the EPBC Act, and perhaps ultimately not at all. The consequences of this in terms of national health and safety would have been wide‑reaching. I therefore concluded that there was an urgent necessity to proceed immediately to acquisition without the usual pre-acquisition process involving the making of a pre-acquisition declaration.

33. I found that the normal pre-acquisition processes of the LAA were intended to provide a public statement of the Commonwealth’s intentions, and to provide the means through which persons directly affected by a decision to acquire land can seek review of those intentions. In this instance, the Commonwealth’s intentions were quite clear for a considerable period of time, both to those directly affected and the general public. The relevant land was one of only three areas, all located in the central‑north region of South Australia, which were considered in the EIS. A draft of the EIS was published by the Commonwealth on 29 July 2002. The finalised EIS was published on 23 January 2003. The Minister for Science announced on 9 May 2003 that the repository site was the preferred site for the national repository.

34. I found that on the introduction of the Public Park Bill 2003 into the South Australian Parliament, the South Australian Minister for Environment and Conservation stated that the Bill was a means of honouring the South Australian Government’s commitment to “prevent the Commonwealth Government from establishing a low level and short‑lived intermediate level radioactive waste national repository in this State”. These comments indicated that the primary concern of the South Australian Government was to frustrate the Commonwealth’s radioactive waste disposal policy. This was also indicated by the relatively small area being considered for the proposed park compared to the very large area of the Stony Plains Bioregion, and the fact that the Report spoke only of the “capacity” rather than the “intention” to instigate conservation programs in this relatively small area of the Stony Plains Bioregion.

35. In light of my findings in paragraph 33-34 above, I concluded that it was in the public interest for the acquisition to proceed without undertaking the usual process involving the making, and the possible reconsideration and review, of a pre‑acquisition declaration.’

42 On 6 August 2003 and 3 September 2003 Mr McKenzie and South Australia respectively commenced proceedings in the Federal Court seeking judicial review of the decisions of the first respondent to issue the two certificates of urgency under s 24(1) of the Lands Acquisition Act and to make the two declarations under s 41(1) of the Lands Acquisition Act referred to above. The application in each case invoked the jurisdiction of the Court under the ADJR Act and under s 39B of the Judiciary Act 1903 (Cth).

43 On 8 December 2003 a judge of the Court dismissed each application with costs.

44 On 19 December 2003 South Australia instituted an appeal against the whole of the judgment of the primary judge. On 24 December 2004 Mr McKenzie instituted an appeal from so much of the judgment of the primary judge as dismissed his application.

reasons of the Primary judge

45 The learned primary judge rejected the arguments advanced both by South Australia and Mr McKenzie that the s 24 certificates had been issued by the first respondent for an improper or unauthorised purpose or had been issued on the basis of irrelevant or improper considerations. His Honour concluded that s 42 of the Lands Acquisition Act had nothing to say about ‘prospective public parks’. He further concluded, in effect, that the power of the first respondent to act in reliance on s 24(1)(a) of the Lands Acquisition Act was enlivened by his satisfaction that the proposed acquisitions might be frustrated by legislation proposed to be enacted by the South Australian Parliament and that it would be contrary to the public interest for this to occur.

46 The primary judge concluded that the statutory scheme contained in Part V of the Lands Acquisition Act evidences an intention to exclude the usual rule of natural justice and to replace them with a statutory code. It necessarily followed, in his Honour’s view, that the first respondent was not required to afford either South Australia or Mr McKenzie a right to be heard before he brought into existence certificates pursuant to s 24(1) of the Lands Acquisition Act in respect of each of Site 40a and the Corridor. It similarly followed, in his Honour’s view, that the first respondent was not required to afford either South Australia or Mr McKenzie a right to be heard before he declared in writing pursuant to s 41(1) of the Lands Acquisition Act that Site 40a and the Corridor had respectively been acquired by the Commonwealth by compulsory process.

47 However, the primary judge gave consideration to certain of the arguments advanced before him on the assumption that, contrary to his view, the statutory scheme did not in the circumstances that he was required to consider exclude the requirement to afford a fair hearing. His Honour rejected the argument of the Commonwealth that, if it were otherwise under an obligation to afford a fair hearing, it was relieved from that obligation because of circumstances of urgency arising from the risk that the South Australian Parliament might be recalled and proceed to enact the Public Park Bill. His Honour also rejected an argument advanced by South Australia that by reason of the correspondence set out in [27] and [28] above it had a legitimate expectation that it would be afforded an opportunity to be heard. Similarly, his Honour rejected arguments that Mr McKenzie had a legitimate expectation that he would be afforded an opportunity to be heard arising from his status as a registered native title claimant and that an acquisition of the interests of the Kujani on ‘just terms’, as required by s 51(xxxi) of the Constitution, involved giving them a fair hearing.

48 The primary judge also rejected the contention of Mr McKenzie that the first respondent had failed to comply with the requirements of s 24 of the Lands Acquisition Act and s 26(1)(c)(iii)(A) of the Native Title Act. His Honour found that it was not a statutory requirement that Mr McKenzie be served with a copy of the certificate made under s 24 of the Lands Acquisition Act before the acquisition was affected by compulsory process. Further his Honour found that the first respondent had made a ‘statement’ of the kind envisaged by s 26(1)(c)(iii)(A) of the Native Title Act. He rejected the contention that until communicated no statement is ‘made’ within the meaning of that provision.

49 As is mentioned above, the primary judge dismissed both applications before him with costs.

notice of appeal

50 The notice of appeal filed by South Australia relies upon the following two grounds:

‘2. The learned trial judge erred in holding that the terms of the Lands Acquisition Act 1989 (Cth) excluded entirely any obligation on the Minister to accord the owner of land procedural fairness before authorising the compulsory acquisition of that land where the Minister is satisfied that there is an urgent necessity to acquire the land pursuant to s 24 of the Act.

3. The learned trial judge erred in holding that the Minister did not exercise his powers under s 24 of the Land Acquisition Act 1989 (Cth) for an unauthorised purpose.’

51 The notice of appeal filed by Mr McKenzie raised additional issues concerning the proper construction of s 24 of the Lands Acquisition Act, whether the notion of acquisition on ‘just terms’ derived from s 51(xxxi) of the Constitution has a procedural aspect and whether Subdivision P of Division 3 of Part 2 of the Native Title Act applied to the purported compulsory acquisition by the respondents of native title rights and interests in Site 40a and the Corridor.

notices of contention

52 The respondents have filed notices of contention in respect of each appeal. Each notice includes the ground:

‘His Honour should have held that, if a right to be heard was not excluded as a matter of statutory construction, the factual circumstances confronting the First Respondent meant that no hearing needed to be afforded.’

The notice of contention filed in respect of Mr McKenzie’s appeal includes the additional ground:

‘His Honour should have held that the purpose of the acquisition of land for the proposed National Radioactive Waste Repository was to provide an infrastructure facility within the meaning of sub‑subparagraph 26(1)(c)(iii)(B) of the Native Title Act 1993.’

consideration

Unauthorised Purpose

53 It is convenient, in my view, to give consideration first to the contention advanced by each appellant that the first respondent exercised his powers under s 24 of the Lands Acquisition Act for an unauthorised purpose.

54 The applications made to the primary judge were framed by reference to s 5 of the ADJR Act. It is, no doubt, for this reason that argument concerning the validity of the certificates issued by the first respondent under s 24 of the Lands Acquisition Act was directed towards establishing that the first respondent’s decision to issue the certificates involved an improper exercise of the power conferred by s 24 in the sense that it was ‘an exercise of the power for a purpose other than a purpose for which the power is conferred’ (see s 5(1)(e) and s 5(2)(c) of the ADJR Act).

55 It is not to question the appropriateness of reliance on s 5 of the ADJR Act in the circumstances of this case to suggest, as I do, that the critical question is in truth whether s 24(1)(a) of the Lands Acquisition Act, on its true construction, gave the first respondent the power to issue the certificates. Looked at in this way, the issues for the Court’s determination are what do the expressions ‘an urgent necessity for the acquisition’ and ‘contrary to the public interest’ mean in the context of s 24(1)(a). Section 24(1)(a) does not give the Minister a wide discretion, fettered only by limitations to be implied from the subject matter, scope and objects of the Lands Acquisition Act. The power of the Minister to issue a certificate under s 24(1)(a) is conditional on the Minister being satisfied of the two things identified in the paragraph. Any ‘satisfaction’ of the Minister that is based on a misunderstanding of what Parliament intended that he or she should be satisfied of will be insufficient to support the issue of a certificate. The Minister will have given consideration to the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 179).

56 The statement of the first respondent provided as required by s 13(1) of the ADJR Act makes plain that his satisfaction that there was ‘an urgent necessity for the acquisition’ was premised on his understanding that enactment of the Public Park Bill would have had the effect of placing Sites 40a and 45a in a ‘public park’ within the meaning of s 42 of the Lands Acquisition Act. For the purposes of this appeal the respondents acknowledge, indeed assert, that enactment of the Public Park Bill would have had that effect. The correctness of this assertion may be open to doubt. The width of the definition of ‘public park’ contained in s 6 of the Lands Acquisition Act is to be determined according to the ordinary rules of statutory construction. Further, even today a question might arise as to the propriety of an exercise of the legislative power of South Australia for the purpose of restricting the exercise of power given to ‘the Minister’ by s 24 of the Lands Acquisition Act (Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 per Dixon J at 81-82).

57 However, these appeals are to be determined on the basis that, as all parties contend, had the Public Park Bill been enacted before Site 40a had been acquired by the Commonwealth, the effect of s 42 of the Lands Acquisition Act is that declarations under s 41(1) acquiring Site 40a by compulsory process could not have been made without the consent of South Australia. Once the facts are looked at on this basis, it becomes clear, as indeed the first respondent’s s 13 statement itself reveals, that the ‘urgent necessityfor the acquisition’ which the first respondent identified was the need to prevent s 42 of the Lands Acquisition Act from having an application in respect of the proposed acquisition.

58 In my view, the proposition that Parliament is to be understood as intending that the Minister could be satisfied that there is an ‘urgent necessityfor the acquisition’ where the only ground of urgency is a desire in the Minister to avoid the application of a restriction placed on the Minister’s power of acquisition by the Parliament is a startling one. Similarly, in my view, the proposition that Parliament is to be understood as intending that the Minister could be satisfied that ‘it would be contrary to the public interest’ for an acquisition to be delayed where the only relevant consequence of the delay is that a provision enacted by the Parliament would have an operation according to its terms is a startling one.

59 Some guidance in this area may, it seems to me, be gained from the consideration given by the House of Lords in Regina v Secretary of State for the Home Department; Ex Parte Fire Brigades Union (the ‘Fire Brigades case’) [1995] 2 AC 513 to a decision of the Secretary of State to rely on prerogative powers to introduce a criminal injuries compensation scheme. The scheme proposed by the Secretary of State was inconsistent with a statutory scheme that the Secretary of State was empowered to bring into force although he had not acted to do so.

60 In the Fire Brigades case it was submitted that the statutory scheme, albeit not in force, represented the will of Parliament and it was not open to the Secretary of State to exercise his prerogative powers in a manner that would be inconsistent with and frustrate that will. It was argued that by purporting to do so the Secretary of State had abused his powers or exercised powers that he did not have. The Secretary of State argued that the statutory scheme had no effect until brought into force.

61 Lord Browne‑Wilkinson at 552 observed:

‘My Lords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute and, to an extent, to pre-empt the decision of Parliament whether or not to continue with the statutory scheme even though the old scheme has been abandoned. … It is for Parliament, not the executive, to repeal legislation.’

His Lordship at 554 concluded that the decision of the Secretary of State to introduce the new scheme was unlawful and an abuse of prerogative power.

62 Lord Mustill, with whom Lord Keith of Kinkel agreed, although in dissent as to the outcome of the appeal, expressed at 566 the view that if the statutory scheme was due to come into force inevitably ‘the creation of any different scheme otherwise than purely as an interim measure would have been a breach of duty’. His Lordship went on to observe:

‘It is also possible to imagine cases where the provisions to be brought into force on an appointed day are such as to become incapable of execution if irreversible changes have been made in the meantime, and it may be that to make such changes would be an abuse of the prerogative.’

63 Lord Lloyd of Berwick at 571 said:

‘By renouncing the statutory scheme, the Home Secretary has exceeded his powers, and thereby acted unlawfully. It is the paramount duty of the courts to say so. If authority is needed for the simple proposition that a minister must act within the powers granted by Parliament, and for the purposes for which those powers were conferred, it is to be found in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.’

64 Lord Nicholls of Birkenhead at 577 observed that if the Secretary of State wished to act in a manner inconsistent with a duty imposed on him by Parliament ‘he must first return to Parliament and ask Parliament to relieve him from the duty it has imposed on him’.

65 Even accepting, as I do, that ‘an urgent necessity for the acquisition’ is a wider expression than ‘the urgent necessity for using the land’ (see [10] above), I do not believe that s 24(1) can be understood to reflect a legislative intent that the power thereby given to the Minister may be exercised for the purpose of preventing s 42 from applying to the acquisition in question. In my view, by acknowledging that he acted under s 24(1) of the Lands Acquisition Act to prevent s 42 of that Act from operating in accordance with its terms, the first respondent has conceded that he acted to frustrate the will of Parliament as reflected in s 42. The power of acquisition granted by the Lands Acquisition Act is part of a statutory scheme that includes s 42. It is not open to the respondents to suggest, as they sought to do, that although as a matter of statutory interpretation s 42 would have an operation in respect of a public park brought into existence to frustrate the Commonwealth’s powers of compulsory acquisition, Parliament did not really intend the section to have that operation.

66 If the respondents take the view that s 42 on its true construction gives rise to opportunities for legitimate Commonwealth initiatives to be frustrated, they should invite the Parliament to amend or repeal s 42. The fact that, absent a s 24 certificate, Site 40a may not have been able to be acquired by compulsory process before it became a public park was, in my view, incapable of constituting ‘an urgent necessity for the acquisition’ within the meaning of s 24(1)(a). Similarly, in my view, it was not open to the first respondent to be satisfied that ‘it would be contrary to the public interest’ for the acquisition to be delayed by reason only of the operation of s 42.

67 I conclude that the first respondent’s statement made pursuant to s 13 of the ADJR Act reveals that he misconstrued s 24(1)(a) of the Lands Acquisition Act. Consequentially he based the satisfaction that he certified under s 24(1) on an incorrect understanding of what was capable of constituting ‘an urgent necessity for the acquisition’ and what was capable of being ‘contrary to the public interest’ within the meaning of s 24(1)(a).

68 It is, in my view, simply to express the above conclusion a different way to say that the first respondent exercised his power under s 24(1) of the Lands Acquisition Act for an improper purpose. In The Queen v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170 at 233 Aickin J said:

‘I use the term “improper purpose” to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power. In the case of legislative powers it is not always possible to discern a purpose, as distinct from subject matter or content. A belief that the act done is being done for an authorized purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law.’

69 In my view, the power conferred on the Minister by s 24(1)(a) of the Lands Acquisition Act was not conferred for the purpose of authorising the Minister to limit or control the operation of s 42 of that Act.

70 I would for the above reasons allow both appeals. However, lest the appeals go further, it is necessary to give consideration to some of the other issues raised by the appeals. Consideration of the argument advanced by Mr McKenzie in reliance on s 51(xxxi) of the Constitution should, in my view, await a case that calls for it to be determined.

Procedural Fairness

71 I respectfully agree with the reasons and conclusions of Finn J on the issue of whether the Lands Acquisition Act excluded any obligation on the first respondent to accord procedural fairness to those who held interests in the land to be compulsory acquired and on whether his obligation to accord procedural fairness before making the s 41 declarations was met.

Service of the Certificate

72 I also respectfully agree with the reasons and conclusion of Finn J on the issue of whether the s 24(1) certificates were required to be served on Mr McKenzie before the native title rights and interests in Site 40a and the Corridor were acquired under s 41 of the Land Acquisition Act.

Making of the Statement

73 Section 26 of the Native Title Act, which is relevantly set out in [20] above, identifies the future acts in respect of which Subdivision P applies. Where Subdivision P applies a registered native title claimant has a right to negotiate. It is accepted that Mr McKenzie was not afforded a right to negotiate within the meaning of Subdivision P before the native title rights and interests in Site 40a and the Corridor were acquired under s 41 of the Land Acquisition Act.

74 Subsubparagraph 26(1)(c)(iii)(A) has the effect of excluding from the operation of Subdivision P the compulsory acquisition of native title rights and interests where the purpose of the acquisition is to confer rights and interests in relation to the land on the Commonwealth and the Commonwealth ‘makes a statement in writing to that effect before the acquisition takes place’. The respondents contended that subsubpar 26(1)(c)(iii)(A) had an operation in the circumstances of this case. The statements in writing on which they relied were incorporated in the s 24 certificates and the s 41 declarations (see [36] –[37] above). Mr McKenzie contended that the statements on which the respondents relied were not made within the meaning of subsubpar 26(1)(c)(iii)(A) as they were not communicated to him until after the compulsory acquisitions had been effected.

75 The Oxford English Dictionary 2^nd Edition and the Macquarie Dictionary 2^nd Edition both indicate that ‘statement’ may be used relevantly with two different meanings. They each give relevantly identical meanings. The meanings as given by Macquarie Dictionary are:

‘1. something stated. 2. a communication or declaration in speech or writing setting forth facts, particulars, etc.’

76 In my view, the primary judge rightly concluded that the word ‘statement’ is used in subsubpar 26(1)(c)(iii)(A) with the first of the above meanings. First, the context suggests against the word being used in the compendious sense conveyed by the second meaning. Secondly, the meaning for which Mr McKenzie contended would result in the same anomaly that Finn J has identified in respect of the argument that the s 24 certificate must be served before a compulsory acquisition may be made (see [136]).

Infrastructure Facility

77 The alternative argument relied on by the respondents so far as the Native Title Act is concerned was based on subsubpar 26(1)(c)(iii)(B). Subsubparagraph 26(1)(c)(iii)(B) excludes from the operation of Subdivision P the compulsory acquisition of native title rights and interests where the purpose of the acquisition is to provide an ‘infrastructure facility’. The respondents, pursuant to their notice of contention filed in respect of Mr McKenzie’s appeal, argued that the primary judge should have found that the purpose of the acquisition of Sites 40a and the Corridor was to provide an ‘infrastructure facility’ within the meaning of s 26.

78 Section 253 of the Native Title Act contains a number of ‘definitions’ as that term is ordinarily understood. That is, it provides that, unless a contrary intention appears, certain words or phrases have the meaning there set out or the meaning given by other identified provisions. However, as to some words or phrases, including ‘infrastructure facility’ (see [21] above), s 253 provides that they include specified things.

79 The argument advanced by Mr McKenzie that the proposed national near‑surface radioactive waste repository is not an ‘infrastructure facility’ within the meaning of s 26 of the Native Title Act is based upon the wording of the last category of things which s 253 provides are included within the meaning of ‘infrastructure facility’, namely:

‘(i) any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines in writing to be an infrastructure facility for the purposes of this paragraph.’

There has been no relevant determination in writing by the Commonwealth Minister under paragraph (i). The respondents seek to counter Mr McKenzie’s argument by arguing that the proposed national radioactive waste repository is an infrastructure facility within the ordinary meaning of that phrase so that no reliance on the extended meaning of the phrase is necessary.

80 The Oxford English Dictionary defines ‘infrastructure’ as follows:

‘A collective term for the subordinate parts of an undertaking; substructure, foundation; spec. the permanent installations forming a basis for military operations, as airfields, naval bases, training establishments etc.’

81 The Macquarie Dictionary contains the following, it would seem wider, definitions:

‘1. the basic framework or underlying foundation (as of an organisation or a system) 2. the roads, railways, schools, and other capital equipment which comprise such an underlying system within a country or region. 3. the buildings or permanent installations associated with any organisation, operation etc.’

82 If the drafter of s 253 proceeded on the basis that the ordinary meaning of the word ‘infrastructure’ was the meaning indicated by the Oxford English Dictionary, the reason for expanding that meaning of the expression ‘infrastructure facility’ for the purpose of the Lands Acquisition Act is readily identified. The ordinary meaning would be too narrow to achieve the purpose behind the exclusion from Subdivision P of compulsory acquisition of native title rights and interests where the purpose of the acquisition is to provide an infrastructure facility. The purpose behind the exclusion may be presumed to be to exclude the right to negotiate where the acquisition is to provide a facility for the economic benefit of the nation or a region of the nation.

83 However, if the drafter of s 253 proceeded on the basis that the ordinary meaning of the term ‘infrastructure’ was the wider meaning reflected in the second Macquarie Dictionary definition, nothing would seem to be achieved by the provisions of s 253 touching on the meaning of ‘infrastructure facility’. In particular, paragraph (i) would, on this assumption, appear to be unnecessary as any thing ‘similar to any or all of the things mentioned in paragraphs (a) to (h)’ would almost certainly fall within the ordinary meaning of the words ‘infrastructure facility’.

84 Although the issue is not, as it seems to me, free from doubt, I conclude that the better view is that the Native Title Act has been drafted on the basis that the ordinary meaning of the words ‘infrastructure facility’ is relatively narrow. It is, I consider, in accordance with ordinary usage for ‘infrastructure facility’ to be used to describe a subordinate part of a particular undertaking or a facility intended to serve or support a particular undertaking. If this view is the correct view, a national radioactive waste repository not designed as a subordinate part of any particular undertaking or facility would not be an ‘infrastructure facility’.

85 I would reject the contention that the primary judge should have found that the purpose of the acquisition of Site 40a and the Corridor was to provide an infrastructure facility within the meaning of s 26 of the Native Title Act.

Conclusion

86 I would make the following orders in each appeal:

1. The appeal be allowed.

2. The orders made by the primary judge on 8 December 2003 be set aside and in their place it be ordered that orders in the nature of certiorari issue quashing:

(a) the certificate of urgency issued by the First Respondent under s 24 of the the Lands Acquisition Act 1989 (Cth) (LAA) in relation to the proposed acquisition by the Commonwealth of Australia of all the interests in land comprising a site for the establishment of a National Radioactive Waste Repository (‘Site 40a’);

(b) the declaration made by the First Respondent under s 41(1) of the LAA that all interests in land comprising Site 40a are acquired by the Commonwealth;

(d) the declaration made by the First Respondent under s 41(1) of the LAA that all interest in the land comprising the access corridor are acquired by the Commonwealth.

3. The respondents pay the costs of the appellant at first instance and on appeal.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 24 June 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 852 of 2003

S 856 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF SOUTH AUSTRALIA

APPELLANT

AND:

HONOURABLE PETER SLIPPER MP

FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARK MCKENZIE

APPELLANT

AND:

HONOURABLE PETER SLIPPER MP

FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGES:	BRANSON, FINN AND FINKELSTEIN JJ
DATE:	24 JUNE 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

FINN J:

87 I have had the advantage of considering Branson J’s reasons and conclusions. I respectfully agree with her Honour that the power conferred on the Minister by s 24(1)(a) of the Lands Acquisition Act 1989 (Cth) (“the Act”) was not conferred for the purpose of authorising the Minister to limit or control the operation of s 42 of the Act. It is unnecessary for me to add to what her Honour said.

88 I also agree with Branson J’s reasons and conclusion that the proposed national near surface radioactive waste repository is not an “infrastructure facility” within the meaning of s 26 of the Native Title Act 1993 (Cth).

89 Of the remaining matters raised by the parties in their grounds of appeal or notices of contention, there are three which, I consider, should be addressed for the purposes of disposing of these appeals. The first relates to procedural fairness; the second, to whether service of the s 24 certificate was a prerequisite to the exercise of the s 41 power of compulsory acquisition under the Act; and the third, to the meaning of “makes a statement in writing” in s 26(1)(c)(iii)(A) of the Native Title Act.

90 In dealing with these matters I gratefully adopt Branson J’s account of the statutory scheme of the Act insofar as presently relevant, of the background facts and of the primary judge’s reasons.

PROCEDURAL FAIRNESS

91 The two issues raised here are, first, whether the appellants’ right to procedural fairness before either the giving of the certificate under s 24 of the Act or the declaration of acquisition under s 41 of the Act, had been excluded as a matter of statutory construction; and secondly, if it had not, were the factual circumstances confronting the first respondent such that no such right needed to be afforded to the appellants.

92 Notwithstanding that the parties’ contentions relate both to the decision to give a s 24 certificate and to the decision to acquire compulsorily under s 41, it is clear that if there is a right to be heard prior to acquisition it relates to the making of the s 41 declaration. The s 24 discretion can affect what are important procedural rights of the owner of the subject property. However, when s 24 is seen in context, it is clear that the legislature intended to exclude any right in persons affected by the certificate to be heard before the Minister gives the certificate. The obligation on the Minister is, as soon as practicable after giving a certificate, to cause a copy of the certificate to be served on each person whom the Minister believes after diligent enquiry to be a person affected by the certificate. Any right that such a person has to procedural fairness must be a right to be heard thereafter in respect of the proposed acquisition. The importance of the particular discretion given by s 24 lies, for present purposes, in the light it throws on whether such a right qualifies the s 41 discretion.

Legislative Exclusion of Procedural Fairness

93 There is no real dispute between the parties as to the principles to be applied. The parties diverge on the principles’ application to the present circumstances. Stated in short form those principles are:

(i) when a statute confers a power on a public official the exercise of which affects a person’s rights, interests or expectations, the rules of procedural fairness regulate the exercise of that power unless those rules are excluded by express terms or by necessary implication: Kioa v West (1985) 159 CLR 550 at 584; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 93; on “necessary implication”, see B v Auckland District Law Society [2004] 1 NZLR 326 at 349;

(ii) a legislative intention to exclude the rules will not be assumed or spelled out from indirect references, uncertain inferences or equivocal considerations: Commissioner of Police v Tanos (1958) 98 CLR 383 at 396;

(iii) an intention to exclude should not be inferred merely from the presence in the statute of rights which are commensurate with some of the rules of procedural fairness: Annetts v McCann (1990) 170 CLR 596 at 598; and

(iv) while the rules may be excluded because the power in question is of its nature one to be exercised in circumstances of urgency or emergency: Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241; “urgency cannot generally be allowed to exclude the right to natural justice”: Minister for Aboriginal and Torres Strait Islanders Affairs v State of Western Australia (1996) 67 FCR 40 at 59; although it may in the circumstances reduce its content: J Wattie Canneries Ltd v Hayes (1987) 74 ALR 202 at 214; State of Western Australia v Native Title Registrar (1999) 95 FCR 93.

94 The Act was enacted consequent upon the ALRC’s Report No 14, “Lands Acquisition and Compensation” (“the Report”). Its provisions reflect both recommendations of that Report and the draft Bill appended to it. The Report provides a significant part of the “context” in which the Act is to be construed and its intent ascertained: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 at [11].

95 A declared purpose of the Report was to bring administrative decisions involving land acquisition within the framework of accountability then recently established under the Administrative Appeals Tribunal Act 1975 (Cth), the Ombudsman Act 1976 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). Significantly, the last of these Acts had not been proclaimed at the time of the Report. The resultant focus in the ALRC’s recommendations was on administrative accountability and merits review rather than on judicial review as such.

96 This emphasis is evident in the concluding paragraph of Chapter 4 which was entitled “Accountability for Decision: Reform of Administrative Law”:

“71. The subject matter of the Reference, the decision by government compulsorily to acquire the property of a citizen and the compensation payable to a citizen whose property is acquired, or adversely affected, by government action, profoundly touches ‘the rights of private property’. Decisions which interfere with property rights should be, and be seen to be, proper and justifiable. Some mechanism is necessary to ensure accountability and the avoidance of arbitrary and erroneous decisions. On the other hand the community has a ‘legitimate need for land for public purposes and for public works’ and an interest in efficient administration. Accountability may mean better decisions but it does exact a price in terms of cost, work and possibly delay. The requirement is for an approachable, low-cost and efficient tribunal empowered to review, on their merits, decisions relating to the acquisition of land or the determination of compensation. An essential ingredient is the provision of information, including reasons. The Commission’s recommendations for the provision of notices, reasons and valuation information, and for the review by the Administrative Appeals Tribunal of decisions to acquire land and of the government’s offer of compensation, seek to achieve these objects. They should be seen, in the context of lands acquisition, as a species; the genus is the new administrative law of the Commonwealth.”

97 The statutory scheme governing pre-acquisition procedures reflected (with some modifications) that proposed by the ALRC. The ALRC’s premise, adopted in the Act, was that the general rule would be that pre-acquisition decisions would be subject to merits review, first by way of ministerial reconsideration and then by the Administrative Appeals Tribunal (“the AAT”). Departure from that scheme was to be exceptional. Having a tiered process of merits review as an integral part of the acquisition scheme affected both the procedures that were recommended leading up to an acquisition decision and the time that could elapse before such a decision might be able to be taken.

98 The ALRC was aware that “delay, cost and inconvenience” could be raised as arguments against independent review by the AAT. As it said in par 110 of the Report:

“Delay, cost and inconvenience. These are material matters. If it be possible, consistently with fairness to individuals, additional administrative work and cost should be avoided. However, in the present context, they cannot be given much weight. Objections may be made to the obligation, in any area of administration, to give reasons and submit to review or appeals on the grounds of delay, cost and inconvenience. They have not been thought sufficient to impede the move to accountability already mentioned. Given the significance, to the individual, of compulsory acquisition of his land, they can hardly be treated as decisive.”

99 Though the Act deviated in some respects from the ALRC’s proposals as to when there could be departure from the merits review procedure, it adhered to the staged pre-acquisition procedures that the ALRC recommended and it adopted a staged timetable leading to possible AAT review which potentially ran for several months before an AAT review could be sought: see ss 26(3), 27(4) and 28(4).

100 The ALRC envisaged that there would be exceptional circumstances in which a person should be denied the general rights the Report was proposing. These circumstances were the precursors of those that could be the subject of a certificate under s 24(1) of the Act. The ALRC’s view was that (at [146]):

“There will be cases where a requirement of a Ministerial declaration will, for exceptional reasons, be contrary to the public interest. Two cases may be identified:

· Cases of urgent necessity. These cannot be exhaustively listed but obvious examples are defence needs during a time of war or imminent war, emergencies following a natural disaster such as a cyclone or flood, emergencies following an accident, or sabotage, or during a shortage of some basic commodity or during some extraordinary economic crisis. In such cases government must be able to move quickly. The normal requirements of notice and appeal may have to be put aside in favour of a higher public interest.

· Cases of confidential information. It is sometimes necessary for the government to acquire land for purposes related to the defence or security of Australia. Disclosure, in such a case, of the proposed use of the land may be contrary to the public interest. The dispossessed owner may feel aggrieved that he is not told the purpose for which his land is required, except in the vaguest of terms, and why it has been selected, but that personal grievance has to yield to the wider interest.

A decision about the existence of a state of urgent necessity or the sensitivity of information necessarily imports political considerations. It ought, therefore, to be made by a Minister, who will be responsible to Parliament for the decision. The power to dispense with a declaration, and to negative the owner’s right to information, will, under these recommendations, be an extraordinary one diminishing an owner’s usual rights. It should only be exercised in extraordinary circumstances and should be promptly brought to the attention of Parliament. The Minister should be obliged to lay his certificate before each House within three sitting days and to serve it upon the owner. It is not recommended that the Minister should be required to certify the reasons for his decision. This would, in some circumstances, destroy the purpose for which the power was exercised. Where reasons might legitimately be expected Parliament will, no doubt, require them to be given.”

101 This reasoning was reflected in cl 16 of its Draft Bill:

“16. (1) Where the Minister is satisfied that –

(a) by reason of the urgent necessity for using the land or for carrying out works connected with the public purpose for which the land is proposed to be acquired, it would be contrary to the public interest for the acquisition of the land to be delayed for such time as is required to enable compliance with the requirements of Part IV; or

(b) the public purpose for which the land is proposed to be acquired is such that compliance with sub-section 17(2) would result in a disclosure of information that would be prejudicial to the security, defence or international relations of Australia,

the Minister may certify in writing that he is so satisfied and in that case the land may be acquired at any time thereafter notwithstanding the provisions of Part IV.

(2) The Minister shall cause a copy of the certificate –

(a) to be laid before each House of the Parliament within 3 sitting days of that House after the date on which he gives the certificate; and

(b) to be served on each person whom the Minister believes, after diligent inquiry, to have an interest in the land proposed to be acquired.” Emphasis added.

The references in this to Part IV are to the pre-acquisition procedures that would attract merits review. The two matters that have been emphasised in the draft clause differ in material respects from the language adopted in s 24 of the Act. The Draft clause’s reference to “urgent necessity for using the land” etc became “urgent necessity for the acquisition” in s 24(1). The second and more significant matter highlighted – “the land may be acquired at any time thereafter” – was omitted from s 24. It would appear that the ALRC’s intent as reflected both in its Draft clause and in its report was “to allow the acquisition to proceed without further delay” after a Minister’s certificate had been given: Report, [163].

102 The final comment to be made on the Report is that the system it proposed was to, and did, replace one under which accountability was exacted by the Houses of Parliament through the power each possessed to disallow an acquisition within 30 days of a notice of acquisition being tabled in each House. I will return to the contextual significance of the Report below.

103 Turning to relevant parliamentary material, the Second Reading Speech did no more than instance cl 24 as an illustration of where AAT review was considered “inappropriate”. In so doing the responsible Minister saw it as giving effect to two principles to which the ALRC was required to have regard in its terms of reference, ie:

“(a) the need to strike a balance between the rights of private property on the one hand and the legitimate need of society for land for public purposes and for public works on the other; and

(b) the effects on efficient administration of legislation relating to the acquisition of land and the speedy resolution of claims for compensation.”

104 Apart from providing the now characteristic précis of the terms of cl 24, the Explanatory Memorandum contained two additional comments. The first was that notwithstanding that the issue of a certificate removed an owner’s entitlement to avail of the merits review procedures, “[t]he decision to give a certificate would be reviewable” under the Administrative Decisions (Judicial Review) Act 1977.

105 The second comment was that:

“The prerequisite to acquisition (compulsory or by agreement) is satisfied on the issue of a certificate.”

Considered in the context of the Bill and the Explanatory Memorandum, this observation can only be taken as indicating that the “general pre-requisites to acquisition” specified in cl 40 and cl 41 of the Bill (now ss 40 and 41 of the Act) would have been satisfied in whole (s 41) or in part (s 40) by the issue of a certificate: see the Explanatory Memorandum, cl 40 and cl 41.

106 Turning to the Act and in particular to s 24, it cannot properly be said that they demonstrate a clear legislative intent positively to exclude the rules of procedural fairness prior to a s 41 acquisition decision being made. Whatever the position may have been had Parliament adopted the ALRC’s Draft Bill’s cl 16(1) (which expressly permitted the land to be acquired “at any time” after a ministerial certificate had been given), it did not expressly excluded those rules. When s 24 is considered in context, there is insufficient legislative indication in the scheme of the Act and the terms of the section that such exclusion was intended. There are, in my view, indications to the contrary.

107 As I have emphasised, a clear purpose of the ALRC report and of the Act was to formalise a system of acquisition in which the general rule would be that decisions leading to compulsory acquisition would be subject to merits review. The Act quite designedly adopted the AAT model of administrative review. Its procedures and timetables were moulded accordingly.

108 Both the ALRC and the Act have recognised that there would be instances in which this review procedure was inappropriate. In the case of s 24(1) that inappropriateness arose in a setting in which there was an urgent necessity to acquire the interest in question but in which:

“it would be contrary to the public interest for the acquisition to be delayed by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration.”

109 The merits review procedures of the Act, as I have indicated, could result in several months delay from the giving of a certificate before the AAT became seized of a review let alone before it determined it. It was, in other words, the possible delay that inhered in the general administrative accountability regime adopted in the Act that could make that accountability regime inappropriate. That regime did not provide the only possible role to fairness and accountability.

110 It is one thing positively to exclude merits review, particularly review of an expansive kind. It is another positively to exclude procedural fairness as such. In many instances adequate procedural fairness falling short of the Act’s merits review system could be afforded an affected landowner within a timeframe that would not occasion delay of such possible length as would be contrary to the public interest. For this reason the s 24 power is not of its very nature inconsistent with an obligation to be heard prior to a s 41 acquisition decision: cf Marine Hull and Liability Insurance Co Ltd v Hurford, at 241.

111 Both the ALRC and the responsible Minister acknowledged that the nature of the acquisition power was such that its exercise could affect “profoundly” the owner of the subject land. In such a setting, and against the background of a clearly recognised need to “strike a balance” between private and societal interests, one would have expected the legislature to have spoken with unmistakable clarity if it was to deny rights of procedural fairness that could otherwise have been made available to an affected landowner. It has not done so.

112 I consider that the primary judge erred in finding that “plain words of necessary intendment” have excluded the right to procedural fairness.

No Right to be Heard in the Circumstances

113 The issue here is, simply, what did the duty to afford procedural fairness require in the circumstances of this particular case: Kioa v West, at 585. In making this determination, the following considerations provide well-accepted guidance:

(i) the particular statutory framework in which a power is to be exercised will be given full effect in determining what procedural fairness requires: Mobil Oil Australia v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503 – 504;

(ii) procedural fairness will not require, for example, the giving of a notice, the provision of information, or a right to be heard where so to do would in the circumstances frustrate the purpose for which a particular power has been conferred: Kioa v West at 586; Johns v Australian Securities Commission (1993) 178 CLR 408 at 431;

(iii) the need for urgent exercise of a statutory power can either limit the opportunity of an affected person to be heard or, in exceptional cases, reduce the content of procedural fairness “almost to nothingness”: cf Aronson & Dyer, Judicial Review of Administrative Action, 398 (2^nd ed, 2000); Marine Hull Liability Insurance Pty Ltd v Hurford at 240 – 242;

(iv) the relative seriousness of the consequences occasioned to a person by the exercise of the power in question can affect the content of procedural fairness or can justify giving it some consequence even if, in the circumstances, fairness can only be accorded in an attenuated form: Aronson & Dyer, 397-398; Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599B; Craig, Administrative Law, 413, 416 – 417 (4^th ed, 1999);

(v) the circumstance that there is no apparent likelihood that the person directly affected by the exercise of a power could successfully oppose its exercise, does not diminish or practically exclude the obligation to afford procedural fairness: Kioa v West at 633; see also John v Rees [1970] Ch 345 at 402; and

(vi) though it is for the court to determine what procedural fairness requires a decision maker to do if he or she is not to be found to have acted unfairly in the circumstances, it is not for the court to determine that better or fairer procedures could have been adopted by the decision maker if those actually adopted are not shown to be unfair: Rose v Bridges (1997) 79 FCR 378 at 386.

114 It is, in my view, clear given the nature and purpose of the s 24 and s 41 powers, that circumstances of urgency of such an immediate and compelling character could arise as could deprive the procedural fairness requirement of all practical content when need compelled the exercise of those powers conjointly. That this consequence can ensue notwithstanding the effect compulsory acquisition may have on a landowner, merely reflects how in a situation of exceptional urgency the balance of fairness can result in the subordination of the interests of the landowner to the public interest served by exercise of those powers.

115 When one has regard to the actual circumstances of the present matter, it cannot properly be said that a situation of such exceptional urgency existed as would justify the reduction of the requirements of procedural fairness to “nothingness”.

116 My reasons for this conclusion can be put shortly. I assume for present purposes, first, that the s 24(1) power could properly be exercised to prevent s 42 of the Act applying to the acquisition in question and, secondly, that the ministerial certificate given was a valid one.

117 The consequence of these assumptions is that, subject to such content as procedural fairness may have in the circumstances, the first respondent had the practical capacity to acquire the two sites under s 41 at the time of his choosing. Importantly, if the likelihood of the South Australian Parliament’s actually passing the Public Park Bill 2003 became real and immediate, Mr Slipper would then have been confronted with a threat that was materialising. That new state of clear and present urgency would have justified his exercise of the s 41 acquisition power without further affording procedural fairness, for otherwise the very purpose of the s 41 power would be frustrated.

118 In my view there was no such clear and present urgency nor had a situation arisen which justified occasioning the consequences to the affected owners’ interests that the s 41 decision did, without giving them any measure of procedural fairness. To explain this conclusion it is necessary to refer briefly to the factual setting of the s 41 decisions.

119 On 26 May 2003 South Australia sought assurances from the Commonwealth that it would be accorded procedural fairness in respect of the apprehended compulsory acquisition for the nuclear waste storage facility. The Commonwealth did not reply to either this, or to a follow-up, letter until 3 July 2003 and then only in terms that it would “act in accordance with any applicable legal obligations”.

120 Following a Ministerial Statement on 2 June 2003, the Public Park Bill was introduced into the South Australian House of Assembly on 3 June 2003. Shortly thereafter, the Commonwealth Minister for Finance and Administration was advised that, in light of the sittings scheduled for the South Australian Parliament and save for the option of a special sitting being arranged, the Bill, if it was not defeated, would be expected to become law in early July 2003.

121 Prior to the South Australian House of Assembly and Legislative Council adjourning on 26 June 2003 until 14 July 2003 and 7 July 2003 respectively, the first respondent had been requested to, and then recommended to, sign s 24 certificates andto make s 41 declarations. This he did on 7 July 2003 without apparently giving any regard to whether it was appropriate in the circumstances for him to sign the s 41 declaration as well as the s 24 certificate at that time.

122 The reasons the first respondent gave for finding there was an urgent necessity to acquire the two sites included his finding that there was “a substantial chance that the Public Park Bill 2003 would pass”. That factor was central to his conclusion that if the land became a public park and if an alternate site had to be located, the national repository project might be unable to proceed under its current approval or at all. The consequences flowing from that provided his reasons for concluding there was “an urgent necessity” to proceed immediately to acquisition. Insofar as the giving of a s 24 certificate might attract procedural fairness requirements, the first respondent said in his reasons:

“37. I also took into account whether there was a need to provide procedural fairness to persons whose interests might have been affected by the giving of the certificate, by giving them notice of any proposed decision to give the certificate. However, I considered that any need to give notice to such persons prior to deciding to give the certificate was negated as a result of my findings and conclusions in paragraphs 32 and 33 above.”

123 Put shortly, these two paragraphs related, respectively, to the Commonwealth having already made its intentions clear to those directly affected for some time and to the South Australian Government’s “concern … to frustrate the Commonwealth’s radioactive waste disposal policy”.

124 The reasons given for making the s 41 declaration, apart from referring to the s 24 certificate, related only to the appropriateness of acquiring the particular interests for the purpose of the repository.

125 There is nothing in either set of reasons to suggest that any consideration was given to the requirements of procedural fairness before a s 41 declaration was made, beyond what was considered and negatived in relation to the s 24 certificate.

126 Having signed the certificate the first respondent had, as I earlier indicated, pre-empted in a practical way any capacity the South Australian Parliament might have had to frustrate the exercise of the s 41 power by passing the Public Park Bill. The Commonwealth had the whip hand. Once a clear and present danger existed of the Bill passing into law a s 41 acquisition could have been made.

127 At the time of the s 41 declaration there was at least a short period before both Houses of the South Australian Parliament would again sit. Within that period a right to be heard albeit of a truncated variety: cf Durayappah v Fernando [1967] 2 AC 337 at 346; could have been accorded the affected owners. And as it was the possible action of the State that was the cause of time being an issue in according procedural fairness to any of the affected owners, it may well have been the case that a compromise allowing a reasonable opportunity for all such owners to be heard could have been reached with the State. Such a possibility was not explored. I would add that there is no reason properly to assume that South Australia was other than genuine in its repeated requests that it be accorded procedural fairness.

128 While it is unnecessary to express a view on whether the Commonwealth acted as it did because of the view it took of the State’s intentions, it is necessary to reiterate that the unlikelihood of the first respondent being successfully swayed by South Australia provides no basis for diminishing or denying procedural fairness.

129 The importance of acting fairly, if only in a truncated way because of time constraints, becomes the more apparent once it is recognised that persons other than the State would be, and were, affected directly by the compulsory acquisition decision. They had important interests at stake.

130 This is not a case in which procedural fairness could be reduced to nothingness. The procedure adopted by the Commonwealth in making its s 41 decision was unfair. On the assumptions I am making, that unfairness would require the invalidation both of the s 41 declarations (the “Site 40a” declaration and the “Corridor” declaration) made on 7 July 2003.

SERVICE OF THE CERTIFICATE

131 This matter is raised by Mr McKenzie. His contention is that s 24 required the Minister’s certificate to be served on him before his native title rights and interests in the two sites were acquired under s 41.

132 By way of factual background the s 24 certificates were given and the s 41 declarations were made on 7 July 2003. They were published in a Special Gazette dated 7 July 2003. Mr McKenzie received the s 24 certificate by post on 9 July 2003. It seems probable that the accompanying letter was dated 7 July 2003 (a letter so dated addressed to Mr McKenzie and containing the same material was also received by Mr McKenzie’s solicitor on 9 July 2003).

133 The question raised is a short one of construction. Section 41(1)(b) authorises the Minister to acquire an interest in land if a certificate has been given under s 24 in relation to that interest. I have already indicated that that authorisation is subject to the Minister complying with the rules of procedural fairness. Mr McKenzie’s contention is that there is a further conditioning event imposed, not by s 41, but by s 24(4).

134 Insofar as is presently relevant s 24 provides:

“(3) If the Minister gives a certificate, the interest may be acquired by the acquiring authority without the preparation of a pre-acquisition declaration.

(4) The Minister shall:

(a) cause a copy of the certificate to be laid before each House of the Parliament within 3 sitting days of that House after the giving of the certificate; and

(b) as soon as practicable, cause a copy of the certificate to be served on each person whom the Minister believes, after diligent inquiry, to be a person affected by the certificate.

(6) The certificate ceased to be in force if:

(a) the interest is acquired under this Act;

…

(7) For the purposes of this Act, a person shall be taken to be affected by the certificate if, and only if:

(a) the person is an owner of the interest in land to which the certificate relates (in this subsection called the certificate interest);

…”

135 By way of preface to the question of construction I should indicate that the section differentiates between a “certificate” (subs (2) and (3)) and a copy of the certificate (subs (4) and (5)). I respectfully agree with the primary judge that the Minister “gives a certificate” when the Minister certifies in writing as to his or her satisfaction under s 24(1).

136 Section 24(4)(b) imposes a mandatory obligation to cause a copy of the certificate to be served “as soon as practicable” on each person who, “after diligent inquiry”, the Minister believes to be a person affected by the certificate. What this contemplates is that an indeterminate period may elapse before service is effected, albeit expedition is required in effecting service. A period of delay and possible unpredictability are injected into the matter if service is effected by post under s 137(3) of the Act. Under s 29 of the Acts Interpretation Act 1901 (Cth) such service will be deemed “to have been effected at the time at which the letter would be delivered in the ordinary course of post” unless the contrary is proved: see Repatriation Commission v Gordon (1990) 26 FCR 569 at 578 – 579 and note the comments on non-delivery. Obviously, non-delivery poses its own possible problems for the validity of a s 41 declaration if Mr McKenzie’s contention is correct.

137 I indicated when considering procedural fairness in the setting of ss 24 and 41 that it was conceivable in the case of exceptional urgency that the procedural fairness required before a s 41 acquisition is made could reduce to “nothingness”. It seems anomalous, in my view, for the legislature, in a setting premised upon the existence of an urgent necessity to acquire, to insist in all circumstances upon a period of indeterminate delay before a compulsory acquisition could be effected. This said, the Act may necessitate such a construction of s 24 in its setting.

138 In my view, s 24(4) in its setting does not make service of the certificate a prerequisite to a s 41 acquisition. The subsection requires that service be on each person whom the Minister believes to be a “person affected by the certificate”. Such a person is defined in s 24(7) for present purposes to be the person who is either an owner of the interest in land to which the certificate relates, or, in defined circumstances, the owner of some other interest in the land.

139 The class of persons falling within the definition (ie the class of persons affected) are determined as a matter of historical fact at the time the Minister gives a certificate. And they are the class of persons in respect of whom the Minister has his or her s 24(4) obligation to serve as they are the class of persons “affected by the certificate”. Whether or not in a given case the s 41 declaration is made before service of the certificate cannot in my view affect their membership of the particular class of persons affected by the certificate that has been given.

140 If the certificate ceases to be in force because it is revoked or because of the operation of s 46(3) (which is of no present relevance), the existence and composition of the class of persons affected by that certificate remains unchanged. These were determined at the time the certificate was given. What has changed is that the certificate itself is no longer of practical consequence because it “ceases to be in force”. For like reasons, where a s 41 declaration is made and published in the Gazette, the class of persons affected by the certificate that has been given remains unchanged from when its composition was determined at the giving of the certificate. Again what has changed is that the certificate has done its work in activating a s 41 declaration, and that declaration having been made and published, it ceases to be in force.

141 The point of time to which the s 24(7) definition is addressed is the time at which the certificate is given. A person who is a person affected at that time is a person envisaged by s 24(4) irrespective of whether actual compulsory acquisition has supervened before service of the certificate has been effected.

142 If I was satisfied that an available contrary construction better furthered a purpose or object of the Act, I would have been obliged to prefer that construction. However, the conclusion I have reached appears to me to conform both to the purpose of s 24 in the Act and to the dictates of procedural fairness insofar as concerns the making of a s 41 acquisition consequent upon a s 24 certificate being given in situations of exceptional urgency.

143 I reject Mr McKenzie’s contention.

the native title act statement

144 For the reasons given by Branson J, I agree that the primary judge was correct in concluding that the “statement in writing” that the Commonwealth was obliged to make under s 26(1)(c)(iii)(A) of the Native Title Act before compulsorily acquiring native title rights and interests, was not required by that Act to be communicated to Mr McKenzie before the compulsory acquisition took place.

145 My conclusion in this is reinforced by the consideration that compulsory acquisition by the Commonwealth is to be effected through the procedures prescribed in the Lands Acquisition Act, including those contained in ss 24(1)(c) and 41 of that Act. The language of s 26(1)(c)(iii)(A) of the Native Title Act does not necessitate it being given a construction which could compromise the intended consequence of s 24(1)(c) of the Lands Acquisition Act. I can see no reason in the respective language and purposes of the two Acts for differentiating for present purposes between a s 24 certificate and a s 26 statement.

146 I would add that, given the manner in which the requirements of procedural fairness will be likely to operate in all but exceptional cases when a s 24 certificate is given, the practical likelihood is that the holders of native title rights will ordinarily be notified of the statement as an aspect of affording procedural fairness prior to the proposed acquisition.

CONCLUSION

147 I agree with the orders proposed by Branson J.

I certify that the preceding sixty-one (61) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 24 June 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 852 of 2003

S 856 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF SOUTH AUSTRALIA

APPELLANT

AND:

HONOURABLE PETER SLIPPER MP

FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARK MCKENZIE

APPELLANT

AND:

HONOURABLE PETER SLIPPER MP

FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA

SECOND RESPONDENT

JUDGES:	BRANSON, FINN AND FINKELSTEIN JJ
DATE:	24 JUNE 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

FINKELSTEIN J:

148 The reasons of Branson J and Finn J cover all the issues raised by this appeal. I agree in their reasons and in the orders which they propose.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 24 June 2004

S 852 of 2003
Counsel for the Appellant:	C J Kourakis QC M F Johns

Solicitor for the Appellant:	Crown Solicitor’s Office of South Australia

Counsel for the Respondent:	D M J Bennett QC T Howe

Solicitor for the Respondent:	Australian Government Solicitor

S 856 of 2003
Counsel for the Appellant:	J Basten QC A Tokley S Ower

Solicitor for the Appellant:	Corsers Solicitors

Counsel for the Respondent:	D M J Bennett QC T Howe

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	11 –12 May 2004

Date of Judgment:	24 June 2004

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