FEDERAL COURT OF AUSTRALIA

French v Gray, Special Minister of State [2013] FCA 263

FEDERAL COURT OF AUSTRALIA

French v Gray, Special Minister of State [2013] FCA 263

CORRIGENDUM

1    In paragraph 9, the number “18” should read “17”.

2    In paragraph 21, in the first sentence, delete the word “to” immediately following the word “should”.

3    In paragraph 21, sub-paragraph 3, delete the word “eight”.

4    In paragraph 102, in the first sentence, the number “2009” should read “2008”.

5    In paragraph 109, in the first sentence, the number “22” should read “21”.

6    In paragraph 116, in the first sentence, the word “in” immediately following the words “corporations power” should read “on”.

Associate:

Dated:    22 May 2014

THE COURT DECLARES THAT:

The Pre-Acquisition Declaration purportedly made by the respondent under the Lands Acquisition Act 1989 (Cth) and dated 14 May 2012, a copy of which is annexed to the originating application for judicial review in this proceeding (“the Pre-Acquisition Declaration”), is invalid and is of no effect.

AND THE COURT ORDERS THAT:

1.    The Pre-Acquisition Declaration as described in the aforesaid declaration be quashed.

2.    The respondent be restrained from taking any further steps in, or for the purposes of, the acquisition of the land (described in the Pre-Acquisition Declaration) under or pursuant to the Pre-Acquisition Declaration.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This proceeding is an application for judicial review under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth). The applicant is Mr Graham French and the respondent is Mr Gary Gray who is the Special Minister of State for the Commonwealth of Australia.

2    The applicant is the lessee of land under a Crown Pastoral Lease (No. 2215). The lease is comprised and described in Certificate of Title Register Book Volume 1277 Folio 23. The land which is the subject of the lease is known as “Corunna”. The Eyre Highway traverses Corunna. The Commonwealth has a defence training area some distance to the east of Corunna, known as the Cultana Training Area. The Commonwealth wishes to expand the Cultana Training Area and the proposed expansion includes that part of Corunna which is to the east of the Eyre Highway. The applicant does not complain of that part of the Commonwealth’s plan.

3    The Commonwealth’s plan also includes the acquisition of that part of Corunna which is to the west of Eyre Highway. The applicant does challenge that part of the Commonwealth’s plan.

4    The Commonwealth has taken steps under the Lands Acquisition Act 1989 (Cth) to acquire that part of Corunna which is to the west of Eyre Highway. At this stage, it is necessary to refer to only two aspects of the Lands Acquisition Act. The first relevant step towards the acquisition of land under the Act is a Ministerial declaration in writing to the effect that the Minister is considering the acquisition of an interest in land. That step is the subject of s 22 of the Lands Acquisition Act. The respondent took that step in this case when, on 14 May 2012, he signed what was entitled a Pre-Acquisition Declaration (“Pre-Acquisition Declaration”). The second relevant step is the acquisition of an interest in land itself which occurs on publication in the Gazette of a Ministerial declaration of acquisition. That step is the subject of s 41 of the Lands Acquisition Act. That step has not been taken in this case presumably because of this proceeding which was commenced on 14 June 2012.

5    The applicant seeks relief under s 16 of the ADJR Act and s 39B of the Judiciary Act in relation to the Pre-Acquisition Declaration or the decision embodied therein, and the conduct that has been, is being, or is proposed to be engaged in for the purpose of the making of the decision to acquire the land under s 41 of the Lands Acquisition Act. It is unnecessary to focus on anything other than the Pre-Acquisition Declaration. If that is declared invalid and quashed, then the acquisition of the land cannot proceed under s 41 of the Lands Acquisition Act. If the applicant’s challenge to the Pre-Acquisition Declaration is rejected then, as I understand it, it is common ground between the parties that the second limb of the applicant’s challenge (i.e., the challenge to conduct) must also so fail. Both the decision and the conduct are challenged on the same grounds.

6    In his originating application for judicial review, the applicant alleges that the Pre-Acquisition Declaration was made by the respondent and that he did not have jurisdiction to make the Declaration, that the Declaration was not authorised by the Lands Acquisition Act and that the Declaration was an improper exercise of the power conferred by the Lands Acquisition Act. He relies on s 5(1)(c), (d) and (e) of the ADJR Act. The facts advanced by the applicant in support of those allegations are the same facts which he relies on to support his case under s 39B of the Judiciary Act.

7    Before the trial, the applicant was given leave to amend his originating application to add further allegations. In essence, he introduced what he described as a claim of illegality in relation to the Pre-Acquisition Declaration. He claimed that the respondent’s decision to make the Pre-Acquisition Declaration was contrary to law and he particularised the contraventions as acts of unlawful discrimination within ss 9(1) and 12(1)(e) of the Racial Discrimination Act 1975 (Cth) (“RD Act”) a failure to comply with s 19 of the Pastoral Land Management and Conservation Act 1989 (SA) and a failure to comply with s 121 of the Lands Acquisition Act. In this respect he relies on s 5(1)(j) of the ADJR Act. He gave particulars of each alleged contravention and non-compliance.

8    The structure of these reasons is as follows. First, I will summarise the Pre-Acquisition Declaration, and I will set out the provisions of the Lands Acquisition Act which are relevant to the issues in this case. Secondly, I will set out my findings of fact. The facts were, by and large, agreed and are set out in two documents which were received into evidence, a statement of agreed facts and documents and a supplementary statement of agreed facts and documents. There was also evidence by way of affidavit, but none of the deponents were required for cross-examination. Thirdly, I will examine the issues starting with the main issues under the Lands Acquisition Act and then the issues arising on the applicant’s case of alleged contraventions of, and failures to comply with, the legislative provisions identified. Finally, I will set out my conclusions.

the Pre-acquisition declaration and the relevant provisions of the lands acquisition act

9    The Pre-Acquisition Declaration purports to follow the terms of s 22 of the Lands Acquisition Act which is set out below (at [18]).

10    The Pre-Acquisition Declaration commences with a statement by the Minister that he was considering the acquisition of the interests in land specified in the declaration and for the public purpose described in the declaration. The Minister states that the Commonwealth of Australia was the acquiring authority.

11    The land which is the subject of the declaration is the land identified as pieces 3, 4, 5, 7 and 8 on Deposited Plan DP37564 and the land identified as piece 84 on Plan D85852 (approved by, but not yet deposited in the South Australian Land Title Registration Office). Deposited Plan DP37564 and Plan D85852 are Part 1 of the Schedule to the Pre-Acquisition Declaration. As I have said, the land is described as part of the land contained in Crown Lease Pastoral No. 2215. It is approximately 576 square kilometres in area and is located in the State of South Australia. A plan showing the approximate location of the land is Part 2 of the Schedule to the Pre-Acquisition Declaration. I will refer to the land which is the subject of the Pre-Acquisition Declaration as the subject land.

12    The interests to be acquired are said to be all the interests in the subject land and the public purposes are stated to be as follows:

A public purpose of the acquisition is the conferral of interests in land on Aboriginal people (being people of a particular race)

An additional, separate public purpose of the acquisition is defence.

13    The Pre-Acquisition Declaration contains a statement that the subject land appears to be suitable for use by the Commonwealth of Australia for public purposes.

14    The Pre-Acquisition Declaration contains a statement or particulars of the proposed use. It provides that the subject land “together with certain other land” is proposed to be the subject of a pastoral lease for conservation purposes. The pastoral lease is to be granted to a company established to represent the interests of the Barngarla Native Title Claim Group in relation to the Barngarla Native Title Claim. It provides that the grant of the pastoral lease will mean that the company and the members of the Barngarla Native Title Claim Group may use the land as pastoral lessee. The statement also contains a description of how the proposed use is to be achieved. After the Commonwealth acquires all interests in the subject land the pastoral lease will be surrendered to the State of South Australia. The State of South Australia will then grant a pastoral lease for conservation purposes to the company and that will enable the company and the members of the Barngarla Native Title Claim Group to use the subject land as pastoral lessee for the benefit of the Barngarla Native Title Claim Group. The grant of the pastoral lease to the company is also proposed to be provided as consideration under the Indigenous Land Use Agreement within the meaning of the Native Title Act 1993 (Cth) that is proposed to be entered into with the applicants for the Barngarla Native Title Claim, the registered native title claimants for the land, in return for the applicants for the Barngarla Native Title Claim providing three things. First, they will provide their consent to certain land adjacent to the subject land being used for defence training purposes by the Commonwealth of Australia as an expansion of the existing Cultana Training Area. Secondly, they will provide their consent to the acts to achieve this use, including the grant of one or more leases for defence purposes by the State of South Australia to the Commonwealth of Australia over that land. Thirdly, they will agree to release and discharge the Commonwealth from all claims related to the impairment of their traditional rights and interests arising from this use or these acts, and not to take any action to challenge or delay this use or these acts. There is a statement that the grant of the pastoral lease to the company will compensate and benefit the Barngarla Native Title Claim Group for the effect on their claimed native title rights of this proposed use and these proposed acts to achieve this proposed use.

15    The Pre-Acquisition Declaration also contains a statement as to why the subject land appears to be suitable for the proposed use. Those reasons are as follows. First, the subject land forms part of the land which is the subject of the Barngarla Native Title Claim and the members of the Barngarla Native Title Claim Group have a traditional connection with the land. Secondly, the proposed use of the land has been negotiated “as consideration and compensation under the Indigenous Land Use Agreement within the meaning of the Native Title Act” that is proposed to be entered into with the applicants for the Barngarla Native Title Claim in return for the consideration described in the previous paragraph provided by the registered native title claimants. The Pre-Acquisition Declaration then contains the following statement:

The reason why it is proposed that the existing Cultana Training Area be expanded is because it is not large enough to support the current and future defence training needs of the Commonwealth of Australia. The expansion of the existing Cultana Training Area will enhance the overall capability of the Cultana Training Area to support the current and future operational requirements and capabilities of the Australian Defence Force.

16    Finally, the Pre-Acquisition Declaration contains a statement to the effect that it is intended to be valid to the extent to which it is not in excess of the power in s 22 of the Lands Acquisition Act.

17    The power to make a Pre-Acquisition Declaration is contained in s 22 of the Lands Acquisition Act. That section relevantly provides:

(1)    The Minister may declare in writing that the Minister is considering the acquisition by an acquiring authority of an interest in land (other than a mortgage interest) for a public purpose.

(2)    The declaration shall identify the acquiring authority, the land, the interest in the land and the public purpose.

(3)    Except where the interest is a restriction on the use of land, the Minister shall include in the declaration:

(a)    a statement that the land appears to the Minister to be suitable for use, or for development for use, for a public purpose; and

(b)    a statement setting out:

(i)    particulars of the use to which the land will be put or for which it will be developed; and

(ii)    the reasons why the land appears to be suitable for that use or for development for that use.

18    The term “public purpose” is defined in s 6 of the Lands Acquisition Act as follows:

… means a purpose in respect of which the Parliament has power to make laws and includes, in relation to land in a Territory, any purpose in relation to the Territory.

19    Section 51 of the Constitution relevantly provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

…

(vi)    the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

…

(xxvi)    the people of any race for whom it is deemed necessary to make special laws;

…

20    Section 41 of the Lands Acquisition Act contains the power of acquisition. It 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.

21    Finally, reference should to be made to s 121 of the Lands Acquisition Act. That section relevantly provides:

(1)    Where:

(a)    an acquiring authority acquired an interest in land by the vesting of the interest in the acquiring authority by paragraph 41(4)(a) of this Act or paragraph 10(4)(a) of the Lands Acquisition Act 1955;

(b)    the acquiring authority has not made substantial improvements to the land;

(c)    the Minister proposes to authorise the disposal of the interest; and

(d)    if authorised, the disposal would be likely to occur before the end of 7 years after the acquisition of the interest by the acquiring authority;

the Minister shall, in authorising the disposal, have regard to the general principle that the interest should, if practicable, be first offered for sale to the former owner at the market value of the interest at the time the offer is made.

(2)    An offer shall be made by the Minister by written notice given to the former owner and shall specify the amount that, in the opinion of the Minister, represents the market value of the interest at the time of the offer.

(3)    The acquiring authority shall not dispose of the interest to a person other than the former owner within 28 eight days after the day on which the offer is made.

…

(9)    The validity of the disposal of an interest in land is not affected by a failure to comply with this section.

the facts

The Pre-Acquisition Declaration

22    Since 1954 the Commonwealth has progressively acquired and subsequently owned and occupied land known as the “Cultana Training Area” comprising 502 square kilometres near Whyalla on the Eyre Peninsula in the State of South Australia. The Commonwealth uses the Cultana Training Area for defence training purposes.

23    Since 2005 the Commonwealth has wished to expand the area of the Cultana Training Area by the acquisition of land adjoining the Cultana Training Area (“Cultana Expansion Area”). The area of the Cultana Expansion Area is approximately 2,090 square kilometres. The Commonwealth’s intention was announced by press release on 23 June 2005.

24    The Commonwealth wishes to use the Cultana Expansion Area in conjunction with the Cultana Training Area for defence training purposes, primarily by the 7th Battalion, Royal Australian Regiment of the First Brigade of the Australian Army and certain other sub-units of the First Brigade based in Adelaide, as their primary training area all year round, and by those First Brigade units that are based in the Northern Territory during the Northern Territory wet season. The First Brigade is of high importance to the Army because it is one of only three multi-role combat brigades and contains a significant proportion of the Army’s regular units and a high proportion of the Army’s combat power. The Cultana Training Area, in the absence of the Cultana Expansion Area, is not large enough to support the training needs of the First Brigade.

25    The Commonwealth had a deadline for the acquisition of the Cultana Expansion Area of January 2011 to coincide with the relocation of the 7th Battalion, Royal Australian Regiment of the First Brigade to Adelaide in January 2011. The Commonwealth therefore wishes to acquire the Cultana Expansion Area as quickly as possible.

26    The land that forms the Cultana Expansion Area is relevantly subject to the rights of the lessees of the pastoral leases that comprise the Cultana Expansion Area. In addition, it is possibly subject to the interests of native title holders. There is a registered native title claim by the Barngarla people for the Cultana Expansion Area (National Native Title Tribunal file number SC96/4 and Federal Court of Australia file number SAD 6011/98 (“Barngarla Native Title Claim”)).

27    In order to acquire and use the Cultana Expansion Area for defence training purposes the Commonwealth has proceeded under a strategy to acquire the pastoral leases that comprise the Cultana Expansion Area under the Lands Acquisition Act, to surrender the pastoral leases to the State of South Australia and to take a miscellaneous lease for defence purposes from the State of South Australia over the Cultana Expansion Area (“Cultana Expansion Area Project”). In order to ensure that the grant of the miscellaneous lease for defence purposes from the State of South Australia to the Commonwealth will validly be done in accordance with the Native Title Act if native title does exist in the Cultana Expansion Area, the Commonwealth has proceeded under a strategy to enter into and register an Indigenous Land Use Agreement or ILUA with the applicants for the Barngarla Native Title Claim prior to the grant of the miscellaneous lease for defence purposes.

28    The applicant is registered as the lessee of Corunna which includes the subject land. He was first registered as the lessee of Corunna on 12 May 1977. The subject land is also subject to the Barngarla Native Title Claim.

29    Up until October 2011, the policy of the Commonwealth in respect of the acquisition of the pastoral leases in the Cultana Expansion Area was to reach a negotiated outcome with the lessees on the terms of the proposed acquisition. The Commonwealth commenced a process of negotiation with the lessees for the pastoral leases comprising the Cultana Expansion Area in 2005, including the applicant as the lessee of Corunna.

30    Officials from the Department of Defence met the relevant pastoral leaseholders on 13 July 2005 to discuss the proposed acquisitions of land in the Cultana Expansion Area. Officials from the Department of Defence met with the applicant, and a Mr Brenton French (the applicant’s son) later on 13 July 2005 to discuss the proposed acquisition of Corunna by agreement. At that time, the applicant indicated that the sale of that part of Corunna required for the Cultana Expansion Area, that is, the area to the east of the Eyre Highway, would make the rest of Corunna unviable, and that if a sale was to occur, the whole of Corunna would need to be sold.

31    On 15 September 2005, the Department of Defence wrote to the applicant and asked him whether he was willing to sell his leasehold interests in Corunna to the Commonwealth. In late 2005, the applicant asked the Commonwealth to consider acquiring the whole of Corunna if the Cultana Expansion Area Project was to proceed, rather than only the eastern part of Corunna required for the Cultana Expansion Area.

32    On 10 January 2007 Mr Graham Brown of United Group Ltd, on behalf of the Department of Defence, telephoned the applicant and discussed the applicant’s preference to sell all of Corunna.

33    On 22 February 2008, Mark Nicholls Associates Lawyers (“Mark Nicholls”) on instructions from the applicant and members of the applicant’s family, wrote to the Australian Government Solicitor, the solicitor for the Department of Defence, in relation to the Cultana Expansion Area Project. On 30 September 2008, Mark Nicholls wrote to the Minister for Defence in relation to the Cultana Expansion Area Project.

34    In correspondence and meetings between the Department of Defence and the applicant in 2008 and 2009, the position previously taken by the applicant in relation to the acquisition by agreement of the whole of Corunna was not retracted or altered.

35    On 23 April 2010, Mark Nicholls wrote by email to the Australian Government Solicitor about a number of matters in relation to the acquisition of Corunna. Emails dated 26 May 2010, 27 May 2010, 2 June 2010 and 14 July 2010 passed between Mark Nicholls and employees of the Commonwealth. On 17 August 2010, Mark Nicholls wrote to the Department of Defence concerning an application for annual “act of grace” payments. On 20 August 2010 Mark Nicholls wrote to the Department of Defence enclosing a press article. On 20 August 2010 Mark Nicholls sent an email to the Australian Government Solicitor and the Department of Defence. On 15 December 2010 Dr Verney of the Department of Finance and Deregulation wrote to Mark Nicholls. On 23 December 2010, the Australian Government Solicitor sent an email to Mark Nicholls. On 23 February 2011, Mark Nicholls wrote to the Department of Finance and Deregulation concerning “act of grace” payments to the applicant and members of the applicant’s family.

36    From 2005 until late 2011, the Commonwealth had understood, on the basis of the statements made by the applicant, that the applicant would consent to the acquisition of the part of Corunna required for the Cultana Expansion Area only if the Commonwealth acquired the whole of Corunna including the subject land.

37    On 18 October 2011, the Parliamentary Secretary for Defence wrote to the applicant indicating that a compulsory acquisition process for the pastoral leases would commence.

38    On 18 November 2011, the Parliamentary Secretary for Defence, Senator Feeney, and officials from the Department of Defence and the Department of Finance and Deregulation met with three of the pastoralists with interests in the Cultana Expansion Area, including the applicant and members of the applicant’s family, at Whyalla to discuss the next steps in the process for acquisition of their pastoral leases. After the meeting, the applicant indicated to the Department of Defence that he and members of his family may wish to retain the western part of Corunna. The Department of Defence indicated that it intended to acquire all of Corunna, as the whole of the land was integral to the Cultana Expansion Area Project.

39    On 12 December 2011, Clelands Lawyers, on behalf of the applicant, wrote to the Parliamentary Secretary for Defence, Senator Feeney, advising him that the applicant and members of his family had changed their opinion on the viability of Corunna without the part required for the Cultana Expansion Area, and had decided for personal reasons that they would prefer to retain part of Corunna and remain on the land. On 22 December 2011 Clelands Lawyers, on behalf of the applicant, wrote to the Australian Government Solicitor noting that the applicant reserved his rights to press for a partial acquisition of Corunna.

40    On 25 January 2012 the Department of Defence wrote to Clelands Lawyers in response to their letter dated 12 December 2011 advising that the Commonwealth intended to proceed with the compulsory acquisition of the whole of Corunna under the Lands Acquisition Act.

41    The Pre-Acquisition Declaration in relation to the subject land was signed by the Minister on 14 May 2012. By letter dated 14 June 2012 the applicant asked the Minister to reconsider the decision to issue the Pre-Acquisition Declaration under s 26 of the Lands Acquisition Act. A further letter was sent on 18 June 2012. On 9 July 2012 the respondent confirmed the decision to issue the Pre-Acquisition Declaration. In accordance with s 27(3) of the Lands Acquisition Act a statement of the respondent’s reasons for his decision was provided to the applicant. The statement of reasons for the reconsideration reflects the reasons for the original decision to issue the Pre-Acquisition Declaration.

The Proposed Indigenous Land Use Agreement

42    The Barngarla Native Title Claim Group are all members of a particular race, being the Aboriginal people of Australia. The applicant is neither wholly nor partly Aboriginal, being a fourth generation Australian of European descent.

43    Since 2008 the Commonwealth has been negotiating an ILUA under Division 3, Part 2 of the Native Title Act with the registered native title claimants of the Barngarla Native Title Claim and the State of South Australia in relation to a proposed extension to the Cultana Defence Training Area. The type of ILUA which is relevant in this case is an area agreement. The formal negotiation meetings for the ILUA between the Commonwealth, the State of South Australia and the registered claimants of the Barngarla Native Title Claim commenced in October 2008 and eight formal negotiation meetings were conducted between October 2008 and June 2009. A final negotiation meeting was held in September 2011. A large number of informal discussions also took place. At the start of these negotiations, the Commonwealth raised the possibility of the grant of a pastoral lease, and subsequently agreed in principle to the grant of a pastoral lease as part of the package of compensation in the ILUA, as a consequence of the position taken by the applicant between 2005 and 2011. An agreement in principle to the ILUA between the Commonwealth and the registered claimants for the Barngarla Native Title Claim was reached at the final negotiation meeting held on 14 and 15 September 2011. The terms of the ILUA are confidential to the parties. However, the parties have agreed that I may refer to it in these reasons to the extent necessary.

44    The negotiations for the ILUA with the registered claimants for the Barngarla Native Title Claim were complicated as a result of the need, as advised to the Commonwealth by South Australian Native Title Services, for the ILUA to be authorised by three other indigenous groups – the Kokatha people, the Kuyani people and the Nukunu people. These three groups may also have native title interests in the land, although they have not sought registration of any such interest. On this basis, even if the ILUA was agreed between the Commonwealth, the State of South Australia and the registered claimants for the Barngarla Native Title Claim, it would not be able to be certified by South Australian Native Title Services and thereby registered by the Native Title Registrar under the Native Title Act unless it had also been authorised by those three other groups. As a result, in effect, the arrangements for the ILUA constitute a network of agreements which require the authorisation of all four indigenous groups, and this has significantly complicated and prolonged the negotiations for the ILUA.

The Applicant’s Evidence

45    The applicant swore an affidavit which was received into evidence. He was not required for cross-examination.

46    The applicant’s family have been pastoralists in South Australia for over 100 years. The family are one of the longest running pastoral families in South Australia. His grandfather, Walter French, owned land in Quorn and, following his marriage to Agnus Greenfields, moved to Southgap Station. Walter French and the Greenfields family then purchased the adjoining station to Southgap, Pernatty Station, and in 1927 Walter French moved on to Pernatty Station with his wife and family, including his son, Walter Jnr. It was the French family who started Pernatty Station.

47    Pernatty Station was later transferred to Walter Jnr who had two sons, Colin French and the applicant. The applicant was born on 19 June 1946. He married his wife Margaret in 1967 and they had two children. Brenton was born in 1971 and Karen was born in 1973.

48    In 1977 Corunna Station was purchased as part of the succession planning of the French family. The applicant has lived at Corunna Station with his family and worked it as a pastoral property ever since then. Brenton and Karen were born when the family was at Pernatty Station and they were raised at Pernatty and then Corunna Station from 1977. Brenton attended school at the Iron Knob Primary School which is about five kilometres from Corunna Station. Brenton left school at age 15 to help the applicant operate Corunna Station.

49    In 1994, Brenton married Jo-Anne and they moved into the second house on Corunna Station which is approximately 200 metres from the main homestead where the applicant, his wife Margaret and daughter Karen continue to live. The homestead area is located on the western portion of the station.

50    Brenton and Jo-Anne spent about two years renovating the second house themselves. They have three children, daughters Jessica (born in 1995), Chloe (born in 1996) and a son Bailey (born in 1998). All three of the applicant’s grandchildren have been raised on Corunna Station and all have been taught how to muster sheep and cattle, to ride horses, “tail” lambs, muster goats and fix pipelines as well as other normal station duties. They have a close relationship with the applicant and his wife. They have spent their life on Corunna Station apart from attending boarding school.

51    The applicant and his family had no plans to leave Corunna Station before they were approached by the Commonwealth in 2005. When they were approached by the Commonwealth it raised the question of acquiring the eastern part of Corunna Station for the Cultana Training Area. At that time the applicant decided that he would prefer that the Commonwealth purchase the whole of Corunna Station rather than a part of it. He had a number of reasons for that preference. First, the eastern part is the best ground in Corunna and the best breeding ground for sheep. It is all useable, unlike some of the western part. Secondly, at that time there was a drought which had started in about 2001. Thirdly, wool prices were depressed. Fourthly, the applicant was concerned that the western part of Corunna would not be a viable pastoral property on its own without the eastern part. Finally, the applicant did not believe that the western part of Corunna would be able to support two families, that is to say, the applicant and his wife, and the family of his son Brenton.

52    In 2006, Brenton and Jo-Anne purchased an earthmoving business in Whyalla known as “Growden Excavations”. They have operated Growden Excavations since then. They have continued to live on Corunna Station while running the business and they have commuted to Whyalla. In March or April 2011, Brenton and Jo-Anne told the applicant that they wanted to remain on Corunna Station and work the western part that was not needed by the Commonwealth rather than to continue to operate their business in Whyalla. The applicant welcomed this as he always wanted Brenton to operate Corunna Station after him and to keep the station in the applicant’s family. He welcomed the prospect of his grandson Bailey inheriting the station from Brenton in due course. At that point, the economic viability of operating the western part of Corunna Station looked more promising due to increases in wool, lamb and meat prices and the end of the drought. In the period between 2005 and 2011 the economic viability of the western part of Corunna Station had changed and further, Brenton and Jo-Anne experienced operating a business based in Whyalla and they expressed to the applicant a strong preference to remain on Corunna Station and work it as a pastoral lease.

53    The applicant therefore changed his original view that the Commonwealth should purchase the whole of Corunna Station if it decided to acquire that part of it needed for the Cultana Expansion Area Project. The change in plans led to the letter from Clelands to Senator Feeney dated 12 December 2011 (see [39] above).

54    Corunna Station and nearby pastoral leases are part of an area which is subject to a native title claim by local Aboriginal groups. The applicant has been aware of this claim, but he has not been actively involved in it. From an early stage of the acquisition process, the applicant was aware that the Commonwealth was negotiating with representatives of local Aboriginal groups for an ILUA. The applicant recalls being asked for permission to allow defence personnel and Aboriginal representatives onto the eastern part of Corunna Station for purposes connected with an ILUA. He understood that finalisation of the ILUA was a necessary part of the acquisition process and the Commonwealth’s use of the Cultana Expansion Area. He was never told by the Commonwealth or the Aboriginal groups what was being negotiated as part of the ILUA. He assumed it related to terms of access to sacred sites within the eastern part of Corunna Station. He was never told by the Commonwealth that it proposed to offer the western part of Corunna to the Aboriginal groups as part of the ILUA until he received the Pre-Acquisition Declaration in May 2012.

The Respondent’s Evidence

55    Mr Justin Andrew Davidson is a solicitor employed by the Australian Government Solicitor and he is the solicitor with the conduct and carriage of this proceeding on behalf of the respondent. He swore an affidavit which was received into evidence and he annexed to that affidavit the following documents:

1.    Further Amended Native Title Determination Application dated 29 August 2012;

2.    Claimant Application Summary of the Native Title Claim with a coloured map identifying the claim area; and

3.    Application information and extract from the Register of Native Title Claims.

56    Mr Davidson also annexed to his affidavit the following documents each of which he states is publicly available:

1.    “National Indigenous Reform Agreement (Closing the Gap)” including Schedules A, C and E;

2.    “National Partnership Agreement on Indigenous Economic Participation”; and

3.    “Overarching Bilateral Indigenous Plan between the Commonwealth of Australia and the State of South Australia to Close the Gap in Indigenous Disadvantage 2010 – 2015” including Schedule C titled “Building Block: Economic Participation”.

57    Ms Kathleen Helen Denley is the Assistant Secretary of the Native Title Unit within the Commonwealth Attorney-General’s Department. She swore an affidavit which was received into evidence. Ms Denley has overall responsibility for native title matters within the Attorney-General’s Department and she reports to the First Assistant Secretary of the Social Inclusion Division. Her responsibilities as Assistant Secretary of the Native Title Unit include providing policy advice and assistance to Commonwealth departments and agencies, undertaking future acts that may affect native title and managing the Commonwealth involvement in native title claims. She also advises the Attorney-General with respect to native title matters, including native title law reform. She has held her position as Assistant Secretary of the Native Title Unit since June 2010. Prior to that time she held the position of Acting Assistant Secretary, Native Title Unit – Future Acts and System Co-ordination Branch. She held that position from March 2009 until March 2010. Her responsibilities in that position included providing advice to the Attorney-General and Commonwealth agencies about the development of Indigenous Land Use Agreements, the application of the future act regime under the Native Title Act, and working closely with Commonwealth agencies to assist them in applying the Government’s native title policies. She sets out in her affidavit various positions she has held within the Attorney-General’s Department, including positions within the Native Title Unit, since March 2001.

58    Ms Denley states that the Attorney-General has been responsible for the administration of most aspects of the Native Title Act from the time that she first worked in the Native Title Unit including the administration of those parts of the Native Title Act which deal with future acts. Her department supports the Attorney-General in that role. Throughout that period, the Attorney-General has also had responsibility for co-ordinating native title policy generally, including the development of policy with respect to Indigenous Land Use Agreements and other Commonwealth departments and agencies have been required to keep her department informed of developments in other portfolios with native title implications and to consult with the Native Title Unit on the negotiation or conclusion of any Indigenous Land Use Agreement and any proposed acquisition of native title.

59    In her current role, Ms Denley has responsibility on behalf of her department for ensuring that Commonwealth departments and agencies are aware of, and for promoting adherence to, the Government’s policy with respect to future acts proposed to be undertaken by the Commonwealth or its agencies contained in the principles with respect to Indigenous Land Use Agreements.

60    Ms Denley became aware on rejoining the Native Title Unit in March 2009 that the Unit was being consulted about the negotiations to conclude an ILUA with the Barngarla registered native title claimants which commenced in or about 2008. Those consultations with the Native Title Unit continued after she joined the Unit and she was responsible for supervising officers within the Unit who were directly engaged in those consultations.

61    Ms Denley wrote a letter to Dr Guy Verney who is the Assistant Secretary, Special Claims and Land Policy Branch, Department of Finance and Deregulation dated 2 July 2012. She sent that letter in her capacity as Assistant Secretary of the Native Title Unit. In the fifth paragraph of the letter she said the following:

However, consistent with the Government’s policy position to promote negotiated native title outcomes the compulsory acquisition of native title rights and interests is an option of last resort. Accordingly, the Commonwealth decided that the compulsory acquisition of native title in relation to the Cultana Expansion Area would only be considered if it became clear that a negotiated outcome with the relevant Indigenous groups was unattainable.

62    In referring to the Government’s policy position Ms Denley was referring to a Commonwealth policy known as “ILUA Principles”. At all relevant times prior to 14 November 2012, the relevant clause in that policy provided:

… the impact of any proposed future acts on the continued existence and exercise of native title rights should be minimised to the extent possible, while still enabling the Commonwealth entity to achieve its objectives, with the extinguishment of native title only be proposed where absolutely necessary.

63    On 14 November 2012 the Australia Government Attorney-General’s Department published the Indigenous Land Use Agreement Policy Principles. These Principles included the following:

When negotiating an Indigenous Land Use Agreement (ILUA) Commonwealth entities will observe the following principles:

1.    The impact of any proposed future acts on the continued existence and exercise of native title rights should be minimised to the extent possible, while still enabling the Government entity to achieve its objectives.

2.    The extinguishment of native title should only be proposed where absolutely necessary.

64    These then are the facts. There is one matter to note before leaving the facts. The statement of events from 2005 to the making of the Pre-Acquisition Declaration in May 2012 describes the applicant’s initial attitude to the acquisition of that part of Corunna to the east of the Eyre Highway and what he wished to do with the subject land. It describes his change of attitude in late 2011 with respect to the subject land. On the face of it, it explains the reason the Commonwealth continued to negotiate with the registered claimants for the Barngarla Native Title Claim in the terms it did and to the point of reaching an agreement in principle with those claimants. This history is of marginal relevance to the issues in the case because it is not suggested by the respondent that any of these matters preclude, or in any way affect, the applicant’s ability to advance the claims he does in this proceeding.

issues on the application

65    The applicant claims that the Pre-Acquisition Declaration should be declared to be invalid and of no effect and that it should be quashed. He relies on a number of grounds to support this claim. Those grounds fall into two categories. First, he claims that neither of the purposes stated in the Pre-Acquisition Declaration were public purposes within the Lands Acquisition Act. Secondly, he claims that the exercise of the power to make the Pre-Acquisition Declaration contravened or involved a failure to comply with various legislative provisions, and therefore, was otherwise contrary to law.

66    The applicant considered that his challenges to the respondent’s decision involved, or may have involved, four matters arising under the Constitution or involving its interpretation. Those matters were as follows. First, there was an issue as to whether, for the purposes of s 51(xxxi) of the Constitution, the conferral of interests in the nature of the pastoral lease on Aboriginal people is a “… purpose in respect of which the Parliament [of the Commonwealth] has the power to make laws …”, whether pursuant to s 51(xxvi) of the Constitution or otherwise. Secondly, there was an issue as to whether the proposed acquisition of the applicant’s property by the Commonwealth properly falls within the ambit of s 51(xxxi) of the Constitution. Thirdly, there was an issue as to whether it is necessary for the Parliament to have made a law with respect to the conferral of interests in the nature of pastoral leases on Aboriginal people before an acquisition of property for the purpose of such conferral can be within the ambit of s 51(xxxi) of the Constitution. Fourthly, there was an issue as to whether the jurisdiction of the Federal Court under ss 5(i)(j) and 6(i)(j) of the ADJR Act, or s 39B(1) of the Judiciary Act is ousted by the RD Act or the Australian Human Rights Commission Act 1986 (Cth).

67    The applicant prepared and served two notices in accordance with s 78B of the Judiciary Act. None of the Attorney-Generals of the Commonwealth, States or Territories sought leave to intervene in the proceeding or to remove the cause to the High Court.

The two purposes identified in the Pre-Acquisition Declaration

68    In order to understand the issues it is convenient to begin by summarising the rival contentions.

69    The applicant submitted that the Minister may make a Pre-Acquisition Declaration only if he is considering the acquisition of an interest in land for a public purpose. He submitted that to be a public purpose within the Lands Acquisition Act a purpose must be one in respect of which the Parliament has power to make laws and that follows from the definition of public purpose. That definition is, relevantly, in the same terms as s 51(xxxi) of the Constitution. The applicant submitted that if the purposes set out in the Pre-Acquisition Declaration were not public purposes then the Pre-Acquisition Declaration was invalid and liable to be quashed.

70    Those propositions are correct and I did not understand the respondent to challenge them. The area of dispute related to whether either of the stated purposes was a public purpose.

71    As to both stated purposes, the applicant submitted that neither involved a public purpose because neither involved the use or development of the subject land for a public purpose. The applicant submitted that the use of the subject land as consideration under an ILUA is not use for a public purpose because use for a public purpose directs attention to the physical use of the land. It is not suggested that the physical use of the subject land for pastoral and conservation purposes by the Barngarla Native Title claimants is use for a public purpose. The Pre-Acquisition Declaration states quite clearly that it is the Commonwealth of Australia which will use the land for the two purposes alleged by the Commonwealth to be public purposes.

72    In the event that the applicant was wrong on the first point, he next submitted that the first stated purpose of the respondent – “the conferral of interests in land on Aboriginal people (being people of a particular race)” – was not a public purpose because it was not a purpose in respect of which the Parliament had power to make laws. The applicant submitted that the only legislative power which was possibly relevant was the races power, namely, the power of the Parliament to make laws with respect to the people of any race for whom it is deemed necessary to make special laws (s 51(xxvi) of the Constitution). The applicant pointed to a number of features or aspects of this power as articulated in the authorities. The applicant submitted that the races power was not an unqualified power to make laws with respect to the people of a particular race and that, relevantly for present purposes, two qualifications constrained the ambit of the power. First, a law must be “deemed necessary” and secondly, the law must be a “special law”. The applicant referred to The State of Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 460 and Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337 at 363 – 364 [33] – [36] per Gaudron J, 378 [81] per Gummow and Hayne JJ and 411 [153] per Kirby J. The applicant submitted that it was a condition for the exercise of the power that the Parliament deem a special law to be necessary and he referred to Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 187 per Gibbs CJ. The applicant further submitted that the Parliament can only deem a law necessary by enacting it.

73    The applicant submitted that there must be a law made under the races power before the power can be relied upon as a public purpose for an acquisition under the Lands Acquisition Act. The applicant contended that no such law exists. He made the point that no Commonwealth law has as its purpose or authorises the conferral of interests in the nature of pastoral leases on Aboriginal people. The applicant submitted that the Native Title Act did not fit that description. The applicant contended that a law which enabled a person to confer pastoral interests on Aboriginal people would be of a doubtful constitutional validity.

74    As to the additional, separate public purpose of defence, the applicant accepted that defence is a public purpose. He accepted that the acquisition of the eastern part of Corunna and the other pastoral leases forming the Cultana Expansion Area were for the public purpose of defence. However, he submitted that it is plain that the proposed acquisition of the subject land was not for defence. He described the purpose of the acquisition in terms of an acquisition of the land “in order to surrender it to the State so that the State can re-grant it to an Aboriginal group in return for the suspension of native title rights in the Cultana Expansion Area”. The applicant referred to the decision of the High Court in Clunies-Ross v Commonwealth of Australia (1984) 155 CLR 193 which considered the Lands Acquisition Act 1955 (Cth). The applicant submitted that in material respects the 1955 Act was the same as the 1989 Act. He submitted that the power of acquisition was confined to circumstances where the Commonwealth proposed to use the acquired land either actively or passively. He submitted that defence was “an ulterior, and impermissibly remote, purpose of the acquisition”.

75    The respondent sought to meet these contentions in a variety of ways.

76    The respondent submitted that the use of the subject land as consideration under a proposed ILUA was a use for both public purposes stated in the Pre-Acquisition Declaration.

77    With respect to the first stated purpose, the respondent submitted that there was a relevant law enacted under the races power, namely, the Native Title Act. In the alternative, he submitted that there was no requirement for a law to have been enacted under the races power before land could be acquired by reference to that power.

78    The respondent made detailed submissions about the provisions of the Native Title Act. He began by referring to the fact that in the Native Title Case the High Court upheld the validity of the Native Title Act. The Court said (at 462):

Applying these observations, the Native Title Act is “special” in that it confers uniquely on the Aboriginal and Torres Strait Islander holders of native title (the “people of any race”) a benefit protective of their native title. Perhaps the Act confers a benefit on all the people of those races. The special quality of the law thus appears. Whether it was “necessary” to enact that law was a matter for the Parliament to decide and, in the light of Mabo [No 2], there are no grounds on which this Court could review the Parliament’s decision, assuming it had power to do so.

79    The respondent then referred to the preamble to the Native Title Act which contains the following statement:

In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

80    He referred to the provisions of the Native Title Act in some detail. He began with s 10 which provides that native title is recognised, and protected, in accordance with the Act. He also referred to s 11(1) which provides that native title is not able to be extinguished contrary to the Act. The High Court commented on this subsection in the Native Title Case in the following terms (at 453):

The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.

81    He referred to the definition in the Native Title Act of “future acts” as acts in relation to land or waters which take place on or after 1 January 1994 and apart from the Act validly affect native title in relation to the land or waters to any extent (s 233). The Act deals with future acts which affect native title in Part 2 Division 3. Section 24AB prescribes the circumstances in which native title can validly be affected by “future acts” attributable to (relevantly) States and the Commonwealth. Section 24OA provides that unless a provision of the Act states otherwise, a future act is invalid to the extent that it affects native title.

82    The respondent referred to a passage in the Native Title Case where the High Court said that the effect of a permissible future act on native title depends on the nature of the act. The Court said (at 458):

But the mere acquisition of native title or the doing of any other permissible future act does not extinguish native title; it merely suspends native title rights and interests so far and for so long as is necessary to allow the permissible future act to operate and have effect.

83    The respondent referred to provisions of the Native Title Act dealing with ILUAs. Section 24EB(2) provides that a future act will be valid if it is covered by an Indigenous Land Use Agreement registered under Part 2 Division 3 Subdivision E. There are three kinds of Indigenous Land Use Agreements under the Act and, as I have said, the relevant one in the circumstances of this case is an area agreement. They are dealt with in Part 2 Division 3 Subdivision C. Section 24EB(3) provides that unless there is a statement to the effect that surrender is intended to extinguish the native title rights and interests the non-extinguishment principle applies to the act.

84    The respondent also pointed to the fact that although the Barngarla Native Title Claim Group has not been determined to hold native title it has passed the registration test and the circumstances in which ILUAs are concluded are not limited to circumstances where native title has been determined to exist under the Native Title Act.

85    The respondent also referred to s 24CE of the Native Title Act which provides in relation to Indigenous Land Use Agreements which are area agreements the following:

(1)    The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

Consideration may be freehold grant or other interests

(2)    Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

86    Finally, the respondent referred to s 24CD(5) of the Native Title Act which provides that where an area agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, State or Territory, then the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

87    In conclusion, the respondent submitted that there is a law made under the races power which is engaged and which makes express provision for the conferral of interests upon Aboriginal people such as the Barngarla Native Title Claim Group, as consideration for entering into an ILUA.

88    In support of his alternative contention that, in any event, there need not be a law made under the races power before land can be acquired by reference to that power, the respondent submitted that it is enough that a Commonwealth law providing for the conferral of interests on Aboriginal native title claimants would plainly have the character of a law within the races power being a law for the people of a particular racial subgroup of Aboriginal people (being the Barngarla Native Title Claim Group) that conferred a unique benefit on those people. The respondent contended that it was not necessary to wait until Parliament had made such a law before land could be acquired by reference to the power. He submitted that while a power to make a law under the races power is limited by the need for Parliament to deem it necessary, all laws implicitly evidence a Parliamentary intention that it is necessary that the law be made.

89    The respondent submitted that if the first stated purpose is a public purpose within the Lands Acquisition Act then that is sufficient to support the validity of the Pre-Acquisition Declaration.

90    With respect to the second stated purpose, the respondent addressed the decision of the High Court in Clunies-Ross v Commonwealth of Australia and submitted that the case was distinguishable. He submitted that it dealt with an extreme case where the Commonwealth proposed to bring about the exclusion of the plaintiff and his family from Home Island, Cocos (Keeling) Islands and to prevent him from influencing voting in certain island elections. He submitted that that purpose was quite unconnected with any need for or future use or application of the land by anyone at all whether active or passive. There was, as the respondent put it, a complete disconnect between the public purpose or consequential advantage for which the land was to be acquired on the one hand and any use of the land at all on the other. The respondent said that the word “use” in the Lands Acquisition Act was sufficiently broad to include use as consideration in a contract or compensation and that there was no reason to read the Act as containing a limitation that use cannot extend to the use of the land as consideration nor, in any event, that it cannot extend to the use of land by a third party. The respondent submitted that the negotiation, conclusion and registration of the ILUA constitute acts necessitated by and undertaken in accordance with the future acts regime prescribed by the Native Title Act. The respondent put the following submission:

Thus, in order to ensure that the grant of the lease for defence purposes from the State to the Commonwealth will validly be done in accordance with the NTA if native title does exist in the Cultana Expansion Area, the Commonwealth has proceeded under a strategy to negotiate with, and secure the agreement of, the Barngarla Native Title Claim Group by entering into the ILUA.

91    These then are the rival contentions of the parties. I turn to address them.

92    The starting point in the analysis of the validity of the Pre-Acquisition Declaration are the important concepts of “purpose” and “use”. The concept of use is relevant because it is contemplated by the terms of s 22 of the Lands Acquisition Act that the land will be acquired for use for a public purpose. By reason of s 22(3) the Minister must give particulars of the use to which the land will be put or for which it will be developed and the reasons why the land appears to be suitable for that use or for development for that use. Furthermore, if there is an application for review of a pre-acquisition declaration by the Administrative Appeals Tribunal under s 28, the matters the Tribunal is to consider include the extent to which the proposed use is in the public interest (s 31(1)(b)(iii)). As I have said, these matters are recognised in the Pre-Acquisition Declaration. It is the Commonwealth of Australia which is to use the subject land for the two stated purposes and the subject land is suitable for such use.

93    In this case the acquiring authority, namely, the Commonwealth, is not itself proposing to make a physical use of the subject land. Nor does it rely on the physical use of the subject land by another as the proposed use. The relevant use here is the use of the subject land as consideration under the ILUA.

94    “Purpose” is an ordinary English word. In the Macquarie Dictionary (5th ed) (published by Macquarie Dictionary Publishers Pty Ltd Sydney, Australia) purpose is defined to include the following:

1.    The object for which anything exists or is done, made, used, etc.

2.    An intended or desired result; end or aim.

3.    An intention or determination.

95    In WH Blakeley & Co Pty Ltd v The Commonwealth of Australia (1953) 87 CLR 501 the High Court said (at 518) that purpose in the context of the Constitution (s 51(xxxi)) means that object for which the land is needed or the object for which land is acquired.

96    In the context of considering the meaning of the word “purpose” in s 4D of the then Trade Practices Act 1974 (Cth) in News Limited and Others v South Sydney District Rugby League Football Club Limited and Others (2003) 215 CLR 563, Gleeson CJ said that purpose was to be distinguished from motive. The Chief Justice said (at 573 [18]):

The purpose of conduct is the end sought to be accomplished by the conduct. The motive for conduct is the reason for seeking that end.

97    By reason of s 22(2) of the Lands Acquisition Act the Pre-Acquisition Declaration must identify the purpose for which the interest in land is to be acquired. The public purpose must be clearly stated and if it is not then the acquisition is bad: Jones v the Commonwealth (1963) 109 CLR 475. In the ordinary case, the purpose will be determined by the statements in the Pre-Acquisition Declaration and the Court will not go outside the terms of that document. That is not to say that the Court could not do that in appropriate circumstances. At the same time in considering the purpose or end to be achieved by an acquisition, I am not bound by a statement of purpose by the Minister. In this case, the respondent said in the Pre-Acquisition Declaration that an additional, separate public purpose of the acquisition is defence. Defence is undoubtedly a public purpose, but I am not bound by the respondent’s statement and I did not take him to suggest otherwise. In other words, if on reading the whole declaration, I am satisfied that in truth defence was not a purpose or object or end to be achieved, then I can and should give effect to that conclusion.

98    The word “use” is also an ordinary English word. It is a protean word and it may have a wide or narrow meaning depending on the well-established principles of statutory interpretation. It may include an active or passive use. Land acquired to isolate a rifle range so that people will not be shot, or land acquired near a hospital to ensure quietness are uses within the Lands Acquisition Act (see, for example, Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493: a passive use within an exemption within a rating statute). The word “use” is certainly capable of meaning the use of something as consideration under an agreement.

99    Clunies-Ross v Commonwealth of Australia concerned the proposed acquisition of Mr Clunies-Ross’ land on Home Island, Cocos (Keeling) Islands. One of the issues in the case was whether or not the purpose for the acquisition alleged by the plaintiff in his statement of claim was a public purpose. A demurrer by the defendant was heard by the High Court. The plurality of Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said that the primary question raised by the demurrer was whether the executive powers conferred by the Lands Acquisition Act 1955 (Cth) extended to the taking of land in order to deprive the owner of it and thereby advance or achieve some more remote “public purpose” within the meaning of the Act. The plurality described the purpose as not a need for, or proposed active or passive use of the land, “but for the purpose of bringing about the exclusion of the plaintiff and his family from that Territory”.

100    The plurality examined the provisions of the Lands Acquisition Act 1955 (Cth) and considered the extent to which it should be read in the same way as the acquisition power in s 51(xxxi) of the Constitution. Their Honours expressed their conclusion as follows (at 202):

If (sic) follows that the power compulsorily to acquire land for a public purpose which is conferred by the Act is limited to a power to acquire land for some purpose related to a need for or proposed use (be it active or passive) or application of the land to be acquired. It does not extend to the acquisition of land merely for the purpose of depriving the owner of it and thereby achieving some purpose in respect of which the Parliament has power to make laws or, in relation to land in a Territory, a purpose in relation to that Territory.

(Emphasis added.)

101    The plurality’s reference to the need for land, or the application of the land to be acquired, in addition to their reference to the proposed use (be it active or passive) might be taken to support the respondent’s argument that use is not restricted to physical use.

102    The High Court considered the meaning of the phrase, “lawfully used or occupied” in the Aboriginal Land Rights Act 1983 (NSW) in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2009) 237 CLR 285. The issue in the case was whether the taking of steps towards the sale of land was a use of land. The High Court held that it was not. Hayne, Heydon, Crennan and Kiefel JJ said (at 307 [74] – [75]):

There can be no doubt that sale of the land would amount to exploitation of the land as an asset of the owner. Nor can there be any doubt that there are uses of land which can be described as exploitation of the land. It by no means follows, however, that exploitation, by sale, amounts to lawful use of the land let alone its lawful occupation. And it likewise does not follow that the preliminary steps that are inevitably required in order to effect a sale, whether considered separately or together, will amount to lawful use, even if they could be described as steps directed to exploiting the land by selling it.

As Fullagar J correctly pointed out, in his dissenting opinion in the City of Newcastle Case, "[t]he root of the fallacy lies in the assumption that deriving an advantage from the ownership of land is the same thing as using the land". That is, while it is probably true to say that a person who uses land derives an advantage from it, the converse proposition, that deriving an advantage from ownership of the land is using the land, is false. In particular, taking steps towards selling the land may be directed to the owner deriving the advantages of disposing of an asset and receiving the proceeds of sale. But identifying that the owner seeks to derive these advantages does not show that the land is being used. Rather, what are the acts, facts, matters and circumstances which are said to show that the land is being used?

103    Neither of these two authorities is decisive of the question of whether, in determining whether a stated purpose is a public purpose, one is confined to an examination of the physical use of the land once it is acquired. Clunies-Ross v Commonwealth of Australia was an extreme case on the facts and the High Court was not squarely addressing the issue I am now considering. Minister Administering the Crown Lands Act v NSW Aboriginal Land Council considered the meaning of words in a particular statutory context.

104    In the end I think the answer must be found in the provisions of the Lands Acquisition Act.

105    There are indications in the Lands Acquisition Act that in determining whether a use of land is for a public purpose one is restricted to an examination of the physical use of land. In other words, and relevant to the circumstances of this case, that use of land as consideration under an agreement cannot be use for a public purpose. These considerations are sufficient for me to reach the conclusion that that is the proper interpretation of the Act.

106    The starting point is s 22 itself. I think that suitability for use, or for development for that use, directs attention to the physical features of the land, including its location, and on a prima facie basis at least, points to the proposed physical use of land. Prima facie, it suggests that use for a public purpose means the physical use of the land for a public purpose.

107    This provisional conclusion is confirmed when regard is had to other provisions in the Lands Acquisition Act.

108    Section 10 gives power to authorised persons to enter land to ascertain if it is suitable for a public purpose. The notion of suitability of land which appears in a number of sections in the Act (for example, ss 10, 22(3), 31(1)(b)(i),(iv) and (e)) suggests that the public purpose is identified by reference to the physical use of the land.

109    Section 121 is set out above (at [22]). To my mind, that section strongly suggests that the public purpose does not involve a use of the land by way of disposing of it under an agreement. In other words, use for a public purpose means a physical use of the land for a public purpose. Section 121 could not sensibly operate in those cases where land was acquired for the purpose of disposing of it to a third party. It is true that the section does not place an absolute obligation on the Minister, but it appears to be based on the premise that the acquiring authority acquires land to make a physical use of it whether it be an active or passive use.

110    The first stated purpose does not involve the physical use of the subject land for a public purpose by the acquiring authority or indeed anyone else. As to the second stated purpose, the proposed use does not involve the physical use of the subject land for defence purposes.

111    For these reasons the applicant is entitled to the relief described in the conclusions to these reasons.

112    In case I am wrong, I will consider the other arguments advanced by the parties. I do so on the assumption that use includes use as consideration under an agreement.

113    The respondent relies on the two stated purposes in the Pre-Acquisition Declaration in the alternative. There is no allegation of bad faith in this case and the two stated purposes are not necessarily inconsistent. In those circumstances I think that it is open to the respondent to rely on them in the alternative (see Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 285 ALR 27 at 36 – 37 [34]).

114    As to the first stated purpose, two aspects of the races power are important for present purposes. First, any laws made pursuant to the head of power must be “deemed necessary”, and that means deemed necessary by the Parliament. Secondly, any laws made pursuant to the head of power must, in order to be valid, be “special” laws.

115    In Koowarta v Bjelke-Petersen at 186 Gibbs CJ made the point that if Parliament deemed it necessary to make special laws for the people of a particular race, but not otherwise, then it can make laws with respect to people of that race. Parliament’s opinion that it is necessary to make a special law may be established by an express declaration to that effect, or the opinion may appear from the law itself.

116    In the Native Title Case, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 460) noted the difference between the races power on the one hand and the aliens power or the corporations power in the other. The latter two powers are expressed in terms of powers to make laws with respect to persons of a designated character. By contrast, conditions of the exercise of the races power are that it must be “deemed necessary” that “special laws” be made for “the people of any race”.

117    The plurality said that whether a special law was deemed necessary was one for the Parliament. They left open the question of whether the Court retained some supervisory jurisdiction to examine the question of necessity against the possibility of a manifest abuse of the races power.

118    Their Honours said that the law must also be “special” and that aspect does not relate to necessity. They said (at 461) that the special quality of a law must be ascertained by reference to its differential operation upon the people of a particular race not by reference to the circumstances which led the Parliament to deem it necessary to make the law. The plurality said (at 461):

A special quality appears when the law confers a right or benefit or imposes an obligation or disadvantage especially on the people of a particular race. The law may be special even when it confers a benefit generally, provided the benefit is of special significance or importance to the people of a particular race.

119    In Kartinyeri v The Commonwealth of Australia Gaudron J examined in detail that aspect of the races power which provided that the special laws must be deemed necessary by the Parliament. Her Honour formulated (at 365 – 366) two limitations on the power. First, she said there must be “some difference pertaining to the people of the race involved or their circumstances or, at least, some material upon which the Parliament might reasonably form a political judgment that there is a difference of that kind”. Secondly, the first requirement means in turn that the races power does not authorise special laws affecting rights and obligations in areas where there is no relevant difference between the people of the race to whom the law is directed and the people of other races and it also means that the law must be reasonably capable of being viewed as appropriate to the difference asserted.

120    With respect, I do not think the other Justices of the Court went this far and I think the law is as it was stated by the plurality in the Native Title Case.

121    Brennan CJ and McHugh J in Kartinyeri v The Commonwealth of Australia were able to decide the case on grounds that did not involve an examination of the issues discussed by Gaudron J and referred to above.

122    Gummow and Hayne JJ reiterated what the plurality said in the Native Title Case. Their Honours did say (at 378) that there might be a case where a law did not fall within the races power because there had been a manifest abuse by Parliament of its judgment as to what is necessary. Their Honours made the point that the requirement of differential operation, spelled out from the use of the phrase “special laws” is a criterion of validity not a cause of invalidity. They said (at 380):

It is “of the essence of” a law supported by s 51(xxvi) “that it discriminates between the people of the race for whom the special laws are made and other people”.

123    The quoted passages in the above quote are from the reasons for judgment of Brennan J (at 261) in Koowarta v Bjelke-Petersen.

124    Kirby J rejected (at 417) the manifest abuse approach, and he held that the races power did not permit special laws for people on the grounds of their race so as to adversely and detrimentally discriminate against them on that ground.

125    It seems to me that the Parliament must deem a special law necessary in exercising the races power. There may or may not be a residual power in the Court to examine Parliament’s opinion. The law as to the power of review has not progressed to the point suggested by Gaudron J in Kartinyeri v The Commonwealth of Australia. Nevertheless, I am disposed to think that absent a law under the races power a public purpose by reference to the power would be difficult to sustain. This case is a good example. It cannot be assumed without more that the conferral of interests in land on Aboriginal people (being people of a particular race) is a purpose “comprised in” the races power to use the words of Dixon CJ in Attorney-General of the Commonwealth v Schmidt (1961) 105 CLR 361 at 372. It seems to me that whether that was so would depend on the circumstances.

126    However, I do not need to pursue this further because there is a law and I think it makes it clear that, assuming (contrary to my earlier conclusion) that using land as consideration under an ILUA is a use of land within the Lands Acquisition Act, then the use in this case was for a public purpose. That law is the Native Title Act and I refer to (without repeating) the various provisions of the Act identified by the respondent and set out above.

127    As to the second stated purpose there is no doubt that defence is a purpose in respect of which the Parliament has power to make laws (s 51(vi) of the Constitution). The defence power is one of the few powers in s 51 of the Constitution which involves the notion of purpose or object. In Stenhouse v Coleman (1944) 69 CLR 457 Dixon J (as his Honour then was) said (at 471):

In most of the paragraphs of s.51 the subject of the power is described either by reference to a class of legal, commercial, economic or social transaction or activity (as trade and commerce, banking, marriage), or by specifying some class of public service (as postal installations, lighthouses), or undertaking or operation (as railway construction with the consent of a Sate), or by naming a recognized category of legislation (as taxation, bankruptcy). … But “a law with respect to the defence of the Commonwealth” is an expression which seems rather to treat defence or war as the purpose to which the legislation must be addressed. This peculiarity in the power has caused no departure from the practice that excludes from investigation the actual extrinsic motives and intentions of legislative authorities. But, however it may be expressed, whether by the words – “scope”, “object”, “pith”, “substance”, “effect” or “operation”, the connection of the regulation with defence can scarcely be other than purposive, if it is within the power.

128    The applicant did not challenge the acquisition of that part of Corunna which is east of the Eyre Highway. The public purpose for the acquisition of that land and the other pastoral leases which are to comprise the Cultana Expansion Area is defence. However, the subject land does not form part of the Cultana Expansion Area.

129    The evidence in this case supports the conclusion that the Commonwealth strategy resulted from its desire to acquire the Cultana Expansion Area and to use it for what are undoubtedly defence purposes. As the strategy developed it involved suspending native title rights and interests in the land comprising the Cultana Expansion Area. The Commonwealth chose to negotiate with the Barngarla Native Title claimants rather than to compulsorily acquire their rights and interests. That in turn resulted in an agreement which included the acquisition of the subject land and the Barngarla Native Title claimants being granted a pastoral lease of the subject land. Is that an acquisition of an interest in land for the public purpose of defence even assuming (contrary to my earlier conclusion) that use can include use as consideration under an agreement? In my opinion, it is not because the connection with defence is too remote. The object of the acquisition of the subject land (or end to be achieved) is so that it may be provided as consideration under an ILUA to the Barngarla Native Title claimants and not defence.

130    In conclusion, I think the Pre-Acquisition Declaration is invalid and must be quashed. I do not think either of the stated purposes is a public purpose because neither involves a physical use of the subject land for a public purpose.

Was the Pre-Acquisition Declaration otherwise contrary to law?

131    I propose to examine the other arguments advanced by the applicant even though it is not strictly necessary for me to do so. I do that for completeness and in case I am wrong. My approach is subject to one exception. I have decided that the Court does not have jurisdiction under the RD Act. I do not propose to examine the further arguments in relation to the RD Act on the assumption that the Court does have jurisdiction.

132    Again, it is convenient in each case to start with a summary of the rival contentions of the parties.

1.    Racial Discrimination Act 1975 (Cth)

133    The applicant submitted that the Pre-Acquisition Declaration involved unlawful discrimination within ss 9(1) and 12(1)(e) of the RD Act and that the proposed acquisition will involve such discrimination.

134    Sections 9(1) and 12(1)(e) are in the following terms:

9

(1)    It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

12

(1)    It is unlawful for a person, whether as principal or agent:

…

(e)    to terminate any estate or interest in land of a second person or the right of a second person to occupy any land or any residential or business accommodation;

by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person.

135    Section 18 should also be noted. That provides as follows:

Where:

(a)    an act is done for two or more reasons; and

(b)    one of the reasons is the race, colour, descent or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done for that reason.

136    The International Convention on the Elimination of all Forms of Racial Discrimination is a Schedule to the RD Act. Article 5 lists a number of protected rights and two of the rights referred to in paragraph (d) are the right to own property alone as well as in association with others (v) and the right to inherit (vi).

137    It is also necessary to refer to special measures. Section 8(1) of the RD Act provides that Part II which includes ss 9 and 12 does not apply to, or in relation to the application of special measures to which Article 1(4) of the Convention applies except in circumstances which are not presently material. Article 1(4) of the Convention provides as follows:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however that such measures do not, as a consequence, lead to the maintenance of separate rights or different racial groups and that they should not be continued after the objectives for which they were taken have been achieved.

138    In essence, the applicant submitted that in order to secure the Cultana Expansion Area some diminution of native title rights in the area was required. The Commonwealth was faced with the choice of acquiring the rights compulsorily or to make the rights the subject of a trade as set out in an ILUA. The applicant contended that the respondent chose the latter option and thereby contravened ss 9(1) and 12(1)(e) of the RD Act. He contended that the distinction and preference were “based on” race. He contended that racial distinction was a material factor in the making of the relevant decision or the performing of the relevant act and that that was sufficient for the purposes of the RD Act. The applicant contended that but for his non-Aboriginality the respondent would not have made a decision to acquire his land.

139    The respondent responded to this claim with three arguments. First, he contended that as the applicant had not followed the procedure laid down in Part IIB of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) by lodging a complaint with the President of the Commission he could not complain of unlawful discrimination within the RD Act. In this respect, the respondent relied heavily on the decision of the High Court in Re East and Others; Ex parte Nguyen (1998) 196 CLR 354 (“Re East”). Secondly, the respondent contended that as a matter of fact his conduct did not amount to unlawful discrimination within either s 9(1) or s 12(1)(e) of the RD Act. Finally, he contended that in any event the Pre-Acquisition Declaration amounted to the application of special measures within s 8 of the RD Act. As between the second and third arguments, the burden of the respondent’s argument related to the third. He contended that both the Native Title Act and the ILUA policy of providing that compulsory acquisition of native title rights and interests should be the option of last resort were special measures within Article 1(4) of the Convention.

140    The respondent submitted that the Native Title Act had been held to constitute a special measure within Article 1(4) of the Convention. He pointed to the fact that in the Native Title Case the plurality said that the Native Title Act could be regarded either as a special measure under s 8 of the RD Act or as a law which, though it makes racial distinctions, is not racially discriminatory to offend the RD Act or the International Convention on the Elimination on all Forms of Discrimination. The respondent referred to Durham Holdings v State of New South Wales (1999) 47 NSWLR 340 where Spigelman CJ (Handley JA and Giles JA agreeing) held that the Native Title Act was a special measure within Article 1(4) of the Convention.

141    The applicant put a number of arguments in reply to the respondent’s argument concerning jurisdiction. His basic proposition was that Part IIB of the AHRC Act was not an exclusive regime for dealing with unlawful discrimination. He seemed to accept that Re East had decided that Part III of the RD Act was an exclusive regime, but he submitted that Re East can be distinguished from the circumstances of this case. First, he submitted that the reasoning in Re East was no longer applicable because there had been amendments to the complaint procedure and, in particular, to s 46PH of the AHRC Act. Secondly, he submitted that the reasoning in Re East was inapplicable because that case involved allegations of past unlawful discrimination whereas this case involves (or also involves) allegations of threatened unlawful discrimination, that is, the acquisition of the subject land under s 41 of the Lands Acquisition Act. Finally, he submitted that the reasoning in Re East did not apply where relief was sought against an officer of the Commonwealth. Part IIB of the AHRC Act did not reveal a clear intention to diminish or restrict the jurisdiction conferred on this Court by the ADJR Act and by s 39B of the Judiciary Act. In the case of the latter provision, although not protected by the Constitution, subsection (1) is in similar terms to s 75(v) of the Constitution. In connection with this submission, the applicant referred to Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1995) 183 CLR 168 and Shergold v Tanner (2002) 209 CLR 126.

142    I turn now to address these arguments. I start with the argument concerning jurisdiction.

143    There have been a number of amendments to the RD Act and the AHRC Act since they were first enacted. I do not need to trace through each of the amendments. The following summary will suffice. Re East was decided in 1998. By amendments effected in 1999 (Human Rights Legislation Amendment Act (No 1) 1999 No 133 of 1999) the complaint regime was taken out of the RD Act and introduced into what was then the Human Rights and Equal Opportunity Commission Act (1986) (Cth) – now the AHRC Act – as Part IIB. There were additions to s 46PH(1). Furthermore, in the context of the argument about jurisdiction it is important to note that Part IIB was enacted after the ADJR Act and s 39 of the Judiciary Act.

144    Part IIB of the AHRC Act contains a procedure for dealing with complaints of unlawful discrimination under, among other Acts, the RD Act. Section 46P refers to the lodging of complaints with the Australian Human Rights Commission (“the Commission”). Under s 46PD the Commission must refer a complaint to the President of the Commission. Under s 46PF the President is to enquire into the complaint and to attempt to conciliate the complaint. Section 46PH sets out the grounds upon which a complaint may be terminated by the President. That section relevantly provides:

(1)    The President may terminate a complaint on any of the following grounds:

(a)    the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination;

(b)    the complaint was lodged more than 12 months after the alleged unlawful discrimination took place;

(c)    the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance;

(d)    in a case where some other remedy has been sought in relation to the subject matter of the complaint – the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(e)    the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;

(f)    in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority – the President is satisfied that the subject matter of the complaint has been adequately dealt with;

(g)    the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;

(h)    the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court;

(i)    the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.

145    Section 46PH(1)(e) and (g) were added in 1999 and that was after the decision in Re East.

146    Upon the termination of a complaint, the affected person may make an application to the Federal Court or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the complaint (s 46PO(1)). Section 46PO(3) sets out the limits of the application which may be made and s 46PO(4) sets out the orders which may be made by a Court following a finding of unlawful discrimination. Those subsections are in the following terms:

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(4)    If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a)    an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b)    an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c)    an order requiring a respondent to employ or re-employ an applicant;

(d)    an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e)    an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f)    an order declaring that it would be inappropriate for any further action to be taken in the matter.

147    The applicant has not invoked the complaint procedure in Part IIB of the AHRC Act.

148    In Re East, the applicant was charged with armed robbery, theft and making a threat to kill. He pleaded guilty to one of the charges and was sentenced to a community based order for two years. He failed to comply with the conditions of the community based order and was charged. He was found guilty and re-sentenced for the original offence of armed robbery to a period of imprisonment. He neither requested nor was provided with an interpreter for any of his appearances in Court. He made two applications to the Supreme Court of Victoria for remedies in the nature of prerogative relief. He also instituted proceedings in the original jurisdiction of the High Court. The applicant contended that his lack of ability in speaking and understanding the English language meant that, without an interpreter, he was not able to give adequate instructions to his legal representatives or to understand and properly defend the charges against him. He submitted that he was the victim of racial discrimination of a kind rendered unlawful by the RD Act, in particular, by s 9.

149    The application was dismissed. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said that there was no “matter” under s 75 of the Constitution. They said that Australia’s entry into the International Convention on the Elimination of all Forms of Racial Discrimination did not create enforceable rights or obligations under Australian municipal law. The plurality said that the procedures and remedies applicable to cases of unlawful discrimination were contained in Part III of the RD Act and that central to the operation of Part III was the role of the Human Rights and Equal Opportunity Commission and the Race Discrimination Commissioner. Their Honours outlined the procedure in relation to the complaints and then said (at 366 [31] and [32]):

Secondly, as was noted above, the scheme of the Act demonstrates that, in cases where there is a remedy for a contravention of s 9, it is to be found in Pt III of the Act. The procedures under Part III have not been invoked by the applicant. Senior counsel for the applicant observed, correctly, that in some respects such as, for example, the requirement of conciliation, the provisions of Pt III would be incongruous in their application to judicial officers of courts. That is true, but the circumstance that Parliament did not intend those procedures of Pt III to apply to judicial officers and courts, (consistently with well established common law principles of immunity from suit), does not deny the exclusiveness of those procedures to the extent to which they are operative.

The facts alleged by the applicant do not establish any right, duty or liability of any of the parties, and they cannot do so because the Act provides its own, exclusive regime for remedying contraventions. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right.

150    The question is whether this reasoning applies to Part IIB of the AHRC Act. I think that it does.

151    The removal of the complaint procedure in Part III of the RD Act and its re-enactment (in substance) in Part IIB of the AHRC Act would not of itself be a reason not to apply the reasoning in Re East to Part IIB of the AHRC Act. Nor would the addition of s 46PH(1)(e) and (g) in 1999 be such a reason. I do not think that it can be inferred that by such means Parliament intended to change the regime from an exclusive regime to a non-exclusive regime. The applicant’s arguments seem to be that in some way Parliament was recognising the possibility of other Court proceedings and that therefore the reasoning in Re East did not apply. However, there may be a more appropriate remedy other than Court proceedings, and even in Court proceedings, there may be a more appropriate remedy because the plaintiff in such proceedings asserts a different cause of action albeit based on the same facts said to give rise to the unlawful discrimination. Furthermore, the question of a more appropriate remedy only arises after a complaint has been made and considered by the President of the Commission.

152    The argument which seeks to confine the reasoning in Re East to past acts of unlawful discrimination and not to ongoing or threatened acts of unlawful discrimination must also be rejected. I do not think there is a basis for such a distinction in Part IIB of the AHRC Act. The Court has wide powers under s 46PO(4) and they are sufficient to address ongoing or threatened discrimination. Furthermore, the Court has power to grant interlocutory relief restraining ongoing discrimination (s 46PO(6)).

153    The argument that the reasoning in Re East does not apply where a claim in the nature of prerogative relief is made against an officer of the Commonwealth must also be rejected.

154    The authorities establish the following relevant propositions.

155    First, Parliament, in exercising the power in s 77(i) of the Constitution to define the jurisdiction of a federal court other than the High Court, is not bound to confer on a federal court all the jurisdiction it could with respect to a matter. In Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Gleeson CJ and McHugh J said (at 526):

Thus, a law authorised by s 77 may confer or invest jurisdiction in a federal or State court over the whole range of rights, powers, privileges and liabilities arising from the operation of a law or the existence of a state of affairs answering any of the descriptions in ss 75 and 76 of the Constitution. On the other hand, a s 77 law may validly confer or invest jurisdiction in respect of some only of those rights, powers, privileges and liabilities and may even limit the remedies which are available to a person affected by a breach of those rights.

See also Kirby J at 593 (237) and Callinan J at 605 [280] – [281].

156    Secondly, as far as the jurisdiction conferred on the High Court by s 75(v) of the Constitution is concerned a law of the Parliament which purports to withdraw or diminish that jurisdiction is invalid. Deane and Gaudron JJ summarised the relevant principle in Deputy Commissioner of Taxation v Richard Walter Pty Limited as follows (at 207):

At the cost of some repetition, the effect of the foregoing for the purposes of the present case can be stated in summary form as follows. The jurisdiction conferred upon the Court by s 75(v) includes jurisdiction to hear and determine ‘all matters’ in which an injunction is sought, by a relevantly affected plaintiff, to restrain an officer of the Commonwealth from engaging in unlawful or unauthorised conduct or from acting on the basis that an invalid decision is valid and enforceable. An enactment of the Parliament will be inconsistent with s 75(v) and invalid to the extent that it purports to withdraw or diminish that jurisdiction of the Court. An enactment will purport to diminish that jurisdiction and be ultra vires by reason of inconsistency with s 75(v) if, and to the extent that, it purports to preclude the Court in such a matter from determining whether the relevant conduct or decision is in fact unlawful, unauthorised or invalid. On the other hand, such an enactment will not purport to diminish that jurisdiction and will not be inconsistent with s 75(v) by reason only of the fact that it alters the substantive or procedural law to be applied by the Court in the exercise of the jurisdiction.

157    Thirdly, in this case the relevant jurisdiction is that conferred on this Court by the ADJR Act and s 39B of the Judiciary Act. That is not a jurisdiction protected by the Constitution. Nevertheless, it attracts the principle that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferring of jurisdiction unless the implication appears clearly and unmistakably: Shergold v Tanner at 136 – 137 [34] – [35] referring to the well known statement of Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 (at 17).

158    Fourthly, in the case of s 39B of the Judiciary Act the principle referred to in the preceding paragraph applies with extra force because of the fact that on the face of it the jurisdiction in s 39B(1) mirrors the jurisdiction of the High Court in s 75(v) of the Constitution. In Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited Brennan J (as he then was) said (at 192 – 193):

Section 39B(1) of the Judiciary Act confers on the Federal Court jurisdiction which is expressed, subject to sub-s (2), in terms that are no narrower than those in which s 75(v) of the Constitution confers jurisdiction on this Court. But, as the Federal Court’s jurisdiction is defined by a law made by the Parliament, the Parliament may, by other laws, restrict the jurisdiction conferred by s 39B. The Commissioner contends that that is the effect of s 177(1) of the Act. I do not find it necessary to decide that question for reasons that will presently appear but, as at present advised, I would not construe a law to confine the jurisdiction conferred by s 39B more narrowly than the jurisdiction conferred by s 75(v) of the Constitution unless the restriction appears expressly or by necessary intendment.

(Citations omitted.)

See also Deane and Gaudron JJ at 212 – 213; Toohey J at 231; Shergold v Tanner at 138 – 139 [41] – [42].

159    The force of the third and fourth matters may be acknowledged. The difficulty for the applicant is that I cannot see anything in the reasoning of Re East to suggest that it does not apply to a case where relief in the nature of prerogative relief is sought against an officer of the Commonwealth. In this respect, the reasoning of the plurality is quite general. What is important is that the Court considered that the regime (which in material respects is no different from the present regime) was an exclusive regime for remedying contraventions and that the only right the Act created was a right to engage its own processes. Counsel for the respondent described the Act as creating a new statutory tort. That may well be correct, but I content myself with saying that I see no reason to conclude that the reasoning in Re East does not apply where the relief sought is in the nature of prerogative relief against an officer of the Commonwealth.

160    Although the arguments put to me have been more detailed, my conclusions that the reasoning in Re East applies to Part IIB of the AHRC Act is the same as that reached by R D Nicholson J in Bropho v The State of Western Australia [2004] FCA 1209 at [26] and [51] – [52]. I note also that the reasoning in Re East was endorsed by Gleeson CJ, Gaudron, Gummow and Hayne JJ in The State of Western Australia v Ward and Others (2002) 213 CLR 1 at 97 – 98 [102].

161    In the circumstances there is no need for me to consider the other arguments relating to the RD Act. I refrain from doing so. The applicant said that if necessary he will lodge a complaint with the Commission. In those circumstances, he said that it was possible that the matter would come back before the Court. The respondent told me that there is a matter presently before the High Court which may bear upon matters relevant to the second and third issues.

2.    The Pastoral Land Management and Conservation Act 1989 (SA)

162    The applicant submitted that the Pre-Acquisition Declaration and the strategy of which it was a part involved a contravention of s 19 of the Pastoral Land Management and Conservation Act.

163    Section 19 is in the following terms:

(1)    Subject to this Act, the Minister may grant pastoral leases over Crown land.

(1)    Where the Minister proposes to make Crown land available for lease for pastoral purposes, the process for taking a lease must be an open competitive process.

(2)    Subsection (2) does not apply –

(a)    if the Minister is satisfied that special circumstances exist justifying the addition of the land to the holding of an existing lease; or

(b)    if the land was subject to a pastoral lease that was surrendered upon condition that a further such lease be granted to the same lessee or a nominee of the lessee; or

(c)    if the Minister is satisfied, on the recommendation of the Board, that for any other good and proper reason it would be just and equitable to offer the land to a particular person.

164    The applicant submitted that an element of the strategy involves a grant by the State of a pastoral lease to a company established by the Barngarla Native Title Group. That would involve a contravention by the State Minister of the Act. He submitted that there is no evidence to suggest that any of the exceptions in subsection (3) would be satisfied. The applicant also pointed to s 24CE(1) of the Native Title Act which prohibits the inclusion in an ILUA of consideration that contravenes any law. He submitted that the proposed consideration is therefore unlawful.

165    The applicant acknowledged that the exception in s 19(3)(b) could apply but for the provisions of the RD Act. In other words, the Commonwealth could surrender the subject land to the State on condition that a pastoral lease be granted to the Barngarla Native Title Claim Group. However, to do so would (the applicant submitted) involve the State Minister in a contravention of the RD Act.

166    The respondent contended that the applicant’s argument should be rejected because the Court cannot be satisfied that an exception in s 19(3) will not be available to the State when it grants the new pastoral lease. The respondent submitted that the Court should conclude that at the time of the hearing the applicant has not established on the balance of probabilities that none of the exceptions from the open and competitive process in respect of s 19(3) could apply.

167    First, the respondent contended that it is within the control of the Commonwealth to surrender the pastoral lease upon condition that a further such lease be granted to its nominee, the Barngarla Native Title Claim Group. If that occurs the State Minister will not be constrained by having to make the grant of the new pastoral lease as part of the competitive process under s 19(2) of the Act. The respondent contended that it would be contrary to the evident purpose of the Pre-Acquisition Declaration and the proposed ILUA if the Commonwealth were to surrender the lease of the land in a manner which did not enliven the exception in s 19(3)(b).

168    Secondly, the respondent contended that the applicant’s contention that the exemption in s 19(3)(c) of the Act would not be available to the State Minister even if he reached the relevant state of satisfaction because the offering of the land to the company is tainted by the contravention of the RD Act is not made out.

169    I reject the applicant’s argument. Leaving aside the fact that the State Minister is not a party to this proceeding, reliance on the RD Act encounters the same difficulties as the earlier argument which relies on that Act. In any event, I think the onus is on the applicant to prove on the balance of probabilities that there will be a contravention of s 19(2), and in light of s 19(3)(c), I do not think he is able to do that.

3.    The Lands Acquisition Act 1989 (Cth) (section 121)

170    In his written submissions , the applicant submitted that the strategy of which the Pre-Acquisition Declaration was a part contravened s 121 of the Lands Acquisition Act and that the Pre-Acquisition Declaration was therefore otherwise contrary to law within s 5(1)(j) of the ADJR Act.

171    The respondent made a number of points about the terms of s 121.

172    The respondent submitted that he is not compelled to make an offer to a former owner even if it is “practicable” to make such an offer. He submitted that there is no statutory obligation to make an offer notwithstanding that all of the elements in s 121(1)(a) – (d) are met and it is practicable to make an offer. The section goes no further than to require that the Minister have regard to the general principle, that is to say, that he takes the general principle into account in his consideration. In any event, the respondent contended that as the acquisition has not yet taken place none of the elements in s 121(1)(a) – (d) are currently met. The applicant is unable to contend at this stage that there has been any failure to have regard to the general principle contrary to s 121(1). Furthermore, the provisions of s 121 make it clear that the applicant has no right to be offered the land. Under s 121(5) the former owner may apply to the Administrative Appeals Tribunal for review of the Minister’s decision only as to the amount specified in the offer as the market value of the interest. Furthermore, s 121(9) provides that the validity of the disposal of an interest in land is not affected by a failure to comply with s 121. Sections 121(2), (3) and (4) apply only once the Minister has made a decision to offer the interest to the former owner. The respondent contended that it would defeat the purpose of the acquisition if the respondent was prevented from surrendering the lease to the State of South Australia. That is precisely what would occur if the phrase “if practicable” in s 121(1) was read as requiring an offer to the former owner in the current circumstances.

173    I am addressing this argument on the assumption that my conclusion with respect to the stated public purposes is wrong. In other words, it is assumed for the purposes of this argument that the subject land can be acquired for the purpose of providing it as consideration under an ILUA. On that assumption, it is very difficult to see how the applicant’s argument can succeed. It seems very odd to say that the respondent can acquire land for the purposes of disposing of it to a third party, but that at the same time the respondent must consider transferring it back to the former owner. Counsel for the applicant was disposed to accept this difficulty and to deploy s 121 only on the construction argument concerning public purpose and use.

conclusionS

174    I will make a declaration that the Pre-Acquisition Declaration is invalid and of no effect. I will make an order that the Pre-Acquisition Declaration be quashed. I will also make an order that the respondent be restrained from taking any further steps in, or for the purposes of, the acquisition of the subject land under or pursuant to the Pre-Acquisition Declaration.

Associate:

Dated:    27 March 2013