On 1 November 1984, La Perouse Local Aboriginal Land Council ("the applicant") lodged with the Registrar appointed under the Aboriginal Land Rights Act, 1983 ("the Act") a claim on land situated at La Perouse. The land had a frontage to Jennifer Street and included St Michael's Golf Links, being bounded on the East by the Pacific Ocean. In March 1988 the Minister Administering the Crown Lands Act ("the respondent") refused part of the claim, excluding St Michael's Golf Links and an adjoining golf range, and the claim pursued thence was limited to the lands depicted in part of Annexure D to the affidavit of Miss H.J. Dean sworn 18 February 1991 (Exhibit B). After an unexplained delay, the residual claim was refused by the respondent by letter dated 17 September 1990, part of Annexure D to Miss Dean's affidavit. Omitting formalities the letter reads as follows:

"I refer to part Claim 888 lodged by the La Perouse Local Aboriginal Land Council with the Aboriginal Land Rights Registrar in November 1984 over that Crown land shown by red edge on the attached diagram, in the Parish of Botany, County of Cumberland. You will be aware that the balance of Claim 888 was refused by my predecessor in March 1988.

At the time of claim lodgement the part of the claim shown by pink tint on the attached diagram was lawfully used and occupied in accordance with the Reserve for Habilitation Hostel and Sheltered Workshop notified over the land, and those parts of the claim shown by purple tint and hatching were lawfully used and occupied under Permissive Occupancies.

With respect to those remaining parts of the claim shown by yellow, green and orange tints on the diagram, these areas are needed respectively for the essential public purposes of residential development, conservation of native flora, and road.

Accordingly, I have refused the claim as the subject land is not claimable in terms of Section 36(1) of the Aboriginal Land Rights Act, 1983.

I will consider the issue of a Certificate pursuant to Section 36(8) of the aforementioned Act should the need arise."

At the time of lodgment of the claim, s.36(1) to (8) of the Act was in the following form:

" 36. (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires-

'Aboriginal Land Council' means the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council;

'claimable Crown lands' means lands vested in Her Majesty that, when a claim is made for the lands under this Division-

(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act, 1913, or the Western Lands Act, 1901;

(c) are not needed, nor likely to be needed, for an essential public purpose;

'Crown Lands Minister' means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act, 1913, or the Western Lands Act, 1901, under which lands are able to be sold or leased.

(2) The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of a Local Aboriginal Land Council.

(3) A Local Aboriginal Land Council may make a claim for land within its area or, with the approval of the Registrar, outside its area.

(a) shall be in writing and, if a form for making such a claim has been prescribed, shall be in or to the effect of that form;

(b) shall describe or specify the lands in respect of which it is made; and

(c) shall be lodged with the Registrar, who shall refer a copy thereof (together with a copy of any approval necessary under subsection (3)) to the Crown Lands Minister or, if there is more than one Crown Lands Minister, to each of them.

(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by him) has been referred under subsection (4) shall-

(i) the whole of the lands claimed is claimable Crown lands; or

(ii) part only of the lands claimed is claimable Crown lands,

grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be; or

(i) the whole of the lands claimed is claimable Crown lands; or

(ii) part of the lands claimed is claimable Crown lands,

refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

(6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a claim made by it.

(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

(8) A certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be liable to appeal or review."

Pursuant to the Aboriginal Land Rights (Amendment) Act, 1986, which took effect on assent, s.36 of the Act was amended so far as relevant for present purposes by inserting into s.36(1), paragraph (b1) which is as follows:

"(b1)do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands; and"

Further, ss.(5) was amended and ss.(5A) inserted so that they read as follows:

" (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by him) has been referred under subsection (4) shall-

(i) the whole of the lands claimed is claimable Crown lands; or

(ii) part only of the lands claimed is claimable Crown lands,

grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be; or

(i) the whole of the lands claimed is not claimable Crown lands; or

(ii) part of the lands claimed is not claimable Crown lands,

refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

(5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition."

At the hearing, Mr T. Robertson, Counsel for the applicant, conceded that the evidence established that at the time of the application, the land coloured green in the plan, Annexure D, aforesaid was needed for essential public purposes as stated by the respondent, those purposes being conservation of native flora. Indeed, there is strong uncontradicted evidence to support this view in the affidavits of Mr I.R. Brown sworn 21 June 1991, Mr D.H. Benson sworn 19 June 1991 and Mr P. Adam sworn 3 June 1991. That evidence relates, among other matters, that Sir Joseph Banks and Dr Solander, travelling with Captain Cook in 1770, were greatly impressed with the unique flora on this very land. Upon a view the Court, unversed in these matters, was more impressed by the rusting artefacts of modern civilisation dumped in the bush, but accepts the uncontradicted evidence and the concession by counsel. Accordingly, that part of the claim was properly refused, unless ss.(5A) has any application.

Likewise, Mr Robertson properly conceded that the uncoloured hatched land shown in the plan, Annexure D, was exempt from the claim, because at all relevant times it has been the subject of a permissive occupancy. Likewise, he did not pursue the claim to the land coloured purple in the plan, Annexure D to the affidavit of Miss Dean sworn 18 February 1991. That land is also the subject of a permissive occupancy, and is the site of an unnamed road giving access to St Michael's Golf Links from Jennifer Street. Likewise, Mr Robertson did not pursue the claim to the land coloured pink in the plan, Annexure D, that land being lawfully used as a reserve for a rehabilitation hostel and a sheltered workshop associated with the adjoining Royal Prince Henry Hospital.

However, the applicant persists with the claim to the lands coloured yellow on the said plan, and asks the Court to exercise the respondent's discretion under ss.(5A) to grant the claim, subject to conditions. The larger portion coloured yellow in the plan has a frontage to Jennifer Street. The other portion coloured yellow is the site of an old cobbled roadway said to have been constructed by convicts.

The plan is reproduced as an attachment hereto with the appropriate colours indicated.

The portion of land coloured yellow which fronts Jennifer Street, most of the hatched land, and the cobbled land, form part of a subdivision proposed by the Department of Housing and submitted to Randwick Municipal Council on or about 30 May 1990 (Exhibit C). Further plans dated 2 April 1991 affecting the land coloured yellow, having a frontage to Jennifer Street, form Exhibit 3. The Department of Housing subdivision proposal contains 48 lots, which includes much of the hatched land, and the yellow coloured land fronting Jennifer Street claimed by the applicant, contains 11 or so of the proposed lots as shown in Exhibit 2. Exhibit 2 also depicts the cobbled road as a "proposed access strip".

Counsel for the applicant referred me to the Federal Court decision in La Macchia v Minister of Primary Industry (1986) 6 AAR 160 in support of his proposition that the power given the Minister under ss.(5A) could be exercised when deciding a claim made under the Act prior to the amendments of 1986. However, that case dealt with Ministerial disciplinary powers following conviction for offences.

It is clear from the decision in New South Wales Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 per Hope JA at p.694 that on lodgment of its claim, the applicant had a vested right to have its claim granted if the land proved to be available. At p.697 Hope JA said:

"It is then put that the way the transfer is to be carried out is in the nature of a procedural right and not a substantive right. I do not agree with this submission. ... I can find nothing in the amending Act to suggest that the appeal to the Land and Environment Court should not be dealt with upon the basis of the law in force at the time it was lodged."

Samuels JA and Clarke JA agreed with Hope JA. It appears to me that to construe ss.(5A) as conferring additional rights, or affecting rights already vested in the applicant, would be contrary to the principles discussed by the High Court in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261. Further, in my opinion, s.39(2) of the Land and Environment Court Act, 1979 ("the L & EC Act") is not apt to enable this Court to exercise any discretion vested in the Minister under ss.(5A) as regards applications lodged prior to its enactment and, indeed, possibly in any case. The appeal to this Court given under s.36(6) has always been limited to the refusal of an application under s.36(5)(b), which with minor changes, has always been in the Act. To construe s.39(2) of the L & EC Act as extending the Court's powers to deal with a new power vested in the Minister by ss.(5A), appears to be fraught with the difficulties mentioned by the Court of Appeal in Strathfield Municipal Council v Drew (1985) 1 NSWLR 338.

The affidavit of Mr K.J. Barnes, Project Manager, Land Development Section, Department of Housing, sworn 3 June 1991, alleged, without objection, in paragraphs 43 to 45 as follows:

"43. It is a function of the Department of Housing to provide homesites for general disposition to the people of New South Wales. The Land is, and has been prior to 1984, an integral part of the Crown Land residential development programme for the Sydney metropolitan region.

44.The historic on-going increase in population in the Sydney metropolitan region results in a need by the community for new residential lots including the quality, above-average value homesites which The Land would provide.

45.Residential development of The Land has, since 1967 to date, been necessary in order to fulfill the need for homesites which are quality, above average value lots and which are located in a highly desirable and attractive location. The provision of such homesites has a flow-on effect in that lower priced dwellings come onto the market when purchasers of the developed homesites construct and move into the new dwellings."

However, there is no conclusive certificate issued under s.36(8) of the Act in this case, and the Court is not bound by the allegations in the affidavit, especially when the material attached to the affidavit, matters put in cross-examination and other documents in evidence, may lead to a different conclusion.

While there is no doubt from the annexures to Mr Barnes' affidvit that the possibility of use of the subject land for housing purposes had been raised by the then Minister for Housing as early as 1960, development was considered inappropriate in 1964, and the lack of sewerage was a big problem. A minute by the Metropolitan District Surveyor of 1 July 1968 directs preparation of a tentative design for residential subdivision to strengthen the bargaining position of the Department of Housing. Proposals were put to Randwick Municipal Council for the tentative design at the end of May 1969 and met with a favourable response. A minute dated 30 July 1971, Annexure O, suggests the site is possibly the most valuable and attractive area available for disposal in the Sydney region, and recommends schemes for sale and development. Correspondence about the scheme continued, and on 25 July 1980 the land was suspended from the provisions of the Randwick Planning Scheme by notification in the Government Gazette and made the subject of an Interim Development Order. A development consultant was recommended in July 1982, and consideration was given to excepting certain areas from development.

On receipt of the claim under review, Mr Barnes, in Annexure CC on behalf of the Land Commission, lodged a formal objection to the claim stating the lands were:

(b) included in the sites which this Commission is currently seeking to appropriate for future residential development.

The Commission, accordingly, formally objects to the subject claim for this land on the basis that it is needed or likely to be needed for an essential public purpose."

Silence then fell upon the Department of Housing and the Land Commission until on 26 March 1990. In his Annexure "EE", Mr Barnes announced that the Department now wished to proceed with its proposed residential subdivision as soon as possible.

A publication emanating from the Urban Development Committee, Department of Planning (Exhibit 4), showed land lot production peaked in 1984/85, and slumped in 1986/87, peaking again in 1988/89 and slumping in 1990/91. Past urban release policies in some areas are summarised at pp.12-19 of the Department of Environment and Planning publication regarding Rouse Hill Development Area (Exhibit E), but I found nothing in this publication to assist regarding the subject land. More pertinent is the New South Wales Planning and Environment Commission publication "Review; Sydney region outline plan" published in 1980 (Exhibit D), which suggests initiatives from housing releases in the South West Sector, Gosford-Wyong and Mount Druitt. The publication Sydney Region Land Audit (1991) (Exhibit F), with a foreword by the Minister for Housing shows areas for future development identified as remote from the subject land.

No explanation was available as to the failure of the respondent to give a decision on the 1984 claim to the subject land until 17 September 1990, or the failure to expedite these proceedings which commenced on 23 November 1990 and came on to be heard on 13 November 1991. In the light of hindsight, which I consider can be applied to the respondent's claimed need of the land for essential public purposes (McCathie v Federal Commissioner of Taxation [1944] HCA 9; (1944) 69 CLR 1 at 16) and taking the view that what is required to be proved is a need rather than a desire or demand (Crooks National Stores Pty.Ltd. v Collie [1957] HCA 80; (1957) 97 CLR 581, 591), I am unable to find that at the relevant date the land was needed, although it is proper to say it was suitable and desired for housing.

Further problems arise as to the meaning of "essential public purposes". In D v NSPCC [1977] UKHL 1; 1978 AC 171, 231, Lord Simon of Glaisdale discussed "fundamental public interest" and then considered the scope of public policy. In NSW Aboriginal Land Council v Minister (Tredega) (1986) 59 LGRA 318, Stein J at 331, 332 said:

"In my opinion 'essential' in its juxtaposition to 'public purpose' connotes something which is indispensable or at least material and important."

In Worimi Local Aboriginal Land Council v The Minister 1991 72 LGRA 149 at 163 Stein J said:

"In my opinion 'essential' means 'necessary or indispensable'."

Giving oral evidence, Mr Barnes explained that the policy of the Department and of the Commission was not to undercut private land developers. However, it appropriated Crown Land, subdivided and developed it and then sold it at a reasonable price, not necessarily the top market price, but taking into account the costs of subdivision and a reasonable price after obtaining a valuation. Sometimes the land was sold direct to the public on a first-in-first served basis. On the other occasions the land would be marketed in conjunction with builders who offered a package deal for land and building. It is obvious that Departmental thinking was that the subject land would attract good prices.

It would be unrealistic to hold that the development of Crown Land for housing by the Department of Housing and the Land Commission was not a public purpose.

Statistics published in the Department's 1988 Brochure (Exhibit 5) state that by 1981 migrants totalling 500,000 formed one-sixth of the Sydney population (p.24). The same publication sees the bulk of population requirements in future being satisfied in the North West, Macarthur, Bringelly and the Central Coast (p.47). The publication also discusses other alternatives such as medium density housing and the decline of population in the innter city areas.

It is easy to see that defence and the police force are essential public purposes. However, Government's take upon themselves activities which while desirable are not essential or fundamental as public purposes. It is by no means clear to me that land development might not be handled just as well by private developers, especially if holding charges and Council fees were reduced. While it may be desirable for the Department of Housing and the Land Commission to appropriate and develop Crown Land, the evidence does not convince me that residential development is an essential public purpose in the City of Sydney. Indeed, it is not unreasonable to consider the possibility that the thousands of migrants pouring into Sydney each year would be better settled in inland towns for example. Further, medium density use of older homes may be preferable to extending the residential allotments around Sydney. This is obviously a matter considered by the Department and by the Commission.

Further, it was not proved to my satisfaction that the subject land was needed for public purposes as distinct from being considered desirable or suitable. No evidence was before me as to population pressures requiring residential lots in La Perouse. The distinctive features of the area are Royal Prince Henry Hospital, Long Bay Gaol and two golf courses.

For these reasons it appears to me that I should not accept Mr Barnes' view although, no doubt, honestly and conscientiously held. Governments, in the absence of conclusive certificates, cannot create exemptions from claims or probative evidence, by recitals in documents or in statutes. Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 200 to 202 per Dixon J, as he then was.

I have reached the conclusion that the claim should be granted, but limited to the lands coloured yellow in the document Exhibit A, an uncoloured copy of which is appended to this judgment. This land is also delineated in Exhibit 2. It is therefore directed that such lands be transferred to the applicant for an estate in fee simple, and I direct an appropriate instrument of transfer be settled before the Registrar of the Court.

The green tinted land will remain in the hands of the Crown for preservation of the unique flora which so enthralled Sir Joseph Banks and Dr Solander. It is not inappropriate that some of the adjoining land be transferred to the applicant representing Australian citizens who are descendants of the indigenous inhabitants of this country, in an area where European settlers made contact with the aborigines in 1770.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 16 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE MR JUSTICE BANNON.