Brandy v Human Rights and Equal Opportunities Commission - [1998] FCA 67 - FCA 1997 case summary — Zoe

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Brandy v Human Rights and Equal Opportunities Commission

[1998] FCA 67

Federal Court of Australia|1997-12-05|Before: Cooper JJ, Drummond J, Burchett J

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Court

Federal Court of Australia

Decision date

1997-12-05

Before

Cooper JJ, Drummond J, Burchett J

Source

Original judgment source is linked above.

Judgment (131 paragraphs)

[1]

REASONS FOR JUDGMENT BURCHETT J I have had the advantage of reading in draft the judgment of Drummond J, with which I agree. However, I shall state for myself the reasons which lead me to join in making an order declaring that subdivision E of Division 5 of Part 6 of the Native Title Act 1993 (comprising ss 166, 167 and 168) is invalid. The ground of invalidity argued in respect of this group of sections was that it purported, contrary to the Constitution, to authorize the National Native Title Tribunal, which is not a court under ss 71 and 72 of the Constitution, to exercise part of the judicial power of the Commonwealth. The impugned sections deal with a determination of the Tribunal under s 160, which must be made after the holding of an inquiry with regard to an application falling within s 61. Such an application will have been of one of two kinds: an application for a determination relating to native title under s 13(1), or an application for a determination of compensation under s 50(2). But unless an application is either unopposed within the meaning of s 70 or agreed within the meaning of s 71 or s 73, s 74 provides that it must be lodged with the Federal Court for decision. The present case involved a determination of an unopposed "non-claimant" application, and for the Attorney-General for the Commonwealth, who intervened, the validity of the impugned sections was argued on the footing that they were concerned with unopposed determinations. With respect to such a determination, s 166 provides that the Registrar of the Tribunal "must lodge the determination in a Registry of the Federal Court", and that a Registrar of the Court "must register the determination" and notify the parties. Section 167(1) gives effect to this registration: "Upon registration of a determination under section 166, the determination has effect as if it were an order made by the Federal Court." Section 167(4) then enables a party or person whose interests are affected to "apply to the Federal Court for review of the determination", but this may be done only within 28 days, or afterwards by "leave only in exceptional circumstances". There is also provision in s 167 that failure during the 28 days period, or during a further defined period in a case involving proceedings for review, "to comply with a positive requirement of the determination is not a contravention of the determination". Nothing is said about failure to comply with a negative requirement, but no action to enforce the determination may be taken before the end of the same period. If an application for review is made, s 168 will apply. Subsection (4) of that section empowers the Court to "make an interim order that suspends the operation of the whole or any part of the determination". Subsections (5), (6), (7) and (8) should be set out in full, as follows: "Review of issues of fact (5) In reviewing the determination, the Court may review all issues of fact and law. Leave required for new evidence (6) A party cannot adduce new evidence without the leave of the court. Orders of the Court (7) After reviewing the determination, the Court may make such orders as it thinks fit (including a declaration of right). The orders may confirm a determination that is registered under section 166. Court may dismiss applications (8) The Court may dismiss the application for review at any time if it considers that the applicant is not dealing with the application promptly enough. The Court may do this either of its own motion or on the application of the respondent." It will be at once apparent that this scheme is remarkably similar to the scheme that was held invalid in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. Like that scheme, this gives a determination, upon registration, effect as if it were an order made by the Federal Court. Like that scheme, this provides for review by the Court, but inhibits the presentation of "new evidence" except by leave. There is, of course, a distinction, in so far as Brandy was concerned with a contested determination, but the "unopposed" determinations with which we are concerned relate to matters that are potentially the subject of dispute between parties, as the provisions for registration and review recognize. The Commonwealth's reliance on this aspect of the provisions with respect to native title seems to me to be misplaced. In the case of a determination of the kind with which we are particularly concerned, a determination under s 70, the Tribunal has to find two matters, which are expressed in the section as follows: "(a) The Tribunal is satisfied that the applicant has made out a prima facie case for a determination in [the terms sought by the applicant]; and (b) The Tribunal considers the determination to be just and equitable in all the circumstances." Each of these matters is a determination of a kind regularly made by a court. That the standard of proof in relation to the former matter may be satisfied by prima facie evidence makes no difference; that is true of many judicial determinations. The second, of course, raises an issue which lies at the heart of the functioning of a court. The content of judicial power has been found to elude exclusive definition. It depends not merely on the nature of the power itself, but also on the nature of the body which exercises it, and of the object and incidents of its exercise. See Brandy at 267-269. But, as was there pointed out, where a decision determining an issue between parties has also the quality of binding the parties, this is a significant indication that it was given in the exercise of judicial power. A more general statement is that which was made by Dixon CJ and McTiernan J, in the course of a discussion cited by Aickin J in The Queen v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 17, in their Honours' joint judgment in The Queen v Davison (1954) 90 CLR 353 at 369: "The truth is that the ascertainment of existing rights by the judicial determination of issues of fact or law falls exclusively within judicial power so that the Parliament cannot confide the function to any person or body but a court constituted under ss. 71 and 72 of the Constitution ... ." The difficulty with this general statement is to be sure of the meaning and application of the words "judicial determination". But here, the provision giving a determination the effect of an order of the Court both attracts to it the same binding force that such an order would have and also, at the same time, implicitly conveys that what was involved in the ascertainment of existing rights with which the determination was concerned was indeed a judicial determination of the issues of fact and law on which those rights depended. Parliament has so associated the determination and its enforcement with the Court as to reveal its true nature as judicial in character, but has committed the making of it to a non-judicial body. That is not permissible under the Constitution. What Mason CJ, Brennan and Toohey JJ said, in Brandy at 262, of the legislation there in question, applies also to the provisions with which we are concerned; they are so different from those involved in Harris v Calladine (1991) 172 CLR 84 as to "preclude [that] decision from being of direct relevance". Nevertheless, it represents an imperfectly analogous application of the principle which must give the answer to this problem too. Harris v Calladine was concerned with the delegation by a court of subsidiary powers to such an officer as a registrar. In a case of that kind, the High Court held, as I put it in my judgment in D'Antuono v Minister for Health (Burchett, Carr and R D Nicholson JJ, unreported, 5 December 1997), that "the control and supervision of the Court are required to be so real and effective that the decision, which is within the Court's jurisdiction, though made by an officer who is not a judge, can still be seen to be a decision of the Court." Here, it is plain that the determination is not a decision of the Court. It is a decision of the Tribunal to which s 167, if valid, would give "effect as if it were an order made by the Federal Court". The result would be an exercise of judicial power of the Commonwealth by a body other than a court. Accordingly, ss 166, 167 and 168 are invalid. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

[19]

The President was required by s 63(3)(a) of the NTA to give Mr Fourmile this opportunity. It is plain that the President recognised that the area the subject of Selpam's claim included the floating road reservation and part of Roberts Road; but he did not consider that Mr Fourmile's application required him to make any decision of the kind provided for by s 63(3) in respect of the two small areas the subject of road reservations within Selpam's claim area, if Mr Fourmile's application could not succeed in respect of the larger area. In terms, Mr Fourmile's claim was to the entirety of the area the subject of Selpam's non-claimant application; there is nothing in his application, including the detailed description of the native title he claims, that suggests his application was for the portion of road, even if his claim to the other areas should be unsuccessful. The President, in his letter of 1 September 1994 to Mr Fourmile, indicated that he understood Mr Fourmile's application, in so far as it related to the small area of road, was dependent upon the success of his application for a determination of native title in relation to the much larger area of freehold land contained within Lot 25. This must have been quite clear to Mr Fourmile from the President's letter. He did not, however, respond to the opportunity the President gave him to correct the latter's interpretation of his application. The President, on 27 September 1994, accordingly directed the Registrar, pursuant to s 63(3)(c), not to accept it and, on 30 September 1994, the Registrar wrote to Mr Fourmile to advise him of this direction. Mr Fourmile did not appeal the decision of the President rejecting his application within the 28 days allowed by s 169(4)(a) of the NTA. Selpam's non-claimant application for determination of native title thereupon became, by force of s 67(4) and s 70(2)(c), an unopposed application. It was in these circumstances that the Tribunal member proceeded to make his determination pursuant to s 70(1) of the NTA on Selpam's non-claimant application on 18 January 1995. It was only after that, on 3 March 1995, that Mr Fourmile lodged his appeal, in reliance on s 169(2), against the President's rejection of his application of 22 July 1994. By order of this Court under s 169(4) of the NTA on 21 April 1995, the time for filing that notice of appeal was extended to 3 March 1995.

[37]

The material before the Tribunal included a tenure history report prepared by the Queensland Department of Lands. This shows that, by proclamation of 1 September 1881, under the provisions of the Crown Lands Alienation Act 1876, the Governor in Council notified that all lands in the Cairns Land Agent's District, exclusive of all alienated and reserved lands, were opened to selection at the Cairns Land Office under the provisions of that Act from 19 October 1881. This is the first recorded dealing with the lands in question: they must therefore have then been wastelands of the Crown. The proclamation was made under s 13 of the 1876 Act and specified, as required by s 15, the upset price per acre at which the lands were to be open to selection by conditional purchase; ss 19 and 20 of the Act made provision for the survey of land the subject of an application for conditional purchase and for notice of confirmation of the selection to be given to the applicant after survey. An application was received under the 1876 Act from a Mr Wong on 13 September 1882 to lease an area of 250 acres, identified as Selection No 305. As required by s 17, the application identified the lands as unsurveyed. However, by 30 March 1883, the Land Commissioner at Cairns had received Mr Wong's application, pursuant to reg 10 of the regulations under the 1876 Act, for permission to withdraw his application for Selection No 305, an application subsequently approved. The 1876 Act was repealed and replaced by the Crown Lands Act 1884. By proclamation of 31 October 1890, the Governor in Council notified that certain lands listed in the schedule to this proclamation were open to selection under the provisions of the Crown Lands Acts 1884 to 1889 from 1 December 1890. These lands included a lot described as Portion 24V in the Land Agent's District of Cairns, Parish of Grafton, containing 160 acres. This 160 acre lot was included within the 250 acre lot the subject of Mr Wong's abandoned 1882 application: the proclamation referred to Portion 24V as comprising "part of a Cancelled Selection No 305". The proclamation records the suspension a week earlier, by Order in Council of 23 October 1890, of the operation of the requirement imposed by s 43 of the Crown Lands Act of 1884 that land be surveyed and divided into marked lots before being opened for selection; the proclamation also recorded that the Surveyor-General had, as required by that Order in Council of 23 October 1890, "divided the said land into the lots specified in the said Schedule, and has indicated the position thereof on proper maps or plans". This Order in Council is expressed to have been made under the provisions of the Crown Lands Acts 1884 to 1886.

[50]

Section 44, in deeming the delineation by the Surveyor-General of lots on maps or plans to be a survey of the lots for the purposes of Pt IV of the Act, cannot be read as removing entirely any requirement for an actual survey of the lots opened for selection under s 44 (and of the associated roads). Part IV of the 1884 Act made provision for the issue of a notice confirming an application for selection made under s 49, which notice set out the fencing and other conditions to be fulfilled by the selector (s 51); for the issue, after such confirmation, of a licence to occupy the land selected (s 54); for the right of the selector to a lease, on certification of performance of the conditions fixed in the notice of confirmation (s 58) and for the right of the lessee, upon proof of personal occupation of the selection for five years, to a deed of grant in fee simple (s 74). The scheme of Pt IV of the Act, which was based primarily on the principle of selection only after survey, could not work with respect to land selected before survey under s 44 unless it was surveyed at some time, probably before grant of the licence to occupy, if not before grant of a lease. Confirmation that the Act intended that unsurveyed lots opened under s 44 had to be surveyed is found in s 49 of the 1884 Act which required the application for each lot opened for selection under Pt IV to be accompanied by "the survey fee" (relaxed by s 15(4) of the 1886 Act to a requirement to pay one fifth of the survey fee when the application was lodged, with the remainder payable over a period thereafter). Regulation 35 of the regulations made under s 130(1) of the Crown Lands Act 1884 also provided that: "... in the case of lots proclaimed open to selection under the provisions of section forty-four of the Act, the survey fees will be fixed provisionally, and when the survey of the boundaries is completed the applicants will be required to pay, or will be entitled to receive, as the case may be, such amount as will make up the difference, if any, between the amount so fixed provisionally and the actual cost of survey of the land". I would therefore read Pt IV of the 1884 Act as requiring, by implication, the carrying out of the survey referred to in s 43, to fix the location of necessary roads as well as the location of each of the lots, before the grant of a licence to occupy any lot opened for selection before survey under s 44.

[61]

There is authority that where, as in the Northern Territory, legislation providing for the opening of public roads by the Crown does not preclude the Crown from opening public roads in accordance with the well-established common law rules, the common law methods of opening public roads remain available to the Crown. See Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536, per Lockhart J at 541, agreeing with an earlier unreported decision of Wilcox J, Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (3 August 1988). It was in that context that Wilcox J expressed the opinion, with which Lockhart J later agreed, that land owned by the Crown cannot be constituted in accordance with common law principles as a public road by dedication alone, without acceptance by the public. But these decisions do not purport to throw any doubt upon the proposition that, where the Crown is permitted by legislative authority to constitute a public road, the question whether lands have been so constituted as a public road depends entirely on whether the statutory procedure has been followed. It is basic law that "a public highway may be erected by statute or by dedication and acceptance": Owen v O'Connor [1964] NSWR 1312 at 1319. See also Commissioner for Railways v Dangar (1943) 15 LGR(NSW) 101 at 104 and cf Newington v Windeyer (1985) 3 NSWLR 555 at 561, as to the sufficiency of compliance with the statutory requirements for the constitution of private land as a public road, in the absence of evidence of the common law requirement of an intention to dedicate the land as a public road. In Bass Coast Shire Council v King [1997] 2 VR 5, at 23, the Victorian Court of Appeal accepted that Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401 at 420, establishes that it is the public right to use land as a way, rather than its physical nature, that makes land a highway: it follows that, while dedication and acceptance may be required to establish the public right of user of land that is necessary at common law to constitute land as a highway, neither step is necessary if there is a legislative procedure, not involving dedication and acceptance, that nevertheless confers on the public a right of user of land as a highway.

[63]

I have explained why I consider that this area of road was surveyed in 1891 in accordance with the procedure in s 44 of the 1884 and 1886 Acts for the constitution of Crown land as a road. Where unsurveyed country lands were opened pursuant to s 44, a procedure which necessarily involved the marking on the relevant plans of the unsurveyed lots to be opened for selection and of the necessary access roads to those lots, those plans were required by s 46 to be publicly exhibited, when those lands were proclaimed open for selection, ie, before applications could be made. Section 46 was an essential part of the scheme for opening country lands for selection, either after survey under the general provisions of Pt IV or before survey pursuant to the provisions of s 44. In my opinion, once the maps or plans prepared under s 44 were publicly exhibited under s 46, any roads marked on those maps under the direction of the Surveyor-General in conformity with s 44(1) were effectively constituted as public roads. The publication by the Crown of an official map showing land marked as a road is a significant act: there is authority that the declaration of Crown land as a public road by a public act, such as the publication by the Crown of an official map showing the road marked upon it, was one of the methods by which the Crown could constitute lands as a public road, where the Crown retained prerogative power over Crown lands or where it had general statutory authority to deal with Crown lands that did not prescribe modes whereby roads could be constituted. See Miller v McKeon (1906) 3 CLR 50 at 59; Scott v Shires of Eltham and Heidelberg (1876) 2 VLR (L) 98 at 100; Rapley v Martin (1865) 4 SCR(NSW) 173 at 181-182; Randwick Corporation v Rutledge at 74 and Bass Coast Shire Council v King at 18. It can be inferred by reason of that aspect of the presumption of regularity, which Wigmore on Evidence (1981 Rev) at par 2534 calls the presumption of due performance of official duty, that, following the proclamation of 31 October 1890, the map showing the location of Lot 25 and the road in question, which the proclamation recorded had been prepared by the Surveyor-General, was publicly exhibited, as required by s 46.

[80]

Save for two possible qualifications, it is, in my opinion, obvious that none of the rights which Mr Fourmile says comprise the native title he claims as a member of the Gimuy clan can coexist with the right of user conferred on members of the public by the constitution by the Crown of the land as a public road. The first qualification is in respect of Mr Fourmile's claim to the right and ability of the members of the Gimuy clan of the Yidinji nation to receive from the land safe passage. It is, however, apparent that this is not a claim to the same limited right of user that each member of the public acquired upon the constitution of the land as a public road. Mr Fourmile asserts that his clan's right to receive from the land safe passage is a right "regulated and ruled only as our families, peers and I feel most appropriate". The nature of the right conferred on each member of the public by the constitution of land as a public road was described by Dixon J in Nickells v Melbourne Corporation (1938) 59 CLR 219: "It is not an unlimited right or a right which is independent of the nature of the place constituted a highway. It is a right of passage, and the mode of its enjoyment must accord with the fitness of the place. There are highways and highways, and the public right extends only to a reasonable use according to the character and purpose of the particular way …" (at 225). But if a member of the public uses a highway otherwise than for passage and thereby creates an obstruction, a public nuisance is created: Johnson v Kent (1975) 132 CLR 164 at 174. See also Schubert v Lee (1946) 71 CLR 589 at 594. A right of passage over the road regulated not by considerations of the kind identified in Nickells, but only in accordance with what the clan members consider appropriate, is inconsistent with the right of user conferred on each member of the public by constitution of the land as a road. The second qualification is in respect of the claimed right of members of the clan, at their discretion, to negotiate "with non-indigenous authorities and agencies to assist the future care, protection and controlled use of those lands": this, too, implies a right to fetter, at the discretion of clan members, the right of user of the land as a road conferred on each member of the public by the constitution of that land as a road. Neither of these rights claimed by Mr Fourmile can survive the establishment of the land as a public road.

[94]

Subdivision E of Div 5 of Pt 6 of the NTA is important. This subdivision provides for the registration in the Federal Court of Tribunal determinations on unopposed claimant and non-claimant applications. Upon registration, such determinations take effect as if they were orders of the Federal Court: s 167. They must also be recorded in the National Native Title Register: s 193; and notified by the Registrar of the Tribunal to State and Territory land titles offices in which are kept registers of interests in land: s 199. The effect given to a Tribunal determination by registration in the Federal Court is subject only to the provisions of ss 167 and 168 that deal with review by the Federal Court of such Tribunal determinations at the behest of a party to a determination. I do not think there is any significant difference between the scope of the review of a Commission determination which the Federal Court was empowered to conduct under s 25ZAC of the RDA and the review of a Tribunal determination which that Court is empowered to conduct by s 168 of the NTA: both sections provide for a review, at the discretion of the Court, of "all issues of fact and law" and new evidence cannot be received in the review without the leave of the Court. Under neither section does the Court conduct a hearing de novo. Both provisions treat a registered determination as something that can have operative effect quite apart from any action taken by the Court on a review. For example, the Court is empowered by both provisions to "confirm" a registered determination, as well as to make its own decision in place of the determination, and it can dismiss an application for review at any time, if it is not being diligently prosecuted, with the result that it is the registered determination and not a Court order which has operative effect. Section 168(3) of the NTA, for which there is no counterpart in the RDA, deals only with how the Court is to conduct the review of a registered determination of the Tribunal, without making its essential character as a review of all issues of fact and law any different from the review which the Court was empowered to conduct of Commission decisions under the RDA. All these provisions, which comprise subdivision E of Div 5 of Pt 6 of the NTA, are not materially different from ss 25ZAA, 25ZAB and 25ZAC of the RDA, in the form that Act was in at the time of the litigation in Brandy.

[125]

REASONS FOR JUDGMENT COOPER J Proceeding WAG 6002 of 1995 Selpam Pty Ltd ("Selpam") is the registered proprietor of an estate in fee simple in all the land contained in Certificate of Title N64139 Volume 403 Folio 189. The land is described in the Certificate of Title as :- " ... All that piece of Land situated in the County of Nares Parish of Grafton containing one hundred and sixty acres Exclusive of 3 acres reserved for road purposes more or less, as shown on the Plan hereon, and therein edged red, Being Portion 25V which said piece of Land is the whole of the portion marked 25V delineated in the Public Map of the said parish deposited in the Office of the Surveyor-General, originally granted by Deed of Grant No N4919 Saving Always to the Crown all the rights and interests reserved to it by the said Deed of Grant." The plan on the Certificate of Title shows the southern boundary of the land abutting a road. Selpam is also the registered proprietor of an estate in fee simple in all that land described as Lot 1 on Registered Plan No 720151 being the land contained in Certificate of Title Volume N681 Folio 105. This land is south of Portion 25V and abuts the same roadway along its northern boundary. The plan on the Certificate of Title shows the road abutting the northern boundary. The roadway between these two parcels of land, Roberts Road, is not fully formed or constructed along its entire length and Selpam applied under s 363 of the Land Act of 1962 (Qld) ("the Act of 1962") to close so much of the road as was unconstructed. The area the subject of the road closure application was described as :- "Commencing at a point a [sic] bearing of 270°03' for a distance of 105 metres from the most north eastern corner of Lot 1 on RP 720151 thence on a bearing of 270°03' for a distance of 240m thence on a bearing of 323°33' for a distance of 25.025m thence on a bearing of 90°03' for a distance of 254.88m thence on a bearing of 180°03' for a distance of 20.155m back to the point of commencement containing an area of 4,978m˛." By application QN94/4 to the National Native Title Tribunal, Selpam sought non-claimant native title determinations in respect of the freehold lands Portion 25V (Part 1), the floating reservation for road purposes of the three acres within Portion 25V (Part 2), and the area the subject of the proposed road closure (Part 3). On 18 January 1995 the Honourable Fred Chaney, a member of the National Native Title Tribunal, made the following determination :- "I, FRED CHANEY, a Member of the National Native Title Tribunal make the following determination pursuant to s 70 of The Native Title Act 1993: Native title does not exist in relation to the following: 1. The whole of the land reserved for road purposes within original Portion 25V, being approximately 1.21 ha or 3 acres. 2. The whole of the land contained in Certificate of Title N 403 Folio 189 being Lot 25 Plan N 157475, County of Nares, being approximately 64.75ha or 160 acres. 3. Part of Roberts Road adjoining land described as lot 1 on RP 720151 and Lot 25 on Plan N 15745, Parish of Grafton, County of Nares, City of Cairns, State of Queensland." The determination was registered in the Western Australia District Registry of this Court on 19 January 1995 pursuant to s 166 of the Native Title Act 1993 (Cth) ("the NTA"). On 16 February 1995, the applicant, Henrick Fourmile, by application number WAG 6002 of 1995 sought review of the determination under s 167 of the NTA. The grounds relied upon by Mr Fourmile in his amended application were :- "1. The Tribunal erred in law in concluding that the reservation of the land under the Land Act 1962 (Queensland) comprising part of Roberts Road which was never constructed vested beneficial ownership of that land in the Crown which was wholly inconsistent with the continued enjoyment of the rights and interests of any prior native title holders. 2. The determination of the Tribunal upon registration pursuant to the Native Title Act 1993 (Cth), Sub-Section 166(3) and as a consequence of the operation of Sub-Section 167(1), having been made pursuant to Section 160 in respect of an Application under Section 61 of the kind set out in Section 70, comprises an exercise of judicial power by a body other than a federal court, contrary to Section 71 of the Constitution of the Commonwealth of Australia." Ground One The matter was argued before Mr Chaney on the basis that s 362(4) of the Act of 1962 operated with respect to the land the subject of the road closure application. That subsection provides :- "(4) The ownership of land comprised in all roads opened or dedicated under this section or opened or dedicated under the repealed Acts shall be and remain vested in the Crown". Mr Chaney came to the conclusion that s 362(4) had the effect of vesting in the Crown full beneficial ownership of the land the subject of the road closure application. To reach this conclusion it appears that Mr Chaney accepted a submission on behalf of the State of Queensland that registration and deposit of a plan of survey delineating the road in issue in May 1891 (Annexure "F" to the Tenure History Report) operated as a dedication of the road for public purposes by virtue of the operation of s 362(2) of the Act of 1962. That subsection provides :- "(2) Crown land may also be dedicated as a road for public use upon and by the registration and deposit in the Office of the Surveyor-General of a plan of survey which exhibits distinctly delineated thereon the land thereby dedicated as such road." On the hearing of the review before this Court, counsel for Mr Fourmile argued that s 362 had no relevant operation with respect to the area of road which was the subject of the road closure application. It was submitted that the area was not dedicated as a road under the Act of 1962 or any of the repealed Acts contained in the schedule to it. Accordingly, it was submitted, as the land had not been opened or dedicated as a road under Statute and as the State of Queensland could not prove the creation of the road at common law by dedication for public use and acceptance by the public by use of it as a road, the land in question remained vacant Crown land subject to common law native title. It was not argued by counsel for the State of Queensland that the lodgement in March 1965 of the plan of subdivision for Lot 1 of Registered Plan 720151 delineating, as it does, the area of the road in question constitutes a dedication of the road for the purposes of s 362(2) of the Act of 1962. Accordingly, I express no opinion on that question. Nor did counsel for the State of Queensland seek to argue that s 362(2) or s 362(4) had a relevant operation with respect to the land in issue. Rather, it was submitted that the conclusion reached by Mr Chaney was correct because, on the available evidence, the road was in fact dedicated as a road for public purposes or, at a minimum, reserved for public purposes as a road. In either event, it was submitted, the beneficial interest in the land comprised in the area the subject of the proposed road closure was vested in the Crown in right of the State of Queensland as owner. The vesting of that beneficial interest, it was submitted, was inconsistent with the survival of any native title involving the rights, interests and incidents claimed by Mr Fourmile. The native title rights which Mr Fourmile claims as a member of the Gimuy Clan of the Yidinji Nation in respect of lands which include the land the subject of the proposed road closure, are :- "1. Ongoing rights to occupy, use, enjoy and determine the future of those lands. 2. Rights and abilities to receive from those lands, safe passage, care, and harvest, regulated and ruled only as our families, peers and I feel most appropriate. 3. Exclusive rights to use and maintain, as our families, peers and I negotiate and deem appropriate, all past and present family knowledge, language, stories, dance, song and ceremony associated with the area. 4. Rights to develop and make such adaptations and changes to the distribution and implementation of responsibilities, laws, lores and customs as our families, peers and I deem appropriate and will from time to time publicly negotiate through dispute, challenge and debate. 5. Rights and abilities to make use of any new knowledge derived from our lands and environment, as our families, peers and I deem appropriate. 6. Rights and abilities for our families and I, where we deem appropriate, to negotiate with non-indigenous authorities and agencies to assist the future care, protection and controlled use of those areas. 7. Rights and abilities to enforce rights derived under our system of laws, lores and customs, as rights equal to rights derived from Anglo-Australian laws, lores, and customs." The question is whether, assuming the native title claimed by Mr Fourmile existed prior to acquisition by the Crown of sovereignty over and radical title in the land in issue, there has been a valid exercise of sovereign power in respect of that land inconsistent with the continued existence of the rights and privileges claimed by Mr Fourmile. If there has been such an exercise of sovereign power, the native title claimed by Mr Fourmile has been extinguished to the extent of the inconsistency: Mabo v Queensland [No 2] (1992) 175 CLR 1 at 69. For present purposes, the first relevant dealing with the land abutting the land the subject of the proposed road closure occurred on 23 October 1890. On that date the Governor in Council, by proclamation published in the Queensland Government Gazette of 1 November 1890 acting under the Crown Lands Acts 1884 to 1886 (Qld), ordered that :- "... the operation of so much of the forty-third section of the said Principal Act as requires the land to be actually surveyed and marked on the ground before it is proclaimed open for selection be suspended with respect to the land described in the said Schedule: And the Surveyor-General is hereby required to divide the said land into lots and to indicate the position of such lots on proper maps or plans. And the Honourable the Secretary for Public Lands is to give the necessary directions herein accordingly. ... THE SCHEDULE The Crown lands in the following Land Agents' Districts :- District Locality Cairns ... ... ... The Parish of Grafton Ditto ... ... ... The Parish of Trinity Cooktown ... ... ... The Parish of Hann "

[126]

The "Principal Act" referred to in the proclamation was The Crown Lands Act of 1884 ("The Act of 1884"), the long title of which was "An Act to make better Provision for the Occupation and Use of Crown Land". The Act of 1884 took effect on 1 March 1885. Part IV of the Act of 1884 made provision for agricultural and grazing farms. The Act of 1884 provided :- "41. The Governor in Council, on the recommendation of the Board, may by Proclamation define and set apart any Country Lands as Agricultural Areas. 42. The Governor in Council, on the recommendation of the Board, may by Proclamation declare any Country Lands to be open for selection under the provisions of this Part of this Act, and may by like Proclamation, on the like recommendation, withdraw any such lands from being so open. 43. Before any land is so proclaimed open for selection it shall be surveyed under the direction of the Surveyor-General and divided into lots of convenient area for selection, with proper roads and reserves for public purposes, and such lots shall be marked on the ground by posts not less than three feet in height at the corners of the lots. 44. With respect to land which, before the passing of this Act, had been proclaimed open for selection or for sale by auction under the provisions of 'The Crown Lands Alienation Act of 1876,' or any Act thereby repealed, and as to which it is practicable to divide the land into lots without actual survey, and to indicate the position of such lots by means of maps or plans, and by reference to known or marked boundaries or starting points, the following provisions shall have effect :- (1) The Governor in Council on the recommendation of the Board may suspend the operation of so much of the last preceding section as requires the land to be actually surveyed and marked on the ground before it is proclaimed open for selection, and may require the Surveyor-General to divide the land into lots, and to indicate the position of such lots on proper maps or plans; (2) The land may thereupon be proclaimed open for selection in the same manner as if it had been surveyed, and the delineation of the lots on the maps or plans shall be deemed to be a survey thereof, and the lots shall be deemed to be surveyed lots for the purposes of this Part of the Act; (3) The powers conferred by this section may be exercised at any time within two years after the commencement of this Act, but not afterwards." In 1886, by s 13 of The Crown Lands Act Amendment Act of 1886 (Qld) ("the Act of 1886"), the power contained in s 44 of the Act of 1884 was thereafter exerciseable in respect of any Country Lands, as defined, where it was practical to divide the land into lots without actual survey. Additionally, the two year limitation period in s 44(3) of the Act of 1884 was repealed. Section 49 of the Act of 1884 provided :- "49. Any person desiring to select Crown lands under this Part of this Act must lodge with the Land Agent an application in the prescribed form, and must himself or by his duly constituted attorney sign the entry of his application in the register of applications. The application must be for a lot as surveyed, and must refer to it by its number as specified in the Proclamation. The application must be accompanied by the full amount in cash of the first year's rent together with the survey fee. Applications shall take priority according to the order of their being lodged with the Land Agent. Provided that if two or more applicants shall be present at the time of opening the Land Agent's office the applications lodged by them shall be deemed to be lodged at the same time. In such case the right of priority shall be determined by lot in the prescribed manner." Where a lot was opened for selection under s 44 of the Act of 1884, the survey fee payable was that fixed provisionally pending survey together with such additional sum as may have been necessary to cover the actual cost of survey when that occurred: Regulation 35 of the Regulations made under the Act of 1884. By s 15(4) of the Act of 1886 the survey fee was payable by instalments of one-fifth of the specified amount, rather than as a lump sum. The Tenure History Report before Mr Chaney discloses that, after directing the Surveyor-General to divide the Crown lands in the Land Agents' District of Cairns, Parish of Grafton into lots and to indicate the position of those lots on maps, certain lands, including Lot 1 being Portion 24V, Parish of Grafton were declared by the Governor in Council on 23 October 1890 open for selection under the provisions of The Crown Lands Acts 1884 to 1889 on and after 1 December 1890. The area of Lot 1 was 160 acres and the provisional survey fee was Ł17.10.0. On 1 December 1890, Henry Miller applied in writing in the prescribed form, under the provisions of the Act of 1884, to the Land Agent at Cairns to become the lessee of the Crown lands described in the schedule as an agricultural farm. The application was in respect of Part 24V, County of Nares, Parish of Grafton. Mr Miller tendered with his application the first year's rent (Ł4.0.0) and Ł3.10.0, being one-fifth of the provisional survey fee. The application was endorsed as conditionally approved on 5 December 1890. Annexure "F" to the Tenure History Report is a copy plan of survey headed :- "SELECTOR Henry Miller No of Selection AF310 POR 25V" The survey also carried the endorsement :- "Surveyed under written instructions from Surveyor-General No - dated 5-12-1890. Transmitted to the Surveyor-General with my letter No 10/91 dated 18 May 1891." The survey shows Portion 25V to the west of Portions 21 and 20, to the south of Portions 22 and 305 and with a south boundary abutting a one chain road from the west to the east and thence south-east, the road abutting the northern boundaries of Portions 172 and 104. The survey plan bears the plan catalogue number N157475B. Annexure "F" also includes a plan of Portion 25V identified as Agricultural Farm No 310, surveyed by Thomas Behan, 18 May 1891. The plan has the name "H Miller" printed across Portion 25V and shows the road abutting the southern boundary of that portion and the northern boundaries of Portions 172 and 104. On 17 September 1891 a licence to occupy Portion 25V, also known as Agricultural Farm No 310 Cairns District, issued to Henry Miller under and subject to the conditions of the Act of 1884. One of the conditions of the licence to occupy was that the selector, Mr Miller, continuously occupy the land by personal residence of himself or his registered agent. Subject to the selector enclosing the land by fencing or making improvements to the value of the fencing within five years of the date of the licence, the selector was entitled to a lease of the land for a term of fifty years (s 57 and s 58 of the Act of 1884). Thereafter during the period of the lease, and subject to compliance with the provisions of s 73 of the Act of 1884, the selector could apply to acquire the freehold of the Agricultural Farm. Henry Miller purchased his farm and, on 14 February 1898, a Deed of Grant (N4919) issued in his favour for :- "All that Piece or Parcel of Land in Our said Colony containing by admeasurement one hundred and sixty Acres be the same more or less situated in the County of Nares and Parish of Grafton Portion Twenty-five V Being the Land selected as Agricultural Farm No 310 Cairns District Commencing at the North west corner of portion Twentyone and bounded thence on the East by that portion and portion Twenty bearing South thirtyseven chains and sixtynine links on the South west and South by a Road bearing three hundred and fifteen degrees sixteen chains and eleven links and West fortyeight chains and twelve links on the West by a line bearing North twentysix chains and thirty links and on the North by a line and portion Twentytwo bearing East fiftynine chains and fiftyone links to the point of commencement - Exclusive of three acres reserved for Road purposes as shown on Plan of Survey deposited in the Surveyor-General's Office, with all the Rights and Appurtenances whatsoever thereto belonging but not including any part of the soil of the said Road." The Deed of Grant included a plan drawing of the land the subject of the grant showing that its southern boundary abutted a road. The drawing indicated a scale of twenty chains to the inch and cited Plan Cat No N157475B. By transmission by death the freehold estate passed to Christine Miller and upon her death to the Public Curator of Queensland as administrator. The Council of the Shire of Mulgrave acquired the freehold estate in 1947 pursuant to s 27 of the Local Government Act of 1936 (Qld) and thereupon the title contained in Deed of Grant N4919 volume 117 folio 221 was fully cancelled and a new Certificate of Title for an estate in fee simple, No N64139 Volume 403 Folio 189, issued in favour of the Council for Portion 25V. This Certificate of Title also has a plan of Part 25V abutting a road at its southern boundary. The land is described as the whole of the portion marked 25V delineated in the Public Map of the Parish (Grafton) deposited in the office of the Surveyor-General originally granted by Deed of Grant No N4919. It was the title to the land in this Certificate of Title to which Selpam became the registered proprietor of an estate in fee simple on 8 July 1992. In 1986 the description of the land contained in Certificate of Title N64139 Vol 403 Folio 189 was converted to "Lot 25 on Plan No N157475". That change is recorded on the face of the copy plan N157475B, Annexure "F" to the Tenure History Report. The material shows that Portion 25V was surveyed after earlier subdivision of land to the north-east, east and south of it. The parish plan, which was before Mr Chaney, shows that Portions 19 and 22 were surveyed as part of a survey and laying out of portions running west from the North Coast Stock Route which is shown on the map as the Bruce Highway. This survey was registered as N.157.38. Portion 104 is shown as having been previously subdivided twice, with resubdivisions 1 and 2 of subdivision 1 of portion 104 having frontages to the road in issue along their northern boundaries. Portions 20 and 21 are shown to have been surveyed by registered survey N.157.372 with Portion 21 being Agricultural Farm 36, held by T Lynch. It is apparent from a perusal of Plan N157.475 and the parish map that the road, now known as Roberts Road, was shown on previous survey maps and formed a boundary road between Portions 19, 20 and 104 and came at least to what became the south-eastern corner of Portion 25V. Whether or not the road was extended upon the resubdivisions of Portion 104 to give the subdivided lots road access along their northern boundaries is impossible to determine from the material. However, the placement of the road to the north of the boundaries of Portion 19 and Portion 104 in the earlier subdivisions required that Portion 25V be sited to the north of any existing roadway, or sufficiently to the north to allow the existing roadway to be extended to provide access across the southern boundary of Portion 25V, and to provide for future road access to any opening up of the land west of Portion 25V. That is what appears on the plan where the road is shown as proceeding to the south-western corner of Portion 25V where it meets land without any indication of that land having been previously surveyed. The reasonable inference, having regard to the survey plan N157.475 and the parish map, is that Roberts Road was extended to what became the western boundary of Portion 25V when it was set out by the Surveyor-General in response to the Order in Council of 23 October 1890. There was no other way to provide access to Portion 25V and it was the obvious course to adopt when Roberts Road at that time was already part of a web of interlocking roads providing access between land holdings and to the main northern highway. The effect of sections 43 and 44 of the Act of 1884 was to require that proper roads be provided to the lots for selection. If the extension of Roberts Road did not already exist as a result of prior dealings with the other lots shown on the survey plan and parish map, then the road was for the totality of its length across the southern boundary of Portion 25V dedicated by statutory authority of the Act of 1884 as amended by the Act of 1886. Further, the subsequent grant of freehold interest in the land now held by Selpam was a Crown grant of a freehold estate with road frontage as shown on the relevant Deed of Grant or Certificate of Title. That the road fronting Selpam's land was dedicated as a public road is clear from the fact that it was an extension of an existing road which itself formed part of a system of public roads for use by the public as a means of moving within and beyond the parish. The land the subject of the application for road closure is but a part of the entire road dedicated by the Crown and is not properly to be considered in isolation from the remainder of the road for determining the issues in suit. The land the subject of the proposed road closure and the non-claimant declaration is only a small part of the roadway which abuts the southern boundary of Portion 25V. It is the unmade part. So far as the evidence goes the roadway to the east and west of it is a formed roadway. It is not essential to the creation of a highway that it be formed or be capable of being formed. Once a road has been properly created it is irrelevant that it is in whole or in part rough, difficult to traverse on foot or by vehicle or indeed impassable: Permanent Trustee Co of New South Wales Ltd v Council of the Municipality of Campbelltown (1960) 105 CLR 401 at 415 - 416, 420; Lawson v Weston (1850) 1 Legge 666 at 670. The right of the public which arises upon the creation of a public road or highway is a common law right of free passage to pass and repass along the roadway: City of Keilor v O'Donohue (1971) 126 CLR 353 at 363; Frencham v Melbourne and Metropolitan Board of Works [1911] VLR 363 at 367. The establishment of a public road does not create an easement in favour of a member of the public thereby investing that member with an estate or interest in the land which constitutes the road: Re Innes (1891) 12 LR (NSW) L 180 at 183. Ownership of land dedicated as a road does not pass at common law and the grantor retains all rights of ownership not inconsistent with public user: City of Keilor v O'Donohue at 369. Therefore, subject to any relevant statutory enactment to the contrary, dedication of a road by the Crown does not disturb the Crown's ownership of the land constituting the grant. The owner from time to time of land abutting a road has private rights which attach as incidents which pass with ownership of the land. They are rights in addition to that person's right as a member of the public to use the road and are different to the public rights of user: Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104 at 108 - 109. They are private property rights: Shellharbour Municipal Council at 109; Owen v O'Connor (1963) 63 SR (NSW) 1051 at 1061; Walsh v Ervin [1952] VLR 361 at 362. The owner of adjoining land has a right to free and uninterrupted access to the public roadway from any point of the land contiguous with the road and from the road to any point of the land contiguous with the road: Eggar v Commissioner of Main Roads [1979] QdR 501 at 502; Shellharbour Municipal Council at 108. - 109. The owner of adjoining land is entitled to remove obstructions which interfere with the common law right of access to the land and interference may found an action for damages or for an injunction for public or private nuisance: Shellharbour Municipal Council at108 - 109; Walsh v Ervin at 362 - 363. The common law rights which are held by the owner of adjoining property may not be taken away or interfered with, without express statutory authority: Bartzios v Leichhardt Municipal Council [1978] 1 NSWLR 7 at 11; D'Arcy v Municipal Council of Inverell (1925) 25 SR (NSW) 102 at 107 - 108. So far as is relevant for present purposes, Deed of Grant N4919 to Henry Miller created in him and his successors in title private property rights to access or exit his land at any point on the roadway adjoining Portion 25V whether or not the roadway was made and whether or not access was practically possible. Similarly, from the time of the original Deed of Grant of the land, which is now described as Lot 1 on Registered Plan No 720 151, Certificate of Title Volume N681 Folio 105, the owner of that land held similar private rights of access to the road. The creation by the Crown of public rights of user through dedication of the road as an extension of Roberts Road to provide for public access to the lands abutting the road and to provide access to the lands west of Portion 25V, together with the creation of private rights in the owners from time to time of the adjoining lands, is consistent with the Crown having exercised its sovereign power to appropriate to itself a plenary title to the land in order to use it for a public purpose, namely to create public roads with their attendant public and private common law rights. Appropriation by the Crown of the land constituting the road and the creation of the rights of user are inconsistent with the common law rights of native title claimed by Mr Fourmile and set out earlier in these reasons. Any native title rights which previously existed in the roadway, including the roadway the subject of the road closure application by Selpam, have been extinguished: The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 91 - 92. The conclusion reached by Mr Chaney was correct, notwithstanding that his reliance on s 362(2) of the Act of 1962 was in error. Ground Two The statutory scheme for the registration of determinations of the Tribunal in respect of non-claimant applications in this Court is set out in the reasons of Drummond J. The effect of that scheme is in no relevant way distinguishable from the scheme provided for under the Racial Discrimination Act 1975 (Cth) whereby determinations of the Human Rights and Equal Opportunity Commission were registered and took effect as orders of this Court. The reasoning which led the High Court to conclude in Brandy v Human Rights and Equal Opportunities Commission (1995) 183 CLR 245 at 259 - 260, 269 - 271 that the scheme was invalid because it purported to invest judicial power in the Commission is equally apposite to the Tribunal in the instant case. The consequence is that the only determinations as to the existence of native title which may be validly made under the NTA are opposed applications which are dealt with in this Court. Subdivision E of Division 5 of Part 6 of the NTA is invalid. Thus, determinations of unopposed claimant and non-claimant applications cannot be registered and given effect as orders of this Court. This is a consequence which the submission indicated was fully understood and intended: see appeal transcript pp 45 - 46. I would uphold the application for review in respect to the challenge to the validity of the determination and the effect of its registration in this Court. I would declare that Subdivision E of Division 5 of Part 6 of the NTA is invalid. Proceeding WAG 6003 of 1995 On 22 July 1994, Mr Fourmile lodged a claimant application in respect of "the area of land described in the non-claimant applications of Selpam." The claim thus covered the freehold land originally described as Portion 25V, but now described as Lot 25 on Plan N157475, so much of that land as constituted the reservation of three acres within that land for road purposes and that part of the extension of Roberts Road as was the subject of the road closure application. The application was referred to the President of the Tribunal by the Registrar under s 63(2) of the NTA. The President wrote to Mr Fourmile expressing the view that, prima facie, Mr Fourmile's claim could not be made out as much of the area claimed was covered by a grant of freehold title. The President, pursuant to s 63(2)(a) of the NTA, invited Mr Fourmile to respond within fourteen days with written submissions to satisfy the President that a prima facie claim could be made out. The invitation was not taken up by Mr Fourmile. Consequently, on 27 September 1994, the President directed the Registrar not to accept the claim and, on 30 September 1994, Mr Fourmile was advised accordingly. On 3 March 1995 Mr Fourmile lodged an appeal under s 169(2) against the rejection of his claim. The appeal was lodged out of time and after the determination of Mr Chaney in favour of Selpam's non-claimant application. On 21 April 1995 the time for the bringing of the appeal was extended until 3 March 1995. Mr Fourmile appealed from the decision of the President on the following grounds :- "1. The President erred in law in concluding that prima facie a claim by the Applicant could not be made out because native title had been extinguished by the grant of freehold over much of the area under claim. 2. The Registrar erred in law in forming an opinion that prima facie the claim of the Applicant did not meet the requirements of Section 63 of the NTA - (a) in respect of land reserved under the Land Act 1962 (Queensland) comprising part of Roberts Road which was never constructed, or (b) at all. 3. The decision of the President pursuant to the Native Title Act 1993 (Cth) subsection 63(3) paragraph (c) comprises an exercise of judicial power by the President in a capacity other than that of a federal court, contrary to Section 71 of the Constitution of the Commonwealth of Australia. 4. The decision of the Registrar in - (a) forming an opinion pursuant to Section 63 of the Native Title Act 1993, or, (b) not accepting the Application, pursuant to a direction of the President under sub-section 63(3) paragraph (c) of the Native Title Act 1993 (Cth) comprises an exercise of judicial power by the Registrar who does not constitute a Federal Court, contrary to Section 71 of the Constitution of the Commonwealth of Australia." On the hearing of the appeal, Mr Fourmile did not argue that the Registrar or President erred in forming an opinion that no prima facie claim could be made out in respect of the freehold land and the floating reservation for road purposes within it. The appeal was argued on three narrow grounds :- (a) That the NTA permitted and required the Registrar and/or the President, if satisfied that the claim as made could not succeed, to peruse the claim to determine whether any claim at all could be made as to all or part of the land claimed and to unilaterally amend the claim and accept the amended claim; (b) That the claim as made satisfied the requirements of s 63 of the NTA and that the Registrar erred in not accepting it; and (c) That the President and/or the Registrar in determining not to accept Mr Fourmile's claim were impermissibly exercising the judicial power of the Commonwealth contrary to s 71 of the Constitution. The first ground raised the issue of the proper construction and legislative purpose of s 63 of the NTA. The section provides :- "63(1)If the requirements of section 62 are complied with in relation to the application, the Registrar must accept it, unless he or she is of the opinion: (a) that the application is frivolous or vexatious; or (b) that prima facie the claim cannot be made out. (2) If the Registrar is of the opinion mentioned in paragraph 91(a) or (b), the Registrar must refer the application to a presidential member. (3) If the presidential member is of the same opinion, the presidential member must: (a) advise the applicant in writing of the fact and give the applicant a reasonable opportunity to satisfy the presidential member that the application is not frivolous or vexatious, or that a prima facie claim can be made out, as the case requires; and (b) if the applicant so satisfies the presidential member - direct the Registrar to accept the application; and (c) if the applicant does not so satisfy the presidential member - direct the Registrar not to accept the application. (4) If the presidential member is not of the same opinion as the Registrar, the presidential member must direct the Registrar to accept the application." It was submitted by counsel for Mr Fourmile that the change in language from the obligation on the Registrar to consider whether "the claim cannot be made out" in s 63(1)(b), to the obligation of the President to consider whether "a claim can be made out" in s 63(3), indicated that the legislature intended that the claimant was not limited to the claim as originally made, but was entitled to advance any claim which the President was persuaded was fairly arguable. The section contemplates that a claimant may recast or amend the claim as originally lodged: Northern Territory of Australia v Lane (1995) 59 FCR 332 at 338. However, the language of s 63(3)(a) places the onus of satisfying the President on the claimant and it is in respect of that onus that the section requires that a claimant be given a reasonable opportunity to satisfy the President that a prima facie claim can be made out. In the instant case, Mr Fourmile made no attempt to advance a claim other than in respect of one area of land the preponderant part of which was freehold land including a reservation for road purposes within it. Mr Fourmile has not on this appeal sought to argue that the Registrar and/or the President erred in forming the opinion that the grant of freehold title, including the floating reservation for road purposes, extinguished native title and that the claim as made, prima facie, could not succeed. A separate discrete claim for the land the subject of the road closure application was not advanced before the Native Title Tribunal and was first advanced on appeal before this Court. I am not persuaded that there is anything in the language of s 63 which either required or permitted the President to unilaterally amend and recast the claim as made to a claim limited to the area the subject of the road closure application. The first ground fails. For the reasons set out in respect of WAG 6002 of 1995 above, there was nothing in the claim of Mr Fourmile as lodged which ought to have led the Registrar to conclude that Mr Fourmile was making a separate and discrete claim of native title in the land the subject of the road closure application, and to form the opinion that a prima facie case to such an entitlement could be made out. The claim was not therefore one which met the requirements of s 63 of the NTA and the Registrar did not err in forming the opinion that the claim as made did not satisfy those requirements. The second ground fails. The final ground relies on an argument that, in rejecting the application of Mr Fourmile claiming native title, the Registrar and the President adjudicated upon Mr Fourmile's legal right to avail himself of the rights and procedures given to him by the NTA and denied to him those rights and the right to have determined his native title claim in the land the subject of the road closure application. Such an exercise of power, it was submitted, was an impermissible exercise of the judicial power of the Commonwealth. In my view, the conduct of both the Registrar and the President amounted to no more than an exercise of administrative power within the proper limits of s 63 of the NTA. Such an exercise of power does not constitute an impermissible exercise of judicial power: North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 622. The President did not in the instant case purport to adjudicate and did not adjudicate, as a matter of fact or law, on the issue of whether any native title as claimed by Mr Fourmile was extinguished. The position in the instant case therefore, is to be distinguished from that in the North Ganalanja case. The argument put by counsel for Mr Fourmile on this point is an attempt to recharacterise in an impermissible way that which the High Court has accepted as an exercise of administrative power under s 63. This ground also fails. I would dismiss the appeal in WAG 6003 of 1995.

Brandy v Human Rights and Equal Opportunities Commission

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