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.