Aborigines - Aboriginal land - Northern Territory - Prohibition of entry upon land unless Commonwealth had entered into agreement with Aboriginal Land Council - Agreement relating to uranium project - Whether void or voidable - Entry of persons on land - Whether statute overridden by Atomic Energy Act 1953 (Cth), s. 41(2AA) - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss. 41, 44.

CASE STATED under the Judiciary Act 1903 (Cth), s. 18.

GIBBS C.J., MASON, WILSON, BRENNAN, DEANE and DAWSON JJ.: An area of land in the Northern Territory known as the Ranger Project Area contains deposits of uranium. Pursuant to s.41 of the Atomic Energy Act 1953 (Cth) the Minister authorized Peko-Wallsend Operations Ltd., Electrolytic Zinc Company of Australasia Limited and the Australian Atomic Energy Commission as joint venturers to carry on mining operations on the Ranger land on behalf of the Commonwealth. The joint venturers assigned the whole of their respective interests in the authority to the second defendant, Energy Resources of Australia Ltd. ("ERA"). The Minister consented to the assignment pursuant to s.41B of the Atomic Energy Act and accordingly the name of ERA is deemed to be specified in the authority in lieu of the names of the joint venturers. The Northern Land Council commenced proceedings in this Court to challenge the entitlement of ERA under the authority to enter or remain on the Ranger Project Area.

2. Two of the grounds on which ERA's entitlement is challenged raise questions of law which the Chief Justice has referred to the Full Court. A case has been stated for the purpose.

3. The first ground of challenge is that s.5 of the Atomic Energy Amendment Act (No.2) 1980 (Cth), which was enacted to ensure the validity of the assignment of the authority to ERA, is beyond the legislative power of the Parliament. When the joint venturers assigned their interest to ERA, the Commonwealth ceased to have a commercial interest in the mining venture on the Ranger Project Area. A doubt arose as to whether ERA would be carrying on operations on the Ranger Project Area "on behalf of the Commonwealth", as s.41(1) of the Atomic Energy Act requires. Section 5 of the Atomic Energy Amendment Act (No.2) inserted sub-s.(2AA) in s.41. The new sub-section reads:

the Commonwealth and the joint venturers: sub-s.(2AB)).

4. The plaintiff submits that sub-s.(2AA) creates a statutory fiction: that the operations to be carried on by ERA on its own behalf should be deemed, contrary to the fact, to be carried on "on behalf of the Commonwealth and to be authorized by the authority". It is said that there is no head of constitutional power which authorizes the creation of the statutory fiction. The argument is misconceived. The creation of a statutory fiction is a drafting device which affects the operation of the substantive statutory provision to which it applies. Constitutional validity depends on the operation of the statute as collected from the whole of its terms and the subject matter to which it relates. If the statute operates within a field of legislative power conferred on the Parliament, it is immaterial that its operation depends in part on the creation of a statutory fiction. Sub-section (2AA) gives to s.41 of the Atomic Energy Act for the purposes of that Act the effect of authorizing the person for whose benefit an authority enures to carry on operations on the Ranger Project Area, whether or not the operations are carried on on behalf of the Commonwealth and whether or not the authority would otherwise authorize that person to carry on operations on the Area. Section 41 as amended thus regulates the carrying on of operations on the Ranger Project Area, an area within the Northern Territory. Such a law is clearly supported by the power to make laws for the government of territories (s.122 of the Constitution), for that is a plenary power "unlimited and unqualified in point of subject matter" (Teori Tau v. The Commonwealth [1969] HCA 62; (1969) 119 CLR 564, at p 570). The first ground of challenge fails.

5. The second ground of challenge relates to s.44(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") which imposes a restriction on the application of s.41 of the Atomic Energy Act to the Ranger Project Area. The Ranger Project Area is Aboriginal land, and the Atomic Energy Act would not apply in relation to the Area so as to authorize the entry or remaining of a person on the Area but for the provisions of s.41(2) of the Land Rights Act (see s.41(1)). Then s.44(2) of the Land Rights Act provides:

" Where, by virtue of sub-section 41(2) ... the

Atomic Energy Act 1953 ... applies, ... in

respect of any Aboriginal land without the

consent of the Land Council for the area in which

the land is situated, that Act shall not be taken

to authorize the entry or remaining of a person

on that land or the doing of any act by a person

on that land unless the Commonwealth has entered

into an agreement under seal with the Land

Council for the payment to the Land Council by

the Commonwealth of an amount or amounts

specified in, or calculated in accordance with,

the agreement and the acceptance by the

Commonwealth of such other terms and conditions

as are provided for in the agreement."

6. The stated case recites that an agreement was entered into between the Northern Land Council and the Commonwealth on 3 November 1978 pursuant to the provisions of that sub-section, but that the Northern Land Council asserts that the agreement was "void or voidable". The Commonwealth and ERA deny that the agreement was void or voidable. Moreover, they submit that, in any event, s.41(2AA) of the Atomic Energy Act deems the carrying on of operations to be authorized by the authority. This submission attributes to sub-s.(2AA) the effect of superseding the operation of s.44(2) of the Land Rights Act and of repealing that provision pro tanto in respect of operations carried out on the Ranger Project Area in conformity with the conditions and restrictions prescribed by sub-s.(2AA). Sub-section (2AA), however, is expressed to have effect "for the purposes of this Act", that is, the Atomic Energy Act. The effect of sub-s.(2AA) does not extend beyond the Atomic Energy Act. In particular, it does not impair the effect of s.44(2) of the Land Rights Act. Section 44(2) of the Land Rights Act denies to the Atomic Energy Act as amended, as it denied to the Atomic Energy Act before amendment, the effect of authorizing the entry or remaining of a person on the Ranger Project Area unless the condition prescribed by s.44(2) is satisfied.

7. It is true that sub-s.(2AA) was drafted with the agreement made on 3 November 1978 in mind and no doubt upon the assumption that it was a binding agreement which met the requirements of s.44(2) of the Land Rights Act. This appears from the reference in sub-s.(2AA) to the Ranger Project agreement which, in turn, refers to the s.44 agreement. But such an assumption neither establishes that the requirements of s.44(2) have been met, nor of itself constitutes a legislative dispensation of those requirements. The condition prescribed by s.44(2) of the Land Rights Act is the entry by the Commonwealth into an agreement under seal with the Land Council. That condition is not satisfied if the relevant transaction does not create an agreement between the Commonwealth and the Northern Land Council. To satisfy the condition, an agreement must be binding on the Commonwealth and the Northern Land Council when it is entered into. Otherwise it would not be an agreement "for the payment" of money. The necessity for a valid agreement appears from s.44(3A) which saves from invalidity an agreement which is entered into by a Land Council that has failed to consult with the traditional Aboriginal owners of the relevant Aboriginal land or has otherwise failed to fulfil its obligations under s.23(3).

8. An agreement is validly entered into although the agreement is voidable. To predicate of an agreement that it is voidable is to acknowledge its existence until it is avoided. As the condition is satisfied so soon as the relevant agreement is entered into, the voidability of the agreement is not inconsistent with satisfying the condition. On the other hand, if the supposed agreement were void at the time when the transaction relied on as an entry into an agreement occurred, the transaction would not satisfy the condition: no agreement binding on the parties would have come into existence. The Northern Land Council asserts, as the case states, that the agreement of 3 November 1978 is either void or voidable. As it appeared during argument that the operation of s.44(2) of the Land Rights Act consequent on a transaction which produces a supposed agreement that is void might differ from its operation consequent on entry into a voidable agreement, the parties agreed to amend the second question raised by the case. A third category - invalidity - was included in the amended question but, having regard to the contentions expressed in the special case, an answer to the question by reference to that category would add nothing to the answers which we propose should be given. The statement of claim was not annexed to the special case, and the sufficiency of the allegations made in the statement of claim to support a plea that the agreement was void has not been the subject of submissions on behalf of the Northern Land Council. In these circumstances we do not think it appropriate that we examine that question. Nor is it appropriate to consider whether duress of the kind alleged by the Northern Land Council would, if established, make void (as distinct from voidable) what would otherwise have been an agreement for the purposes of s.44(2) of the Land Rights Act.

Question 1 : Is s.5 of the Atomic Energy Amendment Act

(No.2) 1980 a valid exercise of the

legislative power of the Parliament of the

Commonwealth?

Question 2 : If (1) is answered yes, whether s.41 of the

Atomic Energy Act 1953 as amended by s.5 of

the Atomic Energy Amendment Act (No.2)

authorizes the second defendant to carry on

operations on the Ranger Project Area even

if the agreement entered into as alleged in

par.32 of the statement of claim is -

(a) void;

(b) invalid;

(c) voidable.

Answer : (a) No.

(b) Unnecessary to answer.

(c) Yes.

(No.2) 1980 a valid exercise of the

legislative power of the Parliament of

the Commonwealth?

Atomic Energy Act 1953 as amended by s.5 of

the Atomic Energy Amendment Act (No.2)

authorizes the second defendant to carry on

operations on the Ranger Project Area even if

the agreement entered into as alleged in

par.32 of the statement of claim is -

(a) void,

(b) invalid,

(c) voidable.

Answer: (a) No.

(b) Unnecessary to answer.

(c) Yes.

Order that the plaintiff pay the costs of the case stated.