R v Toohey; Ex parte Attorney-General

R v Toohey; Ex parte Attorney-General - [1980] HCA 2 - HCA 1980 case summary — Zoe

[45]

Further, I can find nothing in the Act which points to any policy which for its implementation requires the words "on behalf of" to be read as meaning "in the general interest of" or some like expression. The only inference of policy which I can discern is to be derived from the expression under consideration. In denominating the land which might be the subject of an application under the Act, the Parliament has used language well understood in the area of land tenure. The language is of a confining nature, not of an expansive nature. It is evident that the Parliament intended closely to limit the areas of land with which the Commissioner might deal. As I think, Parliament limited these areas to areas in which only the Crown and individual Aboriginals, whether or not as members of an identified or identifiable group of Aboriginals, had a tenure. The proper course, in my opinion, is to give that expression its natural meaning when used as part of a total expression in relation to estates and interests in land. I am unable to draw any real assistance from a consideration which, in many respects, must be speculative as to what was the broad parliamentary purpose behind the two statutory provisions and their relationship, the one to the other. It may be, of course, that the Fund Commission under the Fund Act was thought to be unlikely to acquire traditional land for its purposes. But I have no means of resolving any such question. I share the views of Wright J. expressed in Derbyshire v. Houliston [1] , when construing a section of the Sale of Food and Drugs Act, 1875 U.K.. His Lordship said [2] : "I do not know what the intention of the framers of the section may have been, nor are we bound to consider that. We have to construe the section according to the ordinary rules of construction which have to be applied to a criminal act." I have already indicated my own view of the ordinary meaning of the expression "by or on behalf of" when used in relation to estates or interests in land.

[77]

Here, then, was the situation as it existed when the 1976 Act came into operation. Crown land away from towns and not reserved for public purposes was to be available for claim by traditional Aboriginal owners in proceedings before the Commissioner, so long as no white man held an interest in it. The existing occupation of such land by Aboriginals under leasehold title was to be no bar to such claims; indeed such existing Aboriginal leaseholders might themselves be claimants, seeking to enlarge their interest into a fee simple, held for their benefit by a Land Trust. Some such Crown land presently occupied by Aboriginals would in the past two years have come to be held under leasehold title by the Commission. The Commission's leasehold title would have been acquired because the land was thought to be suitable or desirable for occupation by Aboriginals. Since the Aboriginal Land Rights (Northern Territory) Act 1976 expressly recognizes that the Commissioner may entertain traditional claims to Crown land despite leasehold interests being already held in it "by Aboriginals" (see s. 59 (1) (a) and also the terms of s. 11 (1) (d) and s. 50 (3) (b)), it can scarcely have been intended by Parliament that, where such leasehold interests are held not by Aboriginals themselves but by the Commission for the statutory purpose of permitting Aboriginals to occupy it, the land should for that reason alone be excluded from the range of such inquiry. So to exclude it would prevent not only Aboriginals generally but also the very Aboriginals occupying it from asserting traditional land rights to it and thereby acquiring freehold title to it. The very fact that such land had been selected by the Commission under the 1974 Act as appropriate land in which to acquire an interest, so that Aboriginals might occupy it, rather suggests that, as in the present case, it is precisely the sort of land to which traditional Aboriginal owners might well desire to lay claim, the very course which the 1976 Act is intended to promote. Yet to confine the phrase "on behalf of" to the narrow meaning contended for would be altogether to exclude it from the scope of the Commissioner's inquiry.

[81]

For present purposes let it be assumed, whether correctly or not, that Islanders of the Torres Strait are not members of "the Aboriginal race of Australia", although they are, no doubt, indigenous inhabitants of a part of that geographic entity described as Australia. On that assumption, the present submission may be tested by applying it to the land here in question, Utopia Station, 200 kilometres north-east of Alice Springs. Is it right to say of the Commission's leasehold interest in Utopia Station that it is held for the benefit of, inter alia, indigenous inhabitants of the Torres Strait Islands? Had the Commission declared a trust of Utopia Station in favour of Aboriginals, as defined in its constituting Act, the answer would clearly enough be "yes". But the Commission has done no such thing. In taking up the leasehold interest in Utopia Station and interests in other land in Australia it has not acted, in relation to each parcel of land, in the interests of all Aboriginals and Islanders. On the contrary, each interest in land which it acquires must be for a quite specific purpose, confined to benefiting quite small groups within the general Aboriginal and Islander community: see s. 20 (1) (a) and (b). In taking up Utopia Station the Commission can only have acted in the interests of those Aboriginals wishing to remain on or to settle on the Station, they and no others. Nothing suggests that included in them are any Islanders. Such meagre material as there is before the Court would suggest the contrary. The notification of the claim to Utopia Station made under the 1976 Act refers to part of the land as already being "a community area for the resident aboriginal group" and three "incorporated aboriginal bodies", a cattle company, a medical service and a social club are said to be associated with the Station. All this suggests local Aboriginal involvement in this land situated close to the very centre of our continental land mass and wholly remote from the islands of Torres Strait. Certain irregularities, internal to the Commission and affecting the Station, emerged when the claim came before the Commissioner; both they and the steps taken to overcome them are commented upon by his Honour but they do not, we think, at all affect the present position.

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Before

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Judgment (90 paragraphs)

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