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Editors --- "William Vernon Atyeo V The Aboriginal Lands Trust - Case Summary" [1997] AUIndigLawRpr 24; (1997) 2(1) Australian Indigenous Law Reporter 45

William Vernon Atyeo v The Aboriginal Lands Trust

4 November 1996, Perth

Section 99 Health Act 1911 (WA) -- Aboriginal Lands Trust an agent of the Crown.

Whether Trust bound by s. 99 of the Health Act to provide services -- Application of the principle in Bropho v Western Australia.

...

(3) If it appears to the local authority to be advisable that any house ... should be provided with an apparatus for the treatment of sewage, it may cause written notice to be served on the owner of the house ... requiring him ... to provide and install such apparatus ... and such owner shall comply with such notice ...

(4) A person who neglects or refuses to comply with the requirements for a notice served on him under subsection (3) commits an offence.

Mr Atyeo was concerned about the lack of toilet and ablution facilities at Mardiwah Loop. This is a reserve vested in the Trust and to be held on trust for the "Use and Benefit of Aboriginal Inhabitants". The Trust is established under the Aboriginal Affairs Planning Authority Act 1972 (WA).

As a result of these concerns, the Shire of Halls Creek served a notice dated 1 March 1995 on the Trust requiring it "to provide and install sufficient apparatus for the treatment of sewage on or before the 6th day of April 1995". The Trust failed to comply with the notice. On 18 August 1995, Mr Atyeo issued the complaint that the Trust had neglected to comply with a notice served on it pursuant to subs. 99(3) of the Act, and therefore committed an offence under subs. 99(4) of the Act. The Trust responded by arguing:

1. The Trust may properly be considered the "owner" of the reserve for the purposes of the Act.

2. The Trust, having regard to various provisions of the Aboriginal Affairs Planning Authority Act 1972, is properly regarded as an instrument of the Crown.

3. Neither expressly or by implication is the Crown bound by section 99 of the Act."

The single issue for the determination by the Court was whether the Trust, an instrument or agency of the Crown, is bound by s. 99 of the Act.

Held:

Upon the application of the principles in Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, the Trust, as agent of the Crown, was not bound by the terms of s. 99 of the Act.

Templeman J:

Mr William Vernon Atyeo, in his capacity as Principal Environmental Health Officer for the Shire of Halls Creek, seeks a declaration that the Aboriginal Lands Trust ("the Trust") is bound by s. 99 of the Health Act 1911 ("the Health Act"). I shall refer to provisions of the Health Act simply by their section numbers.

Section 99 is contained in Division 4 of the Health Act, which deals with sanitary conveniences. I shall consider the provision in detail below. For the present, it is sufficient to say that s. 99 prohibits a person from erecting, rebuilding, maintaining, or using any house without providing it with sanitary conveniences, and with bathroom, laundry and cooking facilities in accordance with the by-laws of the local authority. Pursuant to s. 99(3), the local authority is empowered to serve a notice on the owner of a house which does not satisfy the requirements, requiring him to provide it with "an apparatus for the treatment of sewage". A person who neglects or refuses to comply with such a notice commits an offence: s. 99(4).

The plaintiff seeks the declaration in the present case because he is the complainant in proceedings brought by him against the Trust in the Court of Petty Sessions at Halls Creek. The complaint is that the Trust has neglected to comply with a notice served on it pursuant to s. 99(3). The plaintiff served the notice because of his concern about the lack of toilet and ablution facilities at Mardiwah Loop. This is a reserve vested in the Trust and to be held on trust for the "Use and Benefit of Aboriginal Inhabitants" . The reserve was so vested by notice in the Government Gazette of 29 June 1980.

Of particular concern to the plaintiff was the lack of toilet and ablution facilities in premises occupied by Mr Allan McDonald at, Lot 95 Mardiwah Loop. In his affidavit in support of the application the plaintiff says he was informed by Mr McDonald that he wished to install toilet facilities privately, "... as he was fed up with his family being forced to go to the toilet in the scrub, and attend school without a shower or clean clothes".

As a result of the plaintiff's concern, the Shire of Halls Creek, by its Acting Shire Clerk, served a notice dated 1 March 1995 on the Trust, requiring it -

"to provide and install sufficient apparatus for the treatment of sewage on or before the 6th day of April 1995."

The Trust did not comply with the notice. On 18 August 1995, the plaintiff issued the complaint, in which he referred to the Trust's neglect. He asserted that the Trust had thereby committed an offence under s. 99(4).

The Trust's response, acting on the advice of the Crown Solicitor, was that:

"1. The Trust may properly be considered the "owner" of the reserve for the purposes of the Act.

2. The Trust, having regard to various provisions of the Aboriginal Affairs Planning Authority Act 1972, is properly regarded as an instrument of the Crown.

3. Neither expressly or by implication is the Crown bound by section 99 of the Act."

For those reasons, the Hon Minister for Aboriginal Affairs, who is the responsible Minister, instructed that the complaint should be defended. These proceedings have therefore been commenced to clarify the position of the Trust. The single issue is whether the Trust, being an instrument or agency of the Crown, is bound by s. 99.

The starting point for any question such as this must be the decision the High Court in Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1. In that case, the High Court held that there is no inflexible rule that a statute will not bind the Crown unless express words or necessary implication make it clear that the Crown is to be bound. The "inflexible rule" had been stated by the Privy Council in Province of Bombay v Municipal Corporation of Bombay [1947] AC 58.

In Jacobsen v Regefs [1995] HCA 6; (1994-95) 182 CLR 572, 586 the majority of the High Court said, in relation to s. 10 of the Crimes Act 1914 that:

"Since section 10 .... predates the rigid test laid down by the Privy Council in Province of Bombay v Municipal Corporation of Bombay and was enacted during a period whence authority in this country supported the view that the rule of construction is not inflexible but is merely a presumption in favour of a particular meaning, no problem is encountered in the application of the presumption in accordance with the explanation of it provided by Bropho. The legislation was clearly not drafted upon the basis of the law as it was later expounded."

It seems to me, therefore, that there are three eras of statutory formulation or construction. The first is the period up to the publication of the decision in Province of Bombay in 1947, the second is the period from that decision to the publication of the decision in Bropho: and the third is post-Bropho. The approach to the construction of statutes enacted in the first and third periods is the same: that is, as expounded in Bropho. However, statutes enacted during the second period should be approached on the basis that the relevant legislature assumed that the Crown would not be bound unless express words or necessary implication required an opposite conclusion.

Provisions in similar terms to s. 99 were included in the original Health Act 1911 at s. 8l. That section was repealed by
s. l2 of the Health Act Amendment Act 1932 and a new section inserted in its place. With some small amendments which are not material, that section is now s. 99.

With that in mind, I turn to a more detailed consideration of s. 99. Excluding words which are superfluous for present purposes, it provides as follows:

"(1) No person shall erect, rebuild, maintain or use any house, ... without providing for the same sanitary conveniences, and also
bathroom and laundry and cooking facilities, ... in accordance with the by-laws of the local authority.

(2) - repealed.

(3) If it appears to the local authority to be advisable that any house ... should be provided with an apparatus for the treatment of sewage, it may cause written notice to be served on the owner of the house ... requiring him , to provide and install such apparatus .... and such owner shall comply with such notice ... .

(4) person who neglects or refuses to comply with the requirements of a notice served on him under subsection (3) commits an offence.

(5) When a person neglects or refuses to comply with the requirements of a notice served on him under subsection (3), the local authority may do the work required by that notice to be done .... and may recover from the person so in default the expenses incurred by it in so doing.

(6) Such expenses, until paid, shall be and remain a charge upon the land, notwithstanding any change that may take place in the ownership thereof."

Having regard to the provisions of s. 99(4), it is necessary to consider those provisions of the Act which deal with offences. As to that: the combined effect of Part IV of Schedule 5 and s. 360(l)(d) is to provide a penalty for a contravention of s. 99(4) which is not more than $2,500 or imprisonment for a period of three months and which is not less than $250 for a first offence, $500 for a second offence and $1,250 for a third or subsequent offence.

In their joint judgment in Bropho, Mason CJ, Deane Dawson, Toohey, Gaudron and McHugh JJ set out the approach to the question whether a statute is binding on the Crown. Having stated that there was no "inflexible rule" in the terms referred to above, their Honours went on to say, at 22:

"The effect of the foregoing is not to overturn the settled construction of particular existing legislation. Nor is it to reverse or abolish the presumption that the general words of a statute do not bind the Crown or its instrumentalities or agents. It is simply to recognise that a stringent and rigid test for determining whether the general words of a statute should not be read down so as to exclude the Crown is unacceptable."

Their Honours went on, at 23:

"In the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises. If, for example, the question in issue is whether the general words of a statute should be construed in a way which would make the Sovereign herself or himself in the right of the Commonwealth of a State liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong (cf Canadian Broadcasting Corporation v Attorney General (Ontario) (1959) SCR 188, 204-205). On the other hand, if the question in issue is of the kind involved in the present case, namely, whether the employees of a governmental corporation engaged in commercial and developmental activities are bound by general provisions designed to safeguard places or objects whose preservation is of vital significance to a particular section of the community, a presumption against the applicability of general words to bind such employees will represent little more than the starting point of the ascertainment of the relevant legislative intent."

Although the joint judgment refers to legislative provisions enacted subsequent to the Bropho decision, it seems to me that it is applicable equally to provisions, such as the Health Act, which were enacted before the publication of the decision in the Province of Bombay case.

It is clear from Bropho, therefore, that if breach of a statute would result in criminal liability being visited on the Crown, that must be a powerful factor which reinforces the presumption against the Crown being bound.

The point was made forcibly by Dixon J (as he then was) in Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409, at 424 as follows:

"There is, I think, the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature. It is opposed to all our conceptions, constitutional, legal and historical, Conceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them. But we should at least look for quite certain indications that the legislature had adverted to the matter and had advisedly resolved upon so important and serious a course."

Counsel for the plaintiff in the present case submitted, quite rightly, that in the passage cited above, Dixon J recognised the possibility that the Crown could be made subject to criminal liability. So also did the other members of the court, with the exception of Latham CJ. See Starke J, at 421 , and Williams J, at 432. Rich J, at 419, agreed with the conclusions and reasons given by Dixon J.

It is to be noted that Cain v Doyle was decided before the Province of Bombay case. It therefore reflects the approach set out in Bropho. Even so, the court required a very clear indication that the Crown was to be subjected to criminal liability. And that was in the context of a case in which the relevant statutory provision was expressed to bind the Crown.

Counsel for the plaintiff submitted that the presumption against the Crown being bound when "the Crown" encompassed the Sovereign and his or her direct representatives, was understandably stronger than it would be where the relevant Crown instrumentality was a commercial body. That submission is justified by the passage in the joint judgment to which I referred above, in which the distinction is drawn between "the Sovereign herself or himself in the right of the Commonwealth or of a State" and "employees of a governmental corporation engaged in commercial and developmental activities".

Counsel submitted that, in the present case, the Trust fell within the latter category.

This submission requires a consideration of the Aboriginal Affairs Planning Authority Act 1972 ("The Aboriginal Affairs Act") which established the Trust. The relevant provisions of that Act are included ss. 20, 21 and 23. They are as follows:

"20. (1) For the purposes of this Act there is hereby established a body corporate to be known as the Aboriginal Lands Trust.

(2) The Trust shall have perpetual succession and a common seal.

(3) The Trust in its corporate name-

(a) may sue and be sued;

(b) is capable of acquiring and holding real and personal property;

(c) subject to any general or specific direction given by the Minister under section 7 of this Act, is capable of granting, selling, alienating, mortgaging, charging or demising personal property and, with the prior approval of the Minister, of dealing in like manner with real property;

(d) is capable of doing and suffering all such acts and things as bodies corporate may lawfully do or suffer.

21. (1) The membership of the Trust shall be comprised of persons of Aboriginal descent.

(2) The Trust shall consist of a chairman and six other members but the Minister may, on the recommendation of the Trust, from time to time appoint an additional number of members.

(3) The members shall be appointed by the Minister and the Minister shall appoint one of the members to be the chairman.

(a) to carry out such of the functions of the Authority as may be delegated to the Trust under section 24 of this Act, or as the Minister may direct,

(b) to acquire and hold land, whether in fee simple or otherwise, and to use and manage that land for the benefit of persons of Aboriginal descent;

(c) to ensure that the use and management of the land held by the Trust, or for which the Trust is in any manner responsible, shall accord with the wish of the Aboriginal inhabitants of the area so far as that can be ascertained and is practicable;

(d) to consult negotiate, enter into financial agreements, contract, and to undertake or administer projects, either directly or in association with other persons or bodies, as may be necessary or desirable for the development of the land for which the Trust is responsible;

(e) generally, on behalf of and as the corporate representing the interests of the Aboriginal inhabitants of the area to which the matter relates, to take, instigate or support any action that may be required to ensure the most beneficial use of the land."

Counsel for the plaintiff relied on those parts of the above provisions which gave the Trust a commercial flavour. Sections 20(3) and 23(d) are of particular relevance in that context.

However, I do not accept that these provisions put the Trust in the same category as the Western Australian Development Corporation, which was the subject of the Bropho litigation. That corporation had been created with the broad general object or function of promoting "the development of economic activity in Western Australia": see Bropho at 11. While I accept that the Trust has powers which enable it to undertake commercial activities, it seems to me that those are purely incidental powers. In the preamble, the Aboriginal Affairs Act is said to be:

"An Act to make provision for the establishment of an Aboriginal Affairs Planning Authority, a Commissioner for Aboriginal Planning and an Aboriginal Advisory Council for the purpose of providing consultative and other services and for the economic, social and cultural advancement of persons of Aboriginal descent in Western Australia ..."

The Trust is but one of the bodies established under the Aboriginal Affairs Act for the purposes of carrying those objects into effect. Viewed in this light, it seems to me that the Trust is much more akin to the Sovereign than it is to the WADC: I do not think, it should be regarded as a commercial organisation. I am not persuaded, therefore, that a consideration of its functions and powers results in a weakening of the presumption that the Health Act is not binding on the Trust.

Returning to Bropho, I refer to a passage on which both counsel relied in the judgment of Brennan J, at 28:

"Thus the presumption cannot be put any higher than this: that the Crown is not bound by statute unless a contrary contention can be discerned from all the relevant circumstances. As the court must determine whether the legislature intended (or would have intended had the question been addressed) that the statute should at the activities of the Executive Government the circumstances which properly relate to that question must be considered. Those circumstances include the terms of the statute, its subject matter, the nature of the mischief to be addressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound. This was the approach taken by this Court in Roberts v Ahern [1904] HCA 17; (1904) 1 CLR 406 where a defendant, charged with the offence that he had carted away nightsoil from a post office `without a licence from and without leaving given such security as is required by the local authority', successfully raised the plea that he was acting as a servant of a contractor with the Crown. The court pointed to the numerous institutions under the control of the Executive Government and the unlikelihood `that the legislature should have intended to subject the Executive Government to the uncontrolled decision of a local authority with regard to the sanitary arrangements of such institutions'"

It seems to me that two further points emerge from this passage. The first arises from the fact that the Aboriginal Affairs Act represents an attempt by the legislature to advance the interests of persons of Aboriginal descent. By s. 7 of that Act, the responsibility for its administration is vested in the Minister. In these circumstances, it is submitted by counsel for the Trust that it is unnecessary or inappropriate for the Trust to be subject to other statutory requirements and that it should be open to it to make decisions which may be contrary to such statutory requirements. In other words, as Brennan J put it in Bropho, it is unlikely that the legislature intended to subject the Executive Government to the uncontrolled discretion of a local authority.

The second point arises from a consideration of the appeal processes under the Health Act. By s. 37(1), a person aggrieved by an order or decision of a local authority may, if it is not a case in which the local authority is empowered to recover any expenses incurred by it, appeal against the order or decision to the Executive Director, Public Health. The Executive Director has the power to uphold, revoke, vary, or alter the order or decision of the local authority: s. 37(4). However, this is subject to s. 39, which provides that all the powers vested in, inter alia, the Executive Director, Public Health shall be exercisable by the Minister whenever he deems fit. When so exercised, those powers, rights and authorities are to supersede any act, direction, notice of order of, inter alia, a local authority. It is to be noted that, by
s. 7, the general administration of the Health Act shall be under the control of a Minister of the Crown.

The significance of this is that a person subject to a notice served pursuant to s. 99(3) may ultimately appeal to the Minister who has the power to override the actions of the authority. In these circumstances, counsel for the Trust submits that it cannot have been intended for s. 99 to bind the Crown when the Crown has the power to override that section. I accept that submission.

A further submission, made by Counsel for the plaintiff, is that the present case is analogous to Bropho on other grounds. He relied on a passage in the joint passage in the joint judgement, at 24, in which it is said:

"Indeed, in a context where 90.3 per cent of Western Australian land is Crown land and approximately 50 per cent of Western Australian land is what is described as "Vacant Crown land", the Act would be extraordinarily ineffective to achieve its stated purpose of preserving Western Australia's Aboriginal sites and objects if it applied only in respect of the comparatively small proportion of the State which is not Crown land."

Counsel submitted that the vast areas of Western Australia which are Crown lands are often distinguished by the fact that they accommodate Aboriginal settlements and reserves. Counsel submitted further that it would seem extraordinary to suggest that the housing provided for Aboriginals in those settlements and reserves could be permitted to incorporate "pre-19th century standards of sanitation" simply because the housing is provided by a Crown instrumentality.

While I recognise the force in that submission, I do not think that to read down s. 99 so as to exclude the Crown would eviscerate the Act. That would have been the result in the case of the Aboriginal Heritage Act because a large proportion of Aboriginal sites are to be found on Crown land. However, in the present case, I suspect that only a small proportion of houses to which the Health Act applies would be on Crown land. On that basis, I do not think that a finding that the Health Act is not binding on the Trust would so undermine the general effectiveness of the Act as to lead to the conclusion that the Crown should be bound by it.

In relation to the mischief which the Health Act is intended to redress, counsel for the plaintiff submitted that the prevention of disease is of fundamental importance to the well-being of a civilised society and that the legislature must therefore be taken to have intended the Act to be of general application. He drew support from the fact that the definition of "house" contained in s. 3 of the Act concludes with the sentence:

"It is immaterial whether the house is on alienated land or Crown land."

This, counsel submitted, indicated an intention that the Crown generally should be bound. However, as counsel for the trust pointed out, the inclusion of Crown land in the definition would be unnecessary if the Crown was to be bound in any event.

In my view, by stating it to be immaterial whether a house is on Crown land or alienated land, the legislature intended to say only that a person cannot avoid the obligations of the Health Act merely because the relevant house is on Crown land.

While I recognise the importance of the Health Act, I do not think that this consideration alone requires it to be construed so as to bind the Crown. Indeed, I consider that the reference to Crown land in the definition of "house" is a point against the submission made by counsel for the plaintiff.

A further submission made by counsel for the plaintiff was that Part IV of the Health Act (in which s. 99 appears) is so inextricably linked with Part IX -- which, it was submitted, is clearly binding on the Crown -- to lead to the conclusion that Part IV must be equally binding.

It is not necessary to decide whether the link can be made between Parts IV and IX because I do not accept that
Part IX is binding on the Crown. The provision relied on as having this effect was s. 251(17). In the context of providing for checking or preventing the spread of any dangerous infectious disease the provision empowers the Executive Director, Public Health to use as a temporary site for a special hospital or place of isolation or quarantine ground, any reserve suitable for the purpose. It was submitted that since a reserve must be Crown land, this provision discloses an intention that the Crown should be bound by it. However, the section provides also that the Executive Director cannot use any such reserve for the specified purpose without the approval of the Minister. This, I think, disposes of the submission.

I turn now to s. l00 of the Health Act which, as counsel for the plaintiff frankly conceded, provides a major obstacle to the construction for which he contends. I set out a skeletal version of s. l00 so as to illustrate the scheme of that provision:

"(1) Whenever the local authority has been requested in writing by the owner of any premises to provide and install
thereon an apparatus for the treatment of sewage, or to supply and install ... any bath, basin, sink or trough ... the local
authority may do the work ... and recover from the owner the expenses incurred by it in so doing.

(2) When any owner is liable to the local authority in respect of the provision and installation of any such apparatus as aforesaid ... then the local authority may, at the request of the owner, enter into an agreement with him for the payment of the amount due by instalments ... .

(3) Such expenses, until paid ... shall be and remain a charge upon the land upon or in relation to which the expenses were incurred ...

(4) (a) In this section the expression, "owner" includes the Crown in right of the State ... .

...

(d) The reference to the Crown in this section does not imply that the Crown is bound by the other provisions of this Act."

Section 100(4) was added by amendment in 1959: during what I have referred to above as the Province of Bombay era of statutory construction.

The circumstances in which the section was amended appear from the second reading of the Health Act Amendment Bill 1959 in the Legislative Assembly on 1 September 1959. The Minister explained that the Bill would help to provide a long needed health reform in the provision of septic tank installations in schools on Crown properties. He said;

"...The Health Act has, for many years, conferred on local authorities the power to install septic tanks on the premises of private householders -- their ratepayers -- and to enter into agreement with the householders for the recovery of the capital cost and interest under a deferred payment scheme. Its arrangement, however, did not extend to properties of the Crown: and the Bill seeks to extend that power."

A member then asked whether that meant the government would be put on the same basis as private persons. The Minister replied:

"Not quite. The provisions of the Bill are such as to enable local authorities to enter into an agreement with the government so that septic tank installations may be provided on Crown properties."

The implication from this passage is that, at least in 1959, the legislature considered that the Crown was not bound by s. l00 of the Health Act. That view is reinforced by the legislature providing in s. l00(4)(b) that the reference to the Crown in that section is not to imply that the Crown is bound by other provisions of the Act. In other words, this emphases that the Crown is not bound by other sections (except, of course, where this is provided expressly).

It may be said that s. l00(4)(b) is neutral in the sense that it simply expresses no view as to whether the Crown is bound by the other provisions of the Act. Although I was at first attracted to this view, I now consider that s. l00(4)(b) was included because the legislature was of the view that the Act was not binding on the Crown.

It may also be said that although that was the view of the legislature in 1959 (when the Province of Bombay test was regarded as applicable), that view may not in fact have been correct. However, it will be recalled that in the joint judgment in Bropho set out above, it is stated that the effect of the approach there propounded, at 22:

"...is not to overturn the settled construction of particular existing legislation."

This is, I think, a case in which it can properly be said that the settled construction of s. l00, before amendment in 1959, and by implication, s. 99 throughout, is that they were not binding on the Crown.

Having considered all of the matters referred to in Bropho, which should be taken into account in determining whether a statute is binding on the Crown -- including the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound -- I have come firmly to the view that s. 99 of the Health Act is not binding on the Trust. The application should therefore be dismissed.

There remains one final matter to which I should refer. In his written submissions, Counsel for the plaintiff had submitted that if it was to be found that s. 99 is not binding on the Crown in right of the State of Western Australia that might involve a contravention of the Racial Discrimination Act 1975 (Commonwealth).

Section 10(l) of the Racial Discrimination Act provides:

"If, by reason of, or of a provision of, a law of Australia or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin."

It is submitted that s. l0(2) establishes that a "right" for these purposes includes the right to public health.

It is then said that in the Shire of Halls Creek, most of the Aboriginal population of the Shire resides in State owned housing. This emerges from Mr Atyeo's affidavit in which he said that most, if not all State owned housing in the Shire of Halls Creek is occupied by persons of the Aboriginal race, most of it on reserves, similar to Mardiwah Loop.

In these circumstances, it is submitted that if s. 99 of the Health Act does not apply to such housing, the Aboriginal population of the Shire will be subjected to a different and inferior standard of sanitation control than the non-aboriginal population.

At the conclusion of the hearing before me, it was submitted by counsel for the Trust that the matters referred to above raised an inconsistency between a law of the State and a law of the Commonwealth. This, it was submitted, brings into effect s. 78B(1) of the Judiciary Act 1903. So far as relevant, the section provides that where a cause pending in a court of a State involves a matter arising under the Constitution, it is the duty of the court not to proceed until notice of the cause has been given to the Attorneys General of the Commonwealth and the States. In these circumstances, s. 78B(2) empowers the court to adjourn the proceedings, direct the plaintiff to give notice to the Attorneys General and to continue to hear argument severable from any matter arising under the Constitution.

As this issue emerged at the end of the hearing, and as no notice had been given to Counsel for the plaintiff, I adjourned the hearing and gave directions for the filing of outline submissions in relation to this point.

Those submissions having been duly received and considered by me, I am of the view that the Racial Discrimination Act point would involve a matter arising under the Constitution in respect of which notice would be required under
s. 78B(1) of the Judiciary Act.

However, I was informed by Counsel for the plaintiff, in his outline of submissions, that if I was of that view, the plaintiff would abandon the Racial Discrimination Act argument which could be dealt with at another time, in separate proceedings if necessary.

In those circumstances, I say nothing about the possible application of the Racial Discrimination Act in this matter.