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Editors --- "New South Wales Aboriginal Land Council & Ors V Alan Jones & ORS - Case Summary" [1998] AUIndigLawRpr 31; (1998) 3(3) Australian Indigenous Law Reporter 384

New South Wales Aboriginal Land Council & Ors v Alan Jones & Ors

Supreme Court of New South Wales (Meagher, Handley, Powell JJA)

17 March 1998

Defamation -- Ability of corporations to sue -- Elected governmental corporations -- Corporations formed under the Aboriginal Land Rights Act 1983 (NSW) -- Local government corporations.

^Facts:

The New South Aboriginal Land Council (the Council) and four other plaintiffs commenced an action for damages for defamation in the Supreme Court of New South Wales against a Sydney radio station, a radio announcer and a resident of New South Wales. This person had been interviewed by the announcer in a program broadcast by the station. The imputations pleaded were to the effect that the Council had been guilty of bribery and corruption in pursuing a native title claim and had conspired with others to pursue the claim knowing it to be fraudulent. Levine J ordered that the proceedings be removed into the Court of Appeal for determination of the question whether the Council, being a body corporate under the Aboriginal Land Rights Act 1983 (NSW), has the right, power or authority to commence and maintain such an action in respect of these imputations.

Under s. 22 of this Act, the Council is constituted as a body corporate. Under s. 25(1), its membership comprises one full-time councillor from each Regional Aboriginal Land Council, elected by the members of the Local Aboriginal Land Councils in that Council's area. Its functions, as set out in s. 23, include administering its funds, supervising and making grants to Regional and Local Aboriginal Land Councils, acquiring land and making claims to Crown land. It is subject to some degree of external control by the Electoral Commissioner (or nominee), the Public Employment Industrial Relations Authority, the Governor and the Minister, Aboriginal Land Rights Act. The powers exerciseable by the Minister or the Governor include the initiation of investigations into the Council's affairs, appointment of an Administrator, publishing a declaration that the Council has ceased to function and dissolving the Council (ss. 56, 57, 57A, 58, 58A). The Council is not a statutory body representing the Crown (s. 65), but is a public authority for the purposes of various statutes (s. 65A). Under s. 38(1), it has capacity to accept gifts and bequests.

The membership of a Local Aboriginal Land Council comprises all adult Aborigines on the local Aboriginal roll (s. 6(2)). It is bound under s. 11(1) to elect its representative on the Regional Aboriginal Land Council at its annual meeting.

^Held:

(by majority): The question should be answered no, and judgment entered for the defendants against the Council with costs.

(per Handley JA, Powell JA agreeing): The case was governed by the ratio of the Court of Appeal's decision in Ballina Shire Council v Ringland (1994) 33 NSWLR 680. This is to the effect that the reputation which the law of defamation seeks to protect does not extend to the reputation of a government body whose membership is elected, such as a local council formed under the Local Government Act 1993 (NSW). The Council was part of a democratic system of local government established by the Aboriginal Land Rights Act for Aboriginal people who reside in the area of a Local or Regional Aboriginal Land Council. Its membership was elected and it was governed by provisions similar to those applicable to local councils under the Local Government Act.

(Obiter dicta per Handley JA, Powell JA agreeing):

1. The system of local self-government set up by the Aboriginal Land Rights Act reflects "the tribal or clan structure of Aboriginal communities and the communal nature of their land ownership".

2. The defendant who was interviewed was an Aboriginal resident of New South Wales and was therefore either an actual member, or entitled to be a member, of some Local Aboriginal Land Council. He was exercising his democratic right of free speech in criticising the Council. However, the decision that the Council could not sue in defamation was not dependent on there being an electoral nexus between him and the Council. This requirement was not suggested in the Ballina case and was inconsistent with the decision of the House of Lords in Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534, denying a local council in England the right to sue for defamation.

3. If the Council had not had capacity to accept gifts and bequests, which might have been discouraged by publication of the pleaded imputations, its case could have been struck out on the ground that a corporation of any kind, having no feelings to be hurt and no "reputation as such" to be protected, can only sue for defamation which causes it financial damage.

(per Meagher JA, dissenting): The case was not governed by the Ballina decision. The election process under the Aboriginal Land Rights Act was not democratic in the relevant sense because the only persons entitled to vote are Aboriginal people. Similarly, the Council was not governmental in the relevant sense because it has only limited governmental powers. If any of the defendants had been an Aboriginal person (which Meagher JA believed not to be the case), the position might have been different. The Council might then have been regarded as a democratically elected body exercising governmental powers vis-^-vis that defendant, whose right of free speech on matters which might affect the electoral choices to be made would be inconsistent with liability for defamation.

^{Meagher JA:}

The New South Wales Aboriginal Land Council (the NSWALC) and four other plaintiffs commenced proceedings in the Common Law Division, suing the defendants for damages for defamation. On 15 August 1997, Levine J ordered, pursuant to Pt. 12 r. 1 of the Supreme Court Rules 1970, that the proceedings be removed into the Court of Appeal for determination of the following question:

Whether the first plaintiff, being a body corporate under the Aboriginal Land Rights Act 1983 has the right, power or authority to commence and maintain an action for damages for defamation in respect of the imputations pleaded in paragraph 4 of the Statement
of Claim.

Paragraph 4 of the Statement of Claim pleads the following imputations:

(a) The first plaintiff conspired with others to pursue a native title claim for land at Crescent Head which it knew to be fraudulent;
(b) The first plaintiff engaged in bribery when it pursued a native title claim for land at Crescent Head;
(c) The first plaintiff has been guilty of corruption in pursuing a native title claim for land at Crescent Head.

Levine J made the order for removal after counsel for the defendants had suggested that the decision of this Court in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 prevented the NSWALC from bringing an action for defamation. In that case, Gleeson CJ and Kirby P held that a popularly elected council incorporated under the Local Government Act 1919 had no power or right to commence or maintain an action for defamation. Mahoney JA dissented. The plaintiff argues that Ballina can and should be distinguished or should be overruled. It is neither necessary nor appropriate to overrule Ballina as the case presently before this Court can be distinguished in significant respects.

It has long been recognised that bodies corporate may sue for defamation: South Hetton Coal Co v North-Easton News Assn Ltd [1894] 1 QB 133 (CA). However, the right of a statutory or public authority to sue for defamation has had a much more troubled existence. It was not considered, nor raised as an issue, in at least two decisions of the Supreme Court of NSW: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 and Kempsey Shire Council v Regional Publishers Pty Ltd (unreported, Mathews J, 3 April 1992). The issue was dealt with by this Court in Ballina, which can be regarded as representing the law in Australia on the question. Any confusion in the area probably arises as a result of the judgment of Lord Keith of Kinkel in Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534 which was much referred to in Ballina. For example, Lord Keith said:

There are, however, features of a local authority which may be regarded as distinguishing it from other types of corporation, whether trading or non-trading. The most important of those features is that it is a governmental body. Further, it is a democratically elected body, the electoral processes nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.

In other words, Lord Keith was of the opinion that absolutely any governmental body, at any level, elected or not, incorporated or not, trading or not, representative of minority interests or of any other interests, was precluded from bringing an action for defamation no matter how serious or fraudulent. Further, the reasoning upon which his opinion is based allows no logical distinction to be drawn between a public authority which is an individual or one which is a body or group, incorporated or not. That is obviously not the ratio decidendi of the unanimous decision of the House of Lords in Derbyshire, but it did lead to the result that the statutory authority in that case had no right to bring an action in defamation, a result which, in my respectful opinion, was manifestly correct.

Gleeson CJ and Kirby P seemed very taken with Lord Keith of Kinkel's speech, but neither of them adopted it on its broadest construction. Applying, in part, the reasoning of it they concluded that the local council in the case before them had no right to bring an action for defamation. The main reason forcing that conclusion was the "fundamental human right" (as, of course, Kirby P described it) called freedom of speech. Gleeson CJ was moved to comment (at 691):

The idea of a democracy is that people are encouraged to express their criticisms, even their wrong-headed criticisms, of elected governmental institutions, in the expectation that this process will improve the quality of the government. The fact that the institutions are democratically elected is supposed to mean that, through a process of political debate and decision, the citizens in a community govern themselves ... I regard the matter as turning upon the concept of reputation, and the nature of the reputation which the law of defamation sets out to protect. I understand that concept in its application to individuals (including individual politicians), trading corporations and other bodies, but I have the greatest difficulty with the concept in its application to the governing reputation of an elected governmental institution. The right of an individual, even one in public life, to his or her personal reputation is one thing. Such a right can be recognised and protected by the law without due interference with the right of free speech. On the other hand, to maintain that an elected governmental institution has a right to a reputation as a governing body is to contend for the existence of something that is incompatible with the very process to which the body owes its existence.

What he says is, with respect, quite clearly correct and notably more narrow than Lord Keith's obiter dicta. Gleeson CJ was careful to limit his comments in two ways of importance for present purposes: first, the reputation which is not protected by the law of defamation is the "governing reputation"; and, second, the limitation applies because of the inconsistency between the right to free speech and the exercise of power by a democratically elected body exercising governmental powers. The ratio of the decision is that the statutory authority in that case could not sue for defamation. The reason for that result is that an attack on the "governing reputation" of a democratically elected body exercising governmental powers could not be protected by the law of defamation because such protection would be inconsistent with the right to free speech. Gleeson CJ also noted that some defamatory statements may, in certain circumstances, also constitute an injurious falsehood and that different considerations then apply (at 694):

The tort of defamation protects reputation, and it does so in a manner that involves a balancing of various considerations including the right of free speech. The tort of injurious falsehood protects against provable economic loss resulting from false and malicious statements. It is one thing to say that freedom of political debate in a democracy is incompatible with allowing elected government bodies to invoke the law of defamation to vindicate their governmental reputation. It is another thing to say that such bodies can, with impunity, be made the targets of false and malicious statements aimed at causing, and causing, financial harm.

We are, however, not presently concerned with injurious falsehood and I make no comment as to whether the circumstances of this case might also give rise to an action for injurious falsehood.

The main question then is whether the NSWALC is a democratically elected body exercising governmental powers for the purposes of the law of defamation. The NSWALC is a statutory authority incorporated under the Aboriginal Land Rights Act 1983, s. 22(1). The Council consists of one Aboriginal councillor elected from each Regional Aboriginal Land Council areas (s. 22(2) and (3)) whose members, in turn, are elected from members of the relevant Local Aboriginal Land Councils (s. 15(3)) whose members are Aboriginal: s. 6(3). Thus the election process only involves Aboriginals and is not democratic in the relevant sense because the only people entitled to vote are Aboriginals. The resulting Council represents the interests of its members only, not all the people in any given area. Similarly, the Council is not governmental in the relevant sense, it only has certain, limited, governmental powers over the Aboriginal portion of the NSW regions it represents. That the NSWALC was never intended to represent the Crown and was intended to represent a minority group whose interests might be inconsistent with those of the Crown or other groups in the NSW community is patently obvious. It is also noted in s. 65 of the Act: "An Aboriginal Land Council is not, for the purposes of any law, a statutory body representing the Crown".

The NSWALC can be described as a democratically elected body in that it is elected by people, Aborigines. However, the right to free speech has been seen to be inconsistent with the bringing of an action for defamation because "... the Constitution requires `the people' to be able to communicate with each other with respect to matters that could affect their choice ...". Although made in a slightly different context, that comment of the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 71 ALJR 818 at 832, rightly identifies the source of the inconsistency between free speech and an action for defamation. In this case, neither Mr Jones nor any of the other defendants have any choice about which they might communicate.

There is only one factor which is of any significance to the argument that the NSWALC should not be entitled to sue for defamation. That argument stems from the fact that the Council is funded from the consolidated revenue (of an amount calculated by reference to the land tax) contributed to by all the people of NSW. However, to my mind, that fact is merely one to be considered in drawing the line between a proper exercise of the right to free speech and the publication of defamatory material.

It follows that the defendants' right to free speech does not entitle them to make whatever comment they wish and rely on that right as precluding the bringing of an action for defamation. The position may be different if the allegedly defamatory comments were made by an Aboriginal. In that situation, the NSWALC might, for the purposes of the law of defamation, be regarded as a democratically elected body exercising governmental powers vis-à-vis the person alleged to have made defamatory remarks. It is unnecessary to decide that point. Neither Mr Jones, nor any of the other defendants is, I believe, an Aborigine.

It is inappropriate to decide whether the imputations are capable of harming the governing reputation of the NSWALC as that question has not been referred to this Court and is one of the questions which must now be decided when the matter proceeds to trial.

The answer to the question referred to this Court by Levine J is: "It does".

^{Handley JA:}

In this matter I have had the benefit of reading the reasons for judgment of Meagher JA in draft form. He has set out the background facts and the history of the proceedings and there is no need for me to repeat these details. The question for decision is whether the New South Wales Aboriginal Land Council (the plaintiff), a statutory corporation, can maintain an action for defamation in respect of imputations that it conspired to pursue a Native Title claim which it knew to be fraudulent, and supported it with bribery and corruption.

The arguments for the parties centred on Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534 (Derbyshire), and Ballina Shire Council v Ringland (1994) 33 NSWLR 680 (Ballina), which decided that local government corporations could not maintain actions for defamation.

Mr Reynolds for the defendants submitted that the case was governed by Ballina because the plaintiff was, or was sufficiently analogous to, a local government corporation. Mr Tobin QC for the plaintiff argued that it was not a government or local government body at all, and in the alternative invited us not to follow Ballina.

Both arguments require an examination firstly of the circumstances in which corporations can sue for defamation, and then of the provisions of the Aboriginal Land Rights Act 1983 (the 1983 Act) which established the plaintiff as the apex of the structure of local and regional land councils in this state.

A corporation has legal personality apart from its members because it may own property and have legal rights and duties. In the words of Lord Thurlow LC, modified by Poynder, "it has no soul to be dammed and no body to be kicked and therefore has no conscience". Viscount Haldane in Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 said at 713:

... a corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of (its) personality ... that person may be the board of directors.

See also Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153 at 170-1 per Lord Reid. The identification of an individual or small group with a corporation for some legal purposes, illustrated by these cases, does not mean that defamatory imputations concerning those individuals may be actionable at the suit of the corporation. However it may make it easier for those individuals to establish that they were defamed by imputations published of and concerning the corporation.

A corporation having no mind of its own also has no feelings. Lord Reid said in Lewis v Daily Telegraph Ltd [1964]
1 AC 234 at 262 that:

A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured.

See also per Lord Hodson at 277 and Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 339.

The general principle stated by Lord Esher MR in South Hetton Coal Co Ltd v North Eastern News Assn Ltd [1894]
1 QB 133 at 138 is that "the law of libel is one and the same as to all plaintiffs". However as his Lordship continued at 138-9:

... although the law is the same with regard to libel on a firm or company as with regard to libel on a person, the conditions under which the particular statement can be libellous may not exist with regard to them ... With regard to a firm or a company it is impossible to lay down an exhaustive rule as to what would be a libel on them ... Statements may be made with regard to their mode of carrying on business, such as to lead people of ordinary sense to the opinion that they conduct their business badly and inefficiently. If so the law will be the same in their case as in that of an individual, and the statement will be libellous.

Lopes LJ at 142 approved a statement by Pollock CB "that a corporation at common law may maintain an action for a libel by which its property is injured". Kay LJ at 148 said at 145-8:

... where the plaintiffs are two or more persons associated in partnership, the only libel of which they can jointly complain is one which may injure their joint property or their joint trade or business. The same law is applicable to a certain extent to a trading corporation. Its property or its business may be injured by defamatory statements whether written or oral. It has a trading character, the defamation of which may ruin it ... I therefore am of opinion that a trading corporation may sue for a libel calculated to injure them in respect of their business ...

The courts have not taken a narrow view of the defamatory imputations which are capable of injuring the reputation of a trading corporation. Thus in South Hetton Coal Co v North Eastern News Assn [1894] 1 QB 133, the Court upheld a jury's award in favour of a coal mining company in respect of imputations that the housing it provided for its employees was insanitary and unfit for habitation. The Court appears to have accepted the argument at 135-6 that the libel was calculated to injure the plaintiff in its business by preventing men entering its employment. See also Derbyshire at 547 per Lord Keith.

In Barnes & Co Ltd v Sharpe [1910] HCA 26; (1910) 11 CLR 462 at 474, 485 the High Court held that imputations against a number of companies trading as produce merchants that they had conspired to prevent farmers from obtaining a fair price for their produce was actionable because "a defamatory statement ... that a trading company carries on its business in a dishonest or criminal manner is likely to injure its reputation in the way of its business".

Similarly in D & L Caterers Ltd v D'ajou [1945] KB 364 the Court upheld a judgment in favour of the plaintiff based on an imputation that it was carrying on a restaurant business in breach of the rationing orders by buying food on the black market. Lord Goddard at 366 held that the defamation was actionable because it reflected on the company in the way of its business and Du Parcq LJ at 367 said that a company cannot sue for libel or slander "unless it is defamed in the way of its business".

In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, Mahoney JA held that a trading corporation may recover damages in defamation for injury to what his Honour called its "reputation as such", not being its reputation in the way of its trade and business. The other judges in that case did not deal with this question. The approach of Mahoney JA derived support at that time from the decision in Bognor Regis UDC v Campion [1972] 2 QB 169 that a local council had a "governing reputation" which it could protect by defamation proceedings. His Honour followed
that decision in his dissenting judgment in Ringland, but it was rejected by the majority and overruled in Derbyshire.

In Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 the Federal Court rejected the view that a trading corporation can recover damages by way of a solatium for injury to its reputation "as such" independently of injury to its reputation in the way of its business. The reasons of Pincus J in particular, at 599-602, provide powerful support for this conclusion. See also at 560, 586-7. Pincus J said at 602:

... it is not always easy to keep the concept of a company's separate legal personality in mind, when considering damages for defamation. Where ... those associated with the company have been implicitly attacked, it would seem unjust to let the defamer escape if no financial loss to the company ... can be shown. But if the defamation reflects on, for example, the board, they must themselves sue. Should it hurt no natural person and cause the company no monetary loss, for what loss could damages be awarded? To illustrate the point ... suppose an incorporated charity not engaged in any commercial venture is defamed; that may cause some financial loss, in reducing its income from contributions. But suppose further that it receives no contributions, being permanently endowed at the outset; then there is no loss suffered by it, considered as an artificial entity, for which it could get damages.

This analysis supports the decisions in Derbyshire and Ringland that local government corporations cannot maintain actions for defamation for injury to their "governing reputation" on a ground independent of the reasoning based on their democratic character. However those decisions denied local government corporations any right to sue for defamation even when it caused financial loss, the sole remedy for such losses being the tort of malicious falsehood. See Derbyshire at 551, Ringland at 692-4 and 733.

No narrow view has been taken of the type of corporation which may be injured in its pocket. Thus, in National Union of General and Municipal Workers v Gillian [1945] 2 All ER 593, Birkett J held that a trade union could sue for defamation in respect of statements imputing that it was a willing tool and lackey of reactionary employers and was an enemy, not only of its members, but of the entire working class: 595-6. These imputations were held to be actionable by the trade union because as Birkett J said at 596:

It was, I think, made quite plain that no self respecting trade unionist could or should belong to such a trade union, and I think that the logical consequence of that would be that, if followed, there would be neither subscriptions to nor membership of this union and to that extent the property of the union ... would be adversely affected. I think further that there can be no doubt that this was a most severe and most critical attack upon the manner in which the business of the plaintiff trade union was conducted.

This decision was upheld: [1946] 1 KB 81. At 87 Scott LJ said that an unjustifiable libel of the type complained of could easily result in the disintegration of the union and Uthwatt J said at 88:

It is well established that in certain cases a trading corporation may bring a suit in respect of an imputation on its trading reputation, and I see no reason why a non-trading corporation should not have the same rights in respect of imputations on the conduct by it of its activities. A trade union to my mind stands in the same position. It too has its reputation.

These remarks were of course made in the context of defamatory imputations likely to lead to loss of membership and membership income by the union. The decision was applied in Willis v Brooks [1947] 1 All ER 191 to a libel imputing ballot rigging to a trade union. See also Argus Printing and Publishing Co Ltd v Inkatha Freedom Party [1992] ZASCA 63; (1992) (3) SA 579 at 582 (incorporated political party entitled to sue for defamation calculated to cause financial prejudice through loss of membership and donations).

The position of other non-trading corporations has been considered in dicta, those of Pincus J in ABC v Comalco Ltd having already been quoted. In Derbyshire at 547 Lord Keith said that defamatory statements of a charity may discourage subscriptions from the public "or otherwise impair its ability to carry on its charitable objects", and in the case of non-trading corporations "might make it more difficult to borrow or to attract suitable staff". See also Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1992] 1 QB 770 at 810, 821-2 where the example was given in this context of defamatory imputations of discriminatory employment policies.

The statement of claim does not plead or particularise facts which would establish that the plaintiff has been injured in its pocket, and it could have been struck out on that ground. However Mr Tobin's written submissions drew attention to its capacity, under s. 38(1) of the 1983 Act, to accept gifts and bequests in an attempt to bring its case within the dicta relating to charitable corporations. There is nothing to indicate that this point is other than theoretical, but at this stage it is enough to save the action on the present point.

It is now appropriate to consider the provisions of the 1983 Act to determine how the special principles applicable to "government" corporations, apply to this plaintiff.

Part 2 of the 1983 Act deals with Local Aboriginal Land Councils (LACs). Section 5 enables the Minister to constitute an area as an LAC area and s. 6(1) constitutes an LAC as a body corporate for that area. All adult Aborigines on the local Aboriginal roll for the area are members of that LAC: s. 6(2). The Council must hold ordinary meetings at least quarterly and also an annual meeting: s. 8(3). At each annual meeting the members are to elect a chairperson, secretary and treasurer (s. 9(1)), and the LAC's representative on the Regional Aboriginal Land Council (RAC): s. 11(1).

The functions of an LAC (s. 12) include the acquisition, management, control and use of its land, the acquisition, establishment and operation of enterprises, and the provision of residential accommodation for Aborigines in its area.

Part 3 of the 1983 Act deals with RACs. Section 14 enables the Minister to constitute an area as an RAC area, and s. 15(1) constitutes an RAC as a body corporate for that area. The members of an RAC are the elected representatives of the constituent LACs: s. 15(3). An RAC must hold ordinary meetings at least quarterly, and shall also hold an annual meeting: s. 16(3). At each annual meeting the members are to elect a chairperson, secretary and treasurer: s. 17(1). The principal functions of an RAC are to assist the LACs in its area: s. 20.

Part 4 of the 1983 Act provides for the constitution and functions of the plaintiff. It was constituted a body corporate by s. 22, to consist of one full time councillor from each RAC, elected by the members of the LACs in its area: s. 25(1). Its functions include administering its funds, making grants to RACs and LACs, the acquisition of land, making claims to Crown land, and the supervision of RACs and LACs to ensure their compliance with the Act: s. 23.

The 1983 Act provides for a measure of external control over the activities of the plaintiff, RACs and LACs. The Electoral Commissioner, or his nominee, is to conduct elections of councillors of the plaintiff (s. 25(2)), and election disputes are to be determined by the Land & Environment Court: Div. 2B. The Public Employment Industrial Relations Authority, the successor to the former Public Service Board, is deemed to be the employer of the plaintiff's staff for the purpose of proceedings before industrial tribunals (s. 27C(1)) and the wages and conditions of employment of its staff are to be fixed by the Authority unless otherwise determined by law: s. 27C(2).

The plaintiff must submit its annual budget to the Minister for approval (s. 34(1)), and provide relevant information when requested by the Minister. It must also, if directed, submit quarterly reports on the funds granted by it to RACs and LACs and the purposes for which they were granted. Section 35 provides that land vested in the Aboriginal Land Trust, under the previous Act of 1969, should vest either in the plaintiff or in the appropriate LAC. Section 39 enables the Minister to acquire land by agreement or by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of the Act, but at the expense of the plaintiff or the relevant LAC.

Division 4 of Pt. 6 imposes restrictions on the alienation of land vested in a land council under the 1983 Act. Section 56B requires members of the plaintiff or of any RAC, and the officers of an LAC, to disclose any pecuniary interest in matters being considered, or about to be considered, by the relevant council. Section 56D authorises the Minister to initiate investigations into the affairs or specified affairs of a land council, and ss. 57 and 57A enable the Governor, by proclamation in the Gazette, to appoint an Administrator for an RAC, an LAC, or the plaintiff. Provision is also made in s. 58 for the Governor to declare, by order in the Gazette, that the plaintiff has ceased to function, and the Minister can then provide for the transfer or disposal of its assets and liabilities. Section 58A enables the Minister, by notice in the Gazette, to dissolve an RAC or LAC if it has ceased to function, whereupon its assets and liabilities vest in the plaintiff.

Section 65 provides that a land council is not a statutory body representing the Crown, but s. 65A provides that each land council is a public authority for the purposes of the Ombudsman Act 1974, the Independent Commission Against Corruption Act 1988, and the Freedom of Information Act 1989.

These provisions are similar in many respects to corresponding provisions in the Local Government Act 1993 (the 1993 Act). Section 204 of the 1993 Act enables the Governor, by proclamation, to constitute any part of the state as an area
(cf s. 5(1) 1983 Act), and s. 219 constitutes the Council as a body corporate for each area: cf s. 6(1). Elections of councillors are to be conducted by the Electoral Commissioner or his delegate (ss. 296, 297) (cf s. 23, 1983 Act), and disputes as to elections may be determined by the Supreme Court, District Court or Local Court (Pt. 9 of Ch. 10): cf 1983 Act, Div. 2B.

The functions of a Council of an area include management of its land within the area, and the provision of services and facilities for its residents (1993 Act, ss. 24, 35 etc): cf 1983 Act, s . 12. Councils of areas have planning functions under Ch.. 7 of the 1993 Act and the Environmental Planning and Assessment Act. Land Councils, on the other hand, only have a limited planning function in relation to mining on their land: 1983 Act, s. 12(e), s. 23(1)(d).

Councils are under a degree of Ministerial control. They must provide relevant information requested by the Minister or the Director General (1993 Act, s. 429): cf 1983 Act, s. 34. Councillors must disclose their pecuniary interests (1993 Act, Ch. 14, Pt. 2): cf 1983 Act, s. 56B. The Governor may, by Proclamation, dismiss the mayor and councillors of a Council and appoint an administrator where it has ceased to function (1993 Act, Ch 9, Pt 2, Div 6): cf 1983 Act, ss. 58, 58A.

The Governor may also establish County Councils (1993 Act, s. 387) (cf 1983 Act, s. 14) whose governing body consists of members elected from among the councillors of the constituent Councils (1993 Act, s. 390): cf 1983 Act, s. 15(3).

An evident purpose of the 1983 Act is to provide for a measure of self determination and self government by Aboriginals living within the area of an LAC or RAC, particularly in relation to the management and use of "their land". The Act, including its recitals, contemplates that members of an LAC will, to a greater or lesser extent, reside on or otherwise make use of "their land".

In my opinion the 1983 Act established a system of local government for Aboriginals who reside in an LAC area
(s. 7(2)(a)) or an RAC area (1514, 15) although land vested in an LAC is not withdrawn from the jurisdiction of Councils established under the Local Government Act 1993. Aboriginal residents constitute the primary membership of an LAC, although they may admit to their ranks Aboriginals living outside their area who have an association with it who, after application, have been accepted as members by a meeting of the LAC: s. 7(2)(b). It would appear almost self evident that land councils are local government bodies in the Northern Territory, Western Australia and Queensland, in areas where Aboriginals form a significant part of the population, and there may be no other form of local government.

This system of local self government is, of course, based on race, but this is only an acknowledgment of the obvious purpose and effect of the 1983 Act. It reflects the tribal or clan structure of Aboriginal communities and the communal nature of their land ownership. The system has parallels with those which apply to the Maori in New Zealand and indigenous Fijians in Fiji. This view does not depend on, but is strengthened by, the parallel provisions in the 1983 and 1993 Acts. The system established by the 1983 Act is a democratic one, as an examination of its provisions demonstrates.

This analysis leads me to the conclusion that this case is covered by the ratio of Ballina. Gleeson CJ considered that the reputation which the law of defamation seeks to protect does not extend to the reputation, there described as the "governing reputation", of an elected body (ibid at 690-1), and agreed with the reasoning in Derbyshire. Kirby P also agreed with the reasoning in Derbyshire: ibid at 705, 708-9. Mr Tobin invited us to depart from Ballina, but was unable to advance any persuasive reasons why we should.

In this case the defendants are a radio station, a radio announcer, and an Aboriginal resident of New South Wales who was interviewed on air by the announcer. He is presumably a member of some LAC and entitled to vote in elections for office in the plaintiff, his LAC and RAC. Even if he is not, he has a special interest, as an Aboriginal resident in the state, in the affairs of the plaintiff and would be entitled to apply for membership in the LAC for his traditional area. He was exercising his democratic right of free speech in criticising the plaintiff and was using the facilities provided by the other defendants for this purpose.

It would appear that Mr Ringland was a ratepayer of the Ballina Shire Council and in that case there was an electoral nexus between him and the Council. However there was no such relationship between the critics and the Council in Derbyshire because the principal defendant was the publisher of the Sunday Times, and the other defendants were its editor and two journalists.

There was no suggestion in Ballina that the principles it established depended on an electoral nexus between the critic and the plaintiff and Derbyshire is inconsistent with any such requirement.

In my opinion therefore the question referred should be answered no, and judgment should be entered for the defendants against this plaintiff with costs to the defendants.

^{Powell JA:}

I agree with Handley JA.