Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Court and Tribunal Decisions - Australia
Federal Court of Australia (von Doussa J)
21 August 2001
[2001] FCA 1106; BC200105040
Aboriginal and Torres Strait Islander — heritage protection — meaning of Aboriginal tradition — liability arising from procedural defects in the conduct of inquiry — Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 3, 9, 10, 27 and 28
Aboriginal and Torres Strait Islander — tradition — evidence — restrictions on publication of evidence and findings of fact — Federal Court of Australia Act 1976 (Cth) s 50
Real property — acquisition of land — whether declaration under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) amounts to acquisition of property — whether just terms
Tort — negligence — whether duty of care under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) — whether duty of care breached — whether breach of statutory duty under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Tort — misfeasance of public office
Trade practices — whether representations made in the course of inquiry and report amount to misleading and deceptive conduct — whether representations made in the course of inquiry and report amount to ‘trade and commerce’ — whether proceedings brought within time — Trade Practices Act 1974 (Cth) ss 6, 52 and 75B — Fair Trading Act 1987 (SA) s 56 — Fair Trading Act 1987 (Vic) s 11
This was an action for damages for loss and damage arising out of an inquiry and declaration made pursuant to s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) preventing the construction of a bridge from Goolwa to Hindmarsh Island in South Australia.
The Chapmans owned 50 per cent of the shares in Binalong Pty Ltd. Binalong was in liquidation at the time of the action. The Chapmans brought the action as assignees of Binalong’s causes of action against the respondents at their own expense and at their own risk on costs.
Luminis Pty Ltd was a consultancy company of the University of Adelaide engaged by the Aboriginal Legal Rights Movement (ALRM) in relation to the application for a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Fergie was an anthropologist engaged by Luminis to provide the services. Tickner was Commonwealth Minister for Aboriginal and Torres Strait Islanders Affairs. Saunders was appointed by Tickner to prepare a report under s 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The Commonwealth of Australia was the fifth respondent.
Binalong was the developer of a large tourist development on Hindmarsh Island (known as Kumarangk in the Ngarrindjeri language) located at the mouth of the Murray River in South Australia. The progressive development began in 1977 and consisted of a marina complex, car parking, accommodation and conference centre, a golf course and associated buildings. In 1988 Binalong proposed to expand the development and submitted a planning application for that purpose. Access to the Island was via vehicular ferry and as part of the consent process Binalong offered to replace the vehicular ferry by building a bridge linking the Island with the mainland. In 1989 the South Australian government indicated that an environmental impact statement was required and agreed to contribute to the bridge’s construction the lesser of half the cost or $3 million. Binalong commissioned an archaeological report (the 1990 Edmonds Report) and an anthropological report (the Lucas Report).
Planning approval was given in April 1990 subject to certain conditions requiring consultation with certain Aboriginal bodies, advising Aboriginal bodies about any skeletal remains revealed, familiarity with the provisions of the Aboriginal Heritage Act 1988 (SA) and the Aboriginal Heritage Branch procedures and reporting to certain Aboriginal representative bodies. Stages 2–6 of the marina extensions were not to proceed until the bridge had been completed. Authorisation was given under the Aboriginal Heritage Act 1988 (SA) to proceed with the marina and the bridge, as it appeared that no Aboriginal sites of significance would be affected. In October 1990 a supplementary development plan for the Island, including the bridge, went on public exhibition. It was approved and gazetted in December 1993.
Drilling on the alignment of the bridge commenced in January 1992. There was no evidence of any opposition by Aboriginal people and no skeletal remains were found during the drilling phase. In September 1993 a tender for the bridge’s construction from Built Environs Pty Ltd was accepted. The price agreed between Binalong and the Department of Road Transport was $4.99 million. Work was to commence at the end of October 1993.
Prior to October 1993 no objections from Aboriginal people had been made publicly but in late October 1993, the Lower Murray Aboriginal Heritage Committee (LMAHC) expressed concern about the impact of the bridge on Aboriginal sites to the State Minister of Aboriginal Affairs and to Tickner in that the approaches to the bridge were near Aboriginal sites of significance and that they had not been consulted about the effects of the bridge on the sites.
Work on the bridge commenced on 27 October 1993 but stopped the same day at the direction of an inspector under the Aboriginal Heritage Act 1988 (SA) as the work threatened sites identified in the 1990 Edmonds Report. A further anthropological report was then undertaken (the Draper Report). Further sites of significance were identified by Draper and on that basis a request was made of Tickner on 23 December 1993 that he consider making a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). A request was also made of the State Minister of Aboriginal Affairs to give directions prohibiting work to be undertaken under s 24 of the Aboriginal Heritage Act 1988 (SA). Neither application was granted.
A new government in South Australia, elected on 11 December 1993, asked the Hon S Jacobs to report on the contractual obligations of the government in relation to the Bridge. Following receipt of the Jacobs report, on 15 February 1994, the Minister for Transport indicated that the State was contractually bound and, on 15 March 1994, that the bridge would go ahead at its present site. Jacobs reported that representatives of the Aboriginal community indicated opposition to the bridge was based on the fact that the island would lose its character as an island and this would be ‘an unacceptable affront to the spiritual identity which the Aboriginal community has with the land of its forbears’: [62]. Jacobs did not find any references to these objections in government documents but reported that, when asked about this, the representatives thought they would be consulted about the bridge before it was constructed.
On 7 April 1994 and 20 April 1994 the ALRM sought an emergency declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) from Tickner. The first letter identified the area to be protected as the camp sites previously identified plus the water in the Goolwa channel between them as a single site of significance. A report by Draper to this effect was included and relied upon. The second letter expanded upon the significance of the area:
Ngarrindjeri life and culture came from the Murray Mouth, the Lakes, islands, and the Coorong. The configuration of these features has a very detailed and specific set of cultural meanings, concerning the creation and renewal of life. The Goolwa Channel is the ‘Meeting of the Waters’, and is of crucial importance in these terms.
Consequently, the bridge proposal is culturally destructive. It would cripple the body and natural functioning of the spirit ancestors, and cause great cultural trauma to the Ngarrindjeri People.
The bridge structure and foundations would disfigure and cause physical damage to the Goolwa channel in these terms, and disrupt the ‘meeting of the waters’. The bridge would also create a permanent physical connection between Kumarangk and the Mainland, which would be both obscene and sacrilegious to Ngarrindjeri culture.
This information had not previously been made available.
Chapman first heard that Aboriginal opposition to the bridge included women’s issues on 26 April 1994.
On 3 May 1994 the State Minister for Aboriginal Affairs announced that he had authorised the construction of the bridge including damage to Aboriginal sites, under s 23 of the Aboriginal Heritage Act 1988 (SA). On 6 May 1994, Built Environs was directed to commence work on the bridge. Work commenced on 11 May 1994. Work ceased on 12 May as a result of an emergency declaration under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) granted by Tickner preventing work in an area including the bridge site, for a period of thirty days. Tickner subsequently extended the period of the emergency declaration for a further 30 days.
On 23 May 1994 Tickner appointed Saunders as a consultant to prepare a report under s 10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). In the course of her inquiry, Saunders received over 400 representations. She met with Ngarrindjeri women as a group and Dr Kartinyeri, a Ngarrendjeri woman, in the absence of Fergie. She received a written report from Fergie which indicated that ‘the area of the Lower Murray, Hindmarsh and Mundoo Islands, the waters of the Goolwa Channel and Lake Alexandrina and the Murray Mouth are, in Ngarrindjeri women’s sacred traditions, crucial for the reproduction of the Ngarrindjeri people and of the cosmos which supports their existence.’ The Report was accompanied by Appendix 2, comprising the content of the traditions transcribed from Dr Kartinyeri, and Appendix 3, comprising Fergie’s anthropological evaluation of the material. Both Appendix 2 and 3 were marked ‘To be read by women only’. Kartinyeri was the main informant about the significance of the area to women but other women at the group meeting had also indicated that they knew of the information. Saunders also met with the Chapmans who made submissions but complained that they did not know of the substance of the anthropological information upon which the application relied. Saunders had told the Chapmans of as much detail of the information as was possible while still maintaining its confidentiality.
Saunders reported to Tickner on 7 July 1994 and delivered all the representations received by her including Fergie’s report and its appendices. She recommended that a declaration be made. Tickner then received further submissions on behalf of the Chapmans and Binalong. Tickner made a declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) on 9 July 1994 and the declaration came into effect on 10 July. The declaration prohibited acts likely to injure or desecrate the protected area for a period of 25 years. The protected area was described by reference to map coordinates but included the area of the bridge on the mainland, Hindmarsh Island and the water.
Binalong successfully sought judicial review of Tickner’s decision on the grounds that notice of Saunders inquiry had not adequately specified the applicants, area or purpose of the application and Tickner had not ‘considered’ the representations made to Saunders as he did not read the material in the appendices to Fergie’s report. See Chapman v Tickner (1995) 55 FCR 316; (1996) 1 AILR 31. The decision was upheld on appeal. See Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451; (1996) 1 AILR 239.
On 19 December 1995 a Royal Commission was established by the South Australian Government to inquire into the information in the envelop that was Appendix 2 to Fergie’s Report. The Commission reported that the information was a fabrication. Neither Dr Kartinyeri nor a number of Ngarrindjeri women supporting the application for the declaration gave evidence to the Royal Commission.
A further s 10 Report was prepared by Justice Mathews. The restricted information in Appendix 2 to Fergie’s Report was not put to Mathews and her report concluded that there was ‘insufficient material from which the Minister could be satisfied that the building of the Hindmarsh Island bridge would desecrate this area according to these traditions’: [139]. Mathews’ report was vacated as her capacity to conduct the inquiry was held in breach of Chapter III of the Constitution. See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1997) 189 CLR 1; 2 AILR 67.
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was amended to exclude from its operation the area of the proposed bridge. The validity of the amending legislation, the Hindmarsh Island Bridge Act 1997 (Cth) was upheld. See Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337; 3 AILR 181.
The bridge was completed and opened on 4 March 2001.
Binalong had considerable debt to Westpac Banking Corporation Ltd (Westpac) and in October 1993 the debt was almost $16 million. Receivers and managers were appointed to Binalong by Westpac on 8 April 1994 and proceedings were issued for the winding up of Binalong on 2 May 1994. Hearing of the application was adjourned until it was known whether the bridge would be built or not. The Marina development was ultimately sold to Kebaro Pty Ltd (Kebaro), a trustee of family trusts of which the Chapmans were the beneficiaries. The sale price was scaled with an immediate payment of $50,000 and a further amount depending upon the date of payment — ranging from $1,390,200 if paid within six months to $2,490,200 if paid within three years. At the time of the hearing the second payment had not been made.
Misleading or deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth): Luminis was engaged in trade or commerce. The Fergie Report was misleading or deceptive or likely to mislead or deceive and therefore, Luminis engaged in conduct in breach of s 52 of the Trade Practices Act. Fergie was liable as an accessory pursuant to s 75B of the Trade Practices Act. Because the Report was misleading or deceptive or likely to mislead or deceive Fergie was also in breach of s 56 of the Fair Trading Act 1987 (SA). Binalong suffered loss and damage as a result.
Fergie was negligent in that she had a duty of care to Binalong because its economic interests were likely to be affected and the duty was breached because Fergie had failed to conduct a proper investigation and because of inaccurate statements in her report.
Misleading or deceptive conduct in breach of s 56 Fair Trading Act 1987 (SA) or s 11 of the Fair Trading Act 1985 (Vic) and s 52 of the Trade Practices Act 1974 (Cth): This provision extended to Saunders in the provision of consultancy services to the Commonwealth as a result of s 6(2)(a)(iv) of the Trade Practices Act. The conduct complained of was that the Saunders Report gave the impression that a number of Ngarrendjeri women knew of the restricted knowledge whereas only one knew.
Saunders was an accessory to Luminis and Fergie in their breaches of the Trade Practices Act and Fair Trading Act 1987 (SA) as a result of forwarding the Fergie report to Tickner knowing that the content was incorrect.
Saunders was negligent in that she breached a duty of care to Binalong arising because of Binalong’s vulnerability to loss arising out of a lack of care by Saunders. The duty was breached by a failure to adequately investigate information and the procedural errors in the conduct of her inquiry.
Saunders breached her statutory duty required by s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) by failing to properly conduct the inquiry. Saunders actions also amounted to misfeasance of public office.
Negligence in that a common law duty of care existed to give proper consideration to all the representations made to Saunders and to him and he failed to give such consideration, especially to the material in Appendix 2 to Fergie’s report. Whether the material in Appendix 2 was fabricated or not was a relevant matter as was whether Tickner’s decision on the declaration would have been different if he had read the material in Appendix 2. A breach of statutory duty on a similar basis was also alleged.
Misfeasance in public office in that he knew that he was acting beyond his power or was recklessly indifferent or wilfully blind as to whether he was acting within power in making the s 10 declaration as a result of the procedural defects in the inquiry and declaration.
The declaration under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) amounted to an acquisition of property within the meaning of s 51(xxxi) of the Constitution. Section 28 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) provided that reasonable compensation is payable where there is an acquisition. The acquisition of property consisted of extinguishing Binalong’s contractual rights under the agreement to construct the bridge between the South Australian Government, Built Environs and Binalong and consequently under the planning approvals for stages 2–6 of the project. The declaration frustrated these agreements even though it was later held invalid and therefore was a temporary taking. It had the ‘immediate effect of causing substantial capital loss, being a diminution of the value of the marina’ which was never recovered or returned: [710]. No just terms compensation had been paid.
Loss and damage was suffered as a result of the wrongful conduct alleged. Binalong suffered an immediate, substantial and ongoing capital loss being the diminution of the value of the Marina measured by the difference between the proceeds of sale likely to have been obtained if the s 10 declaration had not been made and the sale price to Kebaro and the extra interest liability incurred by Binalong as a result of the proceeds of sale not being credited to Binalong.
1. The Court has the power to limit the publication of proposed evidence to minimise invasion upon Aboriginal rights and beliefs: [301]. Where the evidence is contentious, the proper course is to assume its genuineness and to impose restrictions accordingly. This does not indicate pre-judgment of the evidence. If the evidence is found to be fabricated the restrictions may be lifted or, if genuine, the restrictions maintained: [306]. The evidence about restricted women’s knowledge was accordingly restricted to female lawyers and the judge.
2. In the judgment it is appropriate for confidential material and findings of fact in relation to the material in Appendix 2 to be suppressed, sealed and held secure. The material would be available to any court of appeal: [308].
3. The material in Appendix 2 should not be released to Mrs Chapman because the Chapmans had failed to establish the common law duties of care and statutory duties claimed and had not established loss and therefore disclosure was irrelevant. Even if these duties had been established disclosure would not advance the applicants’ case: [309], [852].
4. The applicants had not established on the balance of probabilities that the restricted women’s knowledge in Appendix 2 was fabricated or not part of Aboriginal tradition within the meaning of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth): [199], [400].
5. This conclusion differed from that of the Royal Commission: [323]. The Royal Commission had not heard evidence from Dr Kartinyeri, the other Ngarrindjeri women propounding the existence of the restricted women’s knowledge or Saunders, her assistant or Tickner’s assistant, nor had it had access to the material in Appendix 2, evidence in relation to which the court had heard in confidential hearings: [319], [327], [328], [329]. As a result of evidence available in these proceedings and not available to the Royal Commission, and also as a result of some evidence relied upon by the Royal Commission but not called in these proceedings, the main bases for the Royal Commission conclusion were not established. In particular, the late emergence of the women’s knowledge did not provide proof of fabrication: [333]–[354]; although there was conflicting anthropological evidence on the point, the lack of particular recording in the literature of restricted women’s knowledge was not inconsistent with the material contained in Appendix 2: [355]–[381]; the applicants had not established the proposition that only Dr Kartinyeri knew of the restricted women’s business: [382]–[389]; and it was unhelpful and inappropriate to assert that the particular spiritual belief was irrational (as the Royal Commission had). The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) did not require the Minister to understand and accept the reasoning why use of an area would cause harm in terms of Aboriginal spiritual belief and tradition. Rather, it required that the beliefs were genuinely held and that in terms of those beliefs the proposed activity gave rise to a threat of injury or desecration. It was possible for Aboriginal beliefs to take account of factors, such as a large bridge, that had no counterpart in pre-contact times as Aboriginal tradition was not ‘dead, frozen or otherwise static’: [390]–[399].
6. ‘[I]n trade or commerce’ in s 52 of the Trade Practices Act 1974 (Cth) (and the similar phrases in the Victorian and South Australian legislation) meant activities that ‘bear a trading or commercial character’: [165]. Reference to the term ‘services’ in s 6 of the Trade Practices Act had the effect of extending the application of the phrase ‘in trade or commerce’ to persons not being corporations but did not remove the requirement that the conduct must be in ‘trade or commerce’: [169]–[174]. The fact that the impugned conduct was carrying out a contract did not give the conduct a trading or commercial character: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 [165]. Saunders’ activity did not bear a trading or commercial character and in particular the impugned conduct — the communication to Tickner — was carrying out a statutory function: [178]–[180]. The activity of Luminis and Fergie did not constitute trade or commerce. Fergie’s report was prepared for the purpose of an application under s 10 of the the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth); there was no element of promotion or indirect protection of commercial interests of Luminis, Fergie, ALRM or the Ngarrindjeri. The report was the intellectual product of Fergie’s activities rather than representations about her intellectual activities: [187]. Fergie’s activities were similar in character to those of Roberts in Plimer v Roberts (1997) 80 FCR 303: [189].
7. ‘A representation constituted by a statement involving the state of mind of the maker ... [where] there is a basis for the state of mind of the maker’ was not misleading: [193]. In determining ‘whether the expression of opinion will be identifiable as such by the person to whom it is represented’ it was necessary to look at the specific reader or class of readers, the conduct of the respondent as a whole and ‘the context of all the relevant representations in the report’: [194], [196], [197]. Fergie’s report was prepared for Saunders and Tickner, and Saunders report was specifically for Tickner: [195]. In order to succeed, the applicants must establish that the restricted women’s knowledge was not part of genuine Aboriginal tradition, that it was relied upon so as to in fact mislead and it caused loss but, the applicants had not established that they suffered loss as a result of the s 10 declaration, or that Saunders or Tickner relied on Fergie’s report: [198], [199], [851], [200].
8. Proceedings under the Trade Practices Act 1974 (Cth), the Fair Trading Act 1987 (SA) and the Fair Trading Act 1985 (Vic) must be brought with 3 years of the accrual of the cause of action. Binalong was not joined as a party until 12 May 1998, more than three years after the accrual of the cause of action. The claim by Binalong was brought out of time: [209]. Although the proceedings brought by the Chapmans were within time, they could not properly bring the proceedings under the Trade Practices Act because they had suffered no loss or damage and further that any such action cannot be assigned: [203], [204].
9. The cases against Saunders and Tickner fell into a well established and settled category of cases requiring that statutory powers be exercised with reasonable care: [240]. Although the claim by Binalong was for pure economic loss, the closeness of the relationship between Binalong and Saunders and Tickner was such that a duty of care would be imposed provided that such a duty was ‘consistent with their respective powers and functions under the’ Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth): [243]. In making a declaration the Minister was exercising delegated legislative power involving sensitive matters of government policy and Commonwealth and State relations: [257], [260], [263]. It would be incompatible with the ‘important public interest considerations which the Minister must weigh and balance’ to expose the Minister to the risk of civil action: [264]. Tickner did not owe a private law duty of care to Binalong in connection with the exercise of powers under ss 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth): [265].
The role of the reporter was ‘an integral part of the process of the Minister’s exercise of power under s 10’: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1997) 189 CLR 1, 18; 2 AILR 67; [266]. No private law duty of care arose in Saunders for the same reason as no duty of care arose in Tickner: [268].
The absence of a duty of care in the Minister and the reporter did not affect the availability of public law remedies or an action for damages for misfeasance in public office if the Minister or the reporter knowingly or recklessly misused their power: [269].
10. Luminis had a contract for consultancy services with ALRM. Fergie was the agent and contractor of Luminis and Luminis would be vicariously liable for any negligence by Fergie: [276]. The contractual duty of Fergie and Luminis was owed to their client. However, it was possible that a common law duty of care may be owed to a third party where the third party interests were co-incident and the third party suffered foreseeable loss: Hill v Van Erp (1997) 188 CLR 159, 167; [282], [284]. The loss alleged by Binalong was foreseeable and the relationship between Fergie and Binalong was sufficiently close to give rise to a duty of care if such a duty was co-incident with the scope of her duty to ALRM: [285]. Fergie’s professional task was to record information and express an opinion on it and the inference was that this was to be done exclusively in the interests of ALRM and its clients: [292], [296]. There is no support in law for the proposition that Fergie could also have a duty to Binalong where its interests were diametrically opposed to those of her client: [296], [299]. At the time when Fergie was engaged in June 1994 to prepare her report, Dr Kartinyeri had already disclosed to Saunders the restricted women’s knowledge relied upon by Saunders. Appendix 2 of Fergie’s report set down in writing information that had already been disclosed to Saunders: [292].
11. A cause of action for breach of statutory duty may exist even where there was no common law duty of care if the legislation imposed obligations for the protection or benefit of a particular class of persons of which Binalong was a member rather than the public generally: [679]–[681]. Binalong was required to show that the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) intended to create a private right of action in favour of members of a particular class if the procedural requirements were not fulfilled. No such intention was disclosed in the legislation. The procedural requirements imposed public duties and breaches by Saunders and Tickner attracted public law remedies: [683]–[687]. In any event, the evidence did not show that the position would have been any different if the procedural defects by Saunders complained of had not occurred: [688]. Tickner’s decision probably would not have been different if he had complied with the procedure and ‘considered’ all the submissions: [689]. Further, the applicants failed to establish that they suffered loss and damage as a result: [690], [750]–[830].
12. The tort of misfeasance of public office involves an element of bad faith: Three Rivers District Council v Governor and Company of the Bank of England [2000] UKHL 33; [2000] 2 WLR 1220; Northern Territory v Mengel (1995) 185 CLR 307; [693]. The representations made by Saunders to Tickner were open on the facts: [699]. There were findings of fact that Tickner had no knowledge that he was acting beyond power and that his appointment of Saunders was his own decision: [704]–[707]. The actions of misfeasance of public office failed as the applicants had not established bad faith: [696].
As the claim against Saunders and Tickner for misfeasance of public office failed it was not necessary to decide whether a person against whom a claim was brought must hold a ‘public office’ such as the Minister or whether it was sufficient that the person ‘performs public duties’: [691].
Acquisition of property by the Commonwealth
13. As a result of the setting aside of the declaration on procedural grounds, the declaration was void ab initio: Wattmaster Alco Pty Ltd v Button [1986] FCA 446; (1986) 70 ALR 330, 335; [714]–[716]. The right to compensation under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 28 was dependant upon a valid declaration as an invalid declaration was not ‘a declaration made under Part II’: [717]. Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 distinguished on the basis that it concerned a temporary taking under a valid regulation: [713].
14. Alternatively, the declaration did not effect an acquisition of property. The declaration had the practical effect of preventing the enjoyment of contractual rights and the sterilisation of rights to pursue otherwise lawful activity. However, in addition to sterilisation or modification of private rights there must be an acquisition of an interest in property by the Commonwealth or another: Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297; Smith v ANL Ltd (2000) 176 ALR 449; [724]–[731]. Although there was benefit to the general public and to the Ngarrindjeri people the benefit was not one relating to the ownership or use of land: [732]–[743].
15. If it was necessary to decide the point, the s 10 declaration was ‘not an exercise of legislative power pursuant to s 51(xxxi) of the Constitution and was not a law “with respect to” the acquisition of property’: [747].
16. Even if a claim could be sustained under s 28 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) for the operation of the declaration prior to its being set aside, the declaration did not result in Binalong suffering loss: [748].
17. The value of the Marina in July 1994 was $1.35 million. The value did not drop between 9 July 1994 and 30 September 1997: [843].
18. The delay in the sale of the marina was not occasioned by the invalid s 10 declaration: [844].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2002/7.html