Malbon, Justin --- "Anthony Lagoon Station v Maurice" [1988] AboriginalLawB 24; (1988) 1(31) Aboriginal Law Bulletin 13

• Anthony Lagoon Station V Maurice

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Anthony Lagoon Station v Maurice

Anthony Lagoon Station v Maurice

Federal Court of Australia

Sweeny, Northrop & Ryan J.J.

15 July, 1987

Casenote by Justin Malbon

This appeal relates to a land claim under the Aboriginal Land Rights (Northern Territory) Act for Wombaya land. The land which was claimed was totally encircled by land held under pastoral leases including land held by the appellants. There was no access to the land by public road. The appellants refused to allow the Northern Lands Council permission to enter their land for the purpose of gaining access to Wombaya. The N.L.C. then sought and gained an order from the Lands Commissioner, Maurice J., allowing it to enter the adjacent land for the purpose of gathering and recording information necessary to comply with certain practice directions of the Aboriginal Land Commission.

The order was made pursuant to section 51 of the Aboriginal Land Rights (Northern Territory) Act. That section states that the Commissioner may do all things necessary or convenient to be done for or in connection with the performance of his functions. This case relates to an appeal against the order of Maurice J.

The Federal Court by a majority of 2-1 allowed the appeal against the order of Maurice J. The majority found that the order adversely affected the legal rights of the appellants. The majority found that the order purported to authorise what would otherwise be a trespass. As the Commissioner was acting administratively as opposed to judicially, the Act had to be examined carefully to determine whether it provided the Commissioner with the power to make his order. The majority found that a provision which adversely affected proprietary rights must be read narrowly. The statute must express with irresistible clearness its intention to provide the Commissioner with the power to make the order. The majority argued by analogy that the right to not self incriminate is one which the courts will not allow to be disturbed unless a statute specifically states otherwise. Northrop J. found that the statute provided no powers for the enforcement of any order made by the Commissioner. It was determined by the majority that section 51 did not provide the Commissioner with the power to make his order.

In a well reasoned dissenting judgement, Ryan J. found that section 51 was clear in its grant of power. It granted the power to do all things necessary or convenient to be done for or in connection with the performance of a list of functions enumerated in the Act. The section was of considerable width in its grant of power. The grant of power was, however exhaustive. The Commissioner could not, for example, make an order for the compulsory acquisition of land. Nor could he impose a fine for noncompliance with his practice directions. He found that the order made by the Commissioner was within the terms of the statute.

The High Court subsequently refused special leave to appeal against this decision.