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High Court of Australia Transcripts |
Last Updated: 12 September 2018
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Canberra No C5 of 2018
B e t w e e n -
GLEN RICHARD WILLIAMS
Appellant
and
WRECK BAY ABORIGINAL COMMUNITY COUNCIL
First Respondent
THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE
J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 12 SEPTEMBER 2018, AT 10.03 AM
Copyright in the High Court of Australia
MR G.R. KENNETT, SC: May it please the Court, I appear for the appellant. (instructed by Clayton Utz)
MR J.K. KIRK, SC: May it please the Court, I appear with my learned friends, MR R.J. ARTHUR and MR P.D. HERZFELD, for the first respondent. (instructed by Ken Cush & Associates)
MR P.J.F. GARRISSON, SC, Solicitor-General for the Australian Capital Territory: May it please the Court, I appear with MS P.M. BINDON for the second respondent. (instructed by ACT Government Solicitor)
KIEFEL CJ: Yes, Mr Kennett.
MR KENNETT: Your Honours, I propose to go straight to section 46 of the Land Grant Act, if I may, because that is where - - -
KIEFEL CJ: Something of a threshold question?
MR KENNETT: That is where the issue that arises in the appeal is going to be resolved. We had an interesting debate in the Court of Appeal about the status of ACT laws that are picked up by section 4A of the Jervis Bay Territory Acceptance Act. That debate really does not need to be resolved because we have accepted that if there is a conflict between the Land Grant Act and the Residential Tenancies Act then it is the Land Grant Act that would prevail.
Whether there is a tension or a conflict used to be resolved, we say, by the application of section 46 and I want to say a little bit about the work that section 46 does in order to seek to elucidate why we say that it means just what it says. We seek to draw a distinction between provisions which provide rules for resolving conflicts between laws, section 109 is an example of one of those and provisions which aid the construction of statutes so as to minimise or avoid or perhaps create such conflicts on the other.
We say that section 46 is a provision of the latter kind. It does not supply a rule for resolving conflicts between laws. Those rules come from somewhere else. We can see that from just thinking about its terms. It speaks of a law in force in the Territory and therefore has work to do potentially, at least in principle, in relation to a number of different kinds of enactment. It has work to do in relation to laws of the ACT which are picked up under the current section 4A of the Jervis Bay Territory Acceptance Act and they were held by the Court of Appeal to have a subordinate status to Commonwealth laws.
It occurred to me that among those laws of the ACT, in relation to which section 46 has work to do, it may have been imperial laws in force in the ACT in the mid-1980s. Section 46 may have work to do in relation to ordinances made under the Jervis Bay Territory Acceptance Act, which are subordinate Commonwealth laws, and it may have work to do in relation to other Commonwealth Acts which apply in the Territory as to which the rule of resolution of the conflict is different. In the case of conflicting laws of the same legislature in the last resort the later enactment would be construed as impliedly overruling the former.
So section 46 has work to do in relation to potentially all of those different kinds of enactments. It is, therefore, we say, not comparable in the work it does to section 109 or section 28. It is assuming the existence somewhere else of a rule of resolution and it is affecting the construction of the Act within which it sits in order to, to the extent that it can, minimise the conflicts which would require a rule of resolution to come into play.
We therefore differ, with respect, from the prominence that our learned friends give in their submissions to the Commonwealth v Australian Capital Territory which is behind tab 15 of the bundle of authorities and I wanted to go to part of that judgment, if I may. If I could take your Honours to page 465 in the report where, under the heading “Inconsistency”, section 28 of the Self-Government Act is set out. Your Honours will see that section 28(1) has two limbs to it. The first is a rule of resolution:
A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2) –
that is to say, in shorthand, a Commonwealth law. It then goes on to say:
but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently –
and what happened in Commonwealth v Australian Capital Territory suggests that that second limb has some difficulty about it and may turn out to be a cry in the wilderness. Why I say that will emerge, I hope, as I take you through the next few paragraphs. At paragraph 50, there is a reference to a dictum on which we rely. The Chief Justice and Justice Gummow in GPAO who said that:
“the criterion for inconsistency – incapacity of concurrent operation – is narrower than that which applies under s 109.
Under section 109, of course, notions of indirect inconsistency can arise. The Commonwealth can declare or have an intention to cover a certain field and it is necessary in a section 109 case to inquire into that.
KIEFEL CJ: Is that to say any more than that if Commonwealth legislation does cover the field there can be no question of concurrent operation?
MR KENNETT: That is where the Court ended up in - - -
KIEFEL CJ: The same sex marriage case.
MR KENNETT: Yes, yes, and it is, with respect - - -
KIEFEL CJ: Is that what the Northern Territory v GPAO says?
MR KENNETT: Northern Territory v GPAO did not have that difficulty about it that the ACT case had.
KIEFEL CJ: Yes.
GAGELER J: It also was not about section 28 of the Self-Government Act.
MR KENNETT: Yes, yes. That is why that is so. But just as a matter of language we say what the Chief Justice and Justice Gummow said must be right. A general notion of inconsistency includes inconsistency of many kinds, but capacity for concurrent operation, just as a matter of language, draws a narrower focus. That dictum was relied on by the Territory in the same sex marriage case, unsuccessfully, and we begin to see why when we go to paragraph 51, over the page. The submission of the Territory is set out there, and then their Honours say:
How a Territory enactment could operate concurrently with a federal law which is a complete statement of the law governing the relevant relation or thing was not explained.
And then at paragraph 52, in the last four lines:
if a Commonwealth law is a complete statement of the law governing a particular relation or thing, a Territory law which seeks to govern some aspect of that relation or thing cannot operate concurrently –
and then their Honours elaborate on that by going to the text of section 28, in the next paragraph, and observing that – again, citing about halfway through the paragraph that section 28:
is directed to the effect which is to be given to an enactment of the Assembly; it is not directed to the effect which is to be given to a federal law . . . It does not say, and it is not to be understood as providing, that laws of the federal Parliament are to be read down or construed in a way which would permit concurrent operation of Territory enactments.
Then paragraph 54, at the top of page 467, their Honours say:
the starting point for any consideration of the operation of s 28 must be the determination of the legal meaning of the relevant federal Act –
Again, at paragraph 56, in the last five or six lines, the point is made again:
The question of concurrent operation depends upon the proper construction of the relevant laws. In particular, there cannot be concurrent operation of the federal and Territory laws if, on its true construction, the Marriage Act is to be read as providing that the only form of marriage permitted shall be a marriage formed or recognised in accordance with that Act.
Their Honours then go into more detail on the Marriage Act, which I do not need to take you to, and come to their conclusion in the first few lines of paragraph 61.
So the problem for the Territory in the same sex marriage case was that the first limb of section 28 stated a rule of resolution that gave primacy to the federal law and because section 28 was located in what is in substance the Constitution of the ACT, it was very difficult to say that section 28 – and the court denied the proposition that section 28 was a provision relevant to the construction of other federal laws, given that it had stated a rule of resolution that gave primacy to the federal law, the federal law had to be construed in its own terms and then the plea in the second limb of section 28, for inconsistency to be understood in the narrower sense, was of no value.
Once the federal law had been construed according to its terms, properly understood, it covered the field, the conclusion followed that whatever one might say about concurrent operation it just was not possible because full width had to be given to the federal law.
Section 46 of the Land Grant Act, with which we are concerned, is in a very different situation - if I could take your Honours to it quickly. It is behind tab 3 in the authorities bundle. It is page 33 of the print – page 45 of the bundle, I should say. Section 46 is located in the federal Act and its opening words are:
This Act does not affect –
So what it is doing manifestly and plainly on its terms is affecting the operation of this Act, that is, the Land Grant Act. It is telling us how to construe and understand the operation of the Land Grant Act and it is confirming a legislative intention that that Act is not to displace, pursuant to whatever rule of resolution there might be, a provision of another applicable law unless the two laws come into direct conflict.
So, it points to the answer to questions about whether other provisions of the Land Grant Act are to be construed as conferring powers or permissions that operate to the exclusion of other statutory provisions in force in the Territory.
GAGELER J: Are you saying that section 46 requires the other provisions of this Act to be read down in some way, are you?
MR KENNETT: I do not use the language of “reading down”. They are to be given effect according to their terms and they are not subjected to implied limitations in order to make them work with other legislative regime. But in construing them according to their terms, part of the – that, of course, is a constructional exercise that involves questions of context and so forth and part of that exercise is to keep in mind the operation of section 46. So they are not to be – unless they say so directly or acquire it in order to operate the other provisions of the Land Right Act are not to be understood as excluding acts or matters or things from the application of other statutory regimes.
The application of section 46 is part of the exercise of construing the Land Grant Act. So we say the Court of Appeal went off the correct track when it suggested that the Land Right Act had to be construed as an anterior step to applying section 46. That is at paragraph 61 of their Honours’ reasons on page 40 of the core appeal book.
The understanding of section 46 that we contend for is one that has gained some support from the passage in the explanatory memorandum, which we have quoted in paragraph 19 of our written submissions. I will not read it to your Honours.
Having said those things about section 46, can I come to the leasing provision of the Land Grant Act. There are a number of provisions dealing with leases by the Council, beginning with section 38, which have been discussed in the written submissions, but I wanted to focus, if I may, on section 38(2), which is the provision that authorises the grant of leases by the Council.
This is a section that applies to land that has been vested in the Council. Your Honours will see from section 38(1) – it is page 40 of the authorities bundle – that it applies to Aboriginal land and Aboriginal land means land that has been vested in the Council pursuant to section 10.
So the Act is speaking in proprietary language in relation to this land, albeit not using the labels of feudal tenures, speaking in proprietary language. Just pausing there, the vesting of land in a corporate entity would ordinarily suggest that the entity would have the right to deal in the land. Section 38(1), though, deals with that by taking away that capacity – these are the opening words:
Except as provided by this Part -
and the exception, principally at least, is subsection (2) which says:
the Council may grant a lease of Aboriginal Land (other than -
particular land, to various classes of people. So that we say is the carve-out envisaged – the carve-out from subsection (1) which is envisaged in that subsection and, to the extent that anything turns on this – and I do not suggest it is critical but it helps to understand the nature of this regime – subsection (2) we say is an exception from a denial of what would usually be proprietary rights rather than a distinct conferral of some special power.
Of course, one can perhaps view this differently and say that this is a statutory power of leasing, but even if it is a statutory power of leasing, it is a power to dispose of interests in land by a familiar form of transaction which is consensual, ordinarily contractual. We do not see anywhere a conferral of power on the Council to exercise governmental power over the land. Council has some powers to make by-laws but nothing that touches on this specific matter. The Council does not have zoning powers or power to override zoning legislation or anything of that sort. It is just the power that a landowner would have to enter into transactions.
BELL J: Save that this landowner in the exercise of the statutory power is required to grant in relation to those who immediately before the land became Aboriginal land and who were in occupation of the land, a lease for 99 year having statutory incidence that include the lessee bearing the capital costs of buildings on the land in the circumstances contemplated under section 40 and those 99 year leases being the subject of provision for their transmission by will under section 42.
Now, there is perhaps a question about the capacity for concurrent operation with clause 55 of the Residential Tenancies Act which one looks at a lease of that character. To say this is no more, no less than in truth a landowner possessing freehold title entering into a contract with a lessee requires a stretch when one looks at the scheme under 38(2), 40 and 42.
MR KENNETT: I do not doubt that there are problems for the Council because unlike most private landholders who seek to usually earn a return on their property and are able to dispose of it as they wish, it is subject to certain requirements, one of which your Honour mentions but the test of concurrent operation, we would say, is not whether compliance with the other statutory regime, here the Residential Tenancies Act, is inconvenient or even whether it is inimical to the pursuit by the Council of its statutory aims.
The extent to which it is empowered to pursue those aims is, of course, a question of construction of the whole Act and section 46 is an element of that. So, if there are tensions in this or even incongruities, that does not answer the question, we say, because section 46 poses quite a narrow question about concurrent operation which we say is a matter of the avoidance of direct conflict. So, you would need conflicting duties or a power in the one act and a prohibition in the other.
GAGELER J: When you say direct conflict, one well-recognised species of direct conflict is one law impairing or detracting from the intended operation of another law. Do you accept that as a test of inconsistency applicable by reason of section 46?
MR KENNETT: We do not, your Honour, at least on our primary submission.
GAGELER J: So when you speak of direct inconsistency, what are you speaking of?
MR KENNETT: I am speaking of direct collision. I am speaking of inconsistent obligations - - -
GAGELER J: Nothing more.
MR KENNETT: - - - and nothing more. Well, maybe not nothing more but inconsistent obligations or a clear conferral of authority which is contradicted by a duty or a prohibition in the other act. That might be another example but I am speaking of direct collision.
GAGELER J: What does the word “clear” add in that formulation?
MR KENNETT: I mean express or plainly to be implied. I realise I have just answered with another gloss but an example is section 41(1) on page 43 of the bundle ordains that a lessee of land from the Council:
may grant a sub-lease of the whole of the land.
There is a provision in the Residential Tenancies Act that says you cannot do that. So that is a case of conflict and that is case where Land Grant Act prevails and the - whatever that provision of the Tenancies Act is, I cannot remember just at the moment, would not apply.
If the Tenancies Act had, hypothetically, provisions in it imposing maximum terms of years for residential tenancies that would come into direct conflict with the power, in some cases, and the obligation in others, of the Council to grant leases for 99 years. That is the kind of thing I am envisaging.
EDELMAN J: In other words, your construction of section 46 is that it contains a negative implication that the Act does not cover any field exhaustively – not just does not cover some field – does not cover any field at all exhaustively.
MR KENNETT: Yes, your Honour, yes. Just to go back to Justice Bell’s question, I also wanted to make the point that part of what is put against us, as I understand it, is that compliance with these obligations is difficult for the Council and, without being flippant, life generally is difficult for the Council because it is not flush with funds and it does not have enough – there is an agreed fact that it does not have enough property to house all of its members.
I just wanted to make the point that it would be erroneous to construe the Act by reference to the Council’s current circumstances unless those circumstances were intended, or envisaged by the Act which, we would say, they are not. So, one can put to one side the - - -
BELL J: Putting to one side the particular circumstances the Council may find itself in, when one construes the Act one looks at a scheme that, amongst other things, imposes on the Council, in addition to its function of holding title to Aboriginal land, a function to take action for the benefit of the community in relation to housing and social welfare and so forth.
It comes down to – I understand, Mr Kennett, if you are right, that section 46 is concerned solely with inconsistency in the sense of the incapacity to comply with obligations under each of two enactments. That is one area of argument and I understand that. But if one considers that the work done by section 46 has a broader scope – perhaps consistent with section 28 of the Self-Government Act – then, when one looks at the context of the scheme under the statute, one might see some difficulties with it accommodating the obligations under clause 55.
MR KENNETT: No doubt there are – as I have said earlier – tensions in this scheme and the point on which we are divided is not an easy one, but those - - -
GORDON J: Can I ask two questions about the construction of this Act absent dealing with 41 and 42 and that is it is common ground, is it not, that both the power to sublease and the power to do it by succession apply to all leases regardless of term, that is, in relation to 41(1) and 42(1) if, for example, it was not a section 40 lease but a 38(2) lease, both those provisions apply generally.
MR KENNETT: Yes, that is our understanding.
KIEFEL CJ: Mr Kennett, could I ask you this? You said that section – on your approach section 46 means that the Act does not cover any field at all. Is that to deny the possibility that there is an exclusive subject matter which might be described, say, as to whom the Council may grant leases on terms as to duration and as specified, say, in section 40 but that the Act leaves an area for other laws to operate outside that subject matter?
MR KENNETT: Yes, that might be a better way of putting the answer that I gave – the very short answer I gave to Justice Edelman. I mean, what I am seeking to say is that there is not an implied negative penumbra in this Act. It controls the things that it says it controls and it is not to be read in any way as beyond those areas of control.
KIEFEL CJ: It depends how you define the subject matter which is covered, does it not?
MR KENNETT: It does, yes, but the subject matter is to be really - in the light of section 46 really reduces to the scope of the particular provisions.
KIEFEL CJ: But having regard to how the decision in Commonwealth v ACT approached the more general question, would you not look first to cover the subject matter or field operation and then look to see whether you could have a concurrent operation within – after you determined whether there is anything in which a Territory law could operate, whether or not it is able to intrude into a field?
MR KENNETT: Well, I think my answer is no, your Honour. Section 46 is telling us about the effect of the Land Grant Act, as I say, and it is telling us that the Land Grant Act is not to be understood to exclude the operation of other statutory regimes to the extent that they are capable of operating concurrently, and I have indicated what we take to mean by capable of operating concurrently. So that if there is a question whether the Land Grant Act implicitly excludes another statutory regime because it is intended to be the whole of the law on that subject, then the answer to that question is going to be no.
KIEFEL CJ: But on your approach then section 46 answers the question whether or not there can be an exclusive area of operation.
KEANE J: You say that section 46 is an anti “covering the field” provision - - -
MR KENNETT: It is, your Honour, yes.
KEANE J: - - - and that what it requires you to do is not to ask yourself about what is the field being regulated, but what is the rule that applies to a particular matter.
MR KENNETT: That is so, your Honour, yes, that is how we put it. So, it is comparable to some of our learned friend’s written submissions - - -
KEANE J: In Commonwealth v ACT the point of the decision was that the Marriage Act (Cth) stated the rule about marriage.
MR KENNETT: Yes.
KEANE J: It was just the rule, and that rule and no other.
MR KENNETT: Quite so, yes. That was the problem in that case, yes. Your Honours, the only other - - -
EDELMAN J: Just before you move on, does that mean that as a matter of construction of section 46 one gets that negative implication from the fact that the second limb of section 28 has been chosen or applied but effectively a conscious decision has been made not to apply the first limb and then one draws the negative implication from that?
MR KENNETT: That is part of it, your Honour, and also the language of the second limb has been taken and inserted into the particular Act that we are seeking to construe and expressed in terms of governing the operation of this Act. So that second limb in section 28 was seemingly trying to govern the operation of other federal Acts which was a difficult thing for it to do and the court held that it in the end could not do that. But here it is in the Act and it says “This Act” and tells us about the effect of this Act, so it is doing different work.
GAGELER J: Mr Kennett, one very simple reading of section 46, which I think is consistent with GMAC and consistent with Kearney, which interpreted I think the equivalent provision in the Northern Territory Land Rights Act, is just to read it as saying that this Act does not make exhaustive provision with respect to the subject matter of Aboriginal land. Whether a law is capable of operating concurrently with it then just turns on the construction of the particular provisions of this Act, giving them their full operation as a matter of ordinary interpretation and then looking at whether the other law, whatever its source, giving it full operation would detract or impair that operation. What do you say about that reading?
MR KENNETT: It involves a gloss on the words. It is broadly consistent with the understanding of the section for which we contend but it does involve a gloss on the words.
KEANE J: It is a problem about paraphrasing, is it not?
MR KENNETT: Yes.
KEANE J: It is a problem about using these descriptors to try to encapsulate what the words are actually saying. The words here are actually saying are they capable of concurrent operation. It is inviting you to look at whether both laws can have effect at the same time.
MR KENNETT: Yes, your Honour.
KEANE J: You do not you need to mediate that through labels like “covering the field” or - - -
MR KENNETT: Yes, we would accept that. So if one seeks to restate it in the terms your Honour Justice Gageler suggests – saying there is no intention here to cover the field – that at least potentially leaves the Act, excluding other regimes in a section 109 way on the “alter, impair or detract from” notion. We focus also on the particular words that are used here, which are “a current operation” which we say is quite a narrow way of putting it.
KIEFEL CJ: Mr Kennett, I am sorry to harp on this but how do you say a Territory law can be capable of operating concurrently if the Aboriginal Land Grant Act operates to cover a field? You say that is answered by the reference to this Act? To the extent that the Aboriginal Land Grant Act may be said to cover a particular subject matter, how could it be said that a Territory law is capable of operating concurrently?
MR KENNETT: Your Honour, we would resist the notion that it covers any subject matter.
KIEFEL CJ: At all?
MR KENNETT: In an exhaustive way, any subject matter beyond what its particular words identify and so section 46 at least is an anti “covering the field” provision.
KIEFEL CJ: So nothing in this Act affects - - -
GAGELER J: I am sorry, Mr Kennett, but when you say it is an anti covering the field, it is an anti covering of any field, in your submission?
MR KENNETT: Yes.
NETTLE J: Except to the extent that the rules expressly state it in the particular section with which one is concerned.
MR KENNETT: Yes, I am not sure that is right, your Honour, but I am not sure how much it adds to our proposition.
NETTLE J: I was not suggesting that – I was just seeking to understand.
MR KENNETT: I had one more observation to make about section 38 and how one would understand its intention in the light of section 46, among other things – well, two things, I suppose. One is, to go back to your Honour Justice Bell’s question a while ago, your Honour observed that the Council, among other things, is required or given the function of undertaking work for the benefit of the community, things of that kind. But one thing that section 46 tells us is that those things are to be done within the broader legal regime that applies in the Territory except to the extent that the Act specifically changes that.
The other observation – and this bears on how one would view what is intended by section 38 – I have made the point that what it gives is a power to do something that a landowner could do to grant a familiar kind of transaction, to enter into a familiar kind of transaction, and the relationships created by those transactions, those of landlord and tenant are of course something that has been legislatively regulated for a long time.
I am not in a position to tell your Honours that there was anything akin to these implied terms in the residential tenancy law of the ACT in 1986, but the general point still holds good that this is a field which has, for a long time, been the subject of intervention by legislatures and the section having given a power to lease gives no indication, we would say, that that body of law and developing body of law of course was intended to be excluded from applying to the relationships that would be created by these leases.
NETTLE J: Do you know if there are any implied statutory covenants upon a landlord to repair at the time of the enactment of the Land Grant Act?
MR KENNETT: The short answer is no, your Honour. I have not been able to find an historic reprint but to the extent that I have been able to go through the ACT ordinance and its various amendments, my understanding is that the approach of having a set of statutory implied terms in a schedule which are put into every lease was not adopted in the ACT until the Residential Tenancies Act was enacted.
NETTLE J: Yes.
MR KENNETT: So, I do not think there was anything directly comparable to these implied terms at the time the Land Grant Act was enacted.
NETTLE J: So, that at the time of the enactment of the Land Grant Act, with the position under general law that in the absence of a need to give it business efficacy, there would be no obligation on the landlord to repair.
MR KENNETT: I think that would be so, your Honour, yes, yes, and of course the Tenancies Act applied when it was enacted in 1997. When it came into operation it applied and this is, I think, not controversial, it applied to existing tenancies as well as to new ones. So that is why - in our written submissions and I think to some extent, those of our friends as well, we have often put matters in terms of power, in terms of whether the Council had an unfettered power which is a way of putting it but the question here is more particularly whether a set of legal relationships that the Council has created is within or without the regime of the Residential Tenancies Act.
KIEFEL CJ: Would the general law have implied an obligation of maintenance on the landlord with respect to a lease under the Aboriginal Land Rights Act?
MR KENNETT: The research that we have done, your Honour, indicates that it would not.
KIEFEL CJ: So, just remain completely silent, no obligation on either party.
MR KENNETT: Yes, yes.
NETTLE J: Just as it would have been in the ACT at the time.
MR KENNETT: Yes, that is our understanding, yes, and of course it would be a question of construction of the particular lease - - -
NETTLE J: Yes.
MR KENNETT: - - - and the lease in this case has been lost, if it ever existed. So, the parties agree that there was one but nobody has been able to find it so we do not know what its terms are. Your Honours, I have said everything in my outline of submissions. The only other thing I wanted to mention was costs and there have been some discussions this morning and the parties have agreed that we are all content to bear our own costs so that we do not press the proposed order for costs in our notice of appeal. If the Court pleases, those are the appellant’s submissions.
KIEFEL CJ: Thank you, Mr Kennett. Mr Solicitor, I think you are following.
MR GARRISSON: Your Honours, the second respondent obviously relies on its written submissions and he also relies upon the submissions that the appellant has put forward. The first issue that I wish to touch on, which has been addressed in our written submissions, is the nature and character of section 46. There has been much discussion about the terminology that flows from section 28 of the Self-Government Act and from section 109 of the Constitution.
Respectfully, the second respondent’s position is that section 46 is nothing more and nothing less than an internal rule for how to determine the priority of laws that apply in the Jervis Bay territory. The Jervis Bay territory is a Commonwealth non-self-governing territory. When established, there had to be a body of civil laws that applied within that territory and, in common with other external territories that were established by the Commonwealth, it selected upon the domestic laws that applied in the Australian Capital Territory which, of course, prior to self-government, were by way of ordinance.
So, in that context, section 46 says, of those laws that apply in the Jervis Bay territory, this law – the Land Grant Act – will take precedence if those other laws that apply in the Jervis Bay territory cannot be read to operate concurrently. It is not, with respect, a constitutional test. It does not impute constitutional terms. It uses some of the terminology from a quasi-constitutional document – section 28 of the Self-Government Act – which, of course, is itself a Commonwealth Act and, hence, as other Commonwealth Acts do, have their own inbuilt mechanisms for the resolution of conflict with other laws.
There has been some discussion in the submissions about the nature and character of the laws that apply in the Jervis Bay territory and the submissions of the second respondent were described as a complex taxonomy in relation to the sources of the laws that do apply.
For present purposes, we respectfully submit that it is not necessary to precisely identify the nature and source of the applicable laws. In terms of the Residential Tenancies Act, it is clearly accepted that it is picked up and it is applied in the Jervis Bay territory. The issue is whether section 46 has the effect that some or all of the Residential Tenancies Act does not apply in relation to the area that is designated as Aboriginal land.
The submission of the second respondent is that this requires nothing more and nothing less than a laying side by side of the two pieces of legislation and can they be interpreted to operated concurrently. Now, much has been said about whether there is a field that the Land Grant Act encompasses. We respectfully say it is a facilitative piece of legislation which establishes the Council. It vests, relevantly, the Aboriginal land in the Council and as section 10 of the Land Grant Act says, it takes all the rights and interests in relation to that land.
The Act then steps back from what one might say are the complete body of rights that a landowner may have. It imposes a range of limitations. It confines the persons to whom it can grant leases. It gives a function of granting leases. It does, however, say nothing about the terms of those leases other than in precisely identified terms in the legislation.
The corollary of a view that there is somehow read into the terms of section 38 a capacity to determine the terms of the leases is simply a reading in that the legislation does not permit of. The words are not there. Mechanisms are there for the issue of the terms of leases to be addressed. There is a capacity for regulations to be made under the Act and a necessary and convenient topic for a regulation could easily be the terms and conditions of leases that the Council is granting.
Alternatively, the Governor-General could make an ordinance. The leases ordinance, the Jervis Bay Leases Ordinance, has been in place for some time. It has been amended on a number of occasions and, indeed, the leases ordinance was most recently amended to reflect the capacity of the Federal Circuit Court to determine disputes in relation to all Commonwealth leases that are taken out under State or Territory laws.
So, it is readily available and part of the legislative scheme of the Land Grant Act that it sits within an overarching framework. The framework permits of the determination of issues in relation to leases and, indeed, under the Residential Tenancies Act the Council may apply to the ACT Tribunal to have the standard conditions varied.
If, as appears to be asserted, the application of the standard conditions is a matter of grave concern to the Council and is going to impugn the conduct of its business and affairs and dealing with the interests of the citizens and residents of the Aboriginal land, then it is not that difficult a task complying with the terms of the Residential Tenancies Act to seek to vary those standard terms of which complaint might be made.
The challenge in all of that is what if it is found that the Residential Tenancies Act and the standard terms and conditions are inconvenient to the Council and therefore should not apply? With respect, that has to be the highest point at which the first respondent’s case is put. It has said that, “This is terrible, we don’t have resources to address fixing up all of the houses that are within the area of the Aboriginal land”. One might have some sympathy for that. There are in fact a number of public housing entities that operate leasing houses, using the Residential Tenancies Act and equivalent provisions in other States, who likewise have, not those priorities, but have resourcing challenges.
Now, to say that this limits our capacity to undertake the whole range of activities that the Council is able to pursue and, indeed, is obliged to pursue under its legislative fiat, is not to say that, “Well, therefore if this law impinges on your capacity to discharge these other functions, therefore that law cannot operate concurrently with the Land Grant Act”. The second respondent says that is a step too far. What the Court is being asked to do is to in effect blue pencil a provision in that says, “You’ve got the power to grant leases, and incidentally you can also determine the terms and conditions of those leases”.
The difficulty, if it is concluded that the Residential Tenancies Act – we are speaking about a particular clause at the moment, but this is an issue of general application, in my respectful submission – is what then are the residents of the Aboriginal land left with? The appellant in this instance apparently did sign a lease at some point. It is agreed that he does in fact have a residential tenancy agreement; they just cannot find it. So we are not entirely sure what the terms of it are.
If the Residential Tenancies Act does not apply, then the residents of the Aboriginal land, some of whom do have 99 year leases, but we do not have a full breakdown of the range and scope of those leases – there is no obligation for it to be a 99 year lease for other than those who have been grandfathered. So therefore we are left with the common law.
Now, as has just been highlighted – and I think Justice Nettle raised the issue – there is no obligation to repair the common law in relation to landlord and tenant. In fact, the common law, aside from the broader rights that attach to tenants – quiet enjoyment and the like – there is not an awful lot.
If it was the intention of the Commonwealth Parliament in making the Land Grant Act to not permit there to be provision for those who were lessees from the Council to have the ordinary protections that flow from the existence of what is now almost uniform across the Commonwealth, certain standard rights, then that surely cannot be an intended outcome of the operation of section 46 in relation to what is, in my respectful submission, your Honours, simply a rule that says if you have two laws that are applying, lie them side by side, if they cannot operate together then the Land Grant Act will operate.
Now, we have some identified areas where that does occur. Issues have been raised about subleasing. Issues have been raised about being able to bequeath the interests in the lease to successors. I might add that the prohibition on subleasing is not perhaps as great a limitation as it might be because, of course, sitting within the Land Grant Act itself are a range of limitations about whom one may sublease to and the like.
So I accept that the provisions in the Residential Tenancies Act that relate to subleasing go to one side and they are replaced by the provisions that, clearly, if you will, cover the field. I do not wish to use that terminology, but the provisions in the Land Grant Act that says these are the rights that tenants have to sublease, cannot sit with the provisions in the Residential Tenancies Act that have a different effect.
That is the purpose of section 46. With respect, it is not a constitutional provision. It does not deal with resolving conflict between jurisdictions and laws of different jurisdictions, because the ACT laws are surrogate Commonwealth laws, once picked up and applied. That much is clear from authority, and they are picked up on their terms.
Now, having been picked up, they are simply amongst that range of laws within the Jervis Bay territory that apply. There are some filters that one would have to put it through before one determined that it applied to the Aboriginal land and those are the filters that are set out in section 4A of the Jervis Bay Territory Acceptance Act and that, in essence, goes to issues – for example, is there a conflicting ordinance? If there is a conflicting ordinance, then the ACT law cannot apply. If there is conflicting Commonwealth law, well, then the ACT law will not apply to the extent of that inconsistency.
So, you put it through the lens and the tests of the Jervis Bay Territory Acceptance Act in section 4A and then, to the extent that it is then operating within the Aboriginal land, it will operate unless it cannot operate concurrently with the Land Grant Act and we respectfully say that you do not adopt a constitutional – use of constitutional language in undertaking that exercise. You undertake an exercise that compares the two provisions. It looks at the language, scope and object of the Land Grant Act and says can this operate with this competing provision?
There are a range of matters that the first respondent raised. I believe in the course of my submissions I have addressed most of those. They point to four indicators in their written submissions to say that those statutory indicators indicate that the power to grant leases includes the power to set the terms and conditions of those leases.
There is a proposition that the first respondent only has the powers that it has been given by the statute. It is not actually a landowner in the true sense. It does not have all the rights of a landowner and, of course, the obligations that go with it but that really does not survive a close examination because if it is said that they do not have all the normal powers to deal with land and then there is just a statutory restriction but they only have the powers that the Act gives it then that raises a number of difficulties and, indeed, an internal inconsistency in relation to the first respondent’s argument because if they only have the rights that the statute gives and the statute does not expressly give a power to determine the terms and conditions of the leases, how can that sit as an argument.
GAGELER J: Mr Solicitor, if the critical question is as to the scope of the power conferred by section 38(2), do you say anything about the bearing of section 46 on the interpretation of section 38(2). Do you say it says anything or that it is entirely neutral?
MR GARRISSON: It is the lens through which one examines the law that it is said applies on the Aboriginal land. So, from the point of view of the Residential Tenancies Act which sets a range of special conditions about leases we say that that Act – looking through the lens of section 46 – applies to the Aboriginal land because 38(2) has nothing to say about the terms and conditions upon which those leases are granted.
GAGELER J: I understand that, so far as it goes. My question is, in you asserting that section 38(2) has nothing to say about the terms and conditions of the lease, as a matter of the construction of section 38(2) does section 46 have any bearing on that or are you starting with the text of section 38(2) read in the context of the Act generally?
MR GARRISSON: Your Honour, one looks at the whole statutory scheme. It has no operation, no relevance, we would respectfully say, in relation to 38(2). But there are other provisions in the Land Grant Act which bear on the nature and character and the parties to leases. Some of those are not provisions that actually are dealt with in the Residential Tenancies Act but some are.
GAGELER J: Really, all I am asking you is, do you bring section 46 to bear to support a narrow reading of section 38(2)?
MR GARRISSON: We would say that is unnecessary, your Honour. You take it on its plain terms.
GAGELER J: Thank you.
MR GARRISSON: The plain meaning.
KEANE J: Do you not say that section 46 is your authority to lay the Residential Tenancies Act side by side with section 38 and look for a provision in either that cannot both be obeyed?
MR GARRISSON: Yes, your Honour.
GORDON J: So, here you have section 46. You have a provision in section 38(2) which is the power to grant a lease. Your argument, as I understand, is that the Residential Tenancies Act prescribes minimum terms.
MR GARRISSON: Yes, your Honour.
GORDON J: And they can operate concurrently?
MR GARRISSON: Yes, your Honour.
GORDON J: Is it any higher than that?
MR GARRISSON: No. I think that says it. The parties can agree – there are other provisions - - -
GORDON J: They could agree better terms, above the minimum. There are minimums.
MR GARRISSON: Indeed, and the Residential Tenancies Act, being a law that has been picked up and is applied, has within it the capacity to address the sort of issues that the first respondent has raised, that is, some of these provisions are inconvenient for us to operate on in the particular environment. So the Residential Tenancies Act makes provision for an application to be made to the Tribunal to vary them.
GORDON J: Can I just test that, please? Is that section 10 that you are referring to?
MR GARRISSON: Of the?
GORDON J: Residential Tenancies Act.
MR GARRISSON: Residential Tenancies Act.
GORDON J: Because I had understood to read that that it was the parties who had to apply. Is that a consensual provision or is there provision for one party to apply?
MR GARRISSON: It is a consensual provision, your Honour.
GORDON J: So it is section 10.
MR GARRISSON: Yes.
KIEFEL CJ: Mr Solicitor, the parties are probably aware the Court has a morning break. We will break for 15 minutes.
AT 11.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.32 AM:
KIEFEL CJ: Yes, Mr Solicitor.
MR GARRISSON: Thank you, your Honour. Before we broke I had just started dealing with what the first respondent says are statutory indicators that say that the nature and character of the Council is such that it ought to be considered to have the additional power to determine the terms and conditions of leases.
The proposition starts from the fact that it is not an ordinary landowner, that the powers to deal with the land are carefully delimited – this is in the first respondent’s written submissions at paragraphs 40 and 41 – and then goes on to say that the general law power to lease land is inconsistent with the structure of section 38 which they say takes away the power before giving it back in section 38(2).
The second respondent says, as I indicated before the break, that certainly what was taken away in section 38(1) was then given back; given back with a series of statutory limitations. But there is no doubt that section 10 of the Land Grant Act vests the Council in the land:
(including all rights, title and interests in that land) . . . without any conveyance, transfer or assignment.
We say that is equivalent to ownership in the ordinary understood parlance, yes, given by statute, but they then have all the ordinary incidence of landowners - - -
GAGELER J: How can you say that? “They” is a body corporate.
MR GARRISSON: The Council.
GAGELER J: A body corporate only has such powers as conferred the statute that creates it.
MR GARRISSON: Yes, your Honour, and it is given all rights, title and interests in the land by section 10 of the Land Grants Act and then the Land Grants Act imposes limitations on the exercise of those rights.
GAGELER J: Well, it gives the Council certain powers. The Council does not have the capacities of a natural person.
MR GARRISSON: No, your Honour, it does not, but we say that to construe the removal of the powers, which 38(1) does, and then restore them through 38(2) can be nothing other than through the capacity of the Council as holding the rights, title and interests in the land vested in the Council and, whilst they are given a power to grant leases, they are not given a power to determine the terms and conditions of those leases other than as specifically identified in the legislation. Why? Because there is in fact legislation that governs residential tenancies that applies in the Jervis Bay territory.
We say, with respect, that the conditions or limitations that are imposed in various parts of the Land Grant Act would be entirely unnecessary if the Council did not have those what I will term the “ordinary incidents of ownership”, provisions reserving - section 14, which reserves the Commonwealth mineral rights; section 38 limits the way States can be dealt with; section 43 dealing with mining or exploration; 44 is another minerals provision; and section 45, which says that the first respondent is not liable to pay rates or other taxes.
So it is, in effect, a grant of title subject to limitations. There is a specific power to grant leases but we say that you cannot look at section 46 as a standalone code because the Act is not a standalone code. One needs to look at it in the context that it sits within the Jervis Bay territory and there is a range of laws, ordinances and, indeed, ACT laws that apply and will govern the relationship between those who hold land or who are living on the Aboriginal land and the Council.
The second indicator that the first respondent relied upon is the nature of the property dealings at paragraph 43 of their submissions. They say it is a long lease, 99 years, and that renders it inconsistent or unable to operate concurrently with the Residential Tenancies Act because that imposes a whole range of conditions that just are not suitable for 99 year leases.
Accepting that there are some of the original members who are grandfathered into these arrangements, the fact is it does not mandate 99 years – it is a maximum. There is nothing in the Tenancies Act that prohibits long-term tenant leases and we would respectfully say that there is nothing in that character that renders the Residential Tenancies Act unable to operate concurrently with the Land Grant Act, which itself has provisions, as has already been touched on, your Honours, in relation to, for example, subleasing.
The third indicator that the first respondent seeks to rely upon at paragraphs 48 to 53 of their written submissions speculates that there may be a range of activities or possibilities that the Council may wish to undertake that an obligation to comply with the Residential Tenancies Act will somehow impede. It is not exactly explained how that comes about.
The fact, as I have already touched on, your Honours, that meeting some of the obligations in the Tenancies Act may have a financial impact, as indeed it does, for many landlords, but that of itself, we respectfully say, is not a justification for reading into section 38(2) a clause or a provision or a power that is not in fact there.
It does not, in fact, seem to be necessary for promoting the respondent’s objectives. Yes, one of the things that it is to do is to lease - grant leases but there is a plethora of other activities that it takes – it undertakes and it would be unusual to suggest that its role as a landlord is in fact an objective with which any other law cannot quibble.
I have already indicated, your Honours, that the Tenancy Act itself enables applications to be made to the ACAT to vary the standard conditions. It is not clear why what is described as the relationship between the Council and its members somehow impedes the capacity to, for example, agree to go to the Tribunal to get some standard terms.
In fact, one would imagine as a collective it would be a lot easier to get the members together to agree to take that course. As also noted, your Honours, previously, the first respondent premises this on saying, well, look, there is a different economic ownership model involving the leases that it grants that underpins the Land Grant Act. Well, that is no different to the economic model that the ACT Commissioner for Social Housing, a number of community landlords, face themselves.
The second element of that is that of course it is always possible for an ordinance to be made that deals specifically with the topic of the terms and conditions of leasing. The leases ordinance itself, which governs part of the Jervis Bay territory now, regulates land other than the residential land in the Jervis Bay territory, which is now covered by the Residential Tenancies Act, but the ordinance itself covers other land there.
So, if in fact it is the proposition that the Residential Tenancies Act does not address those who occupy land in the Aboriginal land, then it is a gap that needs to be filled that has not been filled. No attention has been given to determining the terms and conditions in the Aboriginal land and we respectfully say that that actually reflects the submissions that the second respondent is putting to say the Aboriginal land is not an island; it is not a self-governing area. It is simply an area of land that it is to be controlled by a council who have been given in effect title to that land subject to a range of statutory limitations.
It sits within the Jervis Bay territory. The laws that apply in the Jervis Bay territory apply unless they cannot operate currently with the Land Grant Act and we would respectfully say that the result, looking at that scheme, plainly the intention is for the Residential Tenancies Act to apply. To the extent that it may not apply in part, section 46 responds and the result, we would respectfully say, is not a constitutional test, not an application of constitutional tests which we respectfully say are inapt in these circumstances - - -
KIEFEL CJ: I think perhaps you have made that point.
MR GARRISSON: Sorry, your Honour, but simply the laying together of two pieces of legislation to see whether they can operate concurrently and we say that the Land Grant Act plainly is not a complete statement of the law on a given topic. I am not quite sure what topic it would be a complete statement on for the very simple reason it operates within the broader framework. Unless the Court has any further questions.
KIEFEL CJ: Yes, thank you, Mr Solicitor.
MR GARRISSON: Thank you, your Honours.
KIEFEL CJ: Yes, Mr Kirk.
MR KIRK: Your Honours would appreciate that there are two levels of argument. In a sense, there is the major premise which goes to the construction of section 46 of the Land Grant Act and then the minor premise in relation to however section 46 is construed whether concurrent operation is possible and I will address those in turn.
To be clear, in relation to the minor premise, it is our submission that on any construction of section 46 including that put by my learned friends, Mr Kennett and the Solicitor-General, there is still not the possibility of concurrent operation. Ultimately, in our respectful submission, the case is likely to turn much more on the minor premise than on the major but can I start with the major premise.
Our core notion in relation to the major premise is that if a relevantly picked up ACT law alters, impairs or detracts from the Commonwealth law, that is to say the Land Grant Act, properly construed, then it cannot be capable of operating concurrently. That proposition seems to be denied by my learned friend, Mr Kennett, in particular, I am not so sure about the ACT but it is an entirely orthodox approach. Before I grapple - - -
KIEFEL CJ: Is that to accept that when you say “alter, impair or detract” that a law undermines the Land Grant Act?
MR KIRK: Exactly so, with respect, and in this Court’s judgment, without going to it in Jemena v Coinvest, that very point is made that underlying that language of “alter, impair or detract” is ultimately a core notion of – underlying those words is a core notion of undermining the Act. So, the core point here is a picked up ACT law cannot undermine the operation of a federal Act.
KIEFEL CJ: You are not relying then upon - so, I am a little confused with your written submissions, you are not relying upon indirect inconsistency exclusive, exhaustive operation. Your focus is simply a clash, a collision between provisions.
MR KIRK: In the sense I have put of “alter, impair or detract from”. So, in substance, my answer is yes to your Honour’s question. The reason I just hesitate a little is that my learned friend, Mr Kennett, seeks to invoke a very narrow notion of direct inconsistency, namely, impossibility of obedience of both. That is the core notion, I think, you cannot buy both.
We say it is broader than that consistently with the Court’s approach to section 109 where it is well established, of course, that you can have direct inconsistency even if it is possible to obey both as shown, for example, in Dickson v The Queen or in AMP v Goulden which I will come to towards the end of my submissions or a range of other cases. So, that is the notion we seek to put.
Can I seek to locate this in the Court of Appeal’s judgment because, in our respectful submission, the Court of Appeal adopted a correct and entirely orthodox approach. If I could take your Honours to page 37 of the core appeal book at paragraph 45 beginning “However it is clear”. That is the approach the court went on to apply and that is the approach we seek at major premise level to defend.
It was then expanded on a little, as my learned friend, Mr Kennett, said at page 40, paragraph 61. In our respectful submission, that is an entirely orthodox and proper approach to these types of issues, recognising that we are not in 109 territory, but it is still entirely appropriate.
Now, my learned friend Mr Kennett’s position is, with great respect, a little elusive in a way. In answer to a question from your Honour Justice Gageler, near the beginning of argument, he disavowed, as I understood him, the notion that section 46 should be construed as a sort of automatic reading down of the Act. But that does appear to be the effect in substance of what my learned friend, Mr Kennett, puts.
It is illustrated by a point he made to distinguish section 28 of the Self-Government Act where he said pursuant to section 28 full width has to be given to the federal law and drawing that in contrast to the position that applies here. Well, we would equally apply that proposition to section 46, namely, full width has to be given to the federal law, properly construed, as a matter of statutory construction.
Ultimately, to foreshadow where I will go, the key issue of statutory construction is how one understands section 38(2) and the nature of that power and the degree to which it is capable of being confined by laws such as the Residential Tenancies Act.
Can I now turn to the text of section 46 of the Land Grant Act, which is in volume 1 of the authorities bundle at page 45? I am going to say something about the text and say something about the GMAC Case and then also come to the Commonwealth v ACT Case, but starting, obviously, with the text.
My learned friend seeks to place much emphasis on the starting few words of section 46, “This Act does not affect” as though that was a significant distinguishing feature from, for example, section 28 or a range of other provisions in federal law which also speak about concurrent operation. But the section has to be read as a whole and what it states is:
This Act does not affect the application to Aboriginal Land of a law in force in the Territory to the extent that that law –
and the “that law” is the law in force in the Territory:
is capable of operating concurrently with this Act.
In other words, the focus of section 46 is not the Land Grant Act; it is the extent to which, relevantly, a picked-up law, a law in force in the Territory, is capable of operating concurrently with this Act. So we respectfully submit that my learned friend’s construction and attempt to divorce off other such provisions fails when one reads the section as a whole. In a sense, the provision is a clarification, with a qualification, and the qualification is what follows from “to the extent that”.
The clarification is that the Act does not affect the application to Aboriginal land of laws in force in the Territory except to that extent. The reason that clarification might well have been thought necessary or appropriate is that we are dealing here with a physical portion of Jervis Bay, a not insignificant – not huge but a not insignificant part of some beautiful country in Jervis Bay.
Where you have a Commonwealth Act carving out, in a sense, a particular part of the Jervis Bay territory and making some special provision with that – in relation to that, I should say – one could understand that the Commonwealth well might want to add “but this does not create a legal island”. Criminal law, for example, continues to apply - a whole range of other laws continue to apply.
But that does not carry with it any implication that what we, the Parliament, say in this Act should be read down – just saying other laws can continue to apply. We are not creating an Alsatia free from the law in this particular area. Indeed, no part of the text in section 46 says anything about subordinating the Commonwealth policy and purposes, manifest in this Act, to any other law, let alone to a set of laws made by the ACT Legislative Assembly.
Your Honour Justice Gageler referred to the GMAC Case. It is not in the bundle but the key passage is picked up in Dickson which is in volume 2 of the authorities book at page 593, paragraph 33 - Dickson 241 CLR 491.
EDELMAN J: Tab 18.
MR KIRK: Thank you, your Honour. The passage, of course, is well known to your Honours. The key part I would emphasise starts on the sixth line:
Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation -
and down to the end. What his Honour Justice Mason was referring to, as is clear from the rest of the judgment and the many judgments which have referred to it since, is such a provision does not mean you do not apply the ordinary approach to direct inconsistency, most commonly put these days in terms of “altering, impairing or detracting from”, undermining the federal law. Because the case is not in the authorities book, I could not find the provision there being construed. But it was section 75 of the Trade Practices Act – subsection (1) of which provided, at that time:
Except as provided by subsection (2), this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
Subsection (2) dealt with some criminal aspects. So:
this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory –
which is not so different from what is contained in section 46 of the Land Grant Act. Yet one would not suggest for a moment that the Trade Practices Act, as it then was, should be read down in some way so as to facilitate the operation of the Fair Trading Acts, for example. That does not mean you do take account of parliamentary intention to allow joint operation and that, indeed, was the finding reached in the GMAC Case – not actually about a Fair Trade Act but about a similar provision in South Australian law. But, it would not support any kind of reading-down, in our respectful submission.
That then brings me to the same sex marriage case, if I can go to that. It is in volume 2 of the authorities book, and turning to page 559 of that book, for the record [2013] HCA 55; 250 CLR 441 at 465. My learned friend pointed out section 28 of the Self-Government Act is quoted at paragraph 48 of the joint unanimous judgment.
My learned friend – I forget his language exactly - suggested that there are two limbs to section 28(1). We would respectfully suggest that one just reads section 28(1) as a whole. It is obviously talking about a notion of inconsistency but where the criterion of operation, in a sense, is whether or not it is capable of operating concurrently with that law. So it is not as though the usage of the word “inconsistent” makes that a significant distinguishing feature from the language employed in section 46.
Your Honour Justice Edelman asked some questions of my learned friend, Mr Kennett, about the way section 46 had been drafted. One would not doubt these provisions are drafted with care, but on the other hand, if one goes through the Commonwealth law book, one finds different variations on themes from time to time but it tends to bring out the same core idea, being the sort of idea which echoes the notion of undermining discussed, for example, in Jemena.
The Self-Government Act, as it happens, of course, is 1988. The Land Grant Act is 1986. So perhaps the drafter had moved on to a different style by then. If I can then turn to paragraph 53 on the next page of the judgment - - -
GAGELER J: Mr Kirk, what do you say about paragraph 50?
MR KIRK: GPAO?
GAGELER J: Yes.
MR KIRK: GPAO, as your Honours know, was dealing with section 79 of the Judiciary Act, relevantly. That is the context of that discussion by the Chief Justice and his Honour Justice Gummow. So that is some ground of distinction. I am not saying it is necessarily a conclusive ground of distinction. That is the first point.
Secondly, one way of understanding what their Honours said there, and in their broader discussion in GPAO, is that 109 certainly encompasses the notion of covering the field, which is a broad notion, whereas these sorts of clauses tend to suggest a narrower view of it so that I would add this. As has been explained by members of the Court in various judgments, particularly in recent times, the very notion of covering the field compared to direct inconsistency can be both illusive and misleading because ultimately the core notion is, whatever word formulation you want, is the State law undermining of the federal law?
So whilst the notion of covering the field can be useful, it is useful really in saying this is a metaphor illustrating how much the Commonwealth has sought to do, particularly applied when it is seeking to provide some immunity and it says “this far and no further”. You see that, for example, in particular ways in the Fair Work Act where there is a very careful drawing of lines and so forth.
But ultimately, it comes down to the same core notion of, if the Commonwealth has said this far and no further for this field of operation, a State law which goes further alters, impairs or detracts from, the Commonwealth provision and assuming the Commonwealth provision is valid, you have an inconsistency for 109 purpose.
That is a long-winded way of saying, particularly perhaps before cases such as Momcilovic where Momcilovic tended to involve the recognition of the point I have just made, particularly, for example, in Justice Gummow’s judgment, previous cases perhaps did see it in a little more categorical terms and that is perhaps what is part of the discussion there.
But the next point I would make about GPAO is that if it is seen as more than what I have just discussed, it is not consistent with this case and should not be followed and that it is not consistent with this case is illustrated by paragraph 53 where, particularly in the last seven or so lines, the Court said:
The text of s 28 thus makes plain that the section is directed to the effect which is to be given to an enactment of the Assembly; it is not directed to the effect which is to be given to a federal law.
So, pausing there, I would add that that is consistent with the way I have sought to explain section 46. It is not identical wording but again section 46 is focused on the picked-up laws, not the Commonwealth law. The Court went on:
s 28 is a constraint upon the operation of the enactment of the Territory Assembly. It does not say, and it is not be understood as providing, that laws of the federal Parliament are to be read down or construed in a way which would permit concurrent operation of Territory enactments.
We say the same applies here and then 54 is a clear rejection of any notion of a reading-down type approach and at the top of 561 in paragraph 54, the Court says:
the starting point for any consideration of the operation of s 28 must be the determination of the legal meaning of the relevant federal Act –
and only then does one turn to concurrency and we again say the same applies here and then if your Honours look at paragraph 59, starting at the end of the fourth line, the Court said:
It follows that the provisions of the ACT Act which provide for marriage under that Act cannot operate concurrently with the Marriage Act and accordingly are inoperative. Giving effect to those provisions of the ACT Act would alter, impair or detract from the Marriage Act.
So, that in sense illustrates why ultimately if the Chief Justice and his Honour Justice Gummow meant some different sort of approach should be applied to these sorts of provisions, that was implicitly but clearly rejected by the Court in the Same Sex Marriage Case.
One other point we would seek to make about section 46, to finish what I was going to say about the major premise, it is ultimately - the sort of construction put by my learned friend, Mr Kennett, is ultimately an odd sort of intent to suggest the Commonwealth Parliament may have had because it is an embarrassed sort of intent in a way. It is an intent of saying, “Well, we’ve said all these things in this Act, but we only sort of two-thirds mean it, so read it down so you can allow other laws to operate”.
The more natural intent is to say this is what the Federal Parliament says, to be construed in the ordinary manner, to the extent other laws can operate concurrently we are not seeking to exclude them in some broad field, but it is always subject to what we, the Commonwealth Parliament have understood as a matter of ordinary statutory construction.
Can I then turn to what I have called the minor premise and can I again locate in the Court of Appeal judgment what we suspect is the core ultimate issue, and it is at page 43 of the core appeal book at paragraph 74, particularly the last two sentences - the last five lines. If the Court of Appeal was correct, as we respectfully submit it was, to say that:
the power of the Council –
that is in 38(2):
to grant a lease should be interpreted as including the power to determine for itself the terms of those leases and not subject to qualification by provisions which would alter the terms of those leases –
I would interpolate not subject to qualification by a picked-up law; it is obviously subject to qualification by the Land Grant Act itself - if that is a correct statement then on any understanding of section 46, in our respectful submission, the appellant cannot succeed. If it is not a correct understanding, if section 38 simply says this is a provision giving power in a way I will explain or seek to explain in a moment, but it can be constrained by any law, picked-up or otherwise, then we lose. That is the nub of the case.
In that context, can I go to the Land Grant Act and, although the focus is section 38(2) it is critical, in our submission, that it be construed in context. So, if you will pardon me being a little tedious, can I start at the beginning of the Act, or near the beginning with section 4 at page 16 of the first volume of the authorities and pull out what we suggest are some important points of context.
Section 4 establishes the Council, and I do not need to say much more about it than that. Section 5 indicates that the Council consists of the persons who are registered members. Section 6 was referred to earlier by your Honour Justice Bell in particular. Can I draw attention first to (a) and (b):
The functions of the Council are . . . in accordance with this Act:
(a) to hold title to Aboriginal Land;
(b) to exercise for the benefit of members of the Community, the Council’s powers as owner of Aboriginal Land and of any other land owned by the Council -
In the Minister’s second reading speech – I will not go to it; it is at the back of volume 3 of the authorities bundle – he referred to this as being a trust arrangement. Now, the word “trust” is not used in the Act but presumably he was referring to what is wrapped up in that notion particularly of 6(b).
Your Honour Justice Bell referred to subsection (ca), which is important, as is (cb), (cc), (cd) and (ce), all of which illustrate that this is a council which is not constituted as a mere landowner, it is given a range of powers and functions to act in the interests of and for the benefits of the community including in relation to their connection with their country.
Section 7 is “Powers of Council”, section 7(1) is the usual provision about functions, carries with it powers. Over the page on page 18, subsection (2), the specific reference to the power:
(a) to acquire, hold or dispose of real and personal property;
(b) to enter into contracts for the purposes of this Act –
That of itself, by the way, would plainly encompass negotiating terms of the contract. Subsection (3) is of some contextual relevance too:
The council shall not, except with the approval of the Minister, enter into a contract involving the payment by the Council of an amount exceeding $100,000 -
or some other prescribed amount. That is not suggestive of a body likely to be engaged in extensive capital works, at least, without ministerial approval. If a premises were in substantial disrepair, as Mr Williams’ premises are, without going to it, see paragraph 9 of the special case, that may well require more than $100,000 expenditure. Insofar as my client is ordered to undertake that expenditure, it may be an order incapable of being fulfilled if we do not get the relevant ministerial approval unless there is some smart work not done consistently with the spirit of that of having separate contracts, different subcontractors.
Section 8 within Part III, “Grant of land to Council”, deals with the core constitutive Act, in a sense, namely, after the Act commenced a large section of land was given by the Commonwealth, perhaps returned by the Commonwealth to the Aboriginal community and that is defined as Aboriginal land.
There can be later grants of land: see section 9 and also 9A, but I do not need to dwell on that. Can I go to page 22? My learned friend, the Solicitor-General, referred to section 10. Can I also draw attention to section 12 for reasons I will come back to that subject to section 13, which makes particular provision for Commonwealth authority-owned buildings, otherwise when the land vested in the Council so did the buildings and improvements and that echoes a little when I will come to section 40. The administration of the Council is dealt with in Part IV starting on page 24. If I could take your Honours to page 26, Division 2 - - -
GORDON J: Which provision is that, Mr Kirk?
MR KIRK: Sorry, your Honour, section 17.
GORDON J: Thank you.
MR KIRK: There is to be – and is – a register of members of the Council – the Department prepared it initially being all Aboriginal persons it was satisfied resided in the Territory on a particular date and who were adults. Section 18 indicates that thereafter the register, that is to say, recognition of the membership, can be varied by the membership itself. It actually requires a two-thirds majority – that is because of section 26(2) - to add or to remove a name to the register of members determined by the membership itself. Division 3 deals with meetings of the Council. If I could take your Honours at page 29 to section 24, briefly:
A special general meeting –
As usual one can have an annual general meeting – one must have an annual general meeting. One can have special general meetings, and:
A special general meeting may deal with any matters relating to the functions of the Council.
So, there is membership control, down to making resolutions about the exercise of particular powers in particular ways. Just a minor point perhaps, but section 25 deals with procedure at general meetings. Subsection (4), on page 30 indicates that:
at a general meeting a quorum is constituted by a majority of the registered members.
That is then qualified by section 26A in that if the meeting does not meet quorum the first time it is adjourned for a week and there is then a lower quorum at the next meeting or, indeed, the one after that of 40 members. The small point I want to make about that is that the Act presupposes a high level of engagement of the membership in conduct of their affairs.
If one then turns to page 32, Division 4, beginning at section 27 – Division 4 is headed “Executive committee” and there is a chair, a deputy chair and a secretary – see section 27. Section 28, the executive committee includes those three officers plus six other elected members. Section 29 provides that the executive members – that is defined to be members of the executive committee – are elected at the AGMs then illustrating a degree of membership, involvement and control.
As to the powers that may be exercised the executive committee, if your Honours turn to section 36 on page 37, it depends on what is delegated by the Council – that is to say, the Council in general meeting. They can delegate their functions to the executive committee or to a kind of ad hoc committee established pursuant to section 35.
Part 5, beginning at section 37, is headed “Dealings with Aboriginal Land”. Turning to section 38(1), at the bottom of page 40 of the authorities bundle, it provides:
Except as provided by this Part, the Council shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in Aboriginal Land.
So, what that indicates is that all relevant powers relating to land of the Council are found in this part, no doubt, construed in context. It uses this part which grants such powers as the Council has.
In our written submission, without going to them, at paragraph 40 we have cited this Court’s decision in NEAT v Australian Wheat Board as one authority for the proposition that a statutory corporation is a creature of statute and its powers are statutory.
We also cite in the same paragraph of our submissions the set of cases usually referred to where a provision presupposes that a power exists in a particular statutory corporation or Minister or such like. Generally speaking that provision implicitly grants that power - Minister for Immigration v Mayer, R v Oates, and other such case which are themselves picked up in NEAT. The reason I refer to that is, if one turns to subsection (2), it indicates:
Subject to this section, the Council may grant a lease of Aboriginal Land –
and I will come to details. That is a grant of a power obviously to grant a lease of Aboriginal land. It cannot sell or dispose of otherwise by the way, but it can lease. Wrapped up within that, probably expressly but otherwise by implication for the reason I just gave, is a power to negotiate subject to the Act, the terms and conditions of the lease. As an illustration of that point, section 38(3) says:
Except with the consent of the Minister, the term of a lease shall not exceed –
and certain things are provided. The term of a lease is itself a term and condition of the lease. The fact that subsection (3) regulates that presupposes that the Council has that power, being a power wrapped up in subsection (2).
Going back to subsection (2), the circumstances in which a lease may be granted of Aboriginal land other than within the national park is carefully set out in the six categories. Subsections (a) and (b) relate to grant to registered members for particular purposes, domestic or business, and those purposes, by the way, must be the purposes of those members.
The reason that is so is because of section 37(2). In other words, it does not envisage granting a lease to a registered member, so someone who is not a registered member can use it for their domestic purposes. It is for the benefit of the member to whom the lease is given and mutatis mutandis for (b) in relation to business purposes – see section 37(3). Subsection 38(2)(c) is then a broader notion about:
for use for the benefit of the members, or of a significant number of members –
It is still very much obviously focused on the members. Subsection (f) is:
to the Commonwealth or an Authority –
reflecting the fact that obviously the Commonwealth has a presence down in Jervis Bay and there was some pre-existing infrastructure there, one infers. Subsections (d) and (e) are the residuary categories in a way, albeit limited to domestic purposes or business purposes of people who are not registered members, but then only with the consent in writing of the federal Minister. In other words, that is seen as an exceptional course but permitted if the Minister approves it.
Subsection (3) is important. True it is – leave aside section 40 for the moment – it does not require that leases be for 99 years but it plainly envisages that they may well be and facilitates that occurring – 99 year leases for domestic; 25 for business; any other case 15 years.
EDELMAN J: Do you accept that the exercise of a power under section 38(2) could permit a grant of say a 99 year lease orally or do you accept that statutes in force in 1986 would condition the power of the grant so that a lease of that type could only be granted in writing.
MR KIRK: I think I might confess and avoid and say it might, it might not. It would be a parallel question to the one we are dealing with in a sense and it might raise its own complex questions of considering the potential of concurrent operation and so, because the answer might require a fairly sophisticated analysis, I do not think I can give a simple answer but it might be possible, it might not.
EDELMAN J: You would accept then, at least in theory, that it is possible on a construction of section 38(2) for the power to grant to be conditioned or restricted by the application of existing statutes?
MR KIRK: Well, the example your Honour gave to me is an example of - it goes to the issue of the method of grant, not the content of the grant and there is a difference and so the focus of this case is on the content of the grant; whether the method can be regulated is, as I say, a whole separate issue which may arise some other day. Moving on, if I could jump then to section 40 headed “Rights of existing occupiers”, which your Honour Justice Bell referred to earlier. So, this to summarise requires, that is to say:
the Council shall, in accordance with section 38, grant -
people who are original Aboriginal residents at the time of the land grant:
a lease –
and for the maximum relevant period of time, so, for domestic purposes, 99 years or for business purposes, 25 years. That would obviously cover the whole of the housing stock, at least insofar as it was occupied as at the time of the grant of the Aboriginal land. To coin a phrase, it would “cover the field.
It is not an insignificant portion of what this Act is dealing with; it is dealing with what was the very focus of initial attention by the Parliament. If one then looks at subsection (b), the power of the Council to charge is limited, namely, that terms and conditions - I interpolate again, that again illustrates the statutory presumption of the power to negotiate terms and conditions cannot:
provide for any payment by the person in respect of a building or improvements erected on the land solely at the expense of the person –
Now, your Honours will recall section 12. So, those buildings and improvements become the property of the Council but cannot be charged for as part of the lease arrangement if it was erected at the expense of the occupant, reasonably enough. Then (c):
the terms and conditions of which may include terms and conditions approved by the Minister in writing under which the person is to pay to the Council in respect of buildings and improvements on the land (other than buildings or improvements to which paragraph (b) applies) amounts amounting in the aggregate to the value of those buildings and improvements at the time at which the land became Aboriginal Land.
In other words, if the occupant had not paid for it, the cost can be recuperated but the plain implication of this provision is it is a limit beyond the cost cannot be recovered, that is to say, beyond the value of those buildings at that time, the cost cannot be recovered.
So, no charging for profit by reference to use of the capital, capital owned by the Council, no ongoing return on capital and arguably and I respect this is an arguable construction, but it is notable that (c) and also (b) uses the language “in respect of a building or improvements”. It is not just you cannot charge more by reference to capital but it is in respect of a building or improvements and on one construction that might suggest you cannot charge for maintenance costs.
Now, I recognise that can be difficult because – sorry, your Honour, I might just finish the point. As with any charging system, complainants can get wrapped up in a hole, so it can be hard to disaggregate them. That is an obvious point but even so it does tend to manifest a view that buildings and improvements are not owned by the occupants but they are very close to it. If you built it, you do not get charged for it. If you did not build it, you do get charged for it but only to the extent of the value.
GAGELER J: I was just wanting clarification of the circumstances of the lease with which we are concerned in this case. Is it a section 38(2)(a) lease to which section 40 applied?
MR KIRK: It is not a section 40 lease because if your Honour goes to the statement of facts at page 7 of the core appeal book and looks at paragraph 6 it indicates:
Since 1989 the Other Active Party –
that is Mr Williams:
has resided in premises - - -
GAGELER J: Is that a typo - “Section 8”? It is repeated in the written submissions. I do not know what it is meant to refer to.
MR KIRK: I think what it is meant to say – I am not sure it is a typo because it is talking about Aboriginal land, that is to say, land granted initially by the Minister under section 8.
GAGELER J: So, we just do not know what provision of section 38 is engaged here.
MR KIRK: Well, by implication – well, he is not within section 40 territory because he has only resided there since 1989 and the reason I hesitate is I am not sure it is in the materials and perhaps someone can tell me quite when the land grant was. I know the Act commenced operation on 15 January 1987. Section 8 foresaw there would be a grant of land soon after that but I do not know when that, in fact, occurred. I doubt – my inference was but I now realise it may not be correct, it was before 1989, in which case it would not be within section 40 territory but I am not sure and I might see if someone can tell me.
GAGELER J: It probably does not matter to your argument.
MR KIRK: No, it does not.
GAGELER J: You do not draw any distinction between a section 38(2)(a) grant and any other grant?
MR KIRK: It would be a very odd operation and I have not heard either of my learned friends suggest that those who were the original inhabitants and covered by section 40 are excluded from the operation of the Residential Tenancies Act but someone like Mr Williams, who entered into the lease in 1989, is subject to it because it is a very partial kind of operation.
There is one other point. It is only a small point, by the way, but it is not insignificant that the Residential Tenancies Act only commenced, as Mr Kennett fairly explained, in 2000, well after this Act was passed, well after Mr Williams took up his residency in 1989.
Now, I accept that does not, in a sense, throw much light on the construction issue, other than the fact that, on my learned friend’s argument, very substantial changes to the relationship can be implemented at the will of a legislative assembly who members of the Council have no right to elect, by the way. They do not get to vote in the ACT because the Jervis Bay territory is not part of the ACT any more. Post self-government it became its own territory.
NETTLE J: They get to vote in the Commonwealth.
MR KIRK: They get to vote in the Commonwealth – that is all they do.
NETTLE J: Well, it is the Commonwealth that has provided that the Territory’s legislation will provide.
MR KIRK: That is true, but my point was that a policy implemented by the Legislative Assembly in the Residential Tenancies Act, over which the members and my client had no say, can make radical changes to the landlord and tenant relationship.
NETTLE J: But is not the answer an ordinance of the kind to which Mr Garrisson referred?
MR KIRK: That is a possible answer in practice, but it depends on a decision being taken by whomever is the Minister from time to time or the Minister advising the Governor-General or Cabinet advising the Governor-General to take such an action.
NETTLE J: Sounds very like the democratic way.
MR KIRK: Well, except that the Land Grant Act, to state the very obvious, is an Act of Parliament. What the Executive may later choose to do or not to do from time to time depending on the decision of the Minister and the Cabinet should not affect the operation of the Act which has been passed by Parliament.
NETTLE J: Can I just continue to interrupt you once more? There was a question you answered to Justice Edelman earlier where you drew a distinction between formal requirements, statute and substantive content requirements. Would, for example, provisions like those in the Law of Property Act 1925 (UK) or Australian equivalents, providing for prohibitions against forfeiture for breach of covenant without first giving notice and an opportunity to repair, have applied?
MR KIRK: Again, I am a little hesitant in answering but I will venture a little bit out into no-man’s-land and say probably not because consistently with the way the Court of Appeal put it at paragraph 74, which I quoted earlier, that would probably be seen as inconsistent with understanding section 38 as granting the Council the power to determine for itself the terms of those leases.
It is kind of a borderline one because in a sense it does not alter the terms. It deals with the consequences of breach of the terms. So it is by no means necessary to my argument that I say it probably does not apply but it probably does not, on my argument, but it could do.
NETTLE J: The general flavour, as it were, is that no general provisions, applying generally to leases, are to apply to leases granted by the Council.
MR KIRK: Yes, yes. In particular, anything affecting the nature of the legal relationship between the Council and those to whom it grants leases – in general, its membership.
NETTLE J: Yes, thank you.
KEANE J: That is the case, is it, in relation to leases within section 38(2)(d)?
MR KIRK: Yes, that would also follow from my argument, yes.
KEANE J: Even though the considerations about section 40 have no application to those lessees.
MR KIRK: That is true. But, as I put earlier - - -
GORDON J: Is that because of the power to grant 99 year leases, generally?
MR KIRK: That would be covered by – actually, no, it is not covered by subsection (3) because if your Honour looks at subsection (3):
the term of a lease shall not exceed:
(a) in the case of a lease to which paragraph 2(a) applies-99 years -
It would be covered by 15 years – (c), because it is within paragraph (d). To come back to your Honour Justice Keane’s point, as I put earlier, (d) and (e) are plainly intended to be exceptional courses, not the usual ones.
KEANE J: They might be – they might or they might not. It is just what the law is.
MR KIRK: The reason I say they are exceptional is because they require the consent in writing of the Minister where the others do not. One also, of course, has to construe that in the context of section 7, the grant of functions including the obligation to act for the benefit of the membership. Now, I accept sometimes a commercial lease can be for the benefit of the membership, but, by and large, that is not the scheme erected by the Act.
KEANE J: Well, (d) is for “domestic purposes”.
MR KIRK: I am sorry; that is true. I was thinking perhaps more of (b).
KEANE J: So it is a perfectly domestic provision. Sorry, it is a usage for domestic purposes, by someone who is not a registered member of the community.
MR KIRK: Yes, that might be done if the – I am sorry, I referred to section 7. I meant section 6. It is possible that that might be seen to be for the benefit of members of the community if, for example, a very large rental was being paid bringing in a rental stream and so forth. But it would require the consent in writing of the Minister. So I am just coming back to the point about that being exceptional within the context - - -
KEANE J: There is no question, is there, that the lease that is granted confers quiet enjoyment and exclusive possession?
MR KIRK: As with any exercise of power by a statutory authority, subject to the terms of the constitutive Act, it operates in the milieu of the general law and so the milieu of the general law would include “unless negotiated away” those terms. The point is that they could be negotiated away because of the freedom which is at the heart of what we put in our argument. So we are not suggesting that this is not operating in the context of the general law. It is but just not in the way constrained by things such as the Residential Tenancies Act.
EDELMAN J: That would include to the extent that general law prohibitions on, say, key money might apply.
MR KIRK: By “general law” I was meaning common law and equity. Insofar as that is dealt with – and this I do not know – by the general law, then that would be picked up, unless excluded. If the nub of our argument in a sense is that the section 38(2) power carries with it a freedom of the Council to negotiate terms and conditions then those terms and conditions, for example – and this is perhaps a core point – I have not got to the Residential Tenancies Act yet, and I will do so, but what that does, as with many such legislative schemes, is it establishes a standard set of provisions, very detailed set of provisions which form the body of the arrangement or contracts between the parties.
The parties then negotiate around that, so the starting point is here is this 50 pages of terms and conditions or whatever it is, and they negotiate around that. They negotiate as to price in particular. The Council is constrained in its negotiating powers, including by reference to section 40, for example. The effect of seeking to bring in, as Mr Williams seeks to do, the Residential Tenancies Act, is to take a whole lot of benefits from that standard set of ACT terms without my client having had the benefit of negotiating in relation to that - partly that is a timing issue, I accept - but also where one hand of my client is tied behind its back when it negotiates because of the range of constraints imposed in the statutory scheme.
So it is not free in a range of ways to simply negotiate or to say, “Well, we don’t like your application, we’re going to go elsewhere even though you’re the original applicant” or so forth, “an original resident”. It is very hidebound in the way it can conduct itself.
EDELMAN J: But you would accept that the Council is hidebound or maybe has a few fingers tied behind its back in relation to constraints from common law and equity, including illegality and so on, but just not in relation to particular statutes.
MR KIRK: Well, illegality raises a whole different set of issues in a way. In terms of the content of the terms and conditions of the lease, the governing terms of the lease, in our submission it is hidebound in a way it can act. Otherwise, it has freedom within the bounds of this Act to contract as to terms and conditions.
I am told that the Aboriginal land was granted on 14 March 1987, as recorded in the Commonwealth Gazette E16 on page 1645. That was two months after the Acts commenced.
GAGELER J: So does that locate it within a particular paragraph of section 38(2)?
MR KIRK: That means Mr Williams, who, according to the special case, started residing there in 1989, was not an original resident as I had inferred.
BELL J: We were told, I think, that the lease between Mr Williams and the Council has been lost. Are the parties agreed about the duration of it?
MR KIRK: No.
NETTLE J: So even if there were a distinction to be drawn between the 99 year leases and others it would not necessarily determine the outcome of this proceeding?
MR KIRK: We do not know what the term is. It is lost in the mists of time, literally. Your Honours want some reference to that. Although it is not strictly before your Honours, there is a decision of the Tribunal – because this proceeding started in the Tribunal and then was referred off to the ACT Supreme Court. The Tribunal decision did not involve these issues, but addressed the question of whether a tenancy existed, and it found it did, but it goes through some of the facts about - - -
BELL J: But that is the basis of the acceptance that there is a tenancy within the definition of the Act, yes.
MR KIRK: Exactly so, your Honour. If I can turn back to where I was, page 43, section 41? I still have, your Honours, I think about 20 minutes to go or thereabouts but I might finish sections 41 and 42, if I may. Section 41 is the sublease provision so to summarise there is a right to sublease – see subsection (1) - of the whole of the land. It is then constrained by subsection (2) - unless the Minister consents, it cannot be to other than another member of the Commonwealth or an authority, and then subsection (3), only for the purpose for which it is leased.
Both the appellant and the ACT accept that the right to sublease is inconsistent with the Residential Tenancies Act, but that is just one part of the bundles of rights, duties, the powers and constraints which apply here, and we would suggest that one does not cut and dice and say some are constrained and some are not. It illustrates our broader proposition.
Similarly, section 42, which provides that an interest in a lease or a sublease is capable of transmission by will or intestacy to a relative, that, as we explain in our written submissions, is inconsistent with section 127 of the Residential Tenancies Act and, again, illustrates that we are dealing with a particular set of – a bundle of rights, benefits and burdens dealt with by this statute in a way different from the way it is dealt with by the Tenancy Act.
The very fact, incidentally – I think it was a point your Honour Justice Gordon mentioned earlier about this fact. We would draw out the implication that the fact it is capable of transmission by intestacy again presupposes that there will commonly be long-term leases. It does not require it; it presupposes that commonly there will be long-term leases.
The reason of course I mention 99 year leases - it is fairly obvious – is that a 99 year lease is a world away from your typical residential tenancy covered by the Residential Tenancy Act. It is much more like ownership. Is that a convenient time?
KIEFEL CJ: Yes.
BELL J: I just wanted to check. What provision, did you say, section 42(1) is inconsistent with under the Residential Tenancies Act?
MR KIRK: Section 127 of the Residential Tenancies Act. I will give your Honour a page reference. It is page 275 in volume 1 of the Court book. Note also section 127A.
BELL J: The copy of the Act that I have takes us to section 100.
MR KIRK: Did your Honour not get the - - -
BELL J: Yes, I will check. Thank you.
GORDON J: I see. I think it jumps from 101 to 126. You just need to turn over the page.
BELL J: I am told - - -
MR KIRK: In the core authorities book they have included, for some reason beyond me, the Residential Tenancies Act as made. I was giving your Honour the reference to the present version of the Act. That probably explains it. I am sorry.
BELL J: Thank you.
KIEFEL CJ: The Court will adjourn till 2.15 pm.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Yes, Mr Kirk.
MR KIRK: Your Honours, could I come back very briefly to my non-answer to Justice Edelman and still, without answering the question, can I make a couple of further points. The Statute of Frauds is, in our respectful submission, in a very different category from the Residential Tenancies Act. It is statutory, of course, in its origins but has been around a long time as to be very much part of the general law context in which an Act like this is enacted, quite different from the Residential Tenancies Act, which was enacted later.
Even if it was picked up such that it was something to which the Council was subject, that would still not be inconsistent with paragraph 74 of the Court of Appeal’s judgment, which I started my analysis by reference to. There is just one final section in the Land Grant Act that I wanted to - - -
EDELMAN J: Before you move on, that would apply also, would it, to the general criminal law, for example, which would operate as a constraint on the powers to include terms within a lease, any term that would be authorising or requiring conduct which would be contrary to the general criminal law?
MR KIRK: I think it depends on what was picked up by the notion of the general criminal law. At one level, that notion might imply issues of conspiracy or acting with intent to defraud and so forth, and my answer then might well be the same. Of course, any regulatory scheme will commonly sound in criminal provisions and the Residential Tenancies Act does not by and large but it could. Then obviously my answer would be different and it comes down to my core non–answer, in a sense, which is it all depends.
The final section I wanted to draw your Honours’ attention to in the Land Grant Act is at page 49, section 52A, relating to by-laws, page 49 of volume 1 of the authorities book. The Council is authorised in subsection (2) to:
make by-laws for or with respect to –
a range of topics on Aboriginal Land, for example:
(a) economic enterprise on Aboriginal Land;
(b) cultural activities on Aboriginal Land;
(c) the management . . .
(d) the declaration of sacred or significant sites . . .
(e) the activities –
and a range of other such measures. The point I seek to make out of it is simply that this is a community with a significant degree of self-governance. It is thus quite distinct from an ordinary landlord. It is very much a sui generis body in a sui generis scheme. I should, of course, note subsection (5) over the page, that any such by-law cannot be:
inconsistent with a law of the Commonwealth or a law in force in the Territory –
but that does not undermine the way I just sought to put the point. In that context, can I then take your Honours to the Residential Tenancies Act in its current form, starting at page 166 of the first volume?
GAGELER J: Mr Kirk, it was put against you, I think it was meant to be against you, that section 53 of the Aboriginal Land Grant Act would allow regulations which govern the terms and conditions on which leases could be granted under section 38. What is your position on that?
MR KIRK: There are two points about that. First, I am not sure that is entirely against me in a sense in that there is no doubt that so long as the regulations are to summarise consistent with the Act “required or permitted”, “necessary or convenient”, with all the connotation that carries then, of course, the Executive can further regulate the way in which my client acts in relation to governing leases but it has to be consistent with the Act within the sense of those well-established terms.
Secondly, this comes back, in a sense, to my answer to your Honour Justice Nettle’s questions earlier about the fact that whether through this mechanism or through section 4C of the Jervis Bay Territory Acceptance Act which can, sort of, rub out bits of ACT law, yes, that is what my friend Mr Garrisson referred to, yes, than can be an answer but it is an answer dependent upon a decision of the Executive. It is no answer to say that that does not mean one gives less than full effect to what the Parliament has provided in the Land Grant Act.
If I can then turn to the Residential Tenancies Act, I will actually start - and I am just going to go through the key provisions in the order they arise. Can I start with section 6D which is at page 180 to make a small point and it is really just an illustrative one in a way. Section 6D(1) indicates, if I can summarise, that the Act does not apply to company title.
Of course, that does not assist to resolve construction of the Commonwealth Act, I accept that, but it illustrates the inaptness, in our respectful submission, of applying this type of regime to even company title where the title of my client is different again, further more along towards permanent ownership in meaningful senses.
If I could turn to section 10, which was the subject of some brief discussion with Mr Garrisson, I think my learned friend conceded in answer to your Honour Justice Gordon’s question that the reference to the parties in section 10(1) and 10(2) should be taken, actually, to mean the plural such that it is an application of both parties. We agree with that and we would draw attention to, for example, section 11(1), talking about lessor or tenant, and without going to it, in section 30A(3), it talks about “a party”.
In other words, when it means one or other, it says so. When it means both, it says “the parties”. That illustrates that that is not much of an answer. In any event, it just illustrates the problem of potential inconsistency. So, contrary to what my friend, Mr Garrisson, said, it is no answer at all.
Then if your Honours could jump, please, to section 20 of the Act at page 194, there is a whole part, Part 3, dealing with bonds. Section 20 provides that:
A lessor may only require or accept as a bond an amount of not more than the first 4 weeks of rent –
For a 99 year lease, that would hardly be adequate in terms of the way this scheme is meant to operate. If your Honours could then jump to section 64A at page 235, it provides that:
Under a fixed term agreement –
A fixed term meaning, say, one year, two years or 99 years, so applied:
rent may not be increased during the currency of the fixed term unless the amount of the increase, or a method for working it out, is set out in the agreement.
A method for working it out implicitly means something other than a unilateral right to raise it or a right to raise it according to what is reasonable. It requires a method, typically something like a CPI or some such thing. It would be commonplace, certainly in practical terms for my client, that the leases entered in the past and perhaps currently still would not include any such method. They would not include any particular fixed rate of increase; just be left to determination over the course of the 99 years if it is a 99 year lease. So, again, a most inapposite term. Section 67 on - - -
KEANE J: That is just assuming that people do not think about it. Maybe that is a good assumption to make in this particular case, but the point you are making only works if people do not think about what the Act provides for.
MR KIRK: The point I was seeking to make is that to say you can only increase the rent over potentially 99 years if you provide for the amount of the increase, presumably in some fairly specific numeric way or a method for working it out in the sense of including something like a CPI escalator, is something that – that is a deliberate restriction by the ACT Parliament on the way you can increase rent and it does not deal with a common way of dealing rent which is by, for example, unilateral increase or some constraint such as the increase being reasonable. Yet that is exactly the sort of term one might well expect for the sorts of leases that we are dealing with in the context of the Land Grant Act, and is the obvious temporal point for Mr Williams. This was not a glint in the eye of the Legislative Assembly at the time the lease was entered.
NETTLE J: That is true of a number of ACT leases, is it not? As Mr Garrisson pointed out, this legislation applied equally to those that had been in existence then.
MR KIRK: Yes, that is no doubt true, save that one would readily infer that there are very, very, very few 99 year leases in residential tenancies in Canberra.
NETTLE J: In Canberra.
GORDON J: This is not a 99 year lease we are dealing with, we do not know what the term of this lease is.
MR KIRK: That is true, but my point – but it was entered some time ago and implicitly for a term which has extended this far and it is a scheme which contemplates and, in some respects, requires 99 year leases. Section 67 on page 236 indicates that the Tribunal may disallow rent increases so that can obviously alter the relationship if it is applicable to my client between the Council and its members and those who rent.
Section 83 at page 250 is the power – sets out the powers of the Tribunal. The ones at issue here are:
(b) an order requiring performance of a residential tenancy agreement or occupancy agreement;
. . .
(d) an order requiring the payment of compensation –
I have already made the point that certainly (b) in some circumstances if it requires repairs worth more than $100,000 may conflict with section 7(3) of the Land Grant Act.
GORDON J: So that I am clear, sorry, I missed that, Mr Kirk, 83(b) and (d) are inconsistent, you say, with which?
MR KIRK: They are potentially inconsistent with section 7(3) of the Land Grant Act which imposes the $100,000 limit without ministerial approval on entry into contracts. I think that was the right provision. Yes, section 7(3).
GORDON J: That can only apply to (d), it cannot apply to (b), does it?
MR KIRK: No, it could apply to (b) or (d) insofar as (b) if it requires performance of a tenancy agreement insofar as that agreement included a maintenance-type clause as is at issue here and where the maintenance involves repairs of more than $100,000, then it would be.
I will not go back to section 127 which I referred to just before lunch about subletting. Schedule 1, which is the set of standard residential tenancy terms, starts at page 284. If I could jump to page 289, clause 28, it provides that:
The lessor must not require an amount of rent paid in advance greater than 1 calendar month.
That would preclude – if it applied to the Council, for example – requiring significant payments in advance in order to fund some capital works in the community, or such like, or would likely impede special levies, or such like, for similar purposes. It has the sense – rent is not defined in the Act, by the way but the model presupposes, as with a standard residential tenancy agreement, that you have a monthly rent payable in fairly simple, identifiable terms. Whereas, in fact, this community is a self-governing community to a significant extent, run for the benefit of the community by the members whose monetary needs and allocations might vary significantly from time to time – they want to build a new road or a swimming pool, or such like.
Clause 46, on page 292, deals with tenant’s costs and provides that:
The tenant is responsible for –
utility charges. It is quite possible that the Council might decide it is in the interests of the membership to pick up those consistently with its functions in section 6. Clause 55, at page 295, is the one upon which Mr Williams seeks the Tribunal’s orders. Clause 55(1) is that:
The lessor must maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the tenancy agreement.
And 57 creates an obligation to:
make repairs, other than urgent repairs, within 4 weeks –
And, as is implicit in much of what I have said today, if it is inconsistent, in our submission, with the Land Grant Act to require this for a 99 year lease but also for other leases, there may be financial limits on what the Council can afford. Every dollar spent on repairs is a dollar not spent elsewhere for the benefit of the community. Given the fact of insufficient housing, the Council might well choose to say, for example, all our funds from now on are being saved for new housing and that would cut across such a legitimate decision by the Council.
On the other side of that coin is clause 64 which provides that:
The tenant must leave the premises –
(a) in substantially the same state of cleanliness -
et cetera, and then particularly (b):
in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.
Again, for a very long-term lease, that may impose a very onerous burden on those who have had the benefit of those leases.
Section 72, over the page, is the provision I think my learned friend, Mr Kennett, referred to which he accepted is inconsistent with the Land Grant Act about assigning or subletting without the written consent of the lessor. Finally, in this Act, I wanted to draw attention to page 305, clauses 92 to 95. Without going into detail, it is sufficient to look at clause 94:
The lessor may serve a notice to vacate . . . provided that –
(a) the notice is for 26 weeks; and
(b) the notice does not require the tenant to vacate the premises during a fixed term.
So, one cannot bring a tenancy to an end early unless one falls within 92, failure to pay rent, 93, various other types of breaches which, taken together, significantly restricts the power to end a tenancy. Where, as we say in our written submission, the Council might well at some stage – again, given insufficient stock of housing – say, unless you, for example, comply with the by-laws or meet certain standards of behaviour, then your tenancy will come to an end. Such a term would not be consistent with this scheme.
To summarise, in effect, one way of seeing our point, to apply the Residential Tenancies Act is to treat the Aboriginal land here definitively as ordinary leasehold but that is not what it is for the reasons I have sought to explain and it is inapposite to apply it to a community such as this.
My learned friend, Mr Garrisson, made some arguments about policy which boil down to saying, he as the voice of the ACT suggests it is desirable that the Residential Tenancies Act or something like it applies to members of the community. That may be the ACT’s view. It is not the view of my client and it is no basis to construe the Land Grant Act.
Contrary to what Mr Garrisson said orally and my learned friend said in written reply, our argument does not mean the Land Grant Act creates a legal - a silo. It is a statutory scheme creating a body with particular powers, subject to the general law; it is not an Alsatia, as I said earlier, except that if the law alters, impairs, detracts from, undermines, the operation of the Land Grant Act, it cannot operate concurrently.
Can I finish by taking your Honours briefly to AMP v Goulden which is in volume 2, commencing right at the start of volume 2, page 443. I am sorry, I am not sure what tab that is, your Honours.
GORDON J: Tab 13.
MR KIRK: Thirteen, thank you. Your Honours are no doubt familiar with the case. Can I just point out a couple of key passages? First, at page 448 of the book which is 335 of the joint judgment, at the beginning of the paragraph at point 4, the Court noted that:
The Life Insurance Act (“the Act”) is framed on the basis that it will operate in the context of local laws of the various States and Territories of the Commonwealth.
And then the next couple of sentences go on to illustrate why that is so. Then if your Honours turn over to page 336, the next page of the report, at about point 6, it extracts section 78 of the Life Insurance Act, that is the federal Act, and your Honours would note sub (1):
(1) a company shall not issue any policy unless the rate of premium chargeable under the policy is a rate which has been approved by an actuary as suitable for the class of policy to which that policy belongs.
Now, your Honours will note, that is a very, very general power but it was taken to imply a degree of freedom to give effect to that power and
your Honours see that right at the bottom of page 336, where the Court says:
When the scheme of regulation –
and through to the first 12 lines of the next page. It was far from being a direct clash of the kind my learned friend, Mr Kennett, seeks to constrict section 46 to, but it was inconsistent in the sense of altering, impairing, detracting from, undermining the scheme of the Act, which scheme found its focal point in section 78(1), and we make much the same submission here. Unless I can assist your Honours any further, they are the submissions for the Council.
KIEFEL CJ: Yes, thank you. Anything in reply, Mr Kennett?
MR KENNETT: Yes, your Honour, a handful of points about section 46 and another handful in relation to the construction of the Land Grant Act. The first is as to reading down, and I want to be clear that, as I think I said in answer to Justice Gageler earlier in the day, our construction does not involve section 46 and our understanding of its effects does not involve giving provisions of the Act a construction narrower than their language read in context would otherwise have, so that we do not suggest reading in words of limitation or blue-pencilling words out in order to avoid conflict.
We do not suggest that is a consequence of section 46. If it were, provisions such as section 41 would be problematic and would have to be crossed out, and we certainly do not contend for that. What we do say is that section 46 weighs directly against reading words in to the Land Grant Act in order to establish powers to act without being constrained by other laws.
It weighs against reading words in, as the Court of Appeal more or less acknowledged it was doing in paragraph 74 of its reasons on page 43 and paragraph 80 of its reasons on page 44, which serves to illustrate why we have said that the approach described by their Honours at paragraphs 61 and 62 is a fundamentally wrong way of looking at the matter.
One does not construe the Land Grant Act as if it did not include section 46, find an implication that there was intended to be a field covered or an exclusion of other legal regimes and then take that as the starting point for the application of section 46. That is the wrong way around, we would say.
And this point also illustrates how the arguments on what my friend described as the major and minor premises in this case, in fact, overlap. Thus, while my friend may be right when he says my client has to lose if the conclusion stated by their Honours at paragraph 74, on page 43, is correct. We say that it is not correct and we say that, in part, because of the constructional effect of section 46 which, as I said a moment ago, stands against the making of implications of the kind that their Honours appear to have made.
My learned friend noted that in the section 109 jurisprudence, when a State law is found to alter, impair or detract from a Commonwealth law, a conclusion may very well follow that the two laws cannot operate concurrently. We would not quibble with that proposition in the situation of resolving inconsistency between laws of a superior legislature and an inferior legislature.
In such a case, the will of the superior legislature is normally taken to be that its enactment is not to be undermined and a superior legislature has power to give effect to that intention by excluding the laws of the inferior one. But section 46, as I sought to explain in-chief, has work to do in several different circumstances, including, at least as a matter of principle, the reconciliation of the Land Grant Act with another Commonwealth Act that may cover part of the same ground.
One could postulate, for example, a Commonwealth Residential Tenancies Act enacted so as to apply to territories or under some other head of power. If there were an act of that kind, let us say including some of the requirements of the ACT Act, a question would arise whether the Council leases were subject to that. Section 46 would come into play in resolving that conflict and that is not a matter of a superior and an inferior legislature where undermining of one law by the other is fatal.
So for that reason, among others, we focus very much on the actual words used by section 46 and we say that they are to be construed as meaning what they say. It is useful to bear in mind – not that it particularly goes anywhere in resolving the case – that at the time of enactment of the Land Grant Act the Jervis Bay Territory Act was in the older form that one sees at tab 4 in the bundle of authorities. It preceded self-government of the ACT, so there was not an ACT legislature.
What we now have in section 4A was not present. There was a giving effect by section 4(2) to the laws in force in the ACT, which would have included ordinances and, as I suggested in-chief, perhaps imperial Acts and whatever other laws were picked up as part of the law of that polity – I should not say “polity”; that Territory.
If I could move then to the issues that relate to the construction of the Land Right Act and the capacity for current operation between it and the Residential Tenancies Act. The respondent here needs to find an intention embodied in the language of the Land Right Act because of course the relevant legislative intentions are the ones that the legislature expresses in the words it uses in the statute.
An intention embodied in the language of the Act that the Council was intended to be able to enter into leases on terms, such terms as it saw fit and that those leases were not to be subject to regulation under other pieces of legislation, that intention needs to be found in the absence of any statutory words that express it or even suggest it, we would say.
If our friends are right, then it would seem to follow that no statutory provision governing a lease, at least, as my friend put it, as to the terms of the lease, leaving aside its method of its making, no statutory provision governing the terms of the lease would be applicable. So it is not a case only, or even mainly, about the inconvenience of a right to repair. We are speaking at the level of statutory construction here and construing an Act enacted in 1986.
It follows from that also that the content of the Residential Tenancies Act from time to time cannot have a bearing on the issue of construction. At most it illustrates the consequences of the construction – at most it illustrates some of the potential consequences of the construction for which I contend, which I accept may very well be awkward for the Council and may very well be found by the Council difficult to reconcile with the other things that it seeks to achieve in pursuing its statutory functions.
The implication that our friends seek to find does not flow, we say, as a necessary consequence of the statutory structure. At most, it is a desirable one from the Council’s point of view. My learned friend described provisions of the Residential Tenancies Act as inapposite. In a policy sense, maybe so but it does not follow that the Parliament is to be taken as having intended to exclude an entire panoply of existing and future regulation of residential tenancies from the leases which the Council was envisaged as entering into.
Could I then make a small number of more specific points that arose from the discussion of the Land Grant Act? It is no doubt right as your Honour Justice Gageler mentioned and as my friend confirmed by reference to the NEAT Case that in the case of a statutory corporation, all of its powers ultimately originate in the statute. In a sense, one could say that about any corporate entity because it owes its existence and powers in some way to legislation.
Here we say the source of power is the conferral of corporate capacities by section 7(2) of the Land Grant Act. That is where the Council gets its ability to deal with land and enter into contracts. No more than that is needed, we would say, for the Council to grant a lease in respect of land vested in it.
However, section 38(1) takes away that power and section 38(1), as I sought to put in-chief, is subject to exceptions and it is in the exceptions to 38(1) that one finds the stipulation of the kinds of leases that the corporation is permitted to grant. So all of this is statutory, but we do make the point that all of it is within the ordinary range of things done by a person, including an artificial person in whom land is vested, and nothing in it is a clue, we would say, that there was an intention for those familiar legal proprietary transactions to be immunised from regulation by other laws.
The point about section 7(3) and the inability to enter into contracts more than a certain value without the approval of the Minister does not take matters very far. One would never, for example, stay an action in damages against a defendant on the ground that he or she had no money. The capacity of a person to meet an obligation is not relevant, we would say, to whether the obligation exists or not. In any case, one can do a lot with $100,000 and it is $100,000 per contract, as my friend noted, and there is the capacity for that ceiling to be exceeded with ministerial approval.
A lot was said about leases governed by section 40 and the perhaps undesirable position the Council sees itself as being in by reason of the limits on what it can charge for such leases. That really gives rise to two points. One is that every landlord, presumably, would like to have more flexibility rather than less. And, to the extent that the Council is in particular difficulty, this is a matter of degree rather than fundamental principle.
The second point is that my friend was right, with respect, not to suggest that anything flows from the fact that the lease in the present case is not a section 40 lease. That is to say, we are arguing in the realm of statutory construction and we need a construction that is going to be applicable to all of the leases that the Council enters into.
So the proposition appears to be that a degree of awkwardness in relation to one class of lease has the consequence that it and all others are leases in which the tenants do not have the protection – and the landlord, for that matter – do not have the protection of landlord and tenant legislation. And that is a large step to take, we would say, where the Act specifically contemplates leases to people who are not members of the Council and leases for terms of less than 99 years.
There was also a point made, I think, rhetorically, that on our construction the legal rights of the Council and its existing tenants were subject to substantial changes at the will of the ACT legislature which may
be how it worked out but, of course, this was enacted before there was an ACT legislature and subsequent changes to another Commonwealth Act do not really help with the issue of construction, we would say.
The final point is some emphasis was placed on the democratic structure and decision-making processes of the Council. I am not sure whether this was to support a proposition that the Act confers self-determination in some sense and is to be read in that way. I rather understood my friend to steer away from any such general proposition. But the points we would make are obvious points really - that the democratic structure of the Council is no substitute for legal protection in the case of a lessee who is not a member and it is no substitute for legal protection in the case of a member who cannot get the support of the majority for his or her position in a general meeting. So it does not really change, we would say, the issues of construction that arise here which are, as your Honours have heard, expounded in the arguments. Those are the submissions of the appellant in reply.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders.
AT 2.56 PM THE MATTER WAS ADJOURNED
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