Minister Administering the Crown Lands Act v NSW Aboriginal Land Council

• Jurisdiction: Australia Federal only
• Judge: Kirby J.,Hayne,Heydon,Crennan,Kiefel JJ.
• Judgment Date: 02 October 2008
• Neutral Citation: [2008] HCA 48,2008-1002 HCA A
• Docket Number: S217/2008
• Court: High Court
• Date: 02 October 2008

[2008] HCA 48

HIGH COURT OF AUSTRALIA

Kirby, Hayne, Heydon, Crennan And Kiefel JJ

S217/2008

Minister Administering The Crown Lands Act

Appellant

and

Nsw Aboriginal Land Council

Respondent

Representation

M J Leeming SC with J A Waters for the appellant (instructed by Crown Solicitor (NSW))

J T Gleeson SC with M L Wright for the respondent (instructed by Chalk & Fitzgerald)

Aboriginal Land Rights Act 1983 (NSW), s 36(1)(b).

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council

Aboriginals — Land rights — Whether land ‘claimable Crown land’ under s 36(1) of Aboriginal Land Rights Act 1983 (NSW) (‘Land Rights Act’) — Whether land ‘lawfully used or occupied’ under s 36(1)(b) of Land Rights Act — Whether steps taken preparatory to intended sale of land constituted lawful use and occupation of land.

Statutes — Construction — Meaning of ‘lawfully used or occupied’ — Whether ‘lawfully used or occupied’ is compound expression with single meaning — Whether ‘used’ and ‘occupied’ to be considered separately — Meaning of ‘use’ — Meaning of ‘occupied’.

Statutes — Construction — Meaning of ‘lawfully used or occupied’ — Whether Land Rights Act to be interpreted beneficially and remedially — Whether reliance on beneficial and remedial purpose of Land Rights Act necessary and useful to resolve contested question of interpretation of Land Rights Act.

Words and phrases — ‘claimable Crown lands’, ‘lawfully used or occupied’, ‘use’, ‘occupied’.

ORDER

Appeal dismissed with costs.

1 Kirby J. The interpretation of legislation is one of the most important functions of Australian courts. A significant change in this area is the move away from the notion that language has clear and incontestable meanings that are ascertainable from a close study of the words alone.

2 This ‘literal’ or ‘grammatical’ approach to interpreting statutory texts has gradually given way to an appreciation that legal interpretation is a more complex task. Whilst the starting point in interpretation must still always be the text1, it is now appreciated that context and purpose are also vitally important. Further, this approach is not limited to cases where the text appears on its face to be ambiguous 2.

3 A sub-species of this context and purpose rule is a principle of interpretation that arises where a contested text appears in a statute that has an apparently beneficial or remedial purpose. Where different literal interpretations of such a text appear to be available to the decision-maker, it is valid, and sometimes helpful, to identify the beneficial or remedial purpose discerned. The decision-maker should then endeavour (so far as the text allows) to adopt a construction that advances that purpose in preference to one that would frustrate or diminish the attainment of the apparently intended benefits and reforms.

4 This beneficial or remedial reading principle is by no means new. It simply re-expresses, in the current age of enlarged legislation, a very old canon of interpretation that enjoins decision-makers to address the ‘mischief’ perceived in the legislation 3. This is in contrast to upholding an interpretation that results in the legislation misfiring and missing its obviously intended mark 4.

5 I agree with most of the reasons of Hayne, Heydon, Crennan and Kiefel JJ (‘the joint reasons’). Certainly, I agree with the ultimate conclusions stated there and with the order proposed 5. The joint reasons acknowledge (as did Mason P in the decision below in the Court of Appeal of New South Wales) 6 that the legislation in question was designed to be beneficial and remedial.

6 However, the joint reasons state that ‘[i]t is not necessary to invoke some principle of “beneficial construction” to resolve the issue in this case’ 7. Moreover, the joint reasons also state that ‘[n]o question is presented … which requires a choice to be made between competing constructions of s 36(1)(b) [of the Aboriginal Land Rights Act 1983 (NSW) (“the Land Rights Act”)], one described as “broad” and the other as “narrow”’ 8. For the joint reasons, the contested statutory question is only whether the official activities cited by the Minister for Lands (NSW) (‘the Minister’) constituted a lawful ‘use’ of the land (or ‘use or occupation’) at the time the New South Wales Aboriginal Land Council (‘the Land Council’) made its claim upon the land.

7 Not for the first time 9, with respect, I see in this approach hints of a return to the literal interpretation of legislation which this Court has (in my view rightly) earlier discarded. It is as if words, without more, will yield the answer to a problem of statutory interpretation presented by a case such as the present. I would resist any return to that earlier narrowing of the judicial focus. Consequently, I am bound to explain why the beneficial and remedial character and purpose of the Land Rights Act is an important ingredient in the reasoning that I would adopt to reject the arguments of the Minister before this Court and to sustain the decision and orders of the Court of Appeal.

8 Without this ingredient, I am not convinced that I would reach the same conclusion. The basis for my doubt is that the critical word ‘use’, in relation to land, is inherently unclear in its meaning. It is ambiguous and could potentially yield contradictory results. In resolving which result should be preferred by a

court, the accepted beneficial and remedial characterisation of the Land Rights Act is, for me, a significant factor in the decision-making process.

9 This Court has repeatedly admonished decision-makers in other courts (and this is now reflected in general legal and administrative practice) to look beyond the words of the text and to consider the statutory and social context so as to understand those words more clearly 10. Giving weight to the beneficial and remedial purposes of the Land Rights Act is part of that operation. Only this approach will give effect, in such a context, to the beneficial and remedial purposes of Parliament in preference to a view of the text that might tend to frustrate, narrow or limit the attainment of such purposes.

10 It is important for this Court to expose and apply the principles of statutory interpretation consistently in a case such as the present. That is the explanation for my separate reasons, notwithstanding that I reach the same result as the joint reasons. A court must be consistent in what it says and does in its approach to interpretation (whether of the Constitution, or of a statute, contract, or other document 11). Otherwise, the court will expose itself to criticism that its inconsistent approaches produce inconsistent outcomes. Concerns will then be expressed that judicial dispositions represent little more than intuitive opinions of judges based on a reading of words in contested texts as viewed through their own narrow verbal lens. The search for consistent approaches to statutory interpretation is part of an endeavour by the courts to introduce elements of the rule of law into this most common and important contemporary judicial function. To encourage that endeavour is a proper objective of a court such as this Court.

Some common approaches

11 Facts, legislation and proceedings: The relevant facts 12, the applicable provisions of the Land Rights Act 13 and the decisional history 14 of this appeal are stated in the joint reasons. Similarly, the joint reasons briefly describe the precursors to the Act, namely the report that recommended ‘land rights for New

South Wales Aboriginal citizens’ 15. The preamble to the Land Rights Act 16 expresses, in general terms, the beneficial and remedial objects of the New South Wales Parliament in enacting that Act.

12 Against the background of prolonged, deep-seated, reinforced and, ultimately, widely accepted discrimination in the law against the rights to traditional lands of the indigenous people of Australia 17, the objects evident in the Land Rights Act could fairly be described as little short of revolutionary. The discriminatory common law principle that lay at the source of the denial to indigenous people in Australia of rights to land existed despite the fact that such recognition was accorded to the land rights of the settlers and their successors. There was a further fundamental correction to this principle some years after the Land Rights Act was adopted, notably in the decisions of this Court in Mabo v Queensland [No 2]18 and Wik Peoples v Queensland19. However, the contextual consideration of these decisions does not, in any way, diminish the important shift in direction in the law of New South Wales achieved by the enactment of the Land Rights Act 20.

13 Advances in interpretive techniques: I could not agree with any needless reversion to literal techniques of statutory interpretation. Any attempt to understand, and give effect to, the language and purpose of the Land Rights Act without placing that statute in its historical, legal, social and human rights context risks such a reversion. Formally, the reason that I could not agree is the repeated authority of this Court to the contrary effect. But an additional reason is the fact that the decisional authority is ultimately based upon a more accurate consideration of the way human beings understand communication as expressed through language. Human beings gain understanding not only by reference to the words used in the communication but also through other essential indicators, relevantly of context and purpose, and in particular any intended beneficial or remedial purpose.

14 The interpretation of the meaning of words in written texts is not (nor can it be reduced to) a purely mechanical process 21. There have been attempts to introduce consistency through common approaches and accepted or enacted canons of construction....