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Aboriginal Law Bulletin |
Justice J.Bryson
Supreme Court of NSW Equity Division
13th May 1988
Shortly after the March 19th State Election, the Greiner Government moved quickly to implement its policy that the Aboriginal Land Rights Act 1983 (NSW) be abolished. However, it became quickly apparent that the Government did not have the support of the Upper House in relation to a repeal of the Land Rights legislation.
The Government, using its executive and administrative arms, attempted to achieve its stated aims through other means; for instance, the appointment of an Administrator to the NSW Aboriginal Land Council was considered by the Bureau of Aboriginal Affairs, as was subsequently outlined by Greiner in a statement to Parliament on the 17th May. This manoeuvre failed due to the lack of any legal basis for such action.
The second ill-advised line of attack was to introduce an amendment, effective from 15th April 1988, to the Regulations to the Aboriginal Land Rights Act. Reg 24A purported to take control of the funds of all Aboriginal Land Councils, ie., the New South Wales Aboriginal Land Council, all Regional Aboriginal Land Councils and all Local Aboriginal Land Councils - approximately 130 in all.
The Regulation purported to deal with the investment of monies of Aboriginal Land Councils. Section 68(2)e of the Aboriginal Land Rights Act provides that :-
'The Governor may make Regulations for or with respect to the investment of money by Aboriginal Land Councils, including Regulations for or with respect to the prescribing or the determining of the proportion of the funds of those Councils to be invested..."
Reg 24A(4) provided that all of an Aboriginal Land Council's money was to be
invested ( in accordance with other provisions of Reg 24A) except any money determined by the Minister from time to time as being necessary to meet expenditure under the Act.
Reg 24(5) purported to prevent the disbursement of money except (a) by cheque signed by two persons approved by the Minister; or (b) in accordance with such requirements as the Minister approves.
The former Secretary of the Ministry of Aboriginal Affairs, the new director of the (now) Bureau of Aboriginal Affairs within the Premier's Office, quickly followed up with a directive based on the Regulation to all Aboriginal Land Councils which, inter alia, provided that (1) all Aboriginal Land Councils were required to 'invest' their money in a so-called Aboriginal Land Councils Trust Account situated in Sydney; (2) The account would be administered by Neville Perkins of the Bureau of Aboriginal Affairs and that he and Keith Kocken and Basu Roy of the Bureau, were approved as the only signatories to that account.The Aboriginal Land Councils were required, in effect, by the Perkins directive, to transfer all their funds (subject to one month's grace regarding ongoing financial obligations) to the centralised account.
On Saturday 16th April NSWALC initiated Supreme Court proceedings claiming a declaration that Reg 24A of the Aboriginal Land Rights Regulations was beyond the enabling power conferred by the Aboriginal Land Rights Act. The strongest element of the Land Council's case was summarised by Bryson J in the following terms:
A further "ground of attack, referred to as the inconsistency argument, was the contention that on reading the whole Act it appears that powers relevant to the expenditure of money are conferred on Land Councils without expenditure being subject to the consent of the Minister; Land Councils are given, by the Act, powers which are not subject to the consent of the Minister in their minute operation. It was suggested that Reg 24A would achieve the result that every provision of the Act authorising expenditure is to be read as if it contained the qualification 'with the consent of the Minister'. The regulation was said to operate to prohibit Land Councils from carrying out their ordinary statutory functions, unless they have the consent of the Minister. It was contended that the power to make regulations with respect to investments is being used to achieve control over all expenditure of funds including expenditure other than investment".
And further on:
"It was submitted in the inconsistency argument that the whole plan of the Act shows that a primary purpose of the legislation is the allocation of funds by the plaintiff out of the account referred to in S.28. There are specific controls for maladministration but it was submitted that there is no room for interposing the consent of the Minister for the expenditure of any money, other than in relation to investment."
In other words, the Land Council's case was built on the premise that Aboriginal Land Councils are an exercise of Aboriginal self-determination.
Bryson J further observed that:
"The primary position was that Reg 24 departs totally from the plan of the legislation. Under Reg 24A all moneys are required to be invested except those for the use of which the Minister determines and hence consents. This is outside the plan of the legislation which gives powers with respect to the use of those moneys to Land Councils, to exercise themselves untroubled by any need for Ministerial consent, in a context where there are controls to deal with breaches, and the functions which the Minister or other officers of the Executive Government are intended to have are explicitly conferred. I regard this as in substance a contention that the regulation is inconsistent with the Act; a contention to the effect that the whole terms- of the Act show that the Minister is intended to have no power of control in relation to exercise of ordinary functions of Councils including decisions relating to expenditure, apart from the submission of a budget."
The Government counsel argued that:
"on its face Reg 24A has an operation with respect to the investment of moneys which is within the regulation-making power and that when this is seen, it is seen that it is a valid regulation."
The court upheld the inconsistency argument noting that the Land Council case in this respect was clear and correct. It found that Reg 24A did not give content to or supplement the legislative scheme. The Court in arriving at its determination cited the following passage from Dixon J in Shanahan v Scott ( [1957] HCA 4; (1957) 96 CLR 245):
"...such a power (i.e., to make regulations) does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorize the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."
The court went on to find, using Dixon Ts very words, that Reg 24A would widen the purposes of the Act, add new and different means for carrying out the purpose of the Act and would also depart from and vary the plan which the legislature has adopted to attain its ends. The court held that for those reasons it would make the orders sought and uphold the plaintiffs claim - the formal order being, in effect, that Reg 24A was invalid and of no effect, and subsidiary orders and costs.
This case highlights the capacity of a hostile Government and its officials to continue attempts to wrest control from Aboriginal hands. The brazen illegality of the Government's actions indicates the nature of the threat that Aboriginal Rights are facing under NationaULiberal Coalition Governments.
The court victory was the result of decisive political and legal action by the New South Wales Aboriginal Land Council. It cannot be forgotten that without the previous support of the Democrats, Labor Parry and Call to Australia Party in the Upper House, which prevented the amendment of the NSW Land Rights Act, the Government would have steamrolled Aboriginal Rights in New South Wales yet again.
Until the fundamental pre-existing rights of Aboriginal people in Australia are recognised, gains in the advancement of Aboriginal interests such as are found in the Aboriginal Land Rights Act are extremely vulnerable.