case_text: have reached this conclusion for the following reasons. Nowhere in the Tribunal's reasons for finding that the proposed visit to Australia by the visa applicant was not genuine does the Tribunal directly address and consider the stated reason given by the visa applicant (and the appellant) for the visit, namely that the visa applicant wished to travel to visit Australia to visit his mother . The evidence before the Tribunal was that the visa applicant is approximately 20 years old, and has not seen his parents since he was 16 years old. It does not require a leap of imagination to infer that, in view of the visa applicant's relative youth and the time which has passed since the relevant parties last met, it is natural that the visa applicant would wish to travel to Australia to visit his parents. To the extent relevant, given that his mother successfully applied for asylum in Australia, an inference could be drawn that it is not practical for the visa applicant's parents to travel to Pakistan to see the visa applicant. However the Tribunal does not deal specifically with this claimed motive of the visa applicant and explain why, in respect of this visa applicant, the Tribunal disbelieved that the reason given was not genuine. While reasons for a decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error ( Collector of Customs v Pozzolanic [1993] FCA 456 ; (1993) 43 FCR 280 at 287, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272; SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] , [27]) nonetheless the claimed reason of the visa applicant to visit Australia is clearly a relevant consideration, acceptance or rejection of which goes to the core of his application and the "genuineness" of the proposed visit. During the hearing I asked Counsel for the Minister to identify in the decision of the Tribunal where the Tribunal specifically considered the claimed reason of the visa applicant to visit Australia but rejected that claim. Counsel referred me to the following statements by the Tribunal: "The stated purpose of the visa applicant's travel to Australia is to visit his mother and father for two to three months." (p 26 para 81) (TS p 13 ll 6-7); "The tribunal acknowledges that there are significant family business and religious reasons for the visa applicant to return. However these reasons can be overcome by the visa applicant if he is successful in obtaining a protection visa. ... If the tribunal is thus not satisfied that the above reasons are strong enough to outweigh the likelihood because of the risk he faces daily..." (p 27 paras 92-93) (TS p 13 ll 33-41). In my view these statements do not demonstrate any consideration of the visa applicant's claimed reason for wishing to visit Australia. Indeed, the statement at p 27 paras 92-93 of the Tribunal's reasons for decision actually relates to a different issue, namely reasons why the visa applicant may wish to return to Pakistan . Counsel for the Minister also directed my attention to the statement by the Tribunal that the visa applicant is required to satisfy subcl 679.211 of the Regulations (TS p 12 ll 6-45, p 13 ll 1-7). Subclause 679.211 provides that one of the criteria that a visa applicant must satisfy is as follows: 679.211 The applicant seeks to visit Australia: (a) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the applicant; or (b) for a purpose other than a purpose related to business or medical treatment. The Minister conceded in submissions (TS p 17 ll 1-2) that the visa applicant had satisfied this criterion. Counsel submitted that this meant that the Tribunal had considered the personal circumstances of the visa applicant, and his wish to visit his mother, for the purposes of subcl 679.224. However because the Tribunal did not specifically discuss subcl 679.211 and the manner of the visa applicant's apparent satisfaction of that criterion, it is difficult to draw any conclusions in relation to this issue from the reasons of the Tribunal. Did the apparent satisfaction of subcl 679.211 simply require an unsupported statement by the visa applicant (which may or may not be genuine) that his or her purpose in visiting Australia falls within subcl 679.211(a) or (b)? (This is consistent with the language of subcl 679.211, namely that the visa applicant "seeks to visit Australia" for nominated purposes.) Or, because the Tribunal specifically did not discuss subcl 679.211 in its application to the visa applicant, does it follow that: the Tribunal impliedly accepted that the visa applicant's purpose in visiting Australia was as contemplated by subcl 679.211(a) or (b); but that because the Tribunal subsequently found against the visa applicant pursuant to subcl 679.224 without making further reference to the visa applicant's stated purpose, the Tribunal had impliedly found that a more compelling reason for the visa applicant's visit was to seek asylum? In my view not only is such a process of reasoning tortured, it is not supported by the language of subcl 679.211 (which does not appear to require anything more than a statement of a purpose by the visa applicant), and it potentially gives rise to a denial of procedural fairness. Indeed the Minister conceded that, in determining whether the visa applicant had satisfied the criterion in subcl 679.224, the genuineness of the wishes of the visa applicant required separate consideration of the stated purpose of the visa applicant in visiting Australia. In the circumstances, in light of the absence of discussion or reasoning by the Tribunal, I cannot draw any inferences with respect to the decision of the Tribunal in relation to subcl 679.224 from the apparent satisfaction of subcl 679.211 by the visa applicant. The submission by the Minister during the appeal before me that the decision of the Tribunal was essentially a credibility finding with respect to the evidence of the visa applicant (TS p 8 ll 32-33) appears inconsistent with the positive view specifically taken by the Tribunal in relation to the credibility of the visa applicant in terms of his character and conduct, namely that the Tribunal was not aware of any false or misleading information or documentation presented in relation to the visa application or any other visa application. If the Tribunal subsequently found that the visa applicant lacked credibility in relation to his stated reason for wishing to visit Australia again, an issue which is at the core of this case the Tribunal should have explained why. Counsel for the Minister also submitted that the findings of the Tribunal as to the genuineness of the visa applicant's visit to Australia involved matters of weight of evidence, which are matters for the Tribunal and not subject to review by this Court. It is clear that findings in respect of the credibility of an applicant are matters for the Tribunal ( Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423) and that the weight given by the Tribunal to material before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact ( Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259). However it is also clear that, in accordance with requirements of procedural fairness, in considering whether a claimed visit to Australia is genuine for the purposes of a claim for a visa the Tribunal is obliged to give genuine consideration to a claimed reason to visit. Counsel for the Minister submitted that that, because the Tribunal had stated the claimed purpose of the visa applicant's travel to Australia at p 26 para 81 of the reasons for decision, it followed that the Tribunal had weighed that claim in reaching its decision. However in my view simple statement of an issue is not automatically tantamount to consideration of that issue, and to the extent that Counsel for the Minister relied on that submission I reject it. At the very least, in order to weigh the merit of an issue or of evidence, the issue or evidence must be actually addressed. Generally, the fact that the Tribunal has addressed an issue may be inferred from its reasons, however in this case I am not satisfied that the Tribunal has addressed the visa applicant's claimed reason for visiting Australia based on the statements to which my attention has been directed by Counsel. Procedural fairness requires the tribunal to give real consideration to the claim of the visa applicant and the merits of his case, including his claimed reason for visiting Australia. That failure to do so constitutes a denial of natural justice and a jurisdictional defect infecting the decision of the Tribunal is clear from such cases as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394, 406-407, 408 , Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 per Kirby J, Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38] , SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 724 at [38] - [39] . That the Tribunal did not consider the claimed reason of the visa applicant for visiting Australia, but considered the application before it exclusively in light of the circumstances of the group into which the Tribunal categorised the visa applicant namely Ahmadi Muslims from Pakistan is evident from the conduct of the hearing and the Tribunal's findings. In particular I note the following: the consideration by the Tribunal of the fact that the appellant had claimed to be at risk of persecution because she was an Ahmadi Muslim (at [23]) and that the visa applicant was also an Ahmadi Muslim (at [22]); the fact that, during the proceedings before the Tribunal, the Tribunal asked the appellant "why her son, as an Ahmadi, would not seek asylum should he come to Australia" (at [32]); the fact that, during questioning of the visa applicant by telephone, it appears that the Tribunal focussed almost exclusively on the fact that the visa applicant was an Ahmadi Muslim, which suggested that the visa applicant faced persecution in Pakistan. I note in particular paras [50]-[56] of the Tribunal's reasons for decision; the fact that, during questioning of the appellant, the Tribunal focussed extensively on the fact that the visa applicant was an Ahmadi Muslim, which suggested that the visa applicant faced persecution in Pakistan and would seek asylum in Australia. I note in particular paras [32], [59]-[60]; the detailing of independent country information with respect to Ahmadi Muslims in Pakistan over several pages; the finding of the Tribunal that, notwithstanding the claims of the visa applicant that he is not persecuted, because the visa applicant was an Ahmadi Muslim he was at risk of serious harm in Pakistan (at [74], [76], [78]) if not constantly at risk of serious harm (at [86]); the finding of the Tribunal that, notwithstanding the visa applicant's reasons to return to Pakistan, "because of the risk he faces daily as an Ahmadi in Rabwah or elsewhere in Pakistan should he return" he would seek to remain permanently in Australia (at [93]). These findings of fact by the Tribunal were clearly relevant to the determination of the visa application by the Tribunal, because, as contemplated by the Ministerial Direction, they relate to conditions in Pakistan which may encourage the visa applicant to remain in Australia. However in the context of the apparent failure by the Tribunal to address any of the personal circumstances of the visa applicant other than his religion including the natural desire of a young person to visit his mother in my view these findings suggest that the Tribunal member considered the application exclusively from the perspective of the visa applicant's religious affiliations and the likelihood that the visa applicant was being persecuted in Pakistan. In my view the Tribunal's reasons do not support a submission that the Tribunal failed to weigh properly issues raised and evidence of the visa applicant (which in itself would not give rise to jurisdictional defect: cf SZLSA v Minister for Immigration and Citizenship [2009] FCA 23 at [11] ) rather the decision indicates that the Tribunal did not weigh the claims or evidence of the visa applicant at all . Finally I note that the Tribunal addressed the visa applicant's immigration history as contemplated by para 8(c) of the Ministerial Direction, and found: ...the visa applicant has told the Tribunal of his travel to India each year, and hence, of his return to Pakistan each year. The Tribunal puts little weight on this return travel as it is to nearby India for religious purposes only; it is not to a free developed country where his parents reside. There has been no previous travel to Australia. (at [79]) In relation to this finding I make the following observations: While findings as to weight of evidence are findings for the Tribunal, the Tribunal's articulation of this issue suggests that the Tribunal's approach to the issue of the visa applicant's immigration history was premised on a wrong question namely "What is the visa applicant's immigration history with respect to Australia or other free developed countries?" Clearly para 8(c) of the Ministerial Direction is not so limited. The Tribunal appeared to discount travel to India because it was "for religious purposes only". Without further explanation, it is unclear why religious travel should not be relevant to the visa applicant's immigration history in the context of his visa application. Finally, the Tribunal considered return travel to India of little weight because India is not a "free developed country" where his parents reside. I note in passing that the Australian Department of Foreign Affairs and Trade country information for India dated April 2009 describes the republic of India as "a constitutional democracy made up of 28 states and seven unions and national territories" (Department of Foreign Affairs and Trade, India Country brief April 2009, www.dfat.gov.au/geo/india/india_brief.html) and that further: India is the major power in South Asia and its relations with its neighbours govern the tenor of foreign relations in the region. ... The Indian economy comprises a wide spectrum of activity, ranging from high technology to subsistence agriculture. After decades of failing to realise its full economic potential, India has been one of the world's fastest growing large economies since 1994. Indian economic engagement with the rest of the world has increased, particularly in the services sector... Despite recent progress, significant challenges remain... In light of the fact that it is public knowledge that India is a constitutional democracy and a growing and significant economic power it is somewhat curious that the Tribunal should have dismissed a visit to India by the visa applicant because India is not "free" and "developed", without elaboration other than the fact that the visa applicant's parents do not reside there. Potentially this approach raises issues beyond weight in this case it is questionable whether the Tribunal gave genuine consideration to the fact that the visa applicant had travelled to another country, which is a relevant consideration for the purposes of this application. In the circumstances however it is unnecessary for me to decide whether the Tribunal's approach to the visa applicant's immigration history is also infected with jurisdictional error. Conclusion


case_outcome: followed

case_text: generally, the Full Court recently observed in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 1: [6] Just what constitutes jurisdictional error may be a matter of debate, at least at the margin. However, it is not in dispute that jurisdictional error will include the various categories referred to in the well-known passage from the judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 where their Honours, after noting the distinction between administrative tribunals on the one hand, with no power in a constitutional sense in Australia to exercise judicial power and courts which did exercise judicial power, said: If such an administrative tribunal falls into an error of law which cause it to identify a wrong issue, to ask itself a wrong question, to ignore circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. Proceedings in this Court


case_title: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389


case_outcome: cited

case_text: affirming the decision of the Tribunal ( Khanam v Minister for Immigration & Citizenship [2009] FMCA 285) , the Court found in summary as follows: The Tribunal focussed on whether the visa applicant had satisfied the criteria in cl 679.224. Such an approach was neither erroneous nor in contravention of its jurisdiction (at [11]). The Tribunal accepted that the visa applicant had satisfied and continued to satisfy the criteria in subcll 679.211 to 214 (at [12]). The Tribunal correctly identified the relevant legislation which guided its consideration, and did not misconstrue nor misapply the prescribed visa criteria (at [13]). The Tribunal carefully considered the evidence both before the Department and the Tribunal itself (at [15]). The Tribunal member balanced the matters favouring and disfavouring the required state of satisfaction, and concluded that he was not satisfied that the expressed intention of the visa applicant only to visit Australia was genuine (at [16]). There was no ground for concluding that the Tribunal acted in a manner that would attract judicial intervention. Appeal to this Court The appellant continued to be self-represented in proceedings before this Court. Her grounds of appeal from the decision of the Federal Magistrate were as follows: That the learned Federal Magistrate has failed to consider the legal requirements, regarding the family sponsored visitor visa, the appellant fulfilled the requirements of the criteria as laid down under the Migration Act , and the relevant migration legislations, but the decision of the MRT was upheld, the decision of the MRT is full of legal errors coupled with the jurisdictional error. The learned FM simply upheld the decision of the MRT, without giving his own reasons of judgment. That the appellant submitted the whole evidence of the visa applicant that within the allowed time, the visa applicant shall go back, in this regard the appellant requested any bond or any security required in this behalf. The appellant has satisfied the criteria laid down in subclass 679, the appellant also satisfied all the requirement as laid down in cl 679.214 of the Sch 2 of the Migration Regulations . The applicant also duly complied with r 1.03 of the Regulations, and has also fulfilled the criterion as required under cl 679.212, and cl 679.213 of the Migration Regulation. In the MRT decision it has been laid down that the applicant has not satisfied 679.214 at the time of the application read with subclass 679.211, this is the incorrect application of the law. The most important question is of the satisfactions of the respondent, the satisfaction is their will, and discretion to which there is no yard stick to satisfy them. This is a complicated question of satisfaction; the appellant only requests that if there is a question of discretion, it should be exercised in favour of the applicant. That the respondents did not applied the proper law and procedure, this has resulted in the error of law, coupled with the jurisdictional laws, the laws of natural justice have been clearly violated. In written submissions the Minister contended that, although expressed as three separate grounds, the appellant actually only sought to appeal one ground with different particulars, namely that the Tribunal failed to consider relevant considerations being the requirements other than cl 679.224.


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118


case_title: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 1


case_text: primary criterion in cl 679.224 to be met by the visa applicant is that the visa applicant satisfies the Minister that the expressed intention of the visa applicant only to visit Australia is genuine. Clearly reaching a level of satisfaction one way or the other is a factual issue. Notwithstanding this, the decision reached by the Minister as to whether he or she is satisfied is not unexaminable. As observed by Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 in relation to the satisfaction (or not) of the Commissioner of Taxation in the circumstances of that case. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] )


case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407


case_title: SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9


case_title: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FCA 724


case_text: while there is no obligation on the Court, in cases particularly involving a self-represented litigant it is open to the Court to identify other grounds of appeal which the litigant may have missed, but which present an arguable case. This practice is particularly apparent in migration matters where litigants are commonly not only self-represented, but frequently lack English language skills in attempting to address the Court in respect of an area of law of considerable difficulty. The position can be placed no higher I agree with the observations of Madgwick J in SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 at [4] - [5] that no obligation is imposed on the Court to investigate alternative grounds to advance the case of the self-represented litigant. "Satisfaction" of Minister


case_title: SZLSA v Minister for Immigration and Citizenship [2009] FCA 23


case_text: In dealing with a situation where there was an award underpinning an individual contract of employment Brennan CJ, Dawson and Toohey JJ said in Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 at 421: 'In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, ... the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations. ...' (footnote omitted) 35 In his reasons for judgment Carr J said at [131]: '... As the High Court of Australia explained in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 420 421 an award imposes certain statutory terms and conditions which do not necessarily displace underlying common law contractual relations. If they conflict, the award or certified agreement may modify the contractual provisions, but otherwise they continue to co-exist. Byrne involved an award, but there does not seem to be any relevant distinction, for present purposes, between an award and a certified agreement. ...' 36 In the case of the 2007 Agreement it displaced a pre-reform certified agreement and provided what I have referred to as an 'underpinning' for the individual contracts of employment of Karellas' employees. 37 The applicant's concerns in relation to the approval of the 2007 Agreement arise from two publications put around by Karellas in the period 19 27 April 2007. The first document is four pages in length. It is on the letterhead of Karellas and addressed to 'Dear Employee'. It is dated 19 April 2007. On the second page it has been signed by a Peter Smith as 'Operations Manager'. The second document is three pages in length. It is also on the letterhead of Karellas and addressed to 'Dear Employee'. It also bears the signature of Mr Smith as 'Operations Manager'. It is undated. Copies of the two documents are attached to these reasons for judgment as appendices 'A' and 'B' respectively.


case_text: To like effect, Wilson J said in Ansett Transport Industries (Operations) Proprietary Limited v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 287 8: '... It will be seldom ... that an award will lend itself to the "covering the field" test of inconsistency on the subject of the contract of employment. Few, if any, awards reflect an intention to express completely, exhaustively or exclusively the law governing that contract between the parties. It will generally be a case of specific provisions which will, of course, have the effect of rendering inoperative any provisions of subordinate law, whether common law or statutory, touching that employment with which they are inconsistent. In Reg. v Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. Walters and Wells JJ., in a passage with which I respectfully agree, discuss the relationship of an award to the common law and to statute law and refer with approval to the following passage from Webb : Industrial Relations and the Contract of Employment ( 1974), p. 21: "The significance of the common law can be recognised if contracts of employment are seen to be stratified. First there is a foundation strata being the common law. Superimposed on this are State Acts, regulations and State industrial determinations; in places such State law cuts through and replaces the common law foundational strata. Above this again are Commonwealth Acts, regulations and awards of the Arbitration Commission. Federal law cuts through State law in places, sometimes at the point where State law has already cut through common law, sometimes direct into common law." Their Honours also refer, inter alia, to the remarks of Latham C.J. in Amalgamated Collieries of W.A. Ltd. v True .' (footnotes omitted)


case_text: In relation to a pre-reform certified agreement serving as an underpinning instrument, such a situation was considered by a Full Court of this Court in Quickenden v O'Connor [2001] FCA 303 ; (2001) 109 FCR 243. At [69] Black CJ and French J said: 'The broad brush complaint that common law contractual rights were displaced by the certified agreement faced another threshold issue. For while the agreement bound Dr Quickenden by force of law, it did not thereby terminate his contract of employment. It created rights and obligations which were statutory in character and could operate in addition to the rights and obligations under his contract and, where inconsistent, no doubt displace them. There is nothing in the agreement however which expressly sets aside or displaces the terms of existing or common law rights generally. The agreement itself is not, on the face of it, and is not expressed to be, exhaustive of the rights and duties of those bound by it. If anything it focuses upon the rights of employees, rather than their obligations.'


case_outcome: referred to

case_text: The relevant standard of proof in the present case is that enunciated by Dixon J, as his Honour then was in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 ('Briginshaw') at 361-362 as follows: '... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. ...' In Rejfek v McElroy [1965] HCA 46 ; (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said: 'But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge ...' In Briginshaw , Dixon J also said at 362: '... But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. ...'


case_text: The applicant submitted that it may be inferred from the making of false or misleading statements in the four page document and/or the three page document that the making of the statements caused persons to whom the statements were made to approve the 2007 Agreement. In support of this submission reliance was placed upon certain statements of principle enunciated by Wilson J in Gould v Vaggelas [1985] HCA 75 ; (1985) 157 CLR 215 at 236. Gould v Vaggelas was a case of fraud where Gould Holdings Pty Limited purchased the South Molle tourist resort from a number of companies associated with Vaggelas. Mr and Mrs Gould sought damages for deceit in respect of representations made to Mrs Gould that the business was very profitable, the Vaggelases having submitted false figures as to occupancy rates and financial returns. Wilson J summarised the relevant principles applicable to such a case as follows at 236: '1. Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case. 2. If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation. 3. The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation. 4. The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract.' 95 His Honour proceeded to say at 238: '... Where a plaintiff shows that a defendant has made false statements to him intending thereby to induce him to enter into a contract and those statements are of such a nature as would be likely to provide such inducement and the plaintiff did in fact enter into that contract and thereby suffered damage and nothing more appears, common sense would demand the conclusion that the false representations played at least some part in inducing the plaintiff to enter into the contract.' 96 However, his Honour emphasised that the onus of proof rested on the plaintiff. At 238-239 he said: '... When all the facts are in, the fact-finding tribunal must determine whether or not it is satisfied on the balance of probabilities that the misrepresentations in question contributed to the plaintiff's entry into the contract. The onus to show that they did is a condition precedent to relief and rests at all times on the plaintiff.' 97 In my opinion, absent any evidence that the making of any false or misleading statement to another person or persons caused that other person or persons to vote to approve the 2007 Agreement, a 'fair inference of fact' that the making of the false or misleading statement or statements relied upon caused the person or persons to approve the 2007 Agreement would not be available. It is quite possible that, the causal link between the making of a false or misleading statement to another person or persons and the approval of, in this case, the 2007 Agreement by a majority of those persons who cast a valid vote deciding that they wanted to approve same, is missing because the employees of Karellas who cast valid votes indicating that they wanted to approve the agreement, did not even read the documents containing the false or misleading statements upon which the applicant has relied, let alone pay any regard to them. 98 It follows that the applicant's case for contravention of s 401(1) must fail. 99 Given the contravention of s 341(1) which has been found the Court has power under s 409(a) to declare the 2007 Agreement void, as the applicant would wish the Court to do, provided that a proper case for such an order was made out under s 412(2) of the Act. 100 By virtue of s 412(1) of the Act it is clear that an order declaring the 2007 Agreement 'void' would only take effect from the date of the order or a later date specified in the order. 101 In my opinion, an order declaring that the 2007 Agreement was void would not breathe new life into the 2003 Agreement as a pre-reform certified agreement. By virtue of clause 3(1) of Schedule 7 to the Act, when taken with clause 3(5), the 2003 Agreement ceased to be in operation when the 2007 Agreement was lodged with the Employment Advocate and once it ceased operating, it could not be revived. To use the words of clause 3(5) it could 'never operate again in relation to' Karellas' employees. This may seem a curious outcome. Nevertheless, s 347 of the Act made it clear that the 2007 Agreement came into operation on the day that it was lodged with the Employment Advocate and that it did so notwithstanding that, relevantly, the requirements of s 340(2)(a) had not been met in relation to it. 102 Had s 409(a) empowered the Court to make an order declaring the 2007 Agreement to be void ab initio, it certainly would have been a curious outcome to have the 2003 Agreement permanently displaced. But that is not what the legislature had in mind. Plainly, when one has regard to the terms of s 412(1) of the Act it is apparent that what the legislature intended was that from the date of the relevant order declaring the agreement void or a later date specified in that order, the relevant workplace agreement would cease to have any force and effect.


case_text: In relation to the use of the word 'void' Gaudron, Gummow and Hayne JJ said in The State of Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 ('Victoria v Sutton') at [38]: 'Windeyer J said of the term "void" that it "has never been an easy word" and pointed out that it did not necessarily mean that the void act had no legal effect at all. In particular, where ... a disposition between two parties is described as "void" at the will of a third, the preferred construction is to read "void" as "voidable". ...' (footnote omitted) 105 In Victoria v Sutton , Kirby J expounded upon the meaning of the word 'void' at [95] as follows: '... The word "void" is inherently ambiguous ... . It sometimes means that the act in question has not, and never has had, any legal effect (void ab initio). But sometimes it means that the act becomes void as against the world or against those who cannot enforce or take advantage of it subsequently (void ex post facto). "Void" is in some contexts treated as synonymous with "voidable" or voidable at the election of the party for whose benefit a legal rule makes the transaction void. The task of a court, in differentiating between the available meanings of the word, is to ascertain the objective of the lawmaker in the particular circumstances. It is to discover the meaning to be attributed to the word which is natural to its context. Many past cases demonstrate that the use of the word "void" presents a problem of statutory construction. There is no settled meaning.' (footnotes omitted) 106 In the foregoing circumstances the question arises as to whether the Court should exercise its discretion to declare the 2007 Agreement void. By virtue of s 412(2) of the Act the Court may exercise its discretion favourably to the applicant only to the extent that the Court considers appropriate to remedy the following: (a) all or part of any loss or damage resulting from the contravention by Karellas of s 341(1) of the Act; (b) prevention or reduction of all or part of that loss or damage. 107 The key words in s 412(2) are 'resulting from' the contravention.


case_text: The reference to the observations of Windeyer J were to his Honour's judgment in Brooks v Burns Philp Trustee Co. Ltd. [1969] HCA 4 ; (1969) 121 CLR 432 at 458-459 where his Honour said: ' "Void", "Invalid", "Unenforceable". I have in this judgment used the words "invalid", "unenforceable" or "ineffectual", as, in similar cases, other judges have done. Other words and phrases can be used. For example, in the judgment under appeal the appellant's covenant is called "illegal and void". A similar promise was called by Asquith L.J. "void and unenforceable": Gaisberg v. Storr .... The words used do not matter if the actual legal result they are used to express be not in doubt or debate. But it has always seemed to me likely to lead to error, ... to adopt first one of the familiar legal adjectives - "illegal", "void", "unenforceable", "ineffectual", "nugatory" - and then having given an act a label, to deduce from that its results in law. That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights. That need not happen if words be used, as Hobbes said that by wise men they should be, only as counters to reckon with; but reckoning becomes difficult if the values of counters are not constant. There may be no difficulty for adherents to Humpty Dumpty's principle as expounded by him to Alice. But his latitude and his command of his words as his servants are not generally allowed to lawyers. They are called upon to interpret other men's words. The word "void" has never been an easy word, as is pointed out in the second Australian edition of Cheshire and Fifoot's Law of Contract , p. 440. It is commonly said that when it describes a juristic act it means that it was always devoid of legal consequences. But this in itself is ambiguous, as witness the difference (which I have emphasized by italics) between the first edition of Sir George Paton's Text Book of Jurisprudence (1946) and the second edition (1951). In the first it was said (at p. 241) that "if the defects [of a juristic act] are such that the act has no legal effect at all , then the act is said to be void". The relevant passage in the latter edition (at p. 250) states - more accurately perhaps, and influenced probably by Professor Cohn's remarks in Law Quarterly Review, vol. 64 (1948), at pp. 325, 326- "A defect may make a juristic act either void or voidable. If the defect is such that the act is devoid of the legal results contemplated then the act is said to be void. A void act is sometimes said to be a nullity in law, but this is not strictly so, as an act void in its primary intent may nevertheless have an effect in another way."' (footnote omitted)


case_title: Demagogue Pty Ltd v Ramensky [1992] 39 FCR 31

case_text: The applicant relied upon the judgment of the Full Court in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 ('Demagogue') to support the proposition that 'loss or damage' did not have to be loss or damage for which monetary damages could be awarded. That may well be correct but Demagogue may be distinguished on the basis that it concerned misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) ('the Trade Practices Act '), in the form of non-disclosure by a vendor of unusual features relating to access to land located at Noosa Heads in the State of Queensland, which the purchasers, who sought relief under s 87(1) and/or (1A) of the Trade Practices Act , acquired by entering into a contract which they would never have entered into had they been aware of the true position with regard to access to the site. The trial judge had clearly found a causal link between the misleading and deceptive conduct and the purchasers' entry into the contract (see per Black CJ at 33 and per Gummow J at 42). 112 Each of Black CJ, Gummow J and Cooper J found that the expression 'loss or damage' where used in s 87 of the Trade Practices Act , and which corresponded in many respects with s 412(2) of the Act in the present case, could include being saddled with an agreement which had been induced by misleading or deceptive conduct. At 33 Black CJ said: '... I consider it to be clear that the loss or damage contemplated by s 87(1A) is not limited to loss or damage in the s 82 [monetary damages] sense but was intended to include the detriment suffered by being bound to a contract unconscionably induced. ... In my view, the loss or damage for the purposes of both ss 87(1) and 87(1A) will include the detriment suffered by being bound to a contract induced by misleading or deceptive conduct in contravention of s 52. Proof of loss or damage of the sort that would be an "amount of ... loss or damage" for the purpose of s 82 is not a prerequisite for the grant of relief under either subsection.' 113 Gummow J, in his leading judgment, said at 42-43: 'The phrase "loss or damage" appears in s 82 and in various subsections of s 87, particularly subss (1) and (1A). In my view, on this appeal nothing turns upon the circumstance that in a given case subs (1) may be attracted only by reason of the making of an application under s 82 to recover the amount of the loss or damage suffered by conduct in contravention in (sic) a provision of Pt IV or V. Section 82 is concerned with the recovery of "the amount of the loss or damage" suffered by conduct in contravention of the Act. Section 87(1) requires that the court consider that its order will compensate "in whole or in part" for the loss or damage or will prevent or reduce the loss or damage. Section 87(1A) requires that the orders concerned will compensate in whole or in part for the loss or damage suffered "or likely to be suffered", or will "prevent or reduce the loss or damage suffered, or likely to be suffered ...". Thus, whilst s 82 is concerned with the recovery of an amount representing the loss or damage, s 87 is concerned with compensation, whether in whole or in part, for loss or damage and with the reduction of loss or damage, and with the prevention of loss or damage which is likely to be suffered. In the phrase "likely to be suffered", the word "likely" speaks of a "real chance or possibility": Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at 261. One significant distinction between ss 82 and 87 is the quia timet operation of s 87. On the appeal to the High Court in Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 527 [Mason CJ, Dawson, Gaudron and McHugh JJ said] : "The Act draws a clear distinction in Pt VI between loss or damage which may be recovered under s 82 and the likelihood of loss or damage which may be prevented, or, if not prevented, reduced by one of the remedies under s 87." Deane J said (at 850) that the statute in s 87 expressly distinguishes between the actual suffering of loss or damage and the likelihood (or contingency) that loss or damage will be suffered in the future. This emphasises that the phrase "the loss or damage", at least in s 87, may be concerned with more than pecuniary recovery as understood in the law of damages in tort; tort law postulates the commission, already accomplished, of a wrong: Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 at 859, 868-869. Further, unlike the position at general law with the administration of the equitable remedy of rescission of contracts, orders under s 87 may be made not only against parties to the contract but also against third parties, being persons involved (within the meaning of s 75B) in the contravention as a result of which the plaintiff entered into the contract: Lezam Pty Ltd v Seabridge Australia Pty Ltd ... at 304; Munchies Management Pty Ltd v Belperio ... at 714. The respondents complain that they entered into a contract as the result of reliance upon conduct which contravened s 52. Why should they not be described as having suffered loss or damage, within the meaning of s 87, by that very reliance and entry into legal relations from which they otherwise would have abstained? If that contract be declared void ab initio as provided for in s 87(2)(a), will that not reduce this loss or damage?' 114 Cooper J also proceeded in Demagogue to expound upon the meaning of the phrase 'loss or damage'. At 44, Gummow J expressed his agreement with what Cooper J said in that regard. Cooper J's observations were recorded at 46-48 as follows: 'Section 87 provides both the source of the court's power to provide a remedy and the remedy itself. It is therefore important to distinguish clearly between the need to establish the factual circumstances necessary to enliven the power of the court to grant relief and the circumstances which are relevant to the nature of the relief which it is appropriate to grant. The circumstance in s 87(1) which empowers the court to grant relief is a finding that a party "has suffered or is likely to suffer loss or damage by the conduct of another person". That is a question of fact. The words "loss or damage" where they appear in s 87(1) are to be construed by the application of the ordinary canons of statutory construction. This requires giving the words their ordinary meaning in the context in which they appear. The ordinary meaning of loss is "detriment or disadvantage resulting from deprivation or change of conditions" ( Shorter Oxford English Dictionary (3rd ed (Revised), 1990) at 1241). "Damage" is defined as "1. Loss or detriment caused by hurt or injury affecting estate, condition or circumstances (Arch) 2. Injury, harm". ( Shorter Oxford English Dictionary at 485). There are two matters within the context of s 87(1) which colour the meaning of the phrase in the section. The first is that the loss or damage has been or is likely to be caused by conduct in contravention of the Act. The second is that any order made is to compensate for the loss or damage. However, the compensation is not limited to the payment of a money sum or damages as an examination of s 87(2) discloses. Nor is there anything in s 87(2) which would limit the loss or damage suffered or likely to be suffered to pecuniary loss or damage. In particular, s 87(2)(a) (declaring a contract or collateral agreement to be void) and s 87(2)(ba) (refusing to enforce any or all provisions of a contract) take as their point of focus the denial of the benefit of a contract to a person whose proscribed conduct has caused loss or damage to the other party. Such an order has the consequential effect of releasing the innocent party from the obligations imposed by the contract. In the context of providing compensation it is the obligations imposed by such a contract which is the loss or damage which the order seeks to redress. In my opinion "loss or damage" in s 87(1) means no more than the disadvantage which is suffered by a person as the result of the act or default of another ( Halsbury's Laws of England (4th ed), Vol 12, par 1102) in the circumstances provided for in the section. The phrase "loss or damage" in s 87(1) does not involve any concept of quantum or assessment of damages: see Barneys Blu-Crete Pty Ltd v Australian Workers' Union (1979) 43 FLR 463 at 473 where Northrop J expressed a similar view as to the use of the same phrase in s 45D(1)(a) of the Act. This is to be contrasted with the context of the phrase in s 82 where it is "the amount of the loss or damage" which is recoverable by action. For the purpose of s 82 it is the quantum or assessment of the loss or damage suffered in monetary terms which must be demonstrated. The rules as to the assessment of damages or the measure of damages in an action for deceit are relevant to the question of loss or damage under s 82. However those rules are not relevant to the meaning of the phrase in s 87(1). The distinction between "loss or damage" and "the amount of the loss or damage" is reflected in the terms of section 4K of the Act. The section provides: "In this Act (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury." There are practical reasons why this should be so. The prima facie rule that the measure of damage in deceit is the difference between the value of the property and the price paid is inappropriate where the contract is not completed: Myers v Transpacific Pastoral Co Pty Ltd [1986] ATPR 47,421 at 47,424. Where the contract remains unrescinded the costs associated with the conveyance of the property are costs arising out of the contract and of performing the obligations imposed thereby. Until the contract is rescinded such costs and expenses do not take on the character of costs and expenses thrown away and as such recoverable loss and damage under the general law. The court is not restricted in granting a remedy under s 87 by the limitations under the general law of a party's right to rescind for breach of contract or misrepresentation ( Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 102, 109). Likewise the limitations under the general law as to the assessment of damages and the measure of damage ought not be imported into a definition of "loss or damage" in s 87 to limit the category of actionable loss or damage. To adopt a definition of "loss or damage" for the purpose of s 87(1) which includes the disadvantage of incurring contractual obligations that would not have been incurred but for the conduct complained of does not mean that the granting of a proper discretionary remedy necessarily leads to the setting aside of such a contract or to a refusal to enforce it according to its terms. That result will always depend upon the particular circumstances which exist when the occasion calls for an exercise of the powers under s 87 of the Act. ...' 115 The problem for the applicant and Ms Stringer in particular, in the present case, is that there is simply no evidence of any loss or damage for which monetary damages could be awarded, if otherwise appropriate and available, in her favour or in favour of any of Karellas' other employees. Nor is there any evidence that the approval, making and/or coming into operation of the 2007 Agreement resulted from the contravention by Karellas of s 341(1) of the Act. 116 Section 412(2) of the Act confines the Court's power to declare a workplace agreement void to those cases where the relevant loss or damage to be remedied, prevented or reduced is loss or damage 'resulting from' the relevant contravention. In order to establish a causal link between the contravention of s 341(1) of the Act and Karellas employees becoming saddled with the 2007 Agreement in this case, evidence would be required from employees of Karellas who voted to approve the agreement indicating that had it not been for one or other of the misrepresentations contained in the four page document or the three page document put around by Karellas, they would not have voted as they did. 117 In the absence of any evidence on the issue, the Court may not make an order declaring the 2007 Agreement void. It is unnecessary, in the circumstances, to address the proper exercise of the Court's discretion to grant relief under s 409(a) of the Act were it otherwise able to do so. 118 In the foregoing circumstances, there should be a declaration that the employee collective agreement styled 'Karellas Investments Pty Ltd Employee Collective Agreement 2007' was not approved in accordance with s 340(2) of the Act. Otherwise, the Amended Application filed in Court on 23 May 2007 should be dismissed. 119 Given the terms of s 824 of the Act, there should be no order as to costs. Appendix A Appendix B I certify that the preceding one hundred and nineteen (119) numbered paragraphs together with Appendices 'A' and 'B' are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 12 September 2007 Counsel for the Applicant: A G Rogers appearing by direct client access Counsel for the Respondent: P J Newall and M J Easton Solicitor for the Respondent: Greenstein Shakenovsky Date of Hearing: 27 July, 30 31 August 2007 Date of Judgment: 12 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1425.html


case_outcome: applied

case_text: Because the matter was summarily dismissed by the Federal Magistrate, leave to appeal is required. In accordance with the decision in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, I must consider whether, in all the circumstances, the Federal Magistrate's decision is attended with sufficient doubt to warrant it being considered by the Court on appeal and, secondly, whether substantial injustice would result if leave to appeal were refused. 3 After the matter was argued for some time on 6 August 2007, I indicated that I would adjourn the hearing to today for further submissions and that if I was to give leave to appeal, I would also hear and determine the appeal at the same time. The further submissions concerned a particular issue which troubled me during the course of the first hearing. The parties were given an opportunity to consider and make further submissions on that topic. It is referred to below. 4 The applicant is a citizen of the People's Republic of China. He was born in 1965 and worked as a construction worker in various towns in his province until he came to Australia on 3 November 2005. He applied for a protection visa under the Migration Act 1958 (Cth) (the Act) shortly after that time, but his application was refused by a delegate of the first respondent on 12 January 2006. That decision was then reviewed by the Refugee Review Tribunal and affirmed by that Tribunal (the first Tribunal) on 31 March 2006. The first Tribunal hearing and decision was quashed by consent by order of a Federal Magistrate on 21 August 2006 and remitted to the Tribunal for re-hearing by that order. 5 The Tribunal then was differently constituted (the second Tribunal). It conducted a hearing with the applicant on 13 December 2006 and, as I have noted, provided its decision to the applicant on 11 January 2007. It too affirmed the decision of the delegate of the first respondent not to grant to the applicant a protection visa. As I noted earlier, an application to the Federal Magistrates Court to quash the second Tribunal decision was summarily dismissed on 8 May 2007. 6 The applicant's claim to be entitled to a protection visa was based upon him claiming to be a Falun Gong practitioner. At the hearing before the first Tribunal, he said that he had become a member of Falun Gong in about May 1997, and had progressively become more active and more senior in the Falun Gong. He promoted Falun Gong wherever he worked throughout his province. He was a senior member of Falun Gong in his province by 2003. The Falun Gong was banned by the People's Republic of China in 1999. The applicant claimed that in 2003 he was arrested by the authorities and suffered "physical and mental persecution" during the four days of his detention. After his release, he continued to practice Falun Gong secretly but with a great fear of being re-arrested and mistreated by the authorities.


case_text: There is one further matter which I referred to above, namely the use by the Tribunal of the recording of the hearing before the first Tribunal on 31 March 2006 by the second Tribunal and its use without the applicant having been given a notice under s 424A of the second Tribunal's intended reliance upon that information. I was concerned that the second Tribunal, by acting in that way, had failed to comply with the procedural prescription of s 424A (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162).


case_text: That has been the subject of further submissions by the first respondent. I do not accept one of those submissions. It is put that the fact of inconsistency in evidence provided to the Tribunal is not itself information which activates the obligation under s 424A of the Act. That is of course generally correct. So much was explained in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. However, I think that principle relates to inconsistencies which emerge in the course of a hearing and does not necessarily relate to inconsistencies which the Tribunal discerns from other information available to it. In my view, the application of that principle depends upon the Court being satisfied that the information provided at the earlier hearing before the first Tribunal was generally information before the Tribunal which did not enliven s 424A at all.


case_outcome: considered

case_text: In SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 it was decided that upon a case being remitted to the Tribunal, the Tribunal is entitled to rely upon the earlier issue of a notice under s 424A and any response to a previously constituted tribunal. The Full Court at [39] explained in the following terms: In any event, when ss 421 , 422 and 422A refer to ' a particular review ', they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430 , being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414 , it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. In essence, as I read that passage, there is but one review before the Tribunal under s 422 even if the Tribunal is reconstituted by its decision being quashed. The facts of that case are not identical to the present circumstances.


case_text: However, in SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 , Emmett J addressed precisely the circumstances to which I have been referring. In that case, the Tribunal as reconstituted relied on inconsistencies with the then applicant's evidence from the first hearing at the second hearing before that reconstituted Tribunal. His Honour concluded at [16] [17] that doing so did not activate s 424A. That is a decision which is plainly directly on point. I should follow it unless I consider that it is plainly wrong. The applicant has not made a submission to me that it is plainly wrong, and I can readily understand the process of reasoning by which that conclusion was reached. In those circumstances I propose to follow that decision. As I regard that point as a significant and arguable one, I propose to give the applicant leave to appeal in respect of it but for the reasons which I have given I do not accept that the appeal should be allowed on that ground. 23 I have dealt with the other matters raised by the applicant. I have found no jurisdictional error on the part of the Tribunal in relation to those matters, nor any error on the part of the Federal Magistrate. Accordingly I have come to the conclusion that to the extent to which leave to appeal is to be given, the appeal should be dismissed. The applicant should pay to the first respondent costs of the application. 24 The orders of the Court are: (1) Leave to the applicant to appeal from the decision of the Federal Magistrate given on 8 May 2007 limited to the issue of whether the Tribunal, in having regard to the information provided by the applicant to the Tribunal as differently constituted at a hearing on 31 March 2006, erred by failing to give to the applicant notice under s 424A(1) of the Migration Act with respect to that information. (2) Appeal dismissed. (3) Applicant to pay to the first respondent costs of the application and of the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 30 August 2007 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr L Leerdam Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 6 August 2007, 9 August 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1343.html


case_text: In the reasons for judgment in Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 (' Rubibi No 5 ') and Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 (' Rubibi No 6 '), I concluded that the Yawuru community possesses communal native title rights and interests in the Yawuru claim area. I also concluded that, generally, the evidence supports an inference that the native title rights and interests include a right of exclusive possession and occupation of the Yawuru claim area (excluding the inter-tidal zone) where there has been no extinguishment of that right.


case_title: Rubibi Community v State of Western Australia (No 6) [2006] FCA 82


case_text: The second issue arose because at [119] of the reasons in Rubibi No 6 , I raised the question of whether the determination should limit the exploitation of the resources in the Yawuru claim area to non-commercial exploitation. The Yawuru claimants opposed any such limitation and contended that that limitation would be inconsistent with their right to exclusive possession, which they claimed entitled the native title holders to determine the purposes for which the land and waters were to be used. The Yawuru claimants relied upon Sampi v State of Western Australia (No 2) [2005] FCA 1567 (' Sampi No 2 '), in which it was contended that the determination of native title fishing rights should expressly exclude 'non-commercial rights'. French J stated (at [90]): 'Given that commercial fishing rights are subject to legislative control and that the native title rights and interests are to be exercisable in accordance with the laws of the State and the Commonwealth, it is difficult to see how the determination as proposed by the applicants would extend to commercial fishing rights.' 9 The Yawuru claimants contended that commercial exploitation of the resources of the land and waters in the Yawuru claim area is likewise the subject of extensive governmental regulation. They also pointed to s 211(2)(a) of the NTA which only exempts native title holders from the restrictions imposed by that regulation for 'non-commercial communal needs'.


case_text: The State contended that the native title rights and interests claimed and pursued at trial by the Yawuru claimants did not include any right of commercial exploitation of the resources of the land or waters. The State pointed out that, in relation to a claim under the NTA , the Court is not concerned with the common law rights that might attach to a right of exclusive possession but rather, with the native title rights and interests possessed under traditional laws and customs: see Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta ') at 442 [40] and De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose FC No 1 ') at 377 [162]. The State then claimed that the evidence adduced at trial did not support a finding of a native title right or interest to commercially exploit the resources of the land or waters.


case_title: De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325


case_text: WAFIC submitted, 'as a matter of formality', that all native title rights to take and use P. maxima (a species of pearl oyster) have been extinguished by the enactment of the Pearling Act 1990 (WA) and the legislative predecessors to that Act (particularly the Pearling Act 1912 (WA)). The reason for the 'formal' submission was that WAFIC accepted that in Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2005] FCA 777 (' Sampi ') at [1146]-[1147], French J had rejected the same submission. WAFIC also accepted that the decision of French J would be followed by other single judges of the Court unless it was shown to be clearly wrong. Although WAFIC wished to preserve the point for any appeal, it did not contend that the decision of French J was clearly wrong. Accordingly, I reject WAFIC's submission for the reasons given by French J in Sampi , with which I respectfully agree. 16 Several issues arose concerning the description of the native title holders. In accordance with the evidence concerning the traditional laws and customs acknowledged and observed by the Yawuru community, and the findings in Rubibi No 5 and Rubibi No 6 , I am satisfied that: (a) Lulu should not be named as one of the apical ancestors; (b) (i) membership of the native title holding community in the case of a descendant of an apical ancestor does not require the criteria of self-identification or general community acceptance to be satisfied where both parents of the descendant are Yawuru; (ii) where only one parent of a descendant is Yawuru, the criterion of self-identification must be satisfied; and (c) persons who are not descendants of an apical ancestor may nonetheless be members of the native title holding community if they were adopted as children or grown up by a Yawuru person as a member of the Yawuru community, or are persons who were born in or have a long term physical association with the Yawuru claim area and have cultural responsibilities in relation to that area, provided that the criteria of self-identification and general community acceptance are satisfied. 17 The Walman Yawuru representative made certain criticisms of the criteria in (b) and (c) above. In particular, it was contended that the criterion of general community acceptance should apply where there was only one Yawuru parent. The criterion of general community acceptance referred to in par (c) above is based on the findings and observations I made concerning that matter at [291] and [348] in Rubibi 5 and at [104] and [105] in Rubibi 6 . I have been troubled by whether that criterion should also apply to the situation of a descendant who has only one Yawuru parent but have decided, primarily on the basis of the evidence referred at [105] in Rubibi No 6 , that that criterion is not required by traditional law and custom. However, it should be emphasised that in order for self-identification to be genuine, something more is required than an announcement on a particular day that a person identifies himself or herself as a member of the Yawuru community. The genuineness of self-identification is to be determined by reference to all relevant facts, which can include past conduct in relation to self-identification. In all the circumstances, I am not satisfied that traditional law and custom requires that the additional criterion of general community acceptance must be satisfied in the case of a descendant who only has one Yawuru parent.


case_text: Section 22 of the NTA as originally enacted (cf s 240A of the current NTA ) provided that an impermissible future act is invalid to the extent that it 'affects native title'. Section 227 of the NTA as originally enacted provided that an act affects native title if it extinguishes native title rights and interests, or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The freehold grants were future acts that were not validated by any provision of the NTA , with the result that they were impermissible future acts under the NTA as originally enacted and appear to be invalid to the extent that they affect native title: see Neowarra v State of Western Australia [2003] FCA 1402 (' Neowarra ') at [586]. While it can be accepted that the freehold grants are valid insofar as they do not affect native title, they cannot have any extinguishing effect or confer rights that are inconsistent with the native title rights and interests I have found to exist. However, as a result of my finding later in these reasons that reserve 631 (which included 139 of the relevant freehold areas) was validly created, the native title rights and interests in respect of 139 of the relevant freeholds are not exclusive rights. It also appears that the remaining freehold lot was subject to a similar prior tenure or reserve. Accordingly, such of the rights and interests of the freehold owners as are not inconsistent with the rights and interests of the native title holders can co-exist with those native title rights and interests. 21 The State argued that, as the freehold grants were valid for some purposes, s 47B could not apply to the grants. I doubt that the argument is correct but nothing turns on it because, as explained above, the freehold grants appear to have had no extinguishing effect on native title with the consequence that there was no extinguishment to be disregarded under s 47B. In any event, no relevant occupation was established for the purposes of s 47B so the section would not apply to the areas covered by the 140 freehold grants. 63 However, the State contended for a different outcome in respect of areas covered by mining leases issued under the Mining Act 1978 (WA) ('the MA '). The State relied upon the extensive rights conferred under s 85 of the MA to use, occupy and enjoy the land in respect of which the mining lease was granted. The rights included the right to do all things that are necessary to carry out 'mining operations' in, on and under the land. The phrase 'mining operations' is given a wide definition in s 8 of the MA . The State also relied upon the decisions in Neowarra (at [522] and [613]) and Daniel (at [741], [768] and [822]) to contend that any permanent native title right to live on the land in respect of which a mining lease has been granted has been extinguished. 69 In Rubibi Community v Western Australia (No 4) [2004] FCA 1019 ; (2004) 138 FCR 536, I determined that the date 'when the application is made' is the date of the filing in the Court of the application for native title in respect of 'the area' referred to in ss 47A(1)(c) and 47B(1)(c). Plainly, 'the area' referred to in those sub-sections must be an area within the area the subject of a claimant application. However, as was explained by Sundberg J in Neowarra at [686] and [721], the area need not be the whole of the area claimed as that could lead to clearly unintended consequences in relation to the operation of ss 47A and 47B. Rather, the relevant area is the particular area with which each of the sections is concerned. 70 Textual, contextual and purposive considerations all point to 'the area' that is referred to in s 47A(1)(c) being 'the area' referred to in s 47A(1)(b). That is, 'the area' is the particular area the subject of the defined freehold estate, the defined lease, the defined vesting or the land expressly held or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders. That was the view taken by Sundberg J in Neowarra (at [686]) and, in my view, is clearly correct. Insofar as there may be doubt about that matter, pars 5.45-5.49 of the Explanatory Memorandum for the Native Title Amendment Bill 1997 , which inserted ss 47A and 47B, make it clear that the occupation is to be in respect of 'the land' the subject of the past 'land rights type' grant, trust, reservation or other historical act that would otherwise have extinguished native title in relation to that land. It follows that the occupation that must be established for the purposes of s 47A(1)(c) is an occupation in respect of the relevant 'area', that is the whole, rather than merely a part, of the particular area the subject of the freehold estate, lease, vesting etc. 71 The situation under s 47B differs from that under s 47A because s 47B requires that at the date the application is made 'the area' is not covered by a freehold estate, lease, reservation etc. However, as was pointed out by Sundberg J in Neowarra at [721], the relevant area for the purposes of s 47B is 'the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished'. That construction of s 47B is consistent with par 5.56 of the Explanatory Memorandum for the Native Title Amendment Bill 1997 which states: 'Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the Court. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for vacant Crown land where the claimants are in occupation of the land, notwithstanding possible extinguishment by any historical act.' 72 It follows that the occupation that must be established for the purposes of s 47B(1)(c) must also be an occupation in respect of the whole, rather than merely a part, of the particular area in respect of which, but for s 47B, native title rights would be extinguished: see Neowarra at [758]-[760]. 77 This approach has been accepted and followed in a number of other cases (see, for example, Daniel at [938], Alyawar at 496 [193] and Neowarra at [682]). 95 In Neowarra at [697]-[698], Sundberg J considered the requirement in s 47A(1)(b)(ii) that the area be held expressly for the benefit of Aboriginal peoples. His Honour considered that 'expressly' meant not merely impliedly and not arising merely by inference. His Honour also referred to cases that had decided that for something to be express, rather than implied, it must arise directly from the language used and not by inference therefrom. 96 Sundberg J then applied the above criteria to an association incorporated under the ACA Act and stated (at [706]): 'The remaining question is whether, as they assert, the Rules of Kupungarri Aboriginal Corporation (under the ACA Act) show that Kupungarri holds the lease "expressly for the benefit of...Aboriginal peoples". Kupungarri's property is "available, at the discretion of the Committee, for the purpose of carrying out the objects of the Association". The objects in r 6 are all directed to the benefit of a group of Aboriginal people education, job training, housing, health services and so on. The Rules clearly and unmistakably disclose that Kupungarri's property is held by it for the benefit of Aboriginal persons. They make that explicit. There is no need to imply that from the Rules or any other source. The case falls within s 47A(1)(b)(ii).' 98 The remaining issue is whether the requisite occupation has been established in respect of area 354. I accept, as did Sundberg J in Neowarra at [708], that a combination of activities in the area can amount to occupation by claim group members, notwithstanding that the area is also occupied by the corporation. The problem with the claim under s 47A in respect of area 354 is that the activity relied upon is residence in one of the two houses on the area by a Yawuru claim group member. As explained above, s 47A requires occupancy of the whole of the area, not merely part of the area. Accordingly, the requisite occupancy has not been established. 99 The State argued that the area is not within s 47A and that there is no relevant occupation. This area is a freehold block in Broome at which Bidyadanga Aboriginal Community La Grange Inc (an Aboriginal Association incorporated under the ACA) conducts a sobering up centre. The association is not relevantly distinguishable from the associations above. For the reasons given in respect of area 354, the area is held expressly for the benefit of Aboriginal peoples. However, the involvement of some Yawuru persons, as well as others, in co-ordinating and using the centre is not sufficient to constitute occupation of the centre for the purposes of s 47A. 100 The State argued that this area is not within s 47A and that there is no relevant occupation. For the reasons given in respect of area 354, this area is held by Nirrumbuk Aboriginal Corporation expressly for the benefit of Aboriginal peoples. However, the requisite occupation at the date of the application has not been established by the evidence. 128 Although it was accepted by the parties that the resolution of the dispute involved matters of fact and degree, the State's submissions set out a number of useful examples and guidelines: 'In Hayes v Northern Territory [1999] FCA 1248 ; (1999) 97 FCR 32 ( Hayes ) at page 109 (xiv) Justice Olney found that "it may well be inferred that 'recreation equipment' would be both a structure and a fixture." Again, at page 102 (viii), his Honour stated that "... there is no evidence of any building or structure in the nature of a fixture other than possibly a fence ..." Clearly Justice Olney regarded recreation equipment and fences as examples of structures that could be considered as public works for the purposes of the NTA . This accords with the ordinary meaning of structure being simply something "built or constructed". At page 108 of Hayes his Honour said: "Whether or not a particular structure is to be regarded as a fixture will depend upon the context in which that question has to be determined but the general principles are well established and do not need to be recited here." The general principles can be summarised as follows: 217.1 The common law previously looked to the degree of annexation of an item; if substantially affixed, the item was a fixture, otherwise, it remained a chattel. 217.2 The importance of annexation has, however, declined over time, and the focus now is on the intention with which the item was put in place; if for better use or enjoyment of the land, the item is a fixture, for better use or enjoyment of the item, it is likely to be a chattel. There are two prima facie presumptions applied: 218.1 first, if an item is affixed to the land, it is presumed to be a fixture, and the burden of proof lies on those who assert it is not; 218.2 second, if an item rests by its own weight, it is presumed not to be a fixture, and the burden of proof rests on those asserting that it is. The presumptions may be rebutted by evidence to the contrary; for example, stone blocks resting by their own weight and placed to form a dry stone wall would be intended for better enjoyment of the land, and hence a fixture, whereas such blocks stacked in a builders yard would not. A concrete rail head or culvert for a drain, on the principles set out above, is more likely to have been put in place to enhance enjoyment of the land, hence would be a fixture, regardless of whether it is affixed or resting of its own weight. Likewise, it cannot be said as a matter of generality that playground equipment or pine bollard fencing are not fixtures, as it will depend upon the intention of the person or persons who bring it onto the land. In Daniel v State of Western Australia [2003] FCA 666 at [1047] Nicholson J found that water tanks and sewerage and waste water treatment plants were public work previous exclusive possession acts. In Sampi at [1126] and [1148] his Honour Justice French found a radio site constructed by Telstra to be a public work previous exclusive possession act. As to major earthworks, the Explanatory Memorandum to the Native Title Bill 1993 gave as examples: "... dams and weirs whose construction permanently and significantly disturbs or changes the land." Excluded from the examples given were digging wells, cultivating land for crops or establishing a walking trail in a National Park. ... In any event, as to the extent of the public works in each area, the First Respondent relies upon the decision of his Honour Justice Sundberg in Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208 ( Neowarra ) at [654] to [660] to the effect that: "Section 251D [NTA] is specifically directed to public works, and is plainly intended to operate in conjunction with ss 23B(7) and 23C(2). There is no reason to deny its beneficial function of ensuring that a public work has the benefit of adjacent land that is necessary for or incidental to the operation of the work, especially in relation to access to landlocked works."'


case_text: The Commonwealth made submissions on this issue because two of the 140 freeholds in question are held by the Aboriginal and Torres Strait Islander Commission. In the course of the Commonwealth's submissions, it became apparent that the 140 freehold grants were in the Cable Beach area and probably had houses constructed upon them by the freehold grantees, or by purchasers from those grantees, who had not been informed of these proceedings or of the likelihood that their rights were subject to the rights and interests of the native title holders. This extraordinary situation apparently came about because the Western Australian statutory regime relied upon by the State (to ensure that freeholds granted by it after 1 January 1994 prevailed over native title) was held by the High Court in State of Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47 ; (1995) 183 CLR 373 ('the Native Title Act Case ') to be invalid. Plainly, the situation is one that will have to be resolved between owners of the freeholds, the State and the native title holders. One likely method of resolution is an indigenous land use agreement under which the native title holders may relinquish their native title rights and interests on appropriate terms. 23 When this issue arose at the hearing, I expressed grave concern at how the matter had arrived at this stage without the freehold grantees or their purchasers having notice of the likelihood that the freehold grants are invalid to the extent that they affect native title. The Commonwealth's response to my concern appears to provide the answer which is that, properly construed, the relevant application of the Yawuru claimants did not claim the areas in respect of which the freehold grants were made. If that contention is correct that would preclude the Court from making a determination of native title in respect of the relevant areas but it will not make the problem disappear. As against the State I have found that, subject to extinguishment, native title exists throughout the Yawuru claim area. Even if the 140 lots do not technically fall within that area they are not relevantly distinguishable from the surrounding areas in which native title has been found to exist. It must follow that the problem created by the State by its 140 freehold grants, which were not validated by the NTA , will still have to be resolved by the relevant parties. 24 I now turn to consider whether the 140 lots fall within the Yawuru claim area. The relevant application (#WN95/7) which was filed on 11 January 1995 was known, prior to the consolidation of the various applications, as Rubibi # 5 . The application was lodged with the Native Title Tribunal on 11 January 1995, which was prior to the decision in the Native Title Act Case . After certain amendments, which were made during January 1995, the application was accepted by the Native Title Tribunal. The application was in the form prescribed by Sch 1 of the NTA which, relevantly, provided for a description and a map of the area covered by the application and for the applicants to set out the information known to them about other interests in relation to the land and waters in the claim area: see pars A6 and A7 of the prescribed form. Paragraph A6 of the amended application stated that the area covered by the application was the land indicated on the attached map. It added that: 'The land claimed is in the State of Western Australia in the West Kimberley Region and covers all areas of land, currently designated Vacant Crown Land or Reserve , as fall within the area edged and hatched in heavy black lines on the accompanying map, save and except [certain specified Reserves]. ...' (emphasis added)


case_text: The law applicable to a challenge to the validity of a regulation made in the exercise of a statutory power to make regulations would appear to be applicable to the analogous exercise of a power to reserve land for certain purposes under a regulation that provides for the exercise of that power. In South Australia v Tanner [1989] HCA 3 ; (1989) 166 CLR 161 at 178-9, Brennan J stated that, as the validity of a regulation depends on whether it answers the statutory description, the problem is one of characterisation. His Honour explained that the character of the regulation is ascertained by the court's own assessment of the directness and substantiability of the connection between the likely operation of the regulation and the statutory object to be served. Wilson, Dawson, Toohey and Gaudron JJ stated (at 165): '... there must be conceded a broad, rather than a narrow, approach in determining the nexus between the exercise of the power and the achievement of the purpose for which it is conferred.' and (at 168): 'In the course of argument the parties accepted the reasonable proportionality test of validity (cf. Deane J. in The Commonwealth v Tasmania (the Tasmanian Dam Case); namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose.' (footnote omitted) 42 Regulation 29(13) is in the broadest of terms and extends to any purpose of public 'utility' or of 'otherwise facilitating the improvement and settlement of the Colony'. In my view, 'public purposes adjoining Broome, Roebuck Bay' is plainly capable of being considered reasonably proportionate to the pursuit of the enabling purpose and therefore falls within reg 29(13). It is a purpose that is implicitly, if not explicitly, associated with the development of the Broome township and, as such, is both directly and substantially connected to being a purpose of public 'utility' and is also capable of being characterised as a purpose facilitating the improvement and settlement of Broome in the Colony of Western Australia. 56 In Ward HC , the question of extinguishment in respect of a reserve was carefully considered in the majority judgment at 137-142: '214. It is important to recall that the ultimate question is whether, by the steps that were taken, the Crown created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land. It was submitted that the features of the statutory regulation of public reserves which we have mentioned indicated that reservation, even without vesting, amounted to dedication to the purpose specified in the instrument of reservation in the sense, so it was submitted, that reservation prevented the Crown from applying the land to some other purpose and created some right in members of the public generally or a section of the public. 215. The reference by Brennan J, in the passage of his reasons in Mabo [No 2] that is set out earlier, to use of the land that is reserved, may distract attention from the relevant inquiries. They are, as we have said, whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use. Further, as has already been pointed out, it is often necessary to examine inconsistency by reference to the particular native title right and interest concerned. ... 219. Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as 'public utility', the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation. 220. The reason that the right to use the land may have survived reservation is the same reason that the grant of a pastoral lease extinguished the right to control access to the land, but not necessarily all the rights of native title holders to use it in accordance with the rights held under traditional laws or customs. The provisions of the Acts providing a penalty for "unlawful or unauthorised use or occupation" of lands (including "lands reserved for or dedicated to any public purpose") did not, on their proper construction, prohibit use or occupation by native title holders. It is, therefore, not right to say, as a proposition of universal application, as Western Australia submitted, that reserved lands could not lawfully be used except for the reserved purpose. The facts that the 1905 amendments to the Land Act 1898 permitted leasing of reserves not immediately required for their purpose or that in 1960 the Land Act 1933 was amended to permit leasing or licensing of certain kinds of reserve for depasturing stock require no different conclusion. Whether a right in native title holders to use the land continued unextinguished depends upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive. 221. The designation of land as a reserve for certain purposes did not, without more, create any right in the public or any section of the public which, by reason of inconsistency and apart from the State Validation Act , extinguished native title rights and interests. ... 233. The majority of the Full Court treated the use that had been made of reserved land, even land that had been vested in a body or person, as determining whether native title had been extinguished. So, for example, it was held in relation to Reserve 1059 (a reserve which had been created in 1886 for "public utility" but had not been vested in any body or person) that "[t]he general use of the area for watering cattle, and as a pastoral lease destroyed the exclusivity of native title rights". Their Honours went on to say that "[t]he close use" of the area of Reserve 1059 which now forms part of another reserve "would have wholly extinguished native title in that area". Similarly, in the case of reserves vested in a body, their Honours looked to the use that had been made of the land. 234. As we have said earlier, we consider that looking to the use that has actually been made of land distracts attention from the central inquiry which is an inquiry about rights created in others or asserted by the executive, not the way in which they may have been exercised at any time. Neither the Full Court nor the primary judge considered that central inquiry.' 57 The above passages provide the answer to the State's submission. By creating the reserves for a gaol and a police station, the executive did not create rights in others. Rather, the executive asserted its right to say how the land could be used and the assertion of that right extinguished any native title right to control or say how the land could or could not be used. However, that was not necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.


case_text: It can be accepted that the phrase 'public purposes' has a broad meaning. In Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59 ; (1998) 195 CLR 566 (' Bathurst ') at 590 [58] Gaudron, McHugh, Gummow, Hayne and Callinan JJ stated that the phrase 'public purposes' connotes 'the giving to the public of some rights in the land which subtract from the Crown's full ownership'. Their Honours stated at 591 [62]: 'the meaning of "public purposes" depends in part upon the scope and purposes of the particular legislation...'


case_text: Further, in the majority judgment in Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HC ') at 137-138 [218]-[219], their Honours observed: '218. Reservation of land under the relevant Western Australian provisions inhibited the Crown's future action in relation to that land. The inhibition, however, was not, and could not be, absolute. As Windeyer J pointed out in Randwick Corporation v Rutledge , even if land were dedicated to a public purpose, it did not take the land outside the authority of the legislature. Moreover, under the Western Australian statutes, reserves, other than those dealt with by the Permanent Reserves Act 1899 (WA) and its legislative successor, could be cancelled or the purpose of the reservation altered by executive act. Even permanent reserves could be cancelled or the purpose of the reservation altered by statute. Further, as had been held in Williams v Attorney-General for New South Wales ('the Government House Case '), the Crown appropriating lands to a particular purpose, without the creation of a trust, did not mean that the land became dedicated to that purpose, or that it could not later be used by the Crown for some other purpose. 219. Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as 'public utility', the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.' (footnotes omitted) 45 Although their Honours were not determining the precise legal consequences of a reservation of land for public purposes, there is nothing in the above passages that suggests that there is any particular difficulty with such a reservation. 46 For the above reasons, I am satisfied that reserve 631 was created for one of the purposes specified in reg 29 (13) and was validly created. 47 Reserves 1637, 1640 and 1644 were created for 'public purposes' under the Land Regulations 1887 (WA), which were not relevantly distinguishable from the Land Regulations 1882 (WA), save that the later regulations assumed that reserves could be created for 'public purposes': see regs 2 and 36 (which defined 'public purposes'). Thus, if there is any distinction to be drawn between the two sets of regulations, it is one that provides added support to the State's argument in favour of the valid creation of the relevant reserves. As it was accepted by the parties that the finding in respect of reserve 631 would determine the issue of validity in respect of all four of these reserves, I need not pursue this aspect of the matter further. It follows that reserves 1637, 1640 and 1644 were also validly created. 48 On 1 April 1930, a special lease was purportedly granted under s 153 of the Land Act 1898 (WA) ('the LA 1898 ') over Broome Lot 622 (which comprises all of area 2733). The lease, which was for a term of five years commencing on 1 April 1930, was for the purpose of 'a foreshore camp, store site and repairing boats'.