case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259

case_text: is important in considering the reasons of the Tribunal that the court should not be concerned with the looseness in language or unhappy phrasing. Its reasons are not to be construed minutely and with an eye keenly tuned to a perception of error. As Brennan CJ, Toohey, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, the reality is that the reasons of administrative decision-makers are meant to inform and not to be scrutinised upon over zealous judicial review by seeming to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Relevantly for seeking the present context, their Honours said: '... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.' An administrative decision which involves jurisdictional error is regarded in law as no decision at all: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ at 618 [63] McHugh and at 646-647 [152] per Hayne J. In the latter case the Tribunal had failed to have drawn to its attention at the time it made its decision a communication from the applicant for review that he was unable to attend because of illness. It later embarked on a further review of his case and the court upheld that exercise on the ground that the Tribunal initially had not performed a review at all because it failed to have regard to the applicant for review's communication to it and had not decided in accordance with the Act.


case_outcome: considered

case_text: the Act gave the Tribunal the discretion to proceed or not once the appellant did not appear on 22 March 2001. The Tribunal did not have to give reasons for its exercise of discretion under s 426A because s 430 of the Act did not require it to do so. In Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [27] , the full court held that where the Tribunal had sent to an applicant for a review, at his address for service, a letter inviting him to a hearing in accordance with ss 425 and 425A in circumstances where s 422B was not then in force, the mere fact that the Tribunal received the letter back with a return to sender endorsement did not oblige the Tribunal to do anything further to search in its files to see other addresses at which the applicant may be contacted. Their Honours said ([2006] FCAFC 73 [38]-[39]): 'The respondent says the Tribunal was on notice that he may not have received the letter because the "Response to Hearing Invitation" form was not returned, because the letter to his residential address was returned unclaimed, and because he did not appear at the hearing. The respondent says that in these circumstances, the Tribunal was obliged under s 425 to search both its own and the Department file to attempt to find another method of contacting the respondent. He says that in this case, the Tribunal had an obligation to contact the migration agent listed if the respondent's Department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent's protection visa application. The submissions of the respondent in this respect are rejected. In view of the decision in VNAA it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 425A (in fact, two) was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.' The appellant distinguishes that decision on the basis that this matter had proceeded one stage further in that the appellant had been contacted, and had indicated she wished to attend the hearing. The obligation under s 425 , at the time at which the appellant's claim came to be considered by the Tribunal, was to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That was complied with. Whether the appellant took up the invitation seems to me to be a matter for the appellant at the end of the day. The Tribunal's obligation had been discharged. I think that a construction of s 426A(1) that obliged the Tribunal to accord natural justice to an applicant for review if they did not appear in accordance with s 426A(1)(b) , was at odds with the express words of the discretion in the section. Those words are that: '[It] may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.' It seems to me to be quite inconsistent with those words to construe the obligations of procedural fairness to require the decision maker to give the applicant an opportunity to retrieve his or her position after a failure to appear in that situation.


case_outcome: discussed

case_text: appellant also referred to the decision of the Full Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51. There, Madgwick J, with whom Conti J agreed, had noted that the court could reasonably attribute to the delegate, whose decision was then under challenge, knowledge of the notorious background facts about China, that it was an authoritarian, indeed a politically, though not now economically, totalitarian State (see 147 FCR at 94 [220]). He said that while the delegate in that case had accepted, apparently, that active proponents or leaders of Falun Gong as opposed to ordinary practitioners would be more likely to come to the attention of the authorities, in the circumstances of that case the appellant's claims as to events in Australia indicated that she in fact had been an active proponent of Falun Gong. In those circumstance the delegate's express lack of satisfaction that she had been identified by Chinese authorities could hardly have betokened any confident and complete rejection of that proposition. This led to a finding that the decision maker in that case had misunderstood the task which he was required to undertake (see 147 FCR 94-95 [221]-[222]). I do not think that the facts of that case are sufficiently analogous or in point on the present facts to lead to a conclusion in support of the first ground. For these reasons, I therefore reject the first ground. Turning to the second ground, it was said that the provisions of s 424A(1) were engaged so as to require the Tribunal to give the appellant notice in writing that it intended to use as the reason, or part of the reason, for affirming the decision under review parts of its reasoning or fact finding as to how the appellant may or may not practice Falun Gong and the Tribunal's lack of satisfaction about that were she to return to China. Further, and alternatively, it was argued that the Tribunal should have given her notice that it would use the fact or reasoning that she had offered very little support for those claims even in the form of evidence which she herself could give.


case_outcome: followed

case_text: am fortified in this construction of s 426A by a decision of Greenwood J in NBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1045 , especially at [24]. The matter may also be tested by considering whether, if the Tribunal had decided to make attempts to contact the appellant on her failure to attend on 21 March 2001, the Minister could have attacked that conduct on the ground that a jurisdictional error occurred. In my opinion it could not. It was plain that the Tribunal had a discretion one way or the other to decide whether or not to take further action. I do not think that it could be inferred or implied that the requirements of procedural fairness necessitated the Tribunal, in arriving at a decision under s 426A(1) to consider contacting the appellant, and, if it failed to do so, the whole of the exercise of its jurisdiction would be thrown into doubt. The very terms of the section seem to me to negate such an approach. I do not see any error in the way in which the Chief Federal Magistrate approached this issue. For these reasons I reject this ground.


case_text: or not something is information of the kind which is within the definition in section 424A has been the subject of considerable debate in the authorities. Relevantly, the Full Court has held in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 259 [205] per Allsop J; Weinberg J agreeing at 150 FCR at 252 [155] and see too at 259-260 [200]-[210] that: 'Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event.' Allsop J went on to say: 'Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations.' There he acknowledged the distinction between those matters and information could be fine, but obviously it is critical. And he identified that the word 'information' has been said not to encompass or extend to identified gaps, defects or lack of detail of specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. However, that process was somewhat limited by a proper construction of the legislation (see 150 FCR 259-260 [206]-[207]). The way in which the Tribunal expressed its reasons, subject to one qualification to which I will come, appears to me to display an evaluative process of the claims and the lack of material put before the Tribunal in support of those claims. The Tribunal expressed itself as not being satisfied about a number of matters. It did make a positive finding based on the country information, as it was entitled to do under s 424A(3)(a), that there was differential attention by the Chinese authorities to practitioners of Falun Gong and that various factors could influence whether or not someone was persecuted and how they were persecuted.


case_text: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 Allsop J referred to the reasons a Tribunal had given in that case that the appellant had not provided the level of detail necessary satisfactorily to establish the relevant facts in his case. The Tribunal there noted that questions remained unanswered as to how and when the homosexuality which he there alleged had come about, and become known and the like. At the end the Tribunal concluded it was not satisfied that the appellant's claims were true. His Honour said ([2005] FCA 1195 at [29]): 'The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than that) the evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.' Accordingly, his Honour found that in that case there was no failure to comply with s 424A. Although my mind has wavered on the point, I am of opinion that the better view is that the Tribunal's use of the failure of the appellant to give evidence is to be viewed in a similar fashion. At the end of the day the Tribunal concluded that on the very limited information available it was not satisfied that the appellant would be at risk of persecution were she to return to China or that there was any real chance that she would be persecuted if she did. Notwithstanding my doubts, I find that the Tribunal was not obliged to give a notice under s 424A(1) and that I should dismiss this ground of appeal. Last, it is said that the Tribunal failed to exercise a discretion under s 426A(1) in accordance with the Act and thereby committed a jurisdictional error. The appellant argues that the Tribunal ought to have had regard to the fact that she had indicated she wished to attend a hearing but, because she did not arrive, it ought to have taken the simple step of telephoning her on the telephone number which the Tribunal had to ascertain whether or not there was some reason for her non-attendance. I am asked to infer from material in the appellant's affidavit which was unchallenged before his Honour that had she been telephoned on the day of the hearing she would have attended the hearing and/or made arrangements to seek an adjournment with the Tribunal. The appellant did not state that explicitly in her affidavit of 16 March 2006. I infer that she had considerable concerns about her immigration status and continued to liaise and speak with people at the Shine Business Consultant Centre at all relevant times. While I might be prepared to infer in her favour that she would in fact have communicated to the Tribunal that she wanted a hearing and sought to arrange a convenient time either on the day fixed for the hearing or at some other time, the first question is what was the scope of the discretionary power in s 426A? The Minister submits that considerations which the Tribunal was bound to take into account are those specified in s 426A(1)(a) and (b), namely, that a proper invitation had been given to the appellant to appear at a hearing before the Tribunal under s 425 and the appellant had not appeared before the Tribunal on the day on which, or at the time and place at which, she was scheduled to appear. The Minister argues that s 426A(2) is, in effect, facultative in allowing the Tribunal to re-schedule the time of an appellant's appearance to enable him or her to appear at a later or an alternate time but that subs (2) does not, in effect, create some consideration which the Tribunal is bound to take into account in exercising its discretion.


case_outcome: referred to

case_text: is an appeal from a decision of the Federal Magistrates Court, SZHSQ v Minister for Immigration [2006] FMCA 538. In essence, three principal bases of error were argued before me. I am of opinion that although the reasons of the Tribunal could have been better expressed, the Chief Federal Magistrate made no error in his conclusion that the Tribunal had made no finding that the appellant was a practitioner of Falun Gong or that she had practised that faith in a particular way. He said that there was no finding that upon her return to China she would practice in a particular way and that it was apparent that the Tribunal was unable to make those findings because of her non attendance before the it and the lack of information in support of her claim (see [2006] FMCA 538 at [16] ). From time to time decisions of the Tribunal refer to questions which it might have been able to ask of persons had they attended hearings. The courts have held that that speculation does not amount to a jurisdictional error or a failure to comply with s 424A(1). I am mindful that in this case the requirements of the Act for according natural justice are not exhaustive because what came later to be enacted in s 422B was not in force at the time the Tribunal made its decision. Thus the common law requirements of procedural fairness to the extent that they are consistent with the Act had to be observed by the Tribunal in addition to those mandated in the statute. I am of opinion that the Tribunal did take into account the fact that the appellant had not given evidence in support of her claims, and the fact that she did not attend the hearing, as information to why it would find against her. The Chief Federal Magistrate thought this ground in totality was misconceived (see [2006] FMCA 538 at [19] ). In one sense in every case where an applicant for review does not attend a hearing part of the material before the Tribunal is the failure to attend and to give evidence in support of the claim. But here the Tribunal gave as a reason that the appellant had, in effect, not only given little support to her claims, she had not given evidence to support them. At no time did the Tribunal give notice to the appellant that her failure to give evidence in support of her claims would be a reason for rejecting them. Rather it had sent a notice saying that it was not satisfied on the material before it that it could make a decision in her favour and invited her to a hearing, as it was required under the Act to do before it could proceed along that course. To employ the appellant's failure to give evidence in support of her claims as a part of the reason why her claim should not be accepted seems to me to be using that information against her in a way that she was not advised of beforehand. Albeit she was on notice that the Tribunal was not going to make a decision in her favour, it was not because she had not given evidence. It was because the Tribunal was not satisfied on the material that she had presented to it. The distinction is fine and difficult and I am not entirely sure that it is satisfactory given that the Act envisages that the very purpose of inviting someone to a hearing is to enable them to persuade by what they can say and provide at the hearing, the Tribunal against upholding the decision to refuse a visa.


case_outcome: applied

case_text: The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10 ; (1969) 122 CLR 546 at 552-553 the High Court held that: '...when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.'


case_text: was also made to the canon of statutory construction that terms used in statutes that are in pari materia should be given the same meaning unless there is a clear indication to the contrary: Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 per Viscount Simonds; The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 171 per Gummow J.


case_text: 9-30(1)(a) of the GST Act provides , inter alia , that a supply is GST-free if it is GST-free under Div 38. Section 38-2 provides that a supply of food is GST-free. Section 38-4(1)(c) provides that beverages for human consumption are food. There is a definition of the term 'beverage' in s 38-4(2) saying that it 'includes water'. A more helpful description of the word is to be found in Bristol-Myers Co Pty Ltd v Federal Commissioner of Taxation (1990) 23 FCR 126 where Lockhart J described a beverage as 'a drink of any kind' and 'any liquid which is swallowed to quench thirst or for nourishment' and said that 'a beverage is consumed either hot or cold and is normally taken to quench the person's thirst or for stimulation or as an accompaniment to solid foods either at meal times or between meals'. It is common ground between the parties that the Edenvale products are beverages for the purposes of the GST Act. Nonetheless, an exemption is only available if the Edenvale products are beverages of a kind specified in the third column of the Table in cl 1 of Sch 2 to the GST Act. It is again common ground that Edenvale Chardonnay, Edenvale Shiraz and Edenvale Rose need to fall within Item 12 of the Table and that Edenvale Sparkling Cuvee needs to fall within Item 11 of the Table, an excerpt from which follows: Beverages that are GST-free *Beverages specified in the third column of the table are GST-free. Beverages that are GST-free Item Category Beverages 10 Fruit and vegetable juices concentrates for making non-alcoholic *beverages, if the concentrates consist of at least 90% by volume of juices of fruits 11 non-alcoholic carbonated *beverages, if they consist wholly of juices of fruits or vegetables 12 non-alcoholic non-carbonated *beverages, if they consist of at least 90% by volume of juices of fruits or vegetables By s 182-15 of the GST Act, the second column cannot be taken into account in interpreting an item unless it is for the purpose, inter alia , of determining the meaning of an item which is ambiguous or obscure or, if the ordinary meaning conveyed by its text, taking into account its context in the GST Act and the purpose or object underlying the item, leads to a result that is manifestly absurd or is unreasonable: see subs 182-10(2).


case_title: Cascade Brewery Co Pty Ltd v Federal Commissioner of Taxation [2006] FCA 821 ; (2006) 153 FCR 11

case_text: a legislative purpose is also discernable both from the circumstances in which the amendments arose, and the context in which Items 11 and 12 appear in the Table. This was recognised by Gzell J in P & N at [32]: There is a lot to be said for the submission of the Commissioner that when the compromise was made for a qualified exemption for food to ensure the passage of legislation, as Sundberg J points out Cascade Brewery Co Pty Ltd v Commissioner of Taxation [2006] FCA 821 ; (2006) 153 FCR 11 at [40] , the legislature seems to have drawn the line between exempt and non-exempt food supplies in favour of food that is fresh, natural or unprocessed. For example, the beverages that are not included in the table to cl 1 of Sch 2 of the GST Act and are therefore not GST-free, include soft drinks and cordials, flavoured milk (Item 2) and flavoured soy milk and rice milk (Item 4). The only carbonated beverages that are GST-free are those satisfying Item 11, and water (Item 14), is GST-free only if it is non-carbonated and without any other additives. First Issue: Whether the Edenvale products consist wholly (Item 11) or at least 90% by volume (Item 12) of the juices of fruits? The phrase 'juices of fruits' Reference was made to Cascade Brewery Company Pty Ltd v Commissioner of Taxation [2006] FCA 821 ; 153 FCR 11 where Sundberg J said at [40]: The reason for the qualified exemption of food from GST is well-known, and was common ground. It was the political compromise reached in order that the GST scheme might become law. The distinction drawn in Totalizator between an exemption directed at a particular person or body and one that encourages a particular activity is applicable here. It is true, as Cascade says, that item 13 is not directed at a particular person or body. But nor is it concerned to encourage any particular activity. It is not intended to encourage the production of beverages or ingredients of any kind. It was the result of a political deal that gave partial exemption to food. In the case of the beverage component of food, the result was that the beverage or an ingredient therefore would be exempt if it was of a kind marketed principally as food for infants or invalids. In accordance with Totalizator , there is no occasion to approach the meaning of 'infant' or 'invalids' in any manner other than by according the words their ordinary meaning. According to the Commissioner, the applicant is not correct in submitting that the expressions 'juices of fruits' is an anachronism resulting from the history of the sales tax legislation and that the meaning intended to be conveyed by the draftsman by the use of that expression was the same as 'fruit juice'. It follows, the Commissioner argued, that 'juices of fruits' and 'fruit juice' are not synonymous and any purported trade meaning as to 'fruit juice' in the beverage industry (being the definition in the Foods Standard Code ) has no relevance to the interpretation of the expression 'juices of fruits'. In any event, the Commissioner submitted, the definition of 'fruit juice' in the Food Standards Code could not have had significance in construing the expression 'juices of fruits' in circumstances where that expression was used in taxing legislation many years before the Food Standards Code was introduced. The expression 'juices of Australian fruits' had been a term used in the wholesale sales tax since the 1930s and 1940s. I have come to the conclusion, not without some hesitation, that the Commissioner's approach is to be preferred because it better promotes the legislative purpose of the GST Act in relation to food , namely, that the exemption or GST-free status is a qualified one where, as Sundberg J pointed out in Cascade Brewery , the legislature seems to have drawn the line between exempt and non-exempt food supplies in favour of food that is fresh, natural or unprocessed. The fact that one can readily point to some specific exclusions to this line in the GST Act does not reduce or mitigate against its force as an overall observation or conclusion. For these reasons, I am of the view that the Edenvale products are not non-alcoholic beverages. While their respective alcohol content by volume is low, it owes its existence to an infused process of fermentation rather than a naturally occurring one. The application must be dismissed.


case_text: is the same with the GST Act. As Hill J (with whom Stone and Allsop JJ agreed) said in H P Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [44] : It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account. He submitted that in such circumstances a construction of the legislation that promotes the purpose of the GST Act is to be preferred to one which would not promote the purpose; see s 15AA of the Acts Interpretation Act 1901 (Cth); CIC Insurances Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. He submitted that confining non-alcoholic beverages to those beverages which do not acquire their alcohol content through human intervention (i.e., by using yeast to cause or accelerate fermentation), and contain an amount of alcohol by volume which is considered insignificant, best promotes the legislative purpose of the GST Act in respect of food namely, that GST-free status is confined to 'basic' food. As the alcoholic content of the applicant's Edenvale products arises through human intervention those products are not, according to the Commissioner, non-alcoholic even though the level of that content may be low after the de-alcoholisation process has taken place. By reference to the same principle of construction, the applicant contended that a non-alcoholic beverage meant a beverage other than an alcoholic beverage; this gives meaning and operation to Items 11 and 12 and is therefore to be preferred.


case_text: Honour observed at [24] that it was common ground that the phrase 'juices of fruits' does not have a trade meaning. At [36] he referred to what was said by a Full Court of this Court in Zeroz Pty Ltd v Deputy Commissioner of Taxation (1997) 35 ATR 349 at 357, 'if there is no trade usage then a fortiori the expression must be used in its ordinary English sense'. But P & N in that case, like the applicant in this case, made a number of submissions which, at the risk of doing the applicant a disservice, went something like this: (1) While the phrase 'juices of fruits' does not have a trade meaning, the phrase is synonymous with 'fruit juice' and that term had a trade meaning as defined in the Food Standards Code . (The Food Standards Code is a reference to the Australia New Zealand Food Standards Code as defined in the Food Standards Australia New Zealand Act 1991 (Cth). The Food Standards Code , standard 2.6.1, with respect to fruit juice and vegetable juice, defined fruit juice or vegetable juice as the liquid portion, with or without pulp, obtained from fruit or vegetables respectively and in the case of citrus fruit, other than lime, the endocarp only of the fruit and included products that had been concentrated and later reconstituted with water to a concentration consistent with that of the undiluted juice from which it had been made. At [21] and [22], his Honour observed that it was common ground that the fruit drinks supplied by P & N met the Food Standards Code requirements. It was also common ground that P & N fruit drinks contained non-fruit based additives, vitamins and minerals or used processing aids within the limits permitted by the Food Standards Code . The evidence was that the fruit drinks contained 98% - 99% fruit juice and 1% - 2% additives and processing aids not directly derived from fruit.) (2) In substituting a trade meaning of 'fruit juice' for 'juices of fruits' that has no trade meaning, reliance was placed on Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 where the phrase 'silver dye bleach reversal process' in a tariff concession had no trade meaning but the words 'silver dye bleach process' did. The High Court held that the Tribunal's construction of the composite phrase by reference to the trade meaning of the lesser phrase and the ordinary meaning of the word 'reversal', involved no error of law. The submission, by parity of reasoning, was that in the Item 11 composite phrase 'wholly of juices of fruits', the word 'wholly' should be given its ordinary meaning and the words 'juices of fruits' (in both Items 11 and 12) should be given the trade meaning for 'fruit juice'. (3) That having adopted the Foods Standards Code prior to the introduction of the GST Act, its concepts were well known to the Parliament and that it may be taken to have had regard to them in respect of a law dealing with the exemption of food. As to the reliance on Agfa-Gevaert in substituting a trade meaning of 'fruit juice' for 'juices of fruits', his Honour said at [27]: Agfa-Gevaert is quite different from the instant circumstances. The composite phrase was not one that had an obvious ordinary meaning. Nor did the lesser phrase. In those circumstances, the lesser [phrase] aided the proper interpretation of the composite one. Here, the words that comprise the composite phrase are words of common parlance, even if they are oddly arranged, and there is not the same need to call in aid a trade meaning. As to the submission that Parliament may be taken to have adopted the Food Standards Code and its trade meaning of 'fruit juice' in respect of a law dealing with the exemption of food, his Honour said at [34] [35]: [34] ... Furthermore, the extrinsic materials do not suggest that parliament adopted a trade meaning in the Foods Standards Code . If it had, one would have expected it to have departed from the unusual [phrase] "juices of fruits". The extrinsic material makes it clear, in my view, that parliament intended to bring within the scope of the amendments to the GST Act the exemptions or concessions in relation to food products under the existing sales tax legislation. Hence the adoption of the phraseology in Item 11. [35] Parliament was invoking its past legislation rather than adopting a trade meaning of other words in an industry code that the past legislation preceded. The harking back to a phrase used in the sales tax legislation in 1935 leads to the irresistible conclusion that parliament was carrying forward some of the exemptions and concessions with respect to food in the sales tax legislation and not attributing to the phrase any trade meaning of a different term in the Foods Standards Code . There was no logical reason for parliament, in introducing a new tax, to adopt a code intended to ensure that the public was protected from poorly prepared food. The 2 objects are clearly distinct. If parliament had intended to adopt the code, one would have expected a collocation such as: "non-alcoholic carbonated beverages produced wholly in accordance with the Foods Standards Code ". ANALYSIS Relevant Principles of Statutory Construction


case_text: in Commissioner of Taxation v Bargwanna [2009] FCA 620 (12 June, 2009), in the course of considering whether a fund was applied for the purposes for which it was established within s 50-60 of the Income Tax Assessment Act 1997 (Cth), I said (at [28]): It can be accepted that where Parliament has enacted legislation to encourage a particular activity, for example, legislation which gives particular concessions to the mining or petroleum industries, the legislation must be construed so as to promote Parliament's purpose and not so as to detract from that purpose: Totalizator Agency Board v Commissioner of Taxation (1996) 69 FCR 311 at 323A per Hill J, with whom Tamberlin J and Sundberg J agreed. Thus an exemption which exists for the purpose of encouraging, rewarding or protecting some class of activity is to be given a liberal rather than a narrow construction and application: see Commissioner of Taxation v Reynolds Australia Alumina Ltd (1987) 18 FCR 29 at 35 per Beaumont J and at 46 47 per Burchett J; Diethelm Manufacturing Pty Ltd v Commissioner of Taxation [1993] FCA 437 ; (1993) 44 FCR 450 at 457 per French J. But in the case of a provision which confers an exemption upon a particular kind of body or fund which meets certain requirements, Parliament's purpose is not promoted by construing the provision in a manner favourable to the body or fund referred to in it: see TAB at 323C per Hill J. Indeed, there is much to be said for the view that the privileged status of exemption from income tax on the income of a fund which aspires to that status demands strict adherence to the requirements that must be met before that status is conferred ...


case_text: 36(3), specifically Item 36(3)(d)(ii), was the subject of further consideration by the Supreme Court of New South Wales in Deputy Commissioner of Taxation v Pepsi-Cola Metropolitan Bottling Co Inc (1967) 10 FLR 101, when it was in the following terms: Fruit juice products, namely:- (a) Concentrates for the making of non-alcoholic beverages, being concentrates which consist of not less than 25% by volume of juices of Australian fruits; (b) Cordials for the making of non-alcoholic beverages, and preparations for use in the flavouring of foods, being cordials or preparations which consist of not less than 25% by volume of (i) juices of Australian fruits (ii) a mixture of concentrates and juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices; (iii) juices of Australian fruits and a mixture of concentrates of juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices; (c) Non-alcoholic beverages consisting wholly of juices of Australian fruits or vegetables (including herbage) (d) Non-alcoholic carbonated beverages containing not less than 5% by volume of : (i) juices of Australian fruits (ii) a mixture of concentrates of juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices; (iii) juices of Australian fruits and a mixture of concentrates of juices of Australian fruits and water, being a mixture of a strength not less than the natural strength of the juices;' (Emphasis added). I have referred at some length to the Pepsi-Cola case because of the reliance placed on it by counsel for the applicant for his submission, or the first alternative of it, that the Edenvale products consist of the requisite measures by volume of the juices of fruits at the point of supply notwithstanding the anterior fermentation and de-alcoholisation processes. For reasons I will come to, reliance on the Pepsi-Cola case for that submission, in my view, is flawed. Immediately before the commencement of the GST Act, Item 11 of the Table found expression in Item 13(4) of the Second Schedule to the E & C Act 1992 : 'non-alcoholic carbonated beverages, if they consist wholly of juices of fruits or vegetables', and Item 12 of the Table found expression in Item 13(3) of the Second Schedule to the E & C Act, although the bar for the volume requirement of juices of fruits or vegetables was set much lower: 'non-alcoholic non-carbonated beverages, if they consist of at least 25% by volume of juices of fruits or vegetables'. In both cases they were subject to 10% sales tax rather than being, as under the GST Act, tax free. The applicant relies on the decisions in Faulding and Pepsi-Cola in support of its position. The decision in Pepsi-Cola does not create any tension with such a conclusion because the item in question in that case used the word 'containing', not 'consisting', a distinction apparent to Macfarlan J in the extract from his judgment (at 106) reproduced at [51] above and the reason why, in that case, his Honour concluded that in using the word 'containing', rather than 'consisting', 'Parliament [was] only concerned to ensure that an Australian fruit juice in the prescribed quantity shall have been used in the carbonated beverage' (at 109). An additional impediment for the applicant in the case of the carbonated Edenvale product is that Item 11 of the Table requires that it must consist 'wholly' of juices of fruit and even in the applicant's case, it admitted that the product only consists of 97.3% by volume of juices of fruit. However, the applicant argues that the additional volume largely consists of rainwater added to the beverage as part of the reconstitution process and, accordingly, the rainwater should properly be regarded as part of the grape juice. Once an adjustment is made for the rainwater (and taken into account as being part of the juices of fruits, but see [96] below), the product consists of 99.1% by volume of juices of fruits. It is then suggested by the applicant that the de minimis rule should apply to the remainder.


case_title: Federal Commissioner of Taxation v F.H. Faulding & Co Ltd [1950] HCA 42 ; (1950) 83 CLR 594

case_text: Federal Commissioner of Taxation v F H Faulding & Co Limited [1950] HCA 42 ; (1950) 83 CLR 594 , the High Court of Australia had occasion to consider Item 36(3) of, what was then, the First Schedule to the E & C Act, when it was in the following terms: 'Essences, concentrates and cordials, consisting wholly or principally of juices of Australian fruits, for the making of non-alcoholic beverages; non-alcoholic beverages consisting wholly of Australian fruits'. It is important to an appreciation of what was said in the Full High Court and its relevance to this case, that the framework of the issues which came up to the Full Court be understood. It was not disputed that the liquids sold were cordials nor that they were cordials for the making of non-alcoholic beverages or that they contained substantial quantities of juices of Australian fruits. They did not consist wholly of such juices. The only controversy was as to whether they consisted principally of juices of Australian fruits. In the present case, there is a real issue as to whether the beverage supplied consists of 'juices of fruits'. At first instance, Rich J held that the words 'consisting ... principally of juices of Australian fruits' referred to the characteristic feature of the cordial to what his Honour described as the element giving it its name and nature, its essential properties. On appeal to the Full Court, Latham CJ said (at 596 597): The difficulty which this view meets is found in the words "consisting of". The reference is not to the principal characteristic of the cordial considered as a cordial, but to the content of the cordial. In the phrase "consisting wholly or principally of juice of Australian fruits" the word "wholly" necessarily requires the application of a quantitative standard. The word "principally" must, in my opinion, be similarly construed. Words might have been used which would have given the exemption to any fruit juice cordial in which the whole or larger part of the fruit juice used was juice of Australian fruits. So also an exemption might have been given to all cordials in which any flavouring of Australian fruit juice was contained. Possibly some such provision would represent the result which Parliament intended to achieve. But the court cannot speculate upon such a matter. It must construe the words actually used. The word "consisting" refers to the physical components of the cordial, and the questions to be asked in determining whether the exemption is applicable are (1) Does this cordial consist wholly of juices of Australian fruits? In the present case the answer to this question must be--No: (2) Does it consist principally of juices of Australian fruits? The answer to this question must also, in my opinion, be--No, because the words "consisting principally of" must be read as referring to quantity expressed in terms of either volume or weight of the substance of the cordial and cannot be read as referring to that constituent of the cordial, whatever its proportionate quantity, which gives to the cordial its distinctive flavour as a cordial. Paragraph (d) was added to Item 36(3) by Act No. 71 of 1957. Significantly, it uses the word 'containing', not the words 'consisting' or 'consist of' as in paras (a), (b) and (c). After referring to what was said by Latham CJ in Faulding in the extract reproduced at [49] above, Macfarlan J said (at 106): If, indeed, as the High Court in Faulding's case appears to have thought, the use of the word "consisting" means "constituents actually existing at the time of tax and physically identifiable by reference to the qualities prescribed for exemption" the word "containing" might be thought to have been intended to have a different meaning. Were it not so, then one might reasonably have expected that the word "consisting" would have been used again. This, indeed, was an argument submitted on behalf of the defendant, while learned counsel for the plaintiff distinctly accepted that his argument on this point meant that there existed an identity of meaning for the words "contain" and "consist". After referring to various dictionary definitions of the word 'containing' to which he was taken by counsel for both parties, his Honour said (at 107 109): The word "containing" qualifies the words "non-alcoholic carbonated beverage". In other words, the mixture which is afterwards described in par. (ii) must be contained in the non-alcoholic carbonated beverage and in the present case, the beverage being carbonated when it is in the bottle for sale by retail, the contents of that bottle must then contain the "mixture". It is therefore necessary to inquire what is contained in the bottle at that time. ... In my opinion all the circumstances lead to the conclusion that, subject to certain matters I will mention in a moment, Parliament is only concerned to insure that an Australian fruit juice in the prescribed quantity shall have been used in the carbonated beverage. In my opinion, the meaning of the word "contain" must be understood in this way. The applicant relies on the decisions in Faulding and Pepsi-Cola in support of its position. The decision in Faulding is entirely consistent with the Commissioner's position. In Faulding , the majority (which included Latham CJ) concluded, in the context of Item 36(3), that the word 'consisting' refers to a quantitative test in terms of the constituents actually existing at the time of supply and physically identifiable by reference to the qualities prescribed for exemption. Latham CJ said (at 597): [T]he words 'consisting principally of' must be read as referring to quantity expressed in terms of either volume or weight of the substance of the cordial and cannot be read as referring to that constituent of its cordial, whatever its proportionate quantity, which gives to the cordial its distinctive flavour as a cordial. So too must the de-alcoholised wine under consideration consist of at least 90% (or wholly, for the carbonated Edenvale product) of 'juices of fruits' and not merely be derived from those products while retaining some of their character.


case_text: is the same with the GST Act. As Hill J (with whom Stone and Allsop JJ agreed) said in H P Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126 ; (2005) 143 FCR 553 at [44] : It is clear, both having regard to the modern principles of interpretation as enunciated by the High Court in cases such as CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384 and s 15AA of the Acts Interpretation Act 1901 (Cth) that the Court will prefer an interpretation of a statute which would give effect to the legislative purpose, as opposed to one that would not. This requires the Court to identify that purpose, both by reference to the language of the statute itself and also any extrinsic material which the Court is authorised to take into account.


case_text: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 ; (2004) 218 CLR 273 at [11] the High Court affirmed the observations made by McHugh J in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 42 that: [A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.


case_title: Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85


case_text: 11, but not Item 12, of the Table came up for judicial consideration in P & N Beverages Australia Pty Ltd v Commissioner of Taxation [2007] NSWSC 338 ; (2007) 210 FLR 202. The plaintiff taxpayer (P & N) manufactured carbonated fruit drinks by reconstituting a fruit concentrate with water and non-fruit based additives. It sought declarations that supplies of the fruit drinks were exempt from GST in reliance on Item 11 of the Table. The Supreme Court of New South Wales (Gzell J) dismissed the claim for relief and in doing so rejected a number of submissions concerning the phrase 'juices of fruits', at least three of which were repeated by the applicant in the present case. Such a legislative purpose is also discernable both from the circumstances in which the amendments arose, and the context in which Items 11 and 12 appear in the Table. This was recognised by Gzell J in P & N at [32]: There is a lot to be said for the submission of the Commissioner that when the compromise was made for a qualified exemption for food to ensure the passage of legislation, as Sundberg J points out Cascade Brewery Co Pty Ltd v Commissioner of Taxation [2006] FCA 821 ; (2006) 153 FCR 11 at [40] , the legislature seems to have drawn the line between exempt and non-exempt food supplies in favour of food that is fresh, natural or unprocessed. For example, the beverages that are not included in the table to cl 1 of Sch 2 of the GST Act and are therefore not GST-free, include soft drinks and cordials, flavoured milk (Item 2) and flavoured soy milk and rice milk (Item 4). The only carbonated beverages that are GST-free are those satisfying Item 11, and water (Item 14), is GST-free only if it is non-carbonated and without any other additives. First Issue: Whether the Edenvale products consist wholly (Item 11) or at least 90% by volume (Item 12) of the juices of fruits? The phrase 'juices of fruits' It is common ground that the phrase 'juices of fruits' does not have a trade meaning. The applicant submitted, through the line of reasoning rejected in P & N (see [55] and [58] above), that 'juices of fruits' is 'fruit juice' as defined in the Food Standards Code , which defines 'fruit juice' to include products that have been concentrated and later reconstituted with water to a concentration consistent with that of the undiluted juice from which it was made. The Commissioner did not accept that 'juices of fruits' is synonymous with 'fruit juice', the first step in the applicant's line of reasoning. Insofar as the applicant called in aid the second column of the Table, the Commissioner submitted that this was not permissible: s 182-15 of the GST Act. According to the Commissioner, there is no ambiguity, obscurity or manifestly absurd or unreasonable result flowing from the ordinary meaning of the text, taking into account its context and the purpose or object underlying it, which would mandate such recourse: see subs 182-10(2). The Commissioner submitted that the phrase 'juices of fruits', not having a trade meaning, is to be interpreted according to its ordinary English meaning. In this regard 'juice' is relevantly defined to mean: The Oxford English Dictionary : 1.a. The watery or liquid part of vegetables or fruits, which can be expressed or extracted; commonly containing the characteristic flavour and other properties. Macquarie Dictionary : 1. the liquid part of plant or animal substance ... 2. any extracted liquid, especially from a fruit According to the Commissioner, the ordinary meaning of 'juices', in the context of the GST Act, suggests that 'juices of fruits' is the liquid extracted from those fruits. The extraction process entails that the juice originally formed 'part' of the fruit and, therefore, the juice is extracted from the fruit through some mechanical process such as pressing or crushing. Similarly in the current proceedings the Food Standards Code could have no relevance for the same reason. As Gzell J said in P & N at [33]: ... The phrase had its origin in 'juices of Australian fruits' in 1935 well before the gazettal of the Foods Standards Code in 1987. It was unreal to say that the code preceded the GST Act when the origin of Item 11 in the table in cl 1 of Sch 2 preceded the code. I agree with the Commissioner's submissions. In my view, they compel the conclusion that the phrase 'juices of fruits' in Items 11 and 12 of the Table is to have its ordinary English meaning of being confined to juices extracted from fruits and does not extend to 'fruit juice' in the wider embrace of that term in trade parlance, assisted or unassisted by the definition in the Food Standards Code. The phrase 'consist of' The carbonated Edenvale product will only qualify for GST-free status under Item 11 of the Table if it ' consist[s] wholly of juices of fruits' at the supply point and the non-carbonated Edenvale products will only qualify for GST-free status under Item 12 of the Table 'if they consist of at least 90% by volume of juices of fruits' at the supply point (emphasis added). Subject to the de minimis rule applying, which was not argued in P & N , Gzell J stated that 'wholly' meant 100%: At [36] [37]: [I]n my view ... Item 11 must be construed according to its ordinary meaning. ... The concession by P & N that the word 'wholly' meant 100% was a proper one. Items 10 and 12 in the table to cl 1 in Sch 2 of the GST Act are, respectively, concentrates for making non-alcoholic beverages if the concentrates consist of at least 90% by volume of juices of fruit, and non-alcoholic non-carbonated beverages if they consist of at least 90% by volume of juices of fruit or vegetables. In that context, 'wholly' must, in my view, mean 100%. And later at [41]: It follows from my finding that any trade meaning derived from the Foods Standards Code is not attracted by the legislation and my rejection of the argument that the ordinary meaning of the phrase 'wholly of juices of fruits' encompasses fruit drinks with non-fruit based additives, that P & N must fail. Having accepted that to qualify for exemption, the fruit drinks of P & N must consist of 100% of juices of fruits, the introduction of even 1 % of non-fruit based additives means that the exemption is not attracted. No de minimis argument was raised on behalf of P & N. The de minimis rule does not arise for consideration in the current context unless the rainwater that is added to the beverage is regarded as being part of the 'juices of fruit'. Dr Brooke-Taylor in his further report (annexed to his affidavit sworn on 2 April 2009) describes the product to which the 'reconstitution' (by way of the addition of rainwater) is made as follows (at para (3)): [W]here a fruit juice product which contained ethanol was concentrated by a process of evaporation that removed the ethanol and the concentrate was later reconstituted with water to a concentration consistent with that of undiluted juice product, the resulting product would be fruit juice within the scope of the definition in Standard 2.6.1. (Emphasis added.) The reference to 'fruit juice product' in the above extract is not a reference to either the fruit juice concentrate or low sugar juice, but to the de-alcoholised base wine. The adding of rainwater to the de-alcoholised base wine would not constitute the reconstitution of juices of fruit as the de-alcoholised base wine at that point in the process (even if it was 'concentrated') does not constitute juices of fruit. In any event, the de minimis rule has no scope to operate in circumstances where the clear intent of the legislature was that the product consist of 100% of the juices of fruit. This is made clear by the fact that in the case of Items 10 and 12 of the Table the requirement imposed by the legislature for the volume of juices of fruit was 'at least 90%' which had the effect of allowing the beverage to include non fruit based additives without the loss of the exemption.


case_title: The Wik Peoples v The State of Queensland (1996) 187 CLR 1


case_text: Honour observed at [24] that it was common ground that the phrase 'juices of fruits' does not have a trade meaning. At [36] he referred to what was said by a Full Court of this Court in Zeroz Pty Ltd v Deputy Commissioner of Taxation (1997) 35 ATR 349 at 357, 'if there is no trade usage then a fortiori the expression must be used in its ordinary English sense'. But P & N in that case, like the applicant in this case, made a number of submissions which, at the risk of doing the applicant a disservice, went something like this: (1) While the phrase 'juices of fruits' does not have a trade meaning, the phrase is synonymous with 'fruit juice' and that term had a trade meaning as defined in the Food Standards Code . (The Food Standards Code is a reference to the Australia New Zealand Food Standards Code as defined in the Food Standards Australia New Zealand Act 1991 (Cth). The Food Standards Code , standard 2.6.1, with respect to fruit juice and vegetable juice, defined fruit juice or vegetable juice as the liquid portion, with or without pulp, obtained from fruit or vegetables respectively and in the case of citrus fruit, other than lime, the endocarp only of the fruit and included products that had been concentrated and later reconstituted with water to a concentration consistent with that of the undiluted juice from which it had been made. At [21] and [22], his Honour observed that it was common ground that the fruit drinks supplied by P & N met the Food Standards Code requirements. It was also common ground that P & N fruit drinks contained non-fruit based additives, vitamins and minerals or used processing aids within the limits permitted by the Food Standards Code . The evidence was that the fruit drinks contained 98% - 99% fruit juice and 1% - 2% additives and processing aids not directly derived from fruit.) (2) In substituting a trade meaning of 'fruit juice' for 'juices of fruits' that has no trade meaning, reliance was placed on Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36 ; (1996) 186 CLR 389 where the phrase 'silver dye bleach reversal process' in a tariff concession had no trade meaning but the words 'silver dye bleach process' did. The High Court held that the Tribunal's construction of the composite phrase by reference to the trade meaning of the lesser phrase and the ordinary meaning of the word 'reversal', involved no error of law. The submission, by parity of reasoning, was that in the Item 11 composite phrase 'wholly of juices of fruits', the word 'wholly' should be given its ordinary meaning and the words 'juices of fruits' (in both Items 11 and 12) should be given the trade meaning for 'fruit juice'. (3) That having adopted the Foods Standards Code prior to the introduction of the GST Act, its concepts were well known to the Parliament and that it may be taken to have had regard to them in respect of a law dealing with the exemption of food. In this regard, in Zeroz , reference had been made by the taxpayer to the Food Standards Code (as it then existed) for the purpose of ascertaining the trade meaning of a term in the sales tax legislation. A Full Court of this Court said at 354 and 359 360: One might wonder at the relevance in interpreting a statutory provision first incorporated in legislation effective from 20 September 1985 (when Item 23 of the 1935 Act was introduced by Act No 145 of 1985) of a standard not published until 1987 and on the evidence still the subject of consideration and alteration until that date. [p 354] ... It is hard to accept that a public document still in the process of formulation and not yet published at the time the word "yoghurt" was introduced into the sales tax law should be seen as the source of a definition of the expression "yoghurt" in statute passed years earlier. [p 359 360]


case_outcome: cited

case_text: The notice of appeal raises two grounds not in issue before the Federal Magistrate. In WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624, new appeal grounds were substituted at the last minute when the appellant had been assigned pro bono counsel. French J noted at [18]: It is ordinarily regarded as exceptional to allow a point to be raised on appeal that was not raised at first instance University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 60 ALR 68; 59 ALJR 481; Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161; 176 ALR 369. But as Branson and Katz JJ said in H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43 at [3]: "This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance." 17 His Honour continued at [19]: To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant. 18 There appear to be no "exceptional" circumstances in this case. The appellant sought to impugn the Tribunal's decision under s 425(1) of the Act before the Federal Magistrate. That point has now been abandoned in favour of two quite different grounds. To allow the appellant to agitate those grounds would be to render the process before the Federal Magistrate irrelevant and indeed contrary to the policy in the Act, as this Court would be made the Court of first instance. The appellant, who was unrepresented on appeal, could not explain why the present course had been adopted and why the matters sought to be agitated could not have been raised before the Federal Magistrate. For those reasons, in my opinion, it would have been inappropriate to have allowed the appellant to argue those matters on this appeal. However, there is a more compelling reason for reaching that conclusion. Both new grounds would fail for the simple reason that the Tribunal did not rely on any country information. The grounds of appeal are therefore irrelevant to the Tribunal's decision. 19 The appeal must be dismissed and the appellant must pay the first respondent's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander J. Associate: Dated: 21 August 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: N Johnson Solicitor for the Respondent: Sparke Helmore Date of Hearing: 20 August 2007 Date of Judgment: 20 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1295.html


case_text: It is tolerably clear that s 59 determines rights and obligations in the Northern Territory under Northern Territory law (whether the common law or statute) between a licensee under the Act who has constructed or operates a pipeline and the owners or lessees of property through which the pipeline passes. The provision is intended to ensure that the balance of rights and obligations would not be determined on the basis that the pipeline was a fixture. However, the relevant legal question, for present purposes, is whether the pipelines were "fixture(s)" as that expression appears in s 253 of the NTA. The character of the pipelines, for that purpose, cannot be determined by Northern Territory legislation. Indeed, I am bound to follow the conclusion of Mansfield J in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2004) 207 ALR 539 (at [307]) that the word "fixture" in the definition means a fixture as understood at common law, unless I thought his Honour was plainly wrong, which I do not.


case_text: At common law, as Mansfield J noted, a fixture requires a degree of annexation to the land, and an intention that it be permanent: see generally Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712-713. The applicants appeared to make a submission that the pipelines were not fixtures, apart from s 59 of the Energy Pipelines Act, having regard to the observations of the majority of the High Court in Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41 ; (1967) 120 CLR 118 at 127. For my part, I do not view those observations as warranting the conclusion that the pipelines in the present case were not fixtures at common law. Their Honours said that the presumption that whatever is fixed to freehold land is said to become part of it is rebuttable and, in effect, could be rebutted where a statute had empowered someone other than the owner of land to affix to or embed things in the soil and yet retain ownership of those things. Their Honours were addressing what the legal consequences might be of something being a fixture in a particular context, not what was a fixture. In the present case there is little room to doubt that the pipelines are fixtures. They were embedded in the soil and, for all practical purposes, were to remain there permanently. I conclude that they are fixtures. It is unnecessary to determine whether they are also major earthworks.


case_text: In the draft determination appended to the Full Court's reasons for decision (a draft proposed by the State of South Australia), the formulation concerning adjacent areas as "the exclusive use of which is necessary for the enjoyment...". This is the formulation in the determination ultimately made by the Full Court. In this matter, as mentioned earlier, the Pastoralists advocated the adoption of the formulation in the reasons. The applicants advocated the adoption of the formulation in the determination. For my part, I doubt that there is a material difference between the formulation in the reasons and the formulation in the determination (except, perhaps, whether one speaks of "use" or "exclusive use" (in the determination)). If something is reasonably necessary, it is necessary. I apprehend that the word "necessary", like the word "unique", gains little by qualification. If anything, the qualifying word "reasonably" might be viewed as a word of limitation (potentially to the Pastoralists' detriment): see Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121 (at [107]-[109]). Similarly, if adjacent land is required because its use is incidental to the operation or enjoyment of the improvement, then it can reasonably be said that its use is necessary for the operation or enjoyment of the improvement. In any event, the formulation in the reasons of the Full Court had its origins in the reasons of the majority of the High Court in Ward HC (at [308]) in which only the word "necessary" is used, albeit to ancillary rights for the meaningful exercise of a granted right and not the use of areas of land. 165 While the test propounded by the Full Court in its reasons in De Rose (No 2) did not speak of "exclusive use", the determination did. It can be assumed that the determination of the Full Court truly reflects the Court's intentions. Accordingly, it is appropriate to adopt the formulation used in the determination in De Rose (No 2) . 166 I turn to consider whether, and to what extent, the determination should specify the area of adjoining land on which native title rights have been extinguished at least in relation to improvements about which there was some evidence. In their written submissions, the Pastoralists proposed a buffer zone of 2 kilometres around the homestead areas, a buffer zone of 1 kilometre around buildings used for the purpose of accommodating the "stock camp" on Newcastle Waters station, 500 metres for airstrips, 1 kilometre for constructed watering points, 2 kilometres for stockyards and 1 kilometre from trap yards. Other than in the case of the buffer zone around the homestead complex these distances were identified in the evidence of Mr Warriner in relation to the improvements on Newcastle Waters station.


case_text: Reference was made to the judgment of the Court of Appeal of New South Wales in Citizens Airport Environment Association Inc v Maritime Services Board (1993) 30 NSWLR 207. In issue in that case was whether the Federal Airports Corporation was dredging sand "on behalf of" the Maritime Services Board. The Court was divided on whether the dredging was being done "on behalf of" the Board, but that division of opinion turned, in part, on how the various members of the Court viewed the facts. There appeared to be general acceptance that it was necessary for there to be some measure of control by the Board over the dredging to be able to say that the activity was undertaken on its behalf. This authority is of limited assistance particularly given that in the present case there was effectively no evidence concerning whether NTEC exercised any control over the construction of the pipelines, and if so what the nature of the control was. I am not satisfied the main pipeline (or the lateral line) is a "public work" as defined and accordingly its construction was not a previous exclusive possession act extinguishing native title. 186 Alternative submissions were made by NT Gas, namely that the grant of the two pipeline licences engaged s 44H of the NTA and activity done in furtherance of those licences prevailed over any native title rights and interests of the applicants. Reference was also made to the easements but it was accepted by NT Gas that they had no greater extinguishing effect than that flowing from the grant of the pastoral leases. These matters were not addressed in any substantial way in the written submissions nor developed orally. The applicants' draft determination recognises NT Gas's interests deriving from the licences and easements. I do not apprehend that it is presently necessary for me to determine any further issues raised by NT Gas, having dealt with the question of whether the pipelines were public works. 187 This leads to a consideration of the second matter, areas adjacent to public works. Section 23B(7) of the NTA includes as previous exclusive possession acts the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. Section 251D of the Act provides that a reference to land or waters on which a public work is constructed, established or situated includes a reference to "any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work". The Northern Territory contended that a number of areas of land were adjacent land for the purpose of s 251D of the Act. The adjacent areas of land which the Northern Territory contended fell with s 251D of the Act which are in issue relate to: (a) a road reserve for the Newcastle Waters road; (b) gravel pits servicing the Stuart and Buchanan Highways; (c) water catchment and storage dams servicing the Buchanan Highway; and (d) a buffer zone around Bore RN23745.


case_title: Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41 ; (1967) 120 CLR 118


case_outcome: distinguished

case_text: The Northern Territory submitted that the evidence established a position the same as in Daniel v State of Western Australia [2003] FCA 666 (" Daniel ") where Nicholson J concluded that there was no right to build houses but that there was a right to built shelters including bough sheds, mias and humpies. 84 The applicants contended that the issue appeared not to be whether there was a right to live on the land but how this right could be exercised, in particular whether the right may be exercised permanently at a particular place on the land, and whether it may be exercised by erecting permanent shelters and structures. The applicants also noted that the wording of the claimed right did not make any reference to living or camping permanently at a particular place or to the erection of permanent structures. 85 Two issues arise for consideration. The first is whether the evidence established the existence of the claimed right or of a right with similar but different characteristics. The second is whether the claimed right had been extinguished by the grant of the pastoral leases. As to this second issue, I view myself as bound by the decision of the Full Court in Alyawarr to conclude that the grant of the pastoral leases in the present matter did not extinguish any native title right to live or camp on the leasehold land. That the present case involved subsisting leases is not, for reasons submitted by the applicants, a relevant point of distinction. 86 As to whether the claimed right exists, it is necessary to review the evidence. Generally, the Aboriginal witnesses who gave evidence on country were asked preliminary questions in evidence in chief about their mangaya country, the meaning of "mangaya", and what rights it entailed in the land. Each witness confirmed that they had a right to live on their mangaya country. For example, Shannon Dixon gave evidence, when asked what it meant to be mangaya or an owner for country, that it meant "I can go stay and live there". A number of witnesses were specifically asked if anyone had the right, under traditional law, to stop them staying or living in their mangaya country, and these witnesses confirmed that no one had such a right. Evidence was, however, given by Janey Dixon that if she caused serious trouble then members of her family could kick her out of her mother's country (Marlinja) or father's country (Narlwan). 87 Some witnesses also gave evidence about their rights in their mother's country. Janey Dixon, for example, lives in Marlinja, which is her mother's country. Her evidence was that she has the right to live in Marlinja, permanently, and that no one could stop her from living there, under traditional law, and that she was kurdungurlu or kulyungkulyungpi for that country, which she described as being "like a black policeman". 88 A number of witnesses also gave evidence that their children and grandchildren also had rights in their country, through them. For example, William Kingston gave evidence that his mangaya country, Longreach, is also his daughter's mangaya country. Janey Dixon's evidence was that her daughter and her brother's children had rights in Marlinja, her mother's country, including the right to stay there. A number of witnesses also gave evidence about the rights of their spouse or children who also had rights in that country and the nature of those rights. The pattern was that spouses also had rights to live on the country but under traditional law, were expected to ask permission to do certain things, although the evidence was also that the spouse knew where he or she could and could not go and who they should ask. 89 Evidence of a similar kind was given in statements by the three witnesses who were not required for cross-examination. None of the evidence about the right to live was challenged in a material way in cross-examination. 111 The applicants submitted that the Regulations did not contain any restriction on the use of a garbage depot. They merely provided an ability for members of the public to use land for the disposal of garbage, at the direction of an executive officer. The applicants contended that the effect of the reservation and approval for use as a garbage depot could not be considered wholly inconsistent with the continued existence of native title rights: see Daniel (at [693] regarding access to a cemetery reserve). Further, it was submitted that the approval could not be said with any certainty to have affected native title to any extent greater than that caused by the earlier grant of historical pastoral leases. 112 The Northern Territory and the Pastoralists submitted that between 1965 and 1980 the entirety of NT Portion 797 was used for the disposal of garbage. The applicants accepted that the land was in fact used for disposal of garbage for the period, although they noted that such use of the land was unlawful until the land was approved as a depot for the deposit of garbage in 1971. Aerial photographs of the area in 1980 and 2003 were in evidence. The applicants submitted, in the event that it was necessary to consider the evidence about use of the reserve, that the aerial photographs did not show which part or parts of NT Portion 797 were used for the disposal of garbage. It was submitted that it should not be inferred that all the land was used, particularly since it was a large area (44 hectares). The applicants' position was therefore that in the absence of evidence about the area used, it was not possible to conclude that native title rights were extinguished to any extent in any part of the reserve. 113 The Northern Territory submitted that the use of land for the disposal of garbage on land which was reserved as a garbage reserve and declared as a garbage depot demonstrated the assertion of rights by the Crown, and the creation of rights in third parties, which were wholly inconsistent with the continued existence and enjoyment of any native title rights in relation to the whole of the area covered. 235 The Northern Territory submitted the proclamation of a new town, and the setting aside of Crown land within the town's boundaries as town lands, had been the first step in the process for the conferral of interests on members of the public permitting them to establish residences and businesses. The Northern Territory referred to Daniel , in which Nicholson J held that s 47B of the NTA had no application to the Karratha townsite area, which had been declared a townsite by the Governor. His Honour held (at [970]) that the Governor was "the Crown in any capacity", that defining and setting apart the boundaries of the townsite as town and suburban lands constituted a proclamation or declaration, and that a townsite is both a public purpose and particular purpose. 238 In my opinion, the basis for distinguishing Alyawarr advanced by the Northern Territory fails to recognise that the Full Court expressly rejected the notion that the expression "is to be used" raises for consideration what in fact happened after the proclamation. Whether the land "is to be used" for a prescribed purpose, was to be gleaned from the proclamation and constating legislation. Those instruments provided an objective basis for determining the question (at [188]). As to the judgment of Nicholson J in Daniel , it was handed down on 3 July 2003, some two years before Alyawarr was decided on 29 July 2005. Moreover, Nicholson J's comments relied on by the Northern Territory, were also described as dicta by Weinberg J in the Timber Creek Case . The reasoning of Weinberg J is apt to apply in the present matter and the proclamation of the township has not excluded the beneficial operation of s 47B. 239 Section 26(1)(a) of the Heritage Conservation Act confers a power on the Minister, upon receiving a recommendation of the Heritage Advisory Council, to: by notice in the Gazette, declare the place (or part of the place) or object to which the recommendation relates, to be a heritage place or heritage object or, in the case of an object associated with a heritage place but which is not itself declared to be a heritage object, to be part of the Northern Territory heritage 240 On 11 November 1993, the area within the town of Newcastle Waters was declared a heritage place pursuant to s 26(1)(a) of the Heritage Conservation Act. The declaration provided: I, BARRY FRANCIS COULTER, the Minister for Conservation, in pursuant of section 26(1)(a) of the Heritage Conservation Act on the recommendation of the Heritage Advisory Council and within the time specified in the section, declare the area specified in the Schedule, known as Newcastle Waters Township, to be a heritage place.


case_text: The Northern Territory and the Pastoralists contended that the Full Court's decision ought not be followed, for two reasons. Firstly, it was said that the pastoral leases in Alyawarr were not current leases under which pastoral activities were occurring, and secondly, the decision of the Full Court was attended by error. The applicants submitted that the contention that the Full Court had erred could not be maintained because the decision was binding authority. Further, they submitted that Alyawarr could not be distinguished on the basis advanced by the Northern Territory because the relevant inquiry was about inconsistency of rights, not activity. Further, in Alyawarr (at [218]-[227]), the same arguments about a right to live on land were advanced in relation to a current Crown lease, and were rejected. The Full Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (" De Rose (No 2) ") had also recognised a similarly worded right in relation to lands which had been continuously subject to pastoral leases for over 60 years and remained so at the time of trial and determination. The applicants also submitted that the qualification proposed by the Northern Territory and the Pastoralists suggested a right on the part of the lessee to exclude the native title holders should they remain on the land any longer than "temporarily", which was contrary to the principle that pastoral leases did not confer a right to exclude native title holders from the land established in Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (" Wik ") at 120-121, 146-147, 154-155, 190-195, and Ward HC (at [179]-[186] and [417]).


case_text: The following observations were made by the trial judge concerning airstrips and roads in De Rose v South Australia [2002] FCA 1342 (at [558]), the proceedings culminating in De Rose (No 2) : ...I do not see how improvements such as fences and roads would wholly, or even partially, extinguish native title; they are clear examples of improvements which are capable of joint use. Airstrips represent a particular problem because of issues of safety. Because of that factor, I would deny the claimants all rights of access with a buffer zone of 500 metres. In respect of airstrips and their buffer zones, native title has been extinguished. 159 This reasoning must, of course, be tested against the approach determined by the Full Court in the appeal from that judgment. It is doubtless true that many of the native title rights arising in this matter (except, perhaps, the right to live and camp including to erect shelters) can be exercised on land on which an airstrip or road has been constructed. While it is possible that the exercise of those rights might conflict with the use of an airstrip or road (for example, hunting on the airstrip or road when a plane is landing or vehicle passing by), it could reasonably be expected that such circumstances would be rare. However, as I apprehend the reasons of the Full Court in De Rose (No 2) , based, as they were, on High Court authority, it is important to focus ultimately on the competing and potentially inconsistent rights of pastoralists (and their exercise) and native title right holders and not merely on whether land can be used simultaneously by both in exercise of those rights. 160 If I was satisfied on the evidence that the trap yard airstrips and pastoral roads were constructed, in the sense discussed by the Full Court in De Rose (No 2) , in exercise of rights conferred by the leases, then it would appear to follow from the reasons of the Full Court, that their construction in exercise of those rights probably extinguished all native title rights on the land on which they were constructed. However, the evidence to which I was referred does not enable me to conclude that there was such construction. If it be the fact (and this is not established one way or the other by this evidence) that the trap yard airstrips were nothing more than naturally flat land cleared of vegetation and the roads were nothing more than navigable land over which vehicles have continuously driven, then probably neither could be said to have been constructed. If it be the fact (and this is not established one way or the other by this evidence) that either the trap yard airstrips or the pastoral roads (or some of them) had been graded and formed then it may be possible to say they have been constructed in exercise of rights conferred by the lease. Given the paucity of the evidence I am unable to conclude that native title rights have been extinguished on land on which trap yard airstrips and pastoral roads presently exist on the claim area. 161 The next issue concerns land adjacent to the improvements. The applicants conceded that where native title had been extinguished on land due to the construction of an improvement on that land, native title would also be extinguished on adjacent land, the exclusive use of which was necessary for the enjoyment of the improvement. The applicants proposed a regime, to be incorporated in the determination, which involved identifying the land adjacent to improvements in general terms and the creation of a liberty to apply: to establish the precise location of the boundaries of land on which the improvements referred to at Schedule D to this determination have been constructed and any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements. 162 The Pastoralists contended that such an order should be expressed consistently with [166] of De Rose (No 2) , not by reference to "exclusive use", and similarly, that the reference to the buffer zone or adjacent areas in the determination should be expressed in the same way. Where the evidence permitted a finding about the adjacent area needed to permit enjoyment of the improvement, the Pastoralists submitted that that should be reflected in the determination though they appeared to accept that, as an alternative, findings could be made in the reasons for judgment identifying the adjacent area in relation to those improvements addressed by the evidence.


case_title: Fourmile v Selpam (1998) 80 FCR 151

case_text: The Pastoralists submitted that the rights granted by a pastoral lease included the right to construct roads, tracks, laneways, mustering routes and like improvements. Since a pastoralist could establish a right of way, it was submitted that the pastoralist must have a right to use it at will. The right to exercise a right of way meant that native title rights could not co-exist with such rights, as both rights could not be exercised at the same time. The Pastoralists referred by analogy to Fourmile v Selpam Pty Ltd (1998) 80 FCR 151.


case_text: The applicants submitted that there was no basis for distinguishing Alyawarr and that it was binding on this Court. The applicants referred also to the decision of Weinberg J in Griffiths v Northern Territory [2006] FCA 903 (" Timber Creek Case "), in which his Honour had regarded himself as bound by the Full Court's conclusion in Alyawarr in relation to the issue of whether the proclamation of Timber Creek as a town disengaged s 47B. Timber Creek, like the town of Newcastle Waters, was a working town and not a paper town like Hatches Creek, the town concerned in Alyawarr . In the Timber Creek Case , Weinberg J said (at [677] [678]): The factual matrix under which s 47B must be considered in the present case differs somewhat from that which applied in Alyawarr . The proclamation constituting and defining the boundaries of Timber Creek, and setting aside Crown lands within the town boundaries so declared as town lands, was dated 10 May 1975. It was made under s 111 of the Ordinance, the same provision that authorised the proclamation of Hatches Creek. The Timber Creek proclamation was published in the Commonwealth Government Gazette on 10 June 1975. As the Full Court noted in Alyawarr, judges at first instance have differed on the application of s 47B to areas within the boundaries of towns constituted by proclamation. In Hayes , Olney J was content to apply the section to unalienated and unreserved Crown land in the town of Alice Springs. In Daniel, however, RD Nicholson J observed that the section would not apply to the town site of Karratha because the proclamation of a site for a town would involve "a public purpose", as well as "a particular purpose". However, because there was no claim to the town site in Daniel (which was, in any event, covered by a reserve) his Honour's comments regarding s 47B were dicta. 237 His Honour continued (at [699] to [700]): Counsel for the Northern Territory did not have the benefit of the considered views of the Full Court in Alyawarr at the time these submissions were made. Plainly, they are at odds with the reasoning of the Full Court. As previously mentioned, Alyawarr was the subject of an unsuccessful application for special leave to appeal to the High Court. Hayne J described the reasoning of the Full Court as 'not attended by sufficient doubt to warrant a grant of special leave to appeal to this Court'. I am of course bound by the decision of the Full Court in Alyawarr. As I was a member of that Full Court, it is hardly surprising that I regard the decision as correct. To the extent that Daniel reflects a different approach to the construction of s 47B, I must respectfully decline to follow that decision. It follows that s 47B(1)(b)(ii) is no impediment to the operation of s 47B in these proceedings.


case_text: The claimed right in [21](k) is no longer pressed by the applicants, in light of observations made by the Full Court in Gumana v Northern Territory [2007] FCAFC 23 (at [164]-[172]), a judgment given after final submissions were made in these matters. 23 The applicants contended that the neighbouring estate groups and the spouses of the estate group members held native title rights and interests as follows: (a) the right to travel over, to move about and to have access to the non-exclusive areas; (b) the right to hunt and to fish on the land and waters of the non-exclusive areas; (c) the right to gather and to use the natural resources of the non-exclusive areas such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to take and to use the natural water resources on the non-exclusive areas; (e) the right to camp on the non-exclusive areas; (f) the right to light fires on the non-exclusive areas for domestic purposes; (g) the right to conduct activities necessary to give effect to the rights referred to in (a) to (f) hereof. 24 The rights described in paragraphs (a), (b), (c), (d) and (f) of [21] concerning the neighbouring estate group members are the same as the rights identified in the corresponding paragraphs in [23] regarding the estate group members.


case_text: Both the Northern Territory and the Pastoralists submitted that the right should not be expressed as involving or comprehending a "right to live". But that is precisely what the evidence established, the acknowledgement and observance of that right. It must be remembered, as Sackville J observed in Jango v Northern Territory of Australia [2006] FCA 318 ; (2006) 152 FCR 150 (" Jango ") (at [407]), Aboriginal witnesses cannot be expected to recount their laws and customs with anything like the precision that might reasonably be expected of a lawyer expounding common law principles. It is true that the evidence did not establish a present widespread observance of the right to live being exercised in the form of building structures in which to permanently reside. However, that does not compel the conclusion that the claimants did not presently possess that right in the relevant statutory sense. Gleeson CJ, Gummow and Hayne JJ observed in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (at [84]): [E]vidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. That is so, because the critical question concerns possession of the rights and interests and not their exercise.


case_title: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422


case_text: In relation to the gravel pits, the applicants' position was that none of the existing gravel, the access tracks, nor the additional areas, were adjacent to the relevant public work, being the Stuart Highway or Buchanan Highway. It is convenient to commence by considering what is meant by "adjacent" in s 251D. This issue was addressed in Neowarra v Western Australia [2003] FCA 1402 by Sundberg J. His Honour said the following (at [656]): The word "adjacent" does not just mean "next door to" or "very close to". Its meanings include "adjoining", "contiguous" and "bordering". See the Shorter Oxford English Dictionary (adjoining and bordering) and the Macquarie Dictionary (contiguous). The tracks here fit those descriptions. They adjoin, border and are contiguous to the site even though they only meet it over a small area, namely the width of the track. 215 I accept what his Honour concluded about the meaning of the word. However, the context in which it appears is relevant and ultimately what must be ascertained is what the extended definition was intended to comprehend. That task is not completed by simply ascribing a meaning to one particular word. For my part, I doubt that mere connection in any form between the putative adjacent land and the land on which the public work was constructed, established or situated will engage s 251D. For example a public road might be lit by lights on poles connected by cable running parallel to the road. Those poles and lights might reasonably be viewed as a public work or part of a public work (the road). Ordinarily, one would expect that there would be one or a number of feeder power lines providing power to the network of poles, lights and cable. Putting aside the question of whether any feeder power line was itself a public work, it may be doubted that s 251D was intended to result in the land the feeder power line travelled over for its entire length (and perhaps any land over which lines in the power grid to which the feeder power line was connected and conceivably land on which any power station creating the power was located) was to be treated as land adjacent to the road simply because, at one point, that land intersected the land on which the road (and poles) was constructed. 216 The plain purpose of the extended definition is, in my opinion, to ensure, as its central objective, that areas around and immediately proximate to land on which public works were located were available (and unencumbered by native title rights and interests) to facilitate the initial construction or establishment and ongoing operation of the works. Sundberg J found in Neowarra , that access roads leading to the sites on which public works were located constituted land adjacent to the sites. However, the present factual situation is quite different. The only link between the gravel pits and the highways were the access tracks. The Northern Territory did not submit that the gravel pits were themselves public works. It does not follow from Sundberg J's conclusion that land over which very long access roads travel to connect certain sites (here, gravel pits) to a public work, and those sites themselves, are adjacent to the relevant public work. It may be, as the applicants submitted, that what is required for particular land or waters to be "adjacent" as that term is used in s 251D is that there be both connection and geographical proximity. In the present case I am satisfied that the four gravel pits used to maintain the Stuart Highway and their associated access tracks are adjacent to the highway in the sense contemplated by s 251D. 217 However, the seven gravel pits associated with the Buchanan Highway, and the very long access roads to them cannot, in my opinion, be described as adjacent to those highways. Accordingly only four of the eleven existing gravel pits fall within the scope of s 251D. In relation to the additional areas near the existing gravel pits associated with the Buchanan Highway, it follows that they are not land "adjacent" to a public work within the meaning of s 251D. 218 It follows from the reasoning concerning the meaning of "adjacent" in s 251D that the two storage dams approximately 100 kilometres from the Buchanan Highway and their access roads also were not adjacent to the highway and not comprehended by the extended definition.


case_text: Counsel for the applicants submitted that as pastoral leases did not confer a right of exclusive possession, it followed from Ward HC (at [179] [186]) that pastoral lessees had no right to exclude or limit access of native title holders to lands held under pastoral lease. The reservation in pastoral leases did not define or confine the native title right to access the land: see Ward HC (at [417]). The possibility of conflict in the exercise of the native title right and rights being exercised (or which might be exercised) by a pastoralist was said to be irrelevant in determining inconsistency of rights. Counsel for the applicants did concede, however, that if there was a conflict in activity, the activities of the pastoralists prevailed: s 9L of the Validation (Native Title) Act (NT) ("VNT Act") . Counsel for the applicants noted the determinations by the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group and Another [2005] FCAFC 135 ; (2005) 145 FCR 442 (" Alyawarr ") (at [122] and [133]) and Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 (" Ward FC ") (at [11]). Those determinations contained no qualification of the type proposed by the Pastoralists. Counsel for the applicants also noted that the applicants accepted that the determination should contain a clause to the effect that where there was a conflict in the exercise of rights, the rights of the Pastoralists prevailed. 69 In my opinion, the qualification of the right of access proposed by the Pastoralists by the inclusion of the word "limited" is unnecessary. Once it has been established by evidence that there is a native title right of access, a matter not disputed by the Pastoralists, then the right should be expressed in terms fully describing the right. The circumstances identified by the Pastoralists were instances involving the exercise of a right of access. What, in substance, the qualification sought to address was the exercise of unqualified rights by, on the one hand the native title holders exercising a right of access, and, on the other, the right of pastoralists to conduct pastoral activities exercising rights conferred by the pastoral lease. But the circumstances involving a conflict in the exercise of rights is addressed by the applicants' acceptance in their draft determination of a clause which provides that to the extent, if at all, that the exercise of native title rights and interests conflicts with the exercise of the rights and interests of the pastoral lease holders, the rights and interests of the pastoral lease holders prevail over but do not extinguish the native title rights and interests. 70 The Northern Territory submitted that, on the authority of Ward FC , this right was to be understood as a right to hunt and fish for traditional food and not to hunt livestock, so as to avoid inconsistency with the grant of the pastoral leases. This submission was adopted by the Pastoralists. The applicants did not take issue with this proposition.


case_text: The Pastoralists submitted that the rights granted by a pastoral lease included the right to construct roads, tracks, laneways, mustering routes and like improvements. Since a pastoralist could establish a right of way, it was submitted that the pastoralist must have a right to use it at will. The right to exercise a right of way meant that native title rights could not co-exist with such rights, as both rights could not be exercised at the same time. The Pastoralists referred by analogy to Fourmile v Selpam Pty Ltd (1998) 80 FCR 151. 184 In the present case, the main pipeline was constructed by NT Gas for its own benefit as a supplier of gas to both NTEC and, at least potentially, others. While the supply of gas by NT Gas was essential to sustaining electricity generation by, at that time, a statutory authority (NTEC), it cannot be said that the construction was on behalf of NTEC. While the case concerned entirely different legal issues, some general support for this approach is found in the observations of the High Court in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 (at [164] and following). Where infrastructure and utilities historically operated and controlled by government are operated and controlled by trading corporations, it is difficult to treat those corporations as part of the government or protected by a derivative Crown immunity.