Besanko J
In this matter, the Court found that part of a crown pastoral lease held by Graham French located on the Eyre Peninsula could not be compulsorily acquired under the Lands Acquisition Act 1989 (Cth) (LAA) by the Commonwealth of Australia because the acquisition was not for a ‘public purpose’.
The proceeding concerned an application for judicial review under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). The applicant is Mr Graham French and the respondent is Mr Gary Gray, Special Minister of State for the Commonwealth of Australia (Minister).
Background
The applicant holds crown pastoral leases over an area in South Australia that included the subject land The Commonwealth of Australia (Commonwealth) has a defence training area, known as the Cultana Training Area, to the east of the subject land and the Eyre Highway crossed the subject land. The Commonwealth wanted to expand the Cultana Training Area to the east and west of the Eyre Highway. The land is also subject to the Barngarla Native Title Claim.
The Commonwealth attempted to negotiate an agreement with the applicant to acquire part of the pastoral lease for the Cultana Training Area expansion plan but the applicant would only agree if the Commonwealth acquired the whole of the pastoral lease area.
When these negotiations failed the Commonwealth devised a strategy to compulsorily acquire the pastoral leases and surrender them to the State of South Australia. The State of South Australia would then grant a pastoral lease for conservation purposes to the Barngarla Group for the benefit of the Barngarla Group and the Commonwealth would then enter into an Indigenous Land Use Agreement (ILUA) with the Barngarla Group under the Native Title Act 1993 (Cth) (NTA) to use of some of the land to expand the Cultana Training Area.
The Commonwealth issued a Pre-Acquisition Declaration to the applicant under the Lands Acquisition Act 1989 (Cth) (LAA) which outlined two public purposes for the acquisition: (1) for ‘the conferral of interests in land on Aboriginal people (being people of a particular race)’, and (2) ‘an additional, separate public purpose of the acquisition is defence’.
The applicant challenged the validity of the Commonwealth’s Pre-Acquisition Declaration on the basis that neither purpose involved the use or development of the subject land for a public purposes as required by the LAA. The applicant argued that the use of the land under an ILUA is not a public purpose because the Pre-Acquisition Declaration states that the Commonwealth will use the land. The applicant also submitted that the "conferral of interests in land on Aboriginal people (being people of a particular race)” was not a public purpose as there must be a law made under the races power of the Australian Constitution before the power can be relied on and no such law exists. Mr French made the point that no Commonwealth law has as its purpose or authorises the conferral of interests in the nature of pastoral leases on Aboriginal people and the NTA did not fit that description.
Mr French accepted that defence is a public purpose but the proposed acquisition was “in order to surrender it to the State so that the State can re-grant it to an Aboriginal group in return for the suspension of native title rights" in the expansion area and defence was “an ulterior, and impermissibly remote, purpose of the acquisition”.
The Minister argued that the use of the subject land, as consideration under the ILUA , was for both public purposes and the relevant law under the races power was the NTA and, in the alternative, no law under the races power was required to acquire the land.
Reasoning
The Court considered the meaning of 'purpose' and 'use' and the provisions of the LAA. His Honour concluded that the LAA suggests that 'public purpose' is identified by the physical use of the land and is based on the premise that the acquiring authority acquires land to make a physical use of it whether it be an active or passive use. Besako J found that the proposed use was not for defence as claimed and the use of land as consideration under an ILUA cannot be use for a public purpose.
Besako J also considered various other arguments advanced by the parties in case he was wrong.
Public purpose use
On the assumption that using land as consideration under an ILUA is permitted under the LAA, Besako J concluded that this use would be public purpose and the relevant legislation is the NTA. The Commonwealth's second purpose, defence, is also a public purpose use but the connection with defence is too remote because the object of the land acquisition (or end to be achieved) is to provide it as consideration under an ILUA to the Barngarla Native Title claimants and not defence.
The Court concluded that neither stated purpose is a public purpose because they did involve a physical use of the subject land for a public purpose.
Racial discrimination
The applicant argued that but for his non-Aboriginality the Commonwealth would not have made a decision to acquire his land. The Court said it was not necessary to consider these arguments because the proper place to raise the racial discrimination complaint was the Human Rights and Equal Opportunity Commission because the Racial Discrimination Act 1975 (Cth) created an exclusive regime for remedying contraventions.
Declaration and Orders
The Court declared that the Pre-Acquisition Declaration is invalid and ordered that it be quashed. The Minister was restrained from taking any further steps in the acquisition of the land under the Pre-Acquisition Declaration.