Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
I take the proper approach to the determination of this issue to be as stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 384. Their Honours there said: 'the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.' (footnotes omitted) 49 The two competing views as to the meaning of the words in s 24CG(3)(b)(i) are: (a) that the words should be construed literally so that, for example, where two competing groups each claims to hold the common or group rights which constitute the native title in the area, the words are capable of including the persons in both groups; or (b) that the words should not be construed literally but should be understood to refer to all persons who, according to the traditional laws and customs of the registered native title claimants, hold the common or group rights which constitute the native title in the area. 50 It is appropriate to consider whether any of the factors identified in the passage from Project Blue Sky cited above require the words of s 24CG(3)(b)(i) to be read in a way that does not correspond with their literal or grammatical meaning. The factors upon which the respondents placed reliance are the following. 51 First, as they submitted, the words 'may hold native title' in s 24CG(3)(b)(i) are not words of expansion but rather are intended to demonstrate that proof of native title is not necessary before an area agreement may be registered. I accept that the words 'may hold native title' demonstrate that proof of native title is not necessary before an area agreement may be registered. However, this does not, of itself, assist in determining which of the two competing views of the meaning of s 24CG(3)(b)(i) should be accepted. 52 Secondly, s 24CL makes it impossible for an area agreement to be registered unless all persons who were registered native title claimants at the end of the notice period, and all persons who subsequently became registered native title claimants pursuant to applications made before the end of the notice period, are parties to the agreement. The respondents argued that s 24CL discloses an intention that a person like Mr Kemp should not be able to prevent the registration of the area Agreement unless he first becomes a registered native title claimant; as Mr Kemp chose not to adopt that course, the group represented by Dr Davis-Hurst was free to obtain registration of the agreement without his being a party to it and without obtaining his authority to make it. 55 What then are the factors which favour the first of the two competing views as to the meaning of the words 'all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement' in s 24CG(3)(b)(i)? As the passage from Project Blue Sky cited above indicates, the strongest argument in favour of the first of the competing views is the literal meaning of the words. The words do not readily admit of limitation. No real difficulty would have attended drafting the passage in more limited terms. 56 Additionally, comparable words, namely 'any person claiming to hold native title in relation to land or waters in the area covered by the agreement' , are used in s 24CH(2)(d)(ii) of the Act with an apparently expansive meaning. In the context of s 24CH(2)(d)(ii) the comparable words must, I think, be intended to include any person who advances a claim in opposition to the claim to native title recognised by the agreement. The paragraph is intended to place such a person on notice that, in effect, the agreement might be registered, irrespective of his or her views as to its contents, unless he or she formally asserts a claim to native title. (see [53] above) 57 Finally, a determination that the words of s 24CG(3)(b)(i) are not to be given their literal meaning could result in interference with, if not loss of, a person's native title rights in respect of the area covered by the agreement. While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect as if all persons holding native title in relation to any of the land or waters in the area who are not already parties to the agreement were bound by the agreement in the same way as the native title group (s 24EA). As a consequence a person who has a prima facie claim to hold native title but who is not a party to the agreement would be bound by any consents thereby given to the doing of future acts or classes of future acts (s 24CB(a) and (aa)). Indeed, it appears that the person could be bound by a surrender of native title rights and interests in the area to the Commonwealth, a State or a Territory and the consequent extinguishment of those rights and interests (s 24CB(e) and s 24EB(1)(d) and (3)). 61 Ultimately I am not persuaded that any of the factors identified in the passage from Project Blue Sky cited in [48] above requires the words of s 24CG(3)(b)(i) to be read in a way that does not correspond to their literal meaning. I decline to so read them. 62 For the above reasons, I conclude that the Registrar erred in concluding that the requirements of s 24CG(3)(b) had been met in the present case. I further conclude that it would not be appropriate to refrain from setting aside her decision on the basis that the error was not material because it was unnecessary for Mr Kemp to authorise the making of the agreement. 63 The decision of the Registrar that the Agreement must be registered pursuant to s 24CL(1) of the Act will be set aside and the application for registration remitted to the Registrar to be determined according to law. I will hear the parties on the appropriate order or orders, if any, to be made as to costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 25 July 2006 Counsel for the Applicant: D Burwood Counsel for the First Respondent: The First Respondent, who filed a submitting appearance, did not appear Counsel for the Second - Fourth Respondents: S Lloyd and S Free Solicitor for the Second - Fourth Respondents: Crown Solicitor's Office (State of New South Wales) Counsel for the Fifth and Sixth Respondents: L Clegg Solicitor for the Fifth and Sixth Respondents: Gilbert + Tobin Counsel for the Seventh Respondent: The Seventh Respondent did not appear Date of Hearing: 19 May 2006 Date of Judgment: 25 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/939.html