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