Nettheim, Garth --- "Editorial - Evidence Amendment Bill 1982 (NT) Causes Disquiet" [1982] AboriginalLawB 2; (1982) 1(3) Aboriginal Law Bulletin 2

• Editorial-Evidence Amendment Bill 1982 (Nt) Causes Disquiet
• Reasons For Disquiet
• The Bill's Broader Effects

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Editorial -

Evidence Amendment Bill 1982 (NT) Causes Disquiet

Garth Nettheim

Before the commencement of the Aboriginal Land Rights (Northern Territory) Act 1976 (C'th), the interim Northern Land Council wrote on 23 September 1976 to the interim Aboriginal Land Commissioner (both established on the basis of the first Woodward Report) indicating areas of land on the Cox Peninsula and nearby islands claimed by Aboriginals.

Later, after the Act had commenced operation, the Northern Land Council wrote, on 26 September 1977 and 14 March 1978, to the Land Branch of the Department of the NT indicating that land claims were made to vacant land on the Cox Peninsula and asking that it not be alienated until the matter was determined by the Commissioner.

But it was only on 20 March 1979 that formal application was made under the Act for what became known as the Kenbi Land Claim. In the meantime, on 29 December 1978, regulations made by the Administrator under the Town Planning Act 1964 (NT) were gazetted.

The significance of the new regulations arises from s. 50(1) (a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (C'th). The provision allows the Aboriginal Land Commissioner to hear claims by traditional owners in respect of 'unalienated Crown land', which is defined in s. 3(1) not to include land in a `town'. `Town' is defined to take its meaning from the law of the NT relating to town planning and to include any area required by regulation to be treated as a town. The effect of the new regulation was to expand the area of several `towns' in the NT. Its effect in relation to Darwin was to expand the area of the town from 142 sq km. to 4,350 sq km. - about four times the area of Greater London. The enlarged `town' included most of the land in the Cox Peninsula which was subject to the Kenbi Land Claim.

In 1979 the Aboriginal Land Commissioner (Justice Toohey) held that he was not entitled to hear argument alleging that the regulations were invalid as having been made for the improper purpose of defeating the Kenbi Land Claim. He also held that the Northern Land Council (NLC) was not entitled to obtain from the NT Government access to documents to support that assertion.

Justice Toohey reached these conclusions by reference to a series of statements made in decisions of the High Court and other courts that it is not open to the courts to question the bona fides of action taken in the name of the Queen's representative. The NLC appealed.

On 24 December 1981,inR v Toohey; ex parts Northern Land Council (see Case Note above at p.11) the High Court qualified these caller statements, ruled that the Commissioner should continue to hear the Kenbi Land Claim and held that he was entitled to decide whether the new regulations were invalid for improper purposes. It followed that he was entitled to order discovery of Administration documents which the NLC might need to support its arguments.

In early March, the NT Chief Minister tabled the Evidence Amendment Bill 1982. It is understood that the Government intends that it should be enacted by the Legislative Assembly on Tuesday, 16 March. The NLC appears to have formed the view that the purpose of the provision is, again, to thwart the Kenbi Land Claim by preventing the sort of inquiry which the High Court had held that the Aboriginal Land Commissioner was entitled to make (see Canberra Times, 11 March 1982).

The Australian Council of Churches has telexed the Chief Minister, Mr Everingham, expressing its disquiet about the contents of the Bill and the attempt to have it enacted with so little opportunity for public discussion. In reply, Mr Everingham has argued that the Evidence (Amendment) Act 1979 (NSW) is equally if not more restrictive; that both measures simply restore the situation to that which was generally thought to apply prior to the High Court decision in Sankey v Whitlam [1978] HCA 43; (1978) 53 ALJR 11; 21 ALR 505; and that the normal requirement under NT Standing Orders that proposed legislation should lie on the table for 28 days could be dispensed with for a Bill which simply restates law thought previously to apply, especially when it also reflects the law in other jurisdictions. He also noted that he had not linked the Bill with the Kenbi Land Claim.[1]

Reasons for disquiet

There are, it is submitted, three issues which justify disquiet:

1. The terms of the Evidence Amendment Bill 1982 themselves;
2. The provision of negligible opportunity for public and parliamentary discussion of the Bill before enactment;
3. The effect of enactment of the Bill on the Kenbi Land Claim and other Aboriginal land claims.

It is no justification of the Bill to point out that the Evidence (Amendment) Act 1979 (NSW) is similar in effect. The NSW Act has itself been strongly condemned, and the argument that it simply reinstates the law on Crown Privilege as it was thought to be before Sankey v Whitlam has been refuted .[2]

The Chief Minister's reasons, as expressed by telex to the Australian Council of Churches, for allowing so little time for public discussion of the Bill are not persuasive. If the sole intention was to 'restore' the general law to the pre-Sankey v Whitlam position, that could have been done at any time in the past (or future), and would not necessitate legislative rush. The measure is significant enough in its own terms (aside from any effect on Aboriginal land claims) to merit adequate opportunity for public and parliamentary debate.

If the Bill is not linked with the Kenbi Land Claim, there would again appear to be no reason for legislative rush. But it is a matter for disquiet that the effect of the Bill if enacted will almost certainly be to prevent the very inquiry which the High Court less than three months ago held that the Aboriginal Land Commissioner was entitled to make.

The Bill's broader effects

At a broader level, the Bill, if enacted,. will overturn the law as declared by the High Court of Australia in two respects. The effect will be to shift the legal balance in the NT between the just claims of the citizen, on the one hand, and the requirements of government, on the other hand, decisively in favour of the requirements or self-interest of government. The traditional role of the judiciary in monitoring and maintaining the proper balance will be completely excluded.

The Australian Section of the International Commission of Jurists has expressed its concern about the Bill. The NT Government is urged to delay enactment of the Bill so as to allow adequate opportunity for informed discussion -on the important issues involved.

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[1] Personal communication with Mr R. Rollason, ACC.

[2] See Report of Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information, AGPS, Canberra, 1979, paras. 5.7-5.9.