2016-08-25 Wreck Bay Aboriginal Community Council V Williams 2016 ACTSC 240

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / Wreck Bay Aboriginal Community Council v Williams
Citation: / [2016] ACTSC 240
Hearing Date: / 22 August 2016
Decision Date: / 25 August 2016
Before: / Elkaim J
Decision: /

1.  Question 3 of the Amended Special Case is answered “No”.

2.  No order as to costs.

Catchwords: / SPECIAL CASE – land rights – statutory interpretation – whether the Residential Tenancies Act 1997 (ACT) is capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)
Legislation Cited: / Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth), ss 4, 46, 50
Aboriginal Land Grant (Jervis Bay Territory) Bill 1986 (Cth)
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 28
Court Procedures Rules 2006 (ACT), Part 5.7
Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A
Residential Tenancies Act 1997 (ACT), s 6D
Residential Tenancies Bill 1997 (ACT)
Cases Cited: / Australian Mutual Provident Society v Goulden (1986) 160 CLR 330
Brown v Commonwealth of Australia [2012] ACAT 83
Parties: / Wreck Bay Aboriginal Community Council (Initiating Party)
Glen Williams (Other Active Party)
Representation: / Counsel
Mr R Arthur (Initiating Party)
Ms V Faulder (Other Active Party)
Solicitors
Ken Cush & Associates (Initiating Party)
Tenants’ Union ACT (Other Active Party)
File Number: / SCA 43 of 2016

ELKAIM J:

1.  This matter has reached me as a special case to be heard under Part 5.7 of the Court Procedures Rules 2006 (ACT).

2.  The original proceedings are in the ACT Civil and Administrative Tribunal (ACAT). The Supreme Court proceedings were commenced by the filing of an application on 17 June 2016. An amended application was, by consent, filed at the commencement of the hearing.

3.  The questions to be decided under the amended application are:

Q3 Is the Residential Tenancies Act 1997 (ACT), in whole or in part, a law which is not capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?

Q4 If the answer to Question 3 is “yes”, to what extent does the Residential Tenancies Act 1997 (ACT) not apply to Aboriginal Land for the purposes of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)?

4.  The parties agreed that if I answered ‘Yes’ to Question 3 then it would follow that my answer to Question 4 would extend to the whole of the Residential Tenancies Act 1997 (ACT) (the “RTA”).

Legislative background

5.  The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) (the “LGA”) is Commonwealth legislation applicable to a community of Aboriginal persons living on a tract of land in the Jervis Bay area.

6.  Under the LGA, a body corporate known as the Wreck Bay Aboriginal Community Council (the “Council”) was established and granted ownership of the land occupied by the community. The members of the Council consist of those Aboriginal persons who resided on the land as at 24 May 1986 together with persons who have since been accepted as members of the Community at a general meeting of the Council.

7.  Under the LGA the Council has certain functions (s 4). These functions include

In consultation with the Minister, to consider and, where practicable, take action for the benefit of the community in relation to the housing, social welfare, education, training or health needs of the members of the community.

8.  With some limitations, the Council essentially has all the powers it needs to carry out its functions. An example of a limitation is that the Council may not enter into contracts involving payment of more than $100,000 without the approval of the relevant Minister.

9.  The Council has officeholders and is obliged to have an annual general meeting. There is also scope for the calling of special meetings. In respect of dealing with the land, the Council is permitted to grant a lease. Leases for domestic purposes cannot exceed 99 years. I was informed that all of the domestic leases that have been granted have been for this term.

10.  The Council is obliged to grant a lease to a member who occupied a portion of the land in 1986 and that lease must be for 99 years. Leases of this type cannot require the occupant to pay any monies in respect of buildings or improvements that the occupant may have expended on their property.

11.  I was informed that there were approximately 75 occupants living on the land when the LGA came into force in 1986. There are now about 350 members. There are no specific provisions in respect of the terms of leases granted to persons who have become members since 1986.

12.  Other than in regard to pre-existing residents the LGA does not dictate or control the terms and conditions of leases the Council may grant.

13.  The RTA is ACT legislation which, in its original form, came into force in 1997. In the very broadest terms it governs the relationship between landlords and tenants and seeks to balance their respective rights.

14.  The Council concedes that leases granted by it under the LGA are, without more and as a matter of construction, tenancy agreements under the RTA (Written submissions at paragraph 21).

15.  The Jervis Bay Territory Acceptance Act 1915 (Cth) was amended in 1988 to include, inter alia, s 4A which states:

(1) Subject to this Act, the laws (including the principles and rules of common law and equity) in force from time to time in the Australian Capital Territory are, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.

16.  There is no relevant Ordinance.

17.  Finally, for present purposes, s 46 of the LGA states:

This Act does not affect the application to Aboriginal Land of a law in force in the Territory to the extent that that law is capable of operating concurrently with this Act.

Factual background

18.  Mr Glen Williams is a member of the Council and has been since 1989. He lives on a property on Council land together with his family. There is no dispute that the property is in bad repair.

19.  In April 2015, Mr Williams, assisted by the Tenants’ Union ACT, lodged an application in ACAT seeking orders that the Council attend to the necessary repairs and also pay him compensation.

20.  In September 2015 the Council lodged an application in ACAT to strike out the application made by Mr Williams. The Council said that ACAT had no jurisdiction to hear the dispute because there was not a residential tenancy agreement between the parties.

21.  ACAT handed down its decision in November 2015. It found that it did have jurisdiction because the parties had entered into a tenancy agreement in 1989 and there had continued to be such an agreement between them.

22.  In March 2016 the Council requested that the matter be removed to the Supreme Court. Mr Williams initially objected however after an agreement was reached that he would be protected as to his costs, he consented. Accordingly on 17 June 2016, the Special Case application was filed. As I have already noted, an amended application was filed at the commencement of the hearing.

The arguments

23.  Before setting out the respective arguments, I note here that there was one aspect on which the parties were united. They agreed that the respective sections of the LGA and RTA dealing with sub-letting were inconsistent with each other. Neither side suggested this inconsistency had any bearing on the balance of the dispute before me. Any conclusion that I reach assumes the existence of this just stated inconsistency.

24.  Following correspondence from the ACT Government Solicitor, the Council refined the dispute as to whether or not the RTA was a law that was “capable of operating concurrently with this Act”. (LGA, s 46).

25.  The Council made this concession:

The Initiating Party concedes that the RTA and LGA are, with the acknowledged exception, capable of simultaneous obedience and reiterates that it does not put its case on the basis of the LGA “covering the field”.

26.  The “acknowledged exception” refers to sub-letting. The submissions then continued:

The case is put on the basis of impairment, which is to be distinguished from “covering the field” as is asserted by the Other Active Party.

27.  The Council submitted that at the core of the dispute was the original intention of the LGA to provide a regime of self-determination for the Wreck Bay community.

28.  This was inconsistent with the purpose of the RTA which regulated the respective rights of landlords and tenants. Further, said the Council, the RTA was founded on the assumption that the primary concern of landlords was to profit from their tenants.

29.  This assumption was to be contrasted with the assumption behind the LGA that:

“....within limits set by the Act, the Community is the best judge of what is appropriate for itself and its members. Such is evident in the establishment of the Community as its own governing body in which each of the members plays an equal democratic part.” (Council’s written submissions at paragraph 31).

30.  The Council relied on the decision of the High Court in Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 in support of its submissions. I particularly note the following passage at page 337:

In the words of Dixon J. in Victoria v. The Commonwealth, it "would alter, impair or detract from" the Commonwealth scheme of regulation established by the Act if a registered life insurance company was effectively precluded by the legislation of a State from classifying different risks differently, from setting different premiums for different risks or from refusing to insure risks which were outside the class of risk in respect of which it wished to offer insurance. In particular, State legislation which, either absolutely or subject to qualifications and exceptions, made it generally unlawful for a life insurance company to take account of physical impairment in determining whether it would or would not accept a particular proposal or the terms upon which it would grant insurance cover would be inconsistent with the essential scheme of the provisions of the Act regulating the issue of policies and the fixing of premiums. Indeed, such legislation would undermine and, to a significant extent, negate the legislative assumption of the underlying ability of a registered life insurance company to classify risks and fix rates of premium in accordance with its own judgment based upon actuarial advice and prudent insurance practice upon which, as has been mentioned, the stringent controls and requirements which the Act imposes in respect of life insurance business of registered life insurance companies are predicated. In essence therefore the Council submitted that the RTA, if applicable, would impose a regime of control upon the Council which was inconsistent with its powers and functions as provided by the LGA. (citations omitted)

31.  The Council said that, relying on AMP, I should conclude that the RTA would “undermine and, to a significant extent, negate the legislative assumption of the underlying” capacity of the Council to regulate the affairs of its members as contemplated by the LGA.

32.  Mr Williams referred me to a decision of the ACAT, Brown v Commonwealth of Australia [2012] ACAT 83. In this matter ACAT was specifically concerned with whether the RTA applied in the Jervis Bay Territory. Notably the lease was not in respect of land owned by the Council but rather concerned a lease between the Commonwealth and a particular tenant. The arguments in Brown are different to the present matter because they related to the effect of ordinances (as referred to in s 46) and also the retrospectivity of certain legislation. Although the tribunal found that the RTA applied to the subject property, I do not see the decision as determinative of the matter before me.

33.  Mr Williams submitted that there was no reason why the two Acts could not co-exist. He submitted that the Council’s submissions, if correct, would enable the Council to have largely unfettered powers in respect of leases that it granted to members.

34.  Further, Mr Williams submitted that s 4A of the Jervis Bay Territory Acceptance Act 1915 (Cth) plainly stated that Jervis Bay should be treated as if it was part of the ACT and therefore any law in force in the ACT was also in force in the Jervis Bay territory. This is reflected in a plain reading of s 4A. There is no dispute that the RTA is a law in force in Jervis Bay.

35.  The Council’s response to the s 4A point was that it ignored the principle of interpretation, generalia specialibus non derogant. In other words it was said that a general statement in a statute did not derogate from specific provisions in the same or a different statute. Therefore the specific provisions in the LGA, said the Council, meant that the apparently all-encompassing scope of s 4A was limited by those provisions.

36.  In this regard I was taken to the explanatory memorandum for both the RTA and the LGA. This is stated in the outline for the Residential Tenancies Bill 1997 (ACT):