Extended Case Note
Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4
Background
Mr Glen William, the appellant was a registered member with the Wreck Bay Aboriginal Community Council and obtained a lease from the Council in 1989. The appellant remains in occupation of the premises, which are in substantial disrepair. On 14 April 2015, he seek orders from the ACAT that the Council has to undertake necessary repairs to the premises and pay compensation for breaches of the residential tenancy agreement pursuant to the Residential Tenancies Act 1997 (ACT). ACAT filed a special case and referred questions of law to the Supreme Court of the ACT asking whether, and to what extent, the Residential Tenancies Act is a law that is not capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) (“Land Grant Act”) within the meaning of s 46 of the Land Grant Act. The Supreme Court held that the Residential Tenancies Act is a law capable of operating concurrently with the Land Grant Act. The Council appealed to the Court of Appeal of the Supreme Court of ACT where the appeal was allowed, held that the Residential Tenancies Act is not capable of operating concurrently with the Land Grant Act insofar as it requires a lease granted by the Council to contain the standard residential tenancy terms and renders void terms of a lease granted by the Council that are inconsistent with the standard residential tenancy terms. The appellant requested a grant of special leave to appeal to the High Court of Australia and contended that the Court of Appeal erred in holding.
High Court Decision
A 2:1 majority of the court allowed the appeal and held that the Residential Tenancies Act does not apply to Aboriginal Land with the purposes of s 46 of the Land Grant Act to the extent that certain provisions of the Residential Tenancies Act would prohibit subletting.
Analysis of legal reasoning
Questions of law are raised upon s 46 of the Land Grant Act. Section 46 provides:
“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.”
As identified by the majority of Bell and Edelman JJ, the construction of the provision, raised two key sub-issues: whether the Land Grant Act is a complete and exhaustive statement covering the subject matter, terms and conditions of leases granted under the Land Grant Act and what is meant by “capable of operating concurrently”.
Surprisingly, the Court of Appeal didn’t consider the first sub-issue as the High Court did. It is obvious to examine whether the Land Grant Act covers the related subjects comprehensively as if the Commonwealth law is a complete and exhaustive statement over a matter, the Commonwealth law is more likely to have an intention to exclude other laws on that topic. Without the acknowledgment of this issue, this suggests the lack of thoughtfulness of the Court of Appeal. The High Court considered the Same-Sex Marriage case, a precedent that dealt with inconsistency between Commonwealth law and Territory law. The majority distinguished William from this case with grounds of not detecting any implicit negative proposition under Land Grant Act that states that only the terms and conditions of leases provided in the Land Grant Act are applicable to those leases, unlike the Marriage Act 1961 (Cth), which is a complete and exhaustive statement of the law of marriage. The majority in this Court explicitly concluded that the Land Grant Act is not a complete or exhaustive statement on rights and obligations of parties to leases granted by the Council so as to exclude the application of law generally applicable to leases within the Territory. The majority observed that, apparently, considering the legal meaning of provisions of the Land Grant Act as a whole, do not purport to provide complete statement of the law governing the rights and obligations of parties to leases under the Land Grant Act. No specific rules and conditions accounting to the rights and obligations of lessees and lessors could be found in the Land Grant Act.
On the second sub-issue, the Court of Appeal used a purposive approach to construct s 46 and applied Dixon CJ language in the context of s 109 of the Constitution : if the applied law would alter, impair or detract from the operation of the Land Grant Act, in other words, the “rights, obligations, powers, privileges and immunities created by the law conflict with those created by the Land Grant Act”, then it would be incapable of operating concurrently with the Land Grant Act. The High Court generally agreed with the interpretation.
The Court of Appeal considered the effects of application of standard residential tenancies terms on s 40 of the Land Grant Act. Section 40 obliges the Council to grant leases of the maximum period, 99 years to registered members who were in lawful occupation of land before it became Aboriginal Land. The Court of Appeal observed leases of such length is more in common with ‘ownership under a Crown lease’ rather than a residential tenancy contemplated in the Residential Tenancy Act. The application of mandatory standard residential tenancy terms to these leases are impractical and will alter the operation of Council with statutory function to carry out activities for the benefit for the Community. The huge financial cost on premises maintenance to leases of such length would lessen the ability for the Council to perform its other functions. Therefore, the Court of Appeal held that the power conferred to the Council in the Land Grant Act includes determining the terms and conditions of leases as application of standard residential terms would detract the operation of the Council under the Land Grant Act. The majority in High Court disagreed. While it is a fact that all domestic leases granted by the Council are in terms of 99 years, the application of protective provisions under the Residential Tenancies Act cannot be said to undermine the operation of Land Grant Act, given that the Council has the power to grant leases on terms and conditions to non-original registered or non-registered members which are of a kind, “contemplated” by the Residential Tenancies Act. Additionally, as mentioned above, Land Grant Act is not a complete statement on the rights and duties on parties to leases. Hence, leases granted by the Council should apply the standard residential tenancies terms which regulate the rights, duties and obligations of parties they are entitled to under the ordinary law.
The ratio of the majority behind the answers to the questions is when the Commonwealth law and Territory law covers the same subject, and the Commonwealth law was not intended to make complete statement governing a particular matter or set of rights and duties, in other words, the law does not have exclusivity over the subject, then the Territory law can operate concurrently with the Commonwealth law to the extent that they are capable.
The divergent methodologies used in William to interpret the Land Grant Act as a whole and particularly, s 46 is a typical example displaying the importance of careful statutory interpretation in legal decision. The Court of Appeal construction of the power conferred to the Council within the Land Grant Act and the “practicality” it considered was criticised. Such interpretation was speculative and jeopardous as it was based on limited facts: no relevant terms and ideas are found to bolster such interpretation and the interpretation does not in line with the nature and scheme of the Act. The way the Court of Appeal interpreted the Land Grant Act in this case is more analogous as filling gaps rather than giving meaning for the statutes. The High Court interpretation is comparatively more contemplative and sensible. It considered the clear purposes from the statutory text. The construction demonstrated less conjectures and the reasoning was pondered in a broader context: examining the impacts on all types of leases granted under Land Grant Act and accounting the interests of all parties. The construction of High Court in this case appeared to be more persuasive and debiased. Once again, the reasoning of the Court of Appeal is injudicious as it is oblivious to these group of lessees.
William is further an important case which has important implications towards the common law. The majority and Edelman J judgment demonstrate how they decide whether a law has an intention to cover the subject completely or exclusively and clarify the ground rule used in precedent. The step-by-step reasoning of the High Court in this case elucidates inconsistencies between laws in a clearer fashion than the preceding case and this illustrates the significant of precedent in supporting the rule of law. William assists to stabilise rules and principles of laws and provide foundation to the doctrine of precedent on this area of laws which will definitely be influential to decisions in future similar cases.
Conclusion
The issues addressed and results of William are far-reaching in terms of legal and social aspects. The purpose of residential tenancies laws is to regulate both tenants’ ability to access the basic need of shelter and desire for home as well as the financial investment of landlords. However, many injustices produced to the tenants who are of inferior bargaining power in contrast to the landlords. The decision grants the Aboriginal residents the same protection they are entitled to, as other tenants, under residential tenancy agreements contracted under the common law. Judicial reputation of the High Court is also enhanced with restoring justice in making decisions equalising rights of individual under public law.
2019-3-28-1553737560