Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4: Application of Cth and Territory Laws

In Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4 (13 February 2019) the High Court, in a majority decision, has allowed an appeal from a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory [see [2017] ACTCA 46 (23 October 2017)] with respect to the extent to which the Residential Tenancies Act 1997 (ACT) ("the RT Act") applies to leases granted pursuant to the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) ("the Land Grant Act") over certain land, known as "Aboriginal Land", within the Jervis Bay Territory.

Legislation Background

Pursuant to the Land Grant Act, a body corporate known as the Wreck Bay Aboriginal Community Council (“the Council”) was created and given ownership of the land occupied by the community. The Council is comprised of members who are Aboriginal persons residing 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. 

The provisions of the Land Grant Act in section 6 provide that the Council has certain functions which include:

Under the RT Act , the ACT legislation governs the relationship between landlords and tenants and seeks to balance their respective rights. The Jervis Bay Territory Acceptance Act 1915 (Cth) was amended in 1988 to include a new section 4A which provides that :

The Land Grant Act provides in section 46 that: 

Issue and Case

In this appeal the issue is the extent to which the RT Act, as a law in force in the Jervis Bay Territory, applies to Aboriginal Land under the Land Grant Act over which the first respondent, the Council, has a lease. Williams (the appellant) is a registered member of the Council and has been the tenant of premises in the Wreck Bay village, in the Jervis Bay Territory, leased to him by the Council pursuant to a residential tenancy agreement since 1989. Williams premises are located on Aboriginal Land, that is, land which has been granted to the Council pursuant to the Land Grant Act, section 8.

In the ACT Administrative Tribunal

Proceedings were commenced April 2015 by Williams in the ACT Civil and Administrative Tribunal (“ACAT”) against the Council for compensation of $25,000 under the RT Act section 83(d) and an order that repairs be carried out on the premises. The Council responded by applying to strike out the application on the basis that ACAT had no jurisdiction to hear the dispute because there was not a residential tenancy agreement between the parties. In December 2015, ACAT decided that the appellant had been occupying the premises under a residential tenancy agreement within the meaning of the RT Act section 6A and therefore, ACAT did have jurisdiction. 

In the ACT Supreme Court

The proceedings were subsequently removed to the ACT Supreme Court by consent.

This was achieved by the Council filing an application on June 2017 in the ACT Supreme Court, by way of a Special Case, in relation to whether the RT Act applied to Aboriginal Land. The Attorney-General for the Australian Capital Territory (the second respondent) intervened in those proceedings. On 25 August 2016 Justice Elkaim in Wreck Bay Aboriginal Community Council v Williams [2016] ACTSC 240 (25 August 2016) held, that the RT Act did so apply. The Council appealed to the Court of Appeal which allowed the appeal, finding that the RT Act was incapable of operating concurrently with the Land Grant Act and accordingly, that the RT Act sections 8 and 9 did not apply to Aboriginal Land (Wreck Bay Aboriginal Community Council v Williams [2017] ACTCA 46 (23 October 2017). 

In the High Court

In the High Court the Williams contended that the provisions of the RT Act relevant to his claim are capable of operating concurrently with the provisions of the Land Grant Act relating to leases. Thus the relevant provisions of the RT Act are not prevented from applying to the residential tenancy agreement.

The two respondents argued that the ACT Court of Appeal was correct in its finding that the RT Act and Land Grant Act were incapable of concurrent operation, and as such, the provisions of the RT Act are not applicable to the residential tenancy agreement.

Williams' grounds of appeal to the High Court are:

• That the Court of Appeal erred in law in holding that the RT Act sections 8 and 9 of as applied in force in the Jervis Bay Territory by the Jervis Bay Territory Acceptance Act 1915 (Cth) section 4A are not capable of operating concurrently with the Land Grant Act in accordance with the Land Grant Act section 46.
•  That the Court of Appeal erred in law in holding that the RT Act does not apply to Aboriginal Land for the purposes of the Land Grant Act section 46 to the extent to which the RT Act sections 8 and 9 of would apply to a lease granted by the Council

The High Court's Decision

In a majority decision the Court held that the provisions of the Land Grant Act considered together did not provide a complete statement of the law governing the rights and obligations of parties to leases granted by the Council so as to exclude the application of the law generally applicable to leases within the Jervis Bay Territory [see para 65 of the majority judgment]:

 The majority held that the RT Act does not apply to Aboriginal Land for the purposes of the Land Grant Act section 46 only to the extent that certain provisions of the RT Act would prevent subletting by a tenant of the Council [see para 107 of the majority judgment]:

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Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4 (13 Febraury 2019) and notes and judgment summaries.