In the matter of an application for writs of prohibition and certiorari against the Honourabel Sir William John Francis Kearney, Aboriginal Land Commissioner and in the matter of the Jawoyn (Katherine area) land claim Ex Parte the Attorney-General for the Northern Territory of Australia The Attorney-General for the Northern Territory of Australia v the Honourable Sir William John Francis Kearney, Aboriginal Land Commissioner & Anor and in the matter of the Jawoyn (Katherine area) land claim In the matter of an application for writs of prohibition and certiorari against the Honourable Air William John Francis Kearney, Aboriginal Land Commissioner and in the matter of the Kenbi (Cox Peninsula) land claim Ex Parte the Attorney-General for the Northern Territory of Australia [1984] FCA 282

In the matter of an application for writs of prohibition and certiorari against the Honourabel Sir William John Francis Kearney, Aboriginal Land Commissioner and in the matter of the Jawoyn (Katherine area) land claim Ex Parte the Attorney-General for the Northern Territory of Australia The Attorney-General for the Northern Territory of Australia v the Honourable Sir William John Francis Kearney, Aboriginal Land Commissioner & Anor and in the matter of the Jawoyn (Katherine area) land claim In the matter of an application for writs of prohibition and certiorari against the Honourable Air William John Francis Kearney, Aboriginal Land Commissioner and in the matter of the Kenbi (Cox Peninsula) land claim Ex Parte the Attorney-General for the Northern Territory of Australia [1984] FCA 282

Where there is a bona fide, prima facie, and reasonably tenable claim that a statutory power to make regulations has been exercised for an ulterior purpose, legal professional privilege does not operate to protect relevant communications from disclosure; the public interest in ensuring the proper exercise of statutory power is paramount in such a case. However, mere assertion is insufficient, and there must be adequate material to support displacement of privilege.

Parties
Applicant/prosecutor: Attorney-General for the Northern Territory of Australia; Respondent/first Respondent: The Honourable Sir William John Francis Kearney, Aboriginal Land Commissioner; Second Respondent: Northern Land Council
Jurisdiction
Australia
Judgment Date
19 September 1984
Procedural Posture
Applications for Judicial Review and Related Orders (writs of Prohibition and Certiorari) Concerning Discovery/production of Documents in Aboriginal Land Claim Proceedings / Hearing and Final Decision on Applications for Judicial Review/orders to Show Cause
Outcome
Applications for judicial review dismissed; orders to show cause discharged
Legal Topics
Legal Professional Privilege, Discovery, Subordinate Legislation, Aboriginal Land Claims, Judicial Review Procedure
Evidence Administrative Law Legal Professional Privilege Discovery Subordinate Legislation Aboriginal Land Claims Judicial Review Procedure

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Parties

Attorney-General for the Northern Territory of Australia

Applicant/prosecutor

The Honourable Sir William John Francis Kearney, Aboriginal Land Commissioner

Respondent/first Respondent

Northern Land Council

Second Respondent

Procedural Posture

Applications for Judicial Review and Related Orders (writs of Prohibition and Certiorari) Concerning Discovery/production of Documents in Aboriginal Land Claim Proceedings / Hearing and Final Decision on Applications for Judicial Review/orders to Show Cause

Legal Issues

  1. 1 Whether legal professional privilege protects communications between the Government of the Northern Territory and its salaried legal advisers regarding the preparation of subordinate legislation, in the context of alleged improper purpose in regulation-making
  2. 2 Whether the Full Court of the Federal Court can exercise original jurisdiction for applications under the Administrative Decisions (Judicial Review) Act 1977

Ratio Decidendi

Where there is a bona fide, prima facie, and reasonably tenable claim that a statutory power to make regulations has been exercised for an ulterior purpose, legal professional privilege does not operate to protect relevant communications from disclosure; the public interest in ensuring the proper exercise of statutory power is paramount in such a case. However, mere assertion is insufficient, and there must be adequate material to support displacement of privilege.

Court Disposition

Applications for judicial review dismissed; orders to show cause discharged

Orders

  • The application under the Judicial Review Act is dismissed.
  • The orders to show cause why writs of prohibition and certiorari should not issue are discharged.