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Back to "Community & Associations Newsletter - April 2017"


Case Note: Berrima Goal Case [2016] HCA 50

The High Court of Australia has written the final chapter in the claim for land rights made by the NSW Aboriginal Legal Service (“ALS”) over the Crown lands of the former Berrima Gaol, finding in favour of the Crown. This decision brings to an end a legal battle that has spanned 5 years – 2 years more than it took convicts in irons to build Berrima Gaol prior to its opening in 1839.

Berrima Gaol has a notorious history, being the site where John Lynch, Australia’s first convicted serial killer, was hanged in 1842, and where solitary confinement, in windowless cells too small for many to lay upon the ground unfolded, would reputedly extend for a year at a time. This facility has been closed a number of times over its history, and it was the most recent closure in 2011 that sparked the land rights claim made by the ALS on 24 February 2012, pursuant to section 36(1)(b) of the Aboriginal Land Right Act 1983 (NSW) (“the Act”), that would become the subject of these proceedings.

Central to the argument of the ALS was that withdrawing prisoners, revoking the proclamation of the “Berrima Correctional Complex” under the Crimes (Administration of Sentences) Act 1999 (NSW), and proposing alternate uses for the, site amounted to the Crown no longer lawfully using or occupying the land, thereby qualifying the land for claim under the Act.

In order to succeed, the ALS needed to convince the Court that revocation of the proclamation amounted to a discontinuance of occupation. The ALS argued that this conclusion could be arrived at by construing the terms “lawfully used” and “occupied” narrowly, which they submitted was appropriate in light of the remedial nature of the Act. This argument had resonated with Kirby J in a 2008 case involving these same parties, although it was not accepted by the majority of the High Court then.  While favoured in the joint dissenting judgment of Nettle and Gordon JJ, the argument was not accepted by the majority in this instance either.

The majority agreed that the task of construing this provision was simply one of identifying and applying the commonly understood meaning of the words “used” and “occupied” in ordinary parlance, and did not require the Court to consider the purpose, remedial or otherwise, of the legislation. In the opinion of the majority, acts by the Crown of repair and maintenance, gardening and permitting the public to enter and view the land satisfied the commonly understood meaning of “used” and “occupied”.

Notably, on 10 August 2016, between leave to appeal being granted and final written submission being made, the Corrections Minister announced Berrima Gaol would reopen and would house 75 minimum security prisoners; doors re-opened on 27 September 2016.

Nathan Gately, Solicitor
Josephine Heesh, Partner

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