Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors

[2024] HCATrans 49

[2024] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D5 of 2023

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

YUNUPINGU (ON BEHALF OF THE GUMATJ CLAN OR ESTATE GROUP) AND OTHERS NAMED IN THE SCHEDULE

Respondents

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT DARWIN ON THURSDAY, 8 AUGUST 2024, AT 9.59 AM

(Continued from 7/8/24)

Copyright in the High Court of Australia

GAGELER CJ:   Mr Solicitor for the Northern Territory.

MR CHRISTRUP:   Thank you, Chief Justice.  The Territory, your Honours, engages with grounds 1 and with ground 3.  I will address ground 1, which we say should be dismissed.  Mr Wright will address your Honours in relation to ground 3, which we say should be allowed.

In relation to ground 1, we say that section 51(xxxi) of the Constitution qualifies section 122 in all its operations. To demonstrate why that is so, I will move directly with the Commonwealth’s eight propositions from yesterday and provide your Honours with some straightforward answers to those propositions. Next, I will then set out more fully our positive construction and in doing so I will address the Commonwealth’s textual arguments and some of the matters that arose yesterday in the context of the eight propositions. I will then deal with the remainder of the Commonwealth’s arguments from their written submissions, which involves top‑down reasoning, federalism, and the like. My final section, your Honours, will concern the state of authority and, in particular, whether Wurridjal had the effect of overruling Teori Tau.

I do not intend to address the Northern Territory’s alternative submission orally concerning whether section 51(xxxi) qualifies 122 in relation to internal territories. We will rely on what we say in writing in that respect, subject, of course, to any questions that your Honours may have for me in relation to that. But I make it clear, we only advance that argument if the Court is against us in relation to the general, or our primary, submission in relation to the construction of section 122 and 51(xxxi).

Before moving to the substantive matters, I should just mention the Loughton affidavit.  The Territory has no objection to its tender.  In our view, the Court has power to receive it to the extent that it deals with a constitutional fact.  We also note that it was evidence that could not have been led below because the Full Court, essentially, was bound to either follow Teori Tau or Wurridjal, so the question about the constitutional fact did not arise.

If I can then move on to my section dealing with the Commonwealth’s propositions from yesterday. It is set out in paragraph 2 of the oral outline that we circulated yesterday. The propositions reduced to two alternative arguments as to why the Commonwealth says section 51(xxxi) does not qualify 122 in all its operations. The first argument was a textual argument described as propositions 1 through to 4. It was that section 51(xxxi) does not speak to section 122 because the former is exclusively federal, and the latter is exclusive non‑federal.

In summary, there are three problems with that argument. The first is that the argument is atextual. Could your Honours take up section 51(xxxi), please? In its terms, it applies to an:

acquisition . . . for any purpose in respect of which the Parliament has power to make laws.

On a plain reading, that intersects with the language of section 122, which provides that the Parliament has power to make laws for the government of the Territory.

The second problem with the first proposition is one of principle. The Commonwealth accepted that the established operation of section 51(xxxi) is to abstract from the more general powers in the Constitution – powers which would otherwise contain within them a power to acquire property. Section 122 is, clearly, such a general power. It is important that the Commonwealth accepted that this effect – that is, the abstracting effect – was not limited to powers in section 51 but extended to powers in, amongst other provisions, section 52.

Your Honours will see that section 52(i) confers an exclusive power on the Commonwealth to make laws for the seat of the government of the Commonwealth, and, by section 125, the seat of the government must be within a Territory. Why section 51 would abstract from that power but not section 122 was not explained by the Commonwealth.

The third problem is one of authority.  Seminal cases such as Lamshed v Lake and Spratt v Hermes – and I will take your Honours to those cases later – have rejected as unhelpful the description of Chapter I as federal and section 122 as non‑federal. Those cases recognised that section 122 is conferred on the Parliament as the national legislature; that section 122 interacts in numerous ways with Chapter I, and that laws made under section 122 may have important federal consequences. For example, as your Honour Justice Beech-Jones put to Mr Lloyd yesterday, a law made under section 122 may operate in the States, and if so, would prevail over State law pursuant to section 109.

And it is noted by your Honour the Chief Justice, authority since has only further eroded the separatist view that section 122 stands isolated from other provisions which might qualify the scope. In short, your Honours, we say that top-down reasoning about section 51 and 122 being federal or non-federal powers is not a secure way to answer the question, which should be resolved by reference to text, and purpose, and principle.

The second and alternative argument that was advanced yesterday in oral submissions was that described as proposition 7, and that was a purposive argument. It was that the application of section 51(xxxi) to section 122 would be incongruous because the Commonwealth would require, or would need, a power to acquire land otherwise then on just terms when it accepted the Territory that it administered. That argument can be shortly answered by reference to the Commonwealth’s own practice in the Northern Territory.

From the inception of its administration following the surrender from South Australia, it legislated so that it could not acquire land otherwise than on just terms.  In the joint book of authorities, volume 2, tab 10, your Honours will see the Northern Territory (Administration) Act 1910 (Cth). Section 9 of that statute required that the acquisition of any land by the Commonwealth in the Northern Territory must be in conformity with the Lands Acquisition Act 1906 (Cth). Your Honours can therefore dispose of that alternative argument without interrogating whether such an incongruence would otherwise arise. I will have some more to say about incongruence later on; but those are the short points that we make in relation to the propositions that were advanced yesterday.

That takes me to our positive argument concerning the interaction between section 122 and 51(xxxi), which is in paragraph 3 of our outline. All parties agree that the relationship between sections 51(xxxi) and 122 is a question of construction to be resolved by reference to the text. Can I ask your Honours to please return to section 51(xxxi). It says that:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to –

Sub‑placitum (xxxi.):

The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:

I have already explained how the reference to a purpose in respect of which the Parliament has power to make laws naturally engages with the power in section 122 to make laws for the government of a Territory. But there are four further indications in the text of 51(xxxi) which demonstrates that it applies to laws made under 122.

The first one is that 51(xxxi) broadly refers to “any purpose in respect of which the Parliament has power to make laws”, not merely a purpose in this section or any purpose under 51(xxxi).  And as was said by this Court in Attorney-General v Schmidt, which is volume 3, tab 55 in the joint book of authorities, the phrase:

“for any purpose” is doubtless indefinite.  But it refers to the use or application of the property in or towards carrying out or furthering a purpose comprised in some other legislative power.

Secondly, the second indication in 51(xxxi) is that the provision refers not only to an acquisition from a State but from “any person” – again, the word “any” is expansive.  But there is more to that.  The juxtaposition of “person” and “State” in that provision is, in our submission, very significant.  Unlike provisions such as 25, 75(iv) and 117 – which refers to a State or a resident of a State – the reference is to person simpliciter in 51(xxxi).  Once one recognises that the word “State” appears in the same sentence, the word “person” naturally includes persons within the Territories.

The third textual indication in 51(xxxi) is to look at the issue posed by your Honour Justice Beech‑Jones yesterday, but approaching it from a slightly different angle.  The States may own property within the Territory, whether that would be real property or chattels or a chose in action.  Even if one adopted the Commonwealth’s federal view of section 51, there is no sensible reason why the Commonwealth should be at liberty to acquire the State’s property in a Territory otherwise than on just terms.

The fourth textual indication in 51(xxxi) is, of course, the use of the word “Commonwealth” in the chapeau.  As this Court observed, or as Justice Mason observed in Berwick Ltd v Gray, the reference to “Commonwealth” includes the external Territories and therefore, we say, must also include the internal Territories.

Of course, those textual indicators should be combined with the usual principle that section 51(xxxi) should be given a liberal construction consistent with its status as a very great “constitutional guarantee” – those words are taken from Clunies‑Ross v Commonwealth at pages 201 to 202.  We say there is nothing in 51(xxxi) to suggest that it does not apply to laws made under 122, and much to suggest that it actually does.

Before leaving 51(xxxi), can I refer to one final matter of principle. As mentioned, the common position between the parties is that section 51(xxxi) operates to abstract for more general powers – a power to acquire property otherwise done on just terms. In my respectful submission, your Honours have still not been given an adequate explanation as to why that principle does not apply in the usual way to section 122 in all its operations.

That is all the more so given that the Commonwealth accepts that section 51(xxxi) will have that very effect, at least in some of its operations, namely in those circumstances where a law is supported both by section 122 and by some other power in section 51. Of course, the abstracting effect of 51(xxxi) is by no means absolute. The accepted principle is that there will be no confining of the other power where the Constitution evinces a contrary intention, either expressly or in a way that is manifest in the other ground of power.

Can I take your Honours to, and read the passage at Nintendo v Centronics.  It is at volume 12, tab 96 of the joint book of authorities, at page 160.  It is the paragraph that starts at the top of page 160:

It is well settled that ‑ ‑ ‑

BEECH‑JONES J:   What page is that, I am sorry?

MR CHRISTRUP:   Sorry, page 160, down to about line 12 or so, that finishes:

but without the safeguard, restriction or qualification.

GORDON J:   What do you say of the next bit in that passage?

MR CHRISTRUP:   So, that is the contrary intention, which I will now develop for your Honours.

GORDON J:   Thank you.

MR CHRISTRUP:   I should just say that the Commonwealth’s main written submissions, paragraphs 45 to 47, seems to accept that this is the relevant test for determining whether 51(xxxi) abstracts and whether there is a contrary intention in the other power.

Now, the Commonwealth’s construction, in truth, your Honours, rests on the Commonwealth being able to show that it is manifest in section 122 that property can be acquired without just terms. This Court in Attorney‑General for the Northern Territory v Emmerson, volume 3, tab 57, at paragraph 77, stated the test concerning manifestation in terms of whether just terms is either “inconsistent” or “incongruous”, or “incompatible” with the exercise of the other power.

Now, there may be laws made under section 122, of course, such as laws with respect to taxation or forfeiture, for which just terms would be incongruous. But there is nothing incongruous about the Commonwealth providing just terms to a State for the acquisition of its land and chattels in the Territory – or to a person, for that matter.

The Commonwealth, in their written submissions at paragraph 16, relies on the observations of Justices Deane and Gaudron at page 189 of Mutual Pools & Staff, and also of the observation of his Honour Justice Brennan at page 180, for saying that 51(xxxi) must be confined to the scope of its particular power and to not undermine:

the objects of, or the capacity of Parliament to exercise, another power or constitutional doctrine.

Those observations, your Honours, read in context, mean no more than that section 51(xxxi) is not attracted where the just terms would be inconsistent or incompatible. Their Honours are not proposing some other test, and those observations do not stand for some wider principle upon which the abstracting effect of 51(xxxi) can be negated.

Section 122, acquisitions aside, confers unlimited powers on the Commonwealth in making laws for the government of the Territory – almost unlimited powers, I should say. As to acquisitions, section 51(xxxi) ensures that the Commonwealth has the power of eminent domain, and your Honours would be aware of the observations by his Honour Justice Gummow in Newcrest Mining to the same effect. Now, there is nothing inconsistent, nothing incongruous, with having to provide just terms where the Commonwealth acquires property pursuant to a law under section 122 for the government of a Territory. Further, turning to the text of 122 itself, there is no indication in there at all that it ought not to be qualified by 51(xxxi).

The Commonwealth makes three broad textual points, but, in our respectful submission, they do not advance its construction. The first point they make is that the power in section 122 is broad and cases have described the power as plenary. The powers in 51 and 52 are also described as plenary within their subject matters, but that does not mean that those provisions are immunised from 51(xxxi). Many cases following Spratt v Hermes have accepted that that label, plenary, which is of dubious relevance these days, does not mean that the power is limitless.  If I can ask your Honours to turn to the observation in Spratt v Hermes at page 242, it is joint book of authority volume 15, tab 112.

STEWARD J:   What was the page reference?

MR CHRISTRUP:   Page 242, your Honour.

STEWARD J:   Thank you.

MR CHRISTRUP:   It is right at the top, your Honour.  It is the first complete sentence:

That power is not only plenary but is unlimited –

If your Honours could read down to the end of the fourth line in the next paragraph, it starts “But this does not mean”.  I might ask your Honours just to keep Spratt v Hermes open because I will take you to another page in a moment.

Consistent with the observations in that passage, and as your Honour Chief Justice Gageler observed, section 122 is qualified by many limitations found elsewhere in the Constitution. Despite being plenary, cases have held that 122 is subject to section 90, section 92, the implied freedom of political communication, the principle in Kable, and the like.  So, the reference to “plenary” goes nowhere. 

The second argument was that 122 is structurally removed from 51.  In our submission, that is not a significant feature.  This is where – if I could take your Honours back to Spratt v Hermes, at page 246 this time.  It is the first complete paragraph, it starts:

Further, it seems to me, with the utmost respect –

About seven lines down, until the end of the sentence:

But this does not call for disjoining a part of the Constitution from the rest.

If I can also ask your Honours just to note the reference to Newcrest, that is page 603, the reasons of Justice Gummow with Justice Gaudron agreeing, which summarised the relevant Convention Debates, which show there is ambivalence about the importance of placing 122 in Chapter VI or in section 52.

The third argument that was advanced is that 122 is not, unlike 51 and 52, expressed to be subject to this Constitution.  It has been said in this Court that that expression is superfluous.  Whether that be so or not, the relationship between two constitutional provisions is always going to be a question of construction, to be determined by substance rather than mere form.

For example, section 96 of the Constitution is clearly subject to 51(xxxi), although that provision is not expressed to be subject to this Constitution.  That was the holding in ICM Agriculture, which is at the joint book of authorities volume 7, tab 79, at paragraphs 31 through to 45 of their Honours Chief Justice French, Justices Gummow, Crennan and Heydon at paragraph 174. As I have said, it is accepted that section 122 is subject to a range of limitations, despite the absence of the words “subject to”.

Having dealt with 51(xxxi) and 122 in their terms, the Commonwealth’s argument, even though it expressly disavows relying on it, necessarily invokes the now‑outmoded notion that section 122 is disjoined from the rest of the Constitution. It is only in that way that they can sensibly seek to immunise 122 from the effects of section 51(xxxi).

As this Court observed in Lamshed at page 145, and in Berwick at page 608, that approach is not permissible in determining the interaction between 122 and some other provisions of the Constitution.  It is only by conferring some special immunity on 122, or shielding it from the rest of the Constitution, that it could be concluded that just terms is inconsistent or incongruous with the power in 122.

The text and purpose of the Constitution, your Honours, read as a whole, stands firmly in the way of the Commonwealth’s proposed construction.  Rather, and for reasons I have explained, those matters clearly show that 51(xxxi) controls 122, and that it does so in all of its operations.

GAGELER CJ: Do you say that the polity of a self‑governing Territory is a person within the meaning of section 51(xxxi)?

MR CHRISTRUP:   I do not need to go to that question, your Honour, for the purposes of our argument.  There is a question there whether that was the intention or not.  We know it includes, for example, body corporates, but in our respectful – I have thought about it.  I keep to the view I did not need to commit myself to a position on that, and I think that the question before your Honours can be resolved without delving into that question, because the facts just do not give rise to it.

I should just say that the conclusion as a matter of constructive analysis and a purposive analysis that 51(xxxi) controls 122 in all its operations was reached by three members of this Court in Newcrest, four on one reading of Justice Toohey, and also, of course, by four members in Wurridjal.  I am not relying on ratios here.  I am just saying that there have been four judges in each of those two cases which have adopted this particular construction of 51(xxxi).

If I can then move on to the top‑down concepts or the top‑down type of reasoning that is either express or implicit in the construction that is being advanced by the Commonwealth.  I have now moved on to paragraphs 4 through to 6 of our outline of submissions, your Honours.  There are three aspects to the top‑down reasoning.  The first one is the argument that the Commonwealth should be in the same position as the States when it comes to the acquisition of property.  The second one is that the purpose of 122 is to give the Commonwealth Parliament as much flexibility as possible in the governance of the diverse range of territories.  And the third is the notion that the Commonwealth Parliament, when passing laws only for a Territory, is not acting qua the Commonwealth and it is not acting as the legislature of the nation as a whole.

Can I start with the first one, your Honours:  State equivalence.  The argument is, in effect, that the Constitution should not be construed such that the Commonwealth is in an inferior position to the States when it comes to the acquisition of property.  In short, as your Honour Justice Edelman put to my learned friend yesterday, there is no reason to assume that when the Commonwealth acquires a Territory, that the Constitution intends the powers that the Commonwealth then has over that Territory to be a facsimile of the powers that the State had before the surrender. To make that proposition good, your Honours, can I ask you to turn to sections 106, 107 and 108 of the Constitution.

Section 106 ensures that the Constitution of each State continues as at the establishment of the Commonwealth until altered by that State. And by section 107, that every power of the Parliament of the colony, which would include, of course, any power in the States’ Constitution to acquire property, shall continue unless the Commonwealth Constitution exclusively vests that power in the Commonwealth Parliament. Finally, section 108 provides for the continued existence of the laws of each State. To recount the obvious, your Honours, there is, of course, no stipulation in those provisions or anywhere else in the Constitution investing the Commonwealth with the State legislative power preserved by section 107, and there is no vesting of that power in the Commonwealth Parliament.

Now, the Commonwealth’s argument proceeds from the no doubt correct proposition that the States can acquire property within their areas without having to provide just terms, and they cite Durham Holdings for that. As a matter of history, or as a matter of coincidence if you like, that is undoubtedly the case. The issue is, it is entirely irrelevant for the purpose of the question before your Honours. The real reason that the States are empowered to acquire property without compensation is that the State Constitutions as preserved by section 106 do not contain a just terms provision.

Taking the New South Wales Constitution as an example – it is not in the joint book of authorities, so I would ask your Honours to take my word for it – it grants by section 5 a plenary legislative power:

to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever –

in circumstances where that Constitution provides no explicit acquisitions power. That is, the power to acquire a property is subsumed within the general grant in section 5, and that power is untrammelled by any requirement to provide just terms.

The fallacy in the Commonwealth’s argument is that the Commonwealth Constitution does have an express acquisitions power and, critically, one that subjects it to an obligation to your Honour to do so on just terms. The Commonwealth Constitution and the State Constitutions are diametrically opposed when it comes to the question of whether just terms must be provided when legislative power is exercised to acquire property. The notion of parity in power – now advocated by the Commonwealth – is prohibited by the constitutional arrangements set up by the Commonwealth Constitution. 

If I can move on to the second aspect of top‑down reasoning – that is the flexibility argument.  The Commonwealth written submissions say that the purpose of 122 was:

to give the Commonwealth Parliament as much flexibility as possible in the governance of the diverse range of territories.

The example given is that it may deter a law‑maker from acquiring property for the building of roads, schools, or hospitals on terms the law‑maker considers appropriate.  So, that is how the argument is advanced. 

The Commonwealth’s written submissions do not, in fact, base the argument on any textual or contextual considerations, even though those two words are used in their written submissions. The requirement for maximum flexibility is, in substance, a purposive argument, not a textual one. Be that as it may, reading section 51(xxxi) as controlling 122 in all its operations still gives the Commonwealth Parliament all the flexibility it could reasonably require to govern a territory. Section 122 is not restricted by any list of subject matters in the way that 51 and 52 are. The Commonwealth can pass laws for the direct governance of the Territory, all the way over to creating a new body politic to pass its own laws.

Critically, the imposition of 51(xxxi) on 122 does not remove the power eminent of domain.  Commonwealth Parliament is still at liberty to acquire any property it wants in the Territory if that is what it thinks is required for its development.  If it needs to do that to build schools, or hospitals, or roads, then that power is available to them.  It cannot be seriously suggested that Parliament cannot properly govern a community unless it can compulsorily acquire the property of its citizens without compensation.  It is a common restriction on legislative power found in many other countries.

The founders of our Constitution were comfortable in the knowledge that the Commonwealth Parliament could perfectly, properly perform its role in respect of the much more complex exercise of governing the nation pursuant to its powers in 51, even though that government – in discharging its obligations of passing laws for the government in that fashion, it was subject to the obligation to provide just terms.  We have referred, in our written submissions, to the fact that a defence power is subject to the obligation to provide just terms.

GAGELER CJ: Mr Christrup, does it follow from your submission that when the Commonwealth Parliament uses the power under section 122 to establish a legislature of a self‑governing Territory, it must provide that the Territory is incapable of acquiring property otherwise than on just terms in order to validly confer legislative authority?

MR CHRISTRUP:   Again, it is not a question that arises in this context, but I can see the ‑ ‑ ‑

GAGELER CJ:   It is in my mind, Mr Christrup, as I am grappling with your submissions.

MR CHRISTRUP:   Yes, I can see the strength in the suggestion that if 122 is qualified by 51(xxxi) in all its operations, then one conclusion from that would be that they cannot confer the power to do so on the Territory. 

EDELMAN J:   That does not necessarily follow from a Capital Duplicators‑type analysis, though, does it? 

MR CHRISTRUP:   No, I agree, I was about to qualify – what I just said, your Honour, is that the fact that it has the power to set up a body polity, and that there is no restriction in the Constitution which requires the just terms provision to carry on to that body polity, there is an argument to be had there as to whether the just terms provision must necessarily be conferred, or at least that even if it is not in the self‑government statute, whether it is just an implicit requirement because there the Commonwealth cannot pass on what it ‑ ‑ ‑

GORDON J:   Does it work any differently to the Commonwealth in this sense:  that one looks to see what is the nature of the power giving rise to the acquisition.  So, we have exceptions that give rise to taxes and other things.  In other words, it is not a complete blanket imposition in that way. 

MR CHRISTRUP:   No, that is correct, your Honour.  This Court has held that things like forfeiture, for example – a law, in that respect – falls outside the scope of the acquisitions power.

Now, I should also say that in paragraph 27 of their primary submission, the Commonwealth relies on the observation in the Convention Debates that one of the objectives of 122 was to give the Parliament flexibility.  We accept that that was an object of 122 to confer flexibility – of course it was – but nowhere in that passage is the point made that the flexibility had to be great as possible, which is the expression that appears in the Commonwealth’s argument.

I should also note that, in that passage in the Convention Debates, the Commonwealth in their written submissions has made a reference to the draft as being concerned of not restricting Parliament in respect of the alienation of land.  That, in our submission, when one reads the exchange in the Debates, is a reference to not prohibiting the Commonwealth from giving away its own land.  Some delegates had expressed a concern at the Debates of what they had witnessed in their own colonies of the State governments handing out valuable land for very little or no consideration.

As a final point on flexibility, your Honours, the Commonwealth puts its case no higher than it being a possibility that the application of 51(xxxi) will hamper the work of Parliament. It is claimed that the application of 51(xxxi) would mean that the practical and financial burden so imposed may deter development of the Territories. Of course, the actual experience on the ground, in respect of legislation made under section 122, paints a very different picture. I have already mentioned section 9 of the Northern Territory Administration Act, whereby the Commonwealth restricted itself in relation to what it could do in terms of the acquisition of land. 

Further, when one goes through the Commonwealth’s written submissions, we have only been able to identify one statute amongst the many it passed in 1911 to 1978 where it was thought necessary to provide for the acquisition of property otherwise than on just terms.  That is the Northern Territory Railway Extension Act 1923, which is mentioned in the Commonwealth reply at paragraph 4, footnote 4.

GAGELER CJ:   Did the Commonwealth not acquire uranium at one stage in the Territory? 

MR CHRISTRUP:   They might have, your Honour.  We went through their submissions to identify the legislation – we have not gone through all the statute book.  It might be that they are either statutes that were passed which had that effect.

GAGELER CJ:   With much greater potential financial implications? 

MR CHRISTRUP:   Yes, your Honour, that might be the case.  I have not read that.  I will look into that, your Honour. 

Finally, in terms of painting the picture on the ground, your Honours, the Commonwealth, itself, of course, when it conferred self‑government both on the Australian Capital Territory and also Northern Territory, thought that the legislatures that were charged with a responsibility for making laws for the government of those Territories would be perfectly capable of discharging that responsibility, even though they were subject to a requirement like the one to provide just terms.  Of course, those governments are responsible for the very things that the Commonwealth mentions in its submissions, being the building of roads, schools and hospitals.

That takes me to the third of the top-down concepts that are advanced by the Territory, and that is – sorry, the Commonwealth, not the Territory. Thank you. The proposition that Parliament is not under section 122 acting in the capacity as a legislator of the nation as a whole. I will take your Honours straight to the observations of Chief Justice Dixon in Lamshed v Lake, joint book of authorities volume 9, tab 85.  This is a judgment, your Honours, in which their Honours Justices Webb, Taylor and Kitto agreed.  At page 141, the Chief Justice notes that he was responding to an argument that 122:

empowers the Parliament to make laws for the government of the Territory and no more.

And that:

It is just as if the Commonwealth Parliament were appointed a local legislature in and for the Territory with a power territorially restricted to the Territory.

At page 141, the Court “wholly” rejected that argument. It held that once section 122 is engaged:

it operates as a binding law of the Commonwealth wherever territorially the authority of the Commonwealth runs.

At page 142, the Chief Justice made the observation that section 122 is:

vested in the Commonwealth Parliament as the National Parliament of Australia –

His Honour’s capitalisation.  And I will read out the relevant passage starting at the bottom of page 143 and ending over the page:

the Parliament takes the power in its character as the legislature of the Commonwealth, established in accordance with the Constitution as the national legislature of Australia, so that the territory may be governed not as a quasi foreign country remote from and unconnected with Australia except for owing obedience to the sovereignty of the same Parliament but as a territory of Australia –

Further, the majority in the case of Bennett v Commonwealth 231 CLR 91 at paragraph 30 adopted the following passage from Justice Kitto, also from Lamshed:

Surely it means that a territory which has been accepted by the Australian Federation may be fitted into the Australian scene, so far as laws are concerned, by the legislative activity of the Australian Parliament:  that the entire legal situation of the territory, both internally and –

These are the critical words:

in relation to all parts of the Commonwealth, may be determined by or by the authority of Parliament.”

It is implicit in those observations, your Honour, that Parliament is never taken to be acting in the national interest and for the country as a whole when it is passing a law under section 122, regardless of whether that law happens to be one that is limited in its geographical operation to the area occupied by that territory.

Those observations expressly reject the argument that is now being advanced by the Commonwealth in saying that the Commonwealth Parliament, under 122, is not acting qua the Commonwealth.  Those same observations put paid to any suggestion that 122 law cannot be said to be a law for the nation as a whole.  As Lamshed held, section 109 of the Constitution mandates that such a law will prevail over any inconsistent State law.

Another aspect to the Commonwealth’s submissions is that they say, in their written submissions at paragraph 18, that the result of Newcrest was that a law passed solely for a Territory is not caught by 51(xxxi).  That is not the proposition, and that is not what Newcrest itself in fact held.  Three of the four majority judges in Newcrest expressly rejected that proposition:  Justices Gaudron, Gummow, and Kirby.  The holding in that case, that a law supported by 122 and some other head of power must provide just terms, is not the same as saying that if it is passed solely under 122, then just terms is not required. 

The only authority for that latter proposition is what was left of Teori Tau after Newcrest.  The principle arises in Teori Tau, not from Newcrest.  The Commonwealth also says – relying on the chapeau to section 51, no doubt – that the text of 51(31) explicitly confines the power to laws that have a purpose that is directed to the Commonwealth as a whole.  Given the observations in Lamshed and in Bennett to which I just referred, a law solely for a Territory would answer that description.  It would be a law directed at the Commonwealth as a whole.

But the cases cited in footnote 57 of the Commonwealth’s main submissions do not make good the proposition that 51(xxxi) is confined to laws directed to the Commonwealth as a whole.  They cite the dissenting judgments of Justices Brennan and Dawson in Newcrest; the observations by Justice Gaudron at 566 through 567, did not concern 51(xxxi); likewise, the observations of Justice Gummow that are cited there, at 605, his Honour was discussing section 122, not 51(xxxi).

The reference to the comments of Chief Justice Barwick in Spratt at Commonwealth submissions 28 through to 30 are also misconceived. His Honour is not there saying that 122, or exercising a power under 122, is a law that is akin to the States legislating for other States. The passage itself says nothing about the Commonwealth acting to acquire territory. That is all I want to say about the proper construction of section 51(xxxi). I will now move on to the status of precedent and the ratio in Wurridjal, if the Court pleases.

This aspect of ground 1 of the notice of appeal involves the application of the rules governing ratio in the context of multi‑member courts.  I am now at paragraph 7 of our outline of submissions.  The question of the ratio of Wurridjal is addressed in the reasons of the Full Court at paragraphs 227 through to 278.  The parties here, before your Honours, agree that the ratio of a case with a multi‑member court is the legal rule adopted by reasons for judgment to which a majority of the participating judges assent, as a necessary step in reaching their conclusion.

EDELMAN J:   To issue their orders.

MR CHRISTRUP:   Orders, yes, your Honour.  This is taken from her Honour Justice Gordon’s statement in paragraph 430 from Vanderstock, which, in turn, was based in part, at least, on the observations of Justice Brennan in O’Toole.

It is not in contention that the overruling of Teori Tau was a necessary step in the reasoning of their Honours Chief Justice French, Justices Gummow, Kirby, and Hayne.  That is not in dispute.  The dispute centres on whether the reasons of Justice Kirby count, and in particular, whether his Honour can be treated as being part of the majority.  His Honour agreed with the other three judges as to the outcome of the first ground raised in the demurrer, which was whether 51(xxxi) conditioned 122 in all its operations.

EDELMAN J:   He did not agree with the orders, though.

MR CHRISTRUP:   Correct, your Honour.  Because he was in dissent on the two other grounds in the demurrer, and he would have decided the demurrer the other way.  I accept that.

The question for this Court is whether, in a case where a demurrer has more than one ground, the relevant majority for precedent purposes is whether it is determined by reference to each ground of the demurrer or by reference to the final outcome of the demurrer.  We say it is the former, because a demurrer with multiple grounds under rule 27.07 of the High Court Rules should, for ratio purposes, be treated in a similar way to a special case with multiple questions under rule 27.08.

Our argument involves two propositions, each of which I will need your Honours to accept, in order for me to make good my argument.

GORDON J:   Sorry, I missed what you just said then.

MR CHRISTRUP:   In order for me to persuade your Honours that that is the outcome, I need to persuade your Honours of two propositions, which I now seek to make good.  The first one is this, and it concerns the ratio in special cases.  I am not talking about demurrers yet, I am confining my case to special cases.  Where a special case states two separate questions and results in two separate answers, then, for the purpose of determining the ratio, we say a judge can be in dissent on one answer and be in the majority on the other.

EDELMAN J:   That is because there are two orders made.

MR CHRISTRUP:   Absolutely, agreed.  If there are two orders, then the ratio exercise must be undertaken in respect of both of those orders, I accept that.  A special case of that kind should be contrasted with your run‑of‑the‑mill appeal where there is invariably only one order – appeal allowed, appeal disallowed – and that in turn then informs whether a judge can be treated as agreeing in the final order.

We have tried to find a case for the proposition that where a special case involves two questions, different judges can comprise a different majority depending on the outcome of the questions.  The closest we can get, your Honours, is that of Hepples v Commissioner of Taxation (1992) 173 CLR 492. It is not in the joint book of authorities, but we have arranged for it to be handed up to your Honours. I will take your Honours to a passage in it in a moment. That appeal was an appeal to the High Court from the Full Court of the Federal Court which in turn had decided a case stated.

STEWARD J:   Was it not a question of law reserved by the AAT?

MR CHRISTRUP:   It was.  The questions went to the Full Court of the Federal Court, they dealt with it ‑ ‑ ‑ 

STEWARD J:   Under section 44.

MR CHRISTRUP:   Yes, correct.

STEWARD J:   Yes.

MR CHRISTRUP:   Now, if I can ask your Honours to turn to page 551, it is right at the back of the judgment.  This is after each judge had published their reasons and there was then a need to go through to identify what the final order should be, given how the judgments had fallen out.  If I can start on page 551 at the top, there is a paragraph that starts:

An appeal in proceedings of that latter kind –

That paragraph is saying that, on that appeal, the Court:

must declare the majority decision as to the issue of law, irrespective of any conclusion as to the ultimate rights –

Then over on page 552, about in the middle, it says – the Court has said that:

If the question referred is construed as impliedly asking two questions, namely:  (1) whether there was a disposal within –

one provision and whether there was a disposal with the other provision, then the question that was under appeal could be answered.  Then in the final sentence in that paragraph, the Court:

should ask itself the two questions earlier stated seriatim.

GORDON J:   I have two problems with Hepples at the moment which I would like addressed.  One is the point being made by Justice Edelman, that it is dealing with an order on appeal, not declaring the majority opinion.  Second, was it not significant to them that the answers declaring the majority opinion would not conclude the rights of the parties?

MR CHRISTRUP:   In Hepples, it was significant to them that the order did not conclude the rights of the parties, exactly, your Honour, because there was an underlying proceedings because of the case stated from the Tribunal.

EDELMAN J:   But where does this go?  Even if you are right about this, there is only one order on the demurrer.

MR CHRISTRUP:   Can I jump to that – I will answer that question.  I was going to take your Honours to what the learned authors Herzfeld and Prince have said about this particular topic.  Rather than going through what their Honours say, can I just refer your Honours to paragraphs [34.140].  The text appears behind volume 22, tab 156.

Now, if I can ask your Honours to read that, or I can just tell your Honours what propositions I wish to draw from it and then move on, if I could.  The outcome of what their Honours are saying there is that where there are ‑ ‑ ‑ 

GAGELER CJ:   I do not think they are “their Honours”.

MR CHRISTRUP:   Sorry, the learned authors – my mistake.  I withdraw that.  The authors are saying that for a case stated where there are two orders, then there are going to be two rationes, one for each answer, and this analysis, I should say, also appeared in the text before the Full Court decision below.

We say that if that is the case for a case stated then it also be the case for a demurrer involving two grounds of law.  We start by pointing out that, as far as our researches can establish, this Court has never had occasion to rule on how to determine the ratio of a demurrer involving two grounds of law.

EDELMAN J:   By the logic of your reasoning, it ought to be the same in an appeal as well, where there are three grounds for an appeal and different judges decide the appeal on different grounds, and some dismiss the appeal and some allow the appeal.  It is a pretty fundamental change to the rules of precedent.

MR CHRISTRUP:   We say – and I will explain – that it is not such a fundamental change, because equating the multiple grounds of a demurrer with the multiple grounds in an appeal – there are reasons why that analogy does not hold true.  Before I do that, I just wish to point out the similarities between the case stated procedure and the demurrer procedure, and then I will get to your Honour’s questions about why it is that a distinction should be drawn from appeals.

The two proceedings are both concerning questions of law – both a case stated under 27.08 and a demurrer under 27.07.  Both are based on facts that are either agreed or not in dispute.  Both arise out of an underlying proceeding.  The orders on the special case or the demurrer do not usually, on their own, determine the rights of the parties – that is normally dealt with by a subsequent order in the underlying proceeding.  Both rules 27.07 and rule 27.08 both contemplate, expressly, the raising of more than one question of law.  So, 27.07.3 referred to “grounds in law” and 27.08.1 refers to “questions of law”.

In our submission, the proceedings are sufficiently similar in purpose, effect and subject matter that there is no good reason to treat them differently for precedent purposes.  We accept that there is a weighty argument against us that in Wurridjal there was a single order, allowing the demurrer without referencing the individual grounds – we accept that.  We also do not shy away from the fact that the demurrer proceeding in that sense resembles what happens in a run‑of‑the‑mill appeal.

However, in an appeal involving multiple grounds, they are all directed towards a single question – namely, whether the decision of another court was correct or not.  That is not the question at which a demurrer is directed.  It is not directed at the correctness of some other decision.  And the demurrer does not usually dispose of the proceeding below in the way that an appeal does.  For example, in Wurridjal, after having made the final order on the demurrer, order 3 goes on to say that any further direction or management of the proceeding should be the directions of a Justice of the High Court.

We say that there is a question of placing form over substance in the suggestion from the authors Herzfeld and Prince that the grounds of a demurrer should be treated like the grounds of an appeal.  As the authors note, a demurrer involving two grounds could just as easily be two demurrers each raising one ground.  In that case, the result on one demurrer would not determine that the majority or have any impact on the majority decision in the other demurrer, because they are two separate demurrers.

We say that the analogy between a demurrer involving multiple grounds and appeal involving multiple grounds cannot be drawn because in an appeal the standard rule is that you only get a right to appeal once.  You get one notice of appeal you can file – subject to statutory modification.  All grounds in an appeal will, therefore, usually only result in one answer.  It is a matter of form, we say, as to whether the demurrer is done in a single document or done in two separate documents.  As the authors in Herzfeld and Prince point out, had there been a cross‑demurrer from the other parties in Wurridjal, then there would have been a ratio, and that ratio would have been that Teori Tau was overruled.

We say that it would be unfortunate if the precedent value of an answer from this Court to a constitutional question on a demurrer was set at nought because there happened to be some other legal question that was also determined as part of the same demurrer.  And we say also that if the orthodox formulation of the ratio rule concerning multi‑member courts has that effect – that that precedent would be set at nought – then there is good reason to relax the rule in relation to a demurrer involving multiple grounds.

If that is accepted, then we say that the decision on each ground in law and a demurrer is the relevant decision for precedent purposes.  If that is right, then that means that the reasons of Justice Kirby must be included in the majority and that Teori Tau was overruled.  The consequence of that is that it is the Commonwealth that needs leave to reopen Wurridjal rather than the other parties seeking leave to overrule Teori Tau.

GAGELER CJ:   Is there any necessity to consider the relationship between the questions of law that are raised in your submission?  Or is it sufficient that they be stated as separate questions of law?

MR CHRISTRUP:   I would like it to be just the more general proposition, of course, but you can imagine a situation where, in order to determine the ratio there might be something in the questions which means that, really, you have to treat them as there only being one final order.  But for the purposes ‑ ‑ ‑

GORDON J:   The question is a bit different, though, it is more directed.  Even if the questions are not posed in a way which shows inter‑relationship, what about the reasoning?

MR CHRISTRUP:   You always go to the reasons anyway to determine whether there is a ratio – so the reasons themselves might mean that you

cannot do it.  But we say in the case of Wurridjal, there were three separate questions.  One was, does 51(xxxi) control 122 in all its operation?  Secondly, had there been an acquisition?  And thirdly, had there been just terms provided?  Those three questions are traditionally dealt with separately in judgments of this Court.  Yes, they relate to the same issue – it is the same general issue – but that analysis is normally undertaken independently by this Court when it considers the application of 51(xxxi).

I was going to just have some quick remarks on the reopening of the factors, but I am running out of time and I need to leave some room for Mr Wright to make his submissions in relation to ground 3.  My learned junior reminds me that the Commonwealth, in any event, does not seem to oppose the reopening of Teori Tau, if that is where this Court ends up and that is what needs to happen.

Unless your Honours have any questions for me, those are the submissions in respect of ground 1.

GAGELER CJ:   Thank you.  Mr Wright.

MR WRIGHT:   If the Court pleases, the Northern Territory submits that ground 3 should be allowed for additional reasons to those that were presented by the Commonwealth.  The Territory’s submissions do not rely on identifying the mischief sought to be addressed by the reservation in the pastoral lease as being to enable the Crown to bring an information of intrusion, which was the basis of the Commonwealth’s argument, although we do support the Commonwealth in that regard.

The difference for the Territory is we rely upon the construction of the reservation itself and other matters of text and context, which I will come to.  The Territory accepts that there is ultimately, in ground 3, only one issue that needs to be determined, but having regard to the reasons of the Full Court, our submission was structured by reference to two questions.

The first question is whether the Crown asserted any rights through the mineral reservation.  I will take your Honours to the reservation shortly, but to be clear, when we talk about the reservation, we mean not just the words “excepting and reserving” but also the words that follow it, including about the Crown being able to take the minerals.

For reasons that I will develop, the Territory submits that having regard to the text and the context of the reservation and the legislation under which it was granted, the reservation ought to be objectively construed as an assertion by the Crown of at least some rights in relation to minerals in the area the subject of the pastoral lease.  That is in answer to our first question, because that is then sufficient to demonstrate error on the part of the Full Court, which construed the reservation as merely a withholding or keeping‑back of any rights in relation to minerals.

That would then lead us to the second question, which is what is the nature and extent of the rights that were created by the reservation, and whether they were inconsistent with the claimed native title right to take minerals, for which compensation is claimed?  Again, by reference to text and context, the Territory submits the reservation ought to be objectively construed as an assertion by the Crown of exclusive possession of that part of the land that comprises the minerals, and that is necessarily inconsistent with a continued native title right of the kind claimed.

EDELMAN J:   You are talking about assertions by the Crown.  At least on one view, the traditional analysis of a reservation, as opposed to what is strictly an exclusion, is that it effectively involved a re‑grant, so it was a grant of a lease, for example, and then a re‑grant of rights, rather than the grant by the lessor of rights to themselves.

MR WRIGHT:   Yes.

EDELMAN J:   Do you accept that?

MR WRIGHT:   We do accept that, your Honour, and the reason we use assertion of rights is because that is the language used in the native title jurisprudence as to how the Crown expands its title, its radical title, and one instance of that can be reservation.  So, in a sense, this is a novel case, yes.  We are saying that the words of this reservation – if I use that term as collectively – the words in this reservation, we say, evince that intention on the part of the Crown to assert rights ‑ ‑ ‑

EDELMAN J:   But we know from Justice Windeyer that we have to look a little bit below the words to find out what is actually going on.

MR WRIGHT:   We do, which is why I will bring you to context, as well.

EDELMAN J:   If you accept that the reservation is effectively like a re‑grant from the lessee back to the lessor, how does that work, then, with a pastoral lease that is not the grant of exclusive possession?

MR WRIGHT:   I accept that, your Honour, exactly, which is why, strictly, we are not relying on the common law concept of a reservation, because the pastoral lease itself did not confer rights in relation to minerals.  But we say this lease instrument as an exercise of executive power pursuant to the legislation that authorised it has two functions.  One is to confer rights on the pastoralist and the other is to assert rights to the Crown itself.  That ultimately becomes a function of the exercise of executive power by reference back to the legislation, so it is the legislation that gives the Crown those asserted rights.

EDELMAN J:   Thank you.

MR WRIGHT:   As your Honour has just indicated, the words “excepting” and “reserving” have a common law understanding, and, prima facie, they mean different things, and in this particular instrument the relevant text in the reservation uses the words “excepting” and “reserving” separately.  It is uncontroversial that at common law, the meaning of the words does depend on the context.

GORDON J:   It depends on the text.

MR WRIGHT:   Yes.

GORDON J:   The statute, the instrument and then the context.

MR WRIGHT:   Yes, your Honour.  The ultimate conclusion we invite your Honours to arrive at is that the reservation both held back certain rights from the pastoralists, which – the word “excepting” does that work, so, the pastoralists could not interfere with the exercise of the rights that the reservation we say created.  But it also asserted rights in the Crown, and the words reserving under His Majesty are apt to be construed as a conferral of those rights.

The second thing the reservation did is it also granted to the said Minister, who was the Minister under the Northern Territory Land Act, and to others, full and free liberty of access to the land to dig, try, search for, and work the minerals, metals, and other things, and to take those things from the land.  And it refers to all of those things.  So, in our submission, it is referring not just to all different types of minerals, it is referring to all of the minerals that were physically in the land.  That is a matter of construction of the text of the reservation.

In our written submissions, we have made some observations around construing the words of the reservation in the context of the entirety of the lease instrument, where the lease instrument uses those words separately: “except” in some cases and “excepting and reserving” in other cases.  In our submission, there is a logic to the way that the words are used in the instrument, that logic being that where the thing that is to be excepted is rights of third parties who are not parties to the indenture, those rights are protected by way of the words “excepting”, so that the pastoralist cannot prevent, for example, the Aboriginal inhabitants of the State from exercising the rights that the pastoral lease allows.

But where rights are asserted in relation to the Crown, the word “reservation” is also used.  The Full Court at paragraph 109, considered that the references in the reservation to persons other than servants of the Crown was:

consistent with the reservation merely preserving whatever rights to access and dig etc otherwise exist from time to time.

We say two things about that.  Firstly, insofar as the reservation did refer to other people with other lawful authority – in our submission, that contemplates the holder of a mining tenement – in that respect, the word “excepting” can be consistently applied in that way.  In other words, the pastoralist could not interfere with a holder of a mining tenement who was exercising their rights under their mining tenement.

Otherwise, with respect to the Full Court, the language of the reservation is not apt to merely confer to withholding rights, because that language was “with full and free liberty of access” to the Minster and others authorised by the Minister to go on to search for, dig and to take the minerals.  No other source of such a right was identified by the Full Court or the parties.  And, in our submission, they are words of assertion of a right, not merely preserving any such right that might exist.

EDELMAN J:   But you say assertion of a right not just against the pastoralist – it is against the world at large.

MR WRIGHT:   We do, your Honour.  Yes, correct.  And, in this respect, in our submission, this reservation is distinguishable from that in the case of Yandama Pastoral v Mundi Mundi Pastoral 36 CLR 340. I will not take your Honours to it, but it is number 127 in the bundle. It is referred to by the Gumatj respondents at paragraph 138 of their written submissions, and in our submission, it is sufficient if I just refer your Honours to the headnote, which is extremely short. In the Commonwealth Law Report it says the majority held:

that in a pastoral lease granted pursuant to the Pastoral Act 1893 (S.A.) a reservation to all persons of “the rights of crossing the said lands with travelling stock” does not confer such a right, but only reserves –

such rights as may exist.  So, in our submission, that case turned on the particular wording of the reservation, and it referred to “the rights”.  In this case, the language is different and is more apt to be an assertion of right.  We then ‑ ‑ ‑ 

STEWARD J:   Can I just ask you, briefly, before we go on, in Colon Peaks Mining Co v Woollondilly Shire Council (1911) 13 CLR 438, at page 144, Chief Justice Griffith says:

in the case of grants containing such a reservation –

of minerals – he is describing New South Wales mining law – he says, in the case of such a grant:

there were two independent titles – one to the land excepting the minerals, the other to the minerals, to which the grantee had no title, and the property in which remained in the Crown until demised under the Act.

Is that the territory you are in?

MR WRIGHT:   Yes, it is, your Honour.  That is right, and ‑ ‑ ‑ 

STEWARD J:   Do you go so far as saying that there are two independent titles that are granted, where there is a reservation for minerals?

MR WRIGHT:   Well, when your Honour says “two independent titles” ‑ ‑ ‑ 

STEWARD J:   It is not me saying it; it is the Chief Justice saying it.

MR WRIGHT:   Sorry, yes, your Honour.  But, yes, in the sense of, if we are talking about the Crown in relation to the minerals has, in our submission, on our case, asserted full beneficial ownership.  So, it no longer has just a radical title, it has a title, and that is different to the title that exists in the surface of the land, correct.

STEWARD J:   Thank you.

MR WRIGHT:   I will just briefly refer your Honours to some other context that we rely upon, and that is the 1899 Act under which the pastoral lease was granted.  That is in volume 2, tab 43.  I will just mention in particular, section 7, which provided the Governor was authorised to grant pastoral leases in the manner provided by the Act, then section 24 required pastoral leases to:

STEWARD J:   Is that the same thing as saying it is of the same practical force?

MR GLACKEN:   Yes.

STEWARD J:   Yes, I see.

MR GLACKEN:   And in Mabo (No 2) it is all driven by either common law cases like Clissold v Perry, which are early examples of the principle of legality, or the Canadian cases like Sparrow and – I will come to the citation in a moment.  The Canadian cases where it was said bluntly, and also said more bluntly by Justice Toohey in Mabo (No 2), that there is just no difference between the power of the new sovereign to impair pre‑existing rights, in that case Indian title, and the power of the new sovereign to impair rights derived from the new sovereign power, if I can put it that way.  Now, the Commonwealth took you to pages 63 and 64 of Mabo (No 2).  Can I just perhaps ask the Court to turn that up now.

EDELMAN J:   Just before you do, this second proposition about the equal interpretive force, does that really, on your submission, go to the second ground, or does it go to the third ground?

MR GLACKEN:   Both, really.

EDELMAN J:   No, I understand how it goes to the third ground, does it relate to the second ground?

MR GLACKEN: Yes, I am addressing the second ground now. What we ultimately say of that normative force is that there is nothing that takes one set of rights outside of section 51(xxxi), i.e., indigenous rights that are protected by the clear and plain intentions standard. There is nothing that takes those rights out of section 51(xxxi) and yet somehow keeps within section 51 rights derived from the new sovereign order by statutory powers of grant. Perhaps if I can develop that ‑ ‑ ‑

BEECH‑JONES J:   Is that actually saying there is no reason to describe native title as inherently fragile?

MR GLACKEN:   Yes.

BEECH‑JONES J:   Compared to any other ‑ ‑ ‑ 

MR GLACKEN:   Yes.  What Wik and everything afterwards showed is that it is remarkably robust.  What paragraph 91 of Ward says – which was cited yesterday – is that the concept of “speak for country” and to “control access” is fragile, because there will be many instances where an exercise of new sovereign power will constrain that.  For example, if there is a reservation of land for a purpose, then that is the Crown – I will use that term for the body politic – deciding upon how land may be used in the future.  So, that constrains that sort of native title right.

GORDON J: Does your submission have two elements to it? One is to say that, as Justice Beech‑Jones put it, there is no fragility of the relevant kind attaching to native title rights and interests as a concept. Is that the first proposition? And then does the corollary of that mean that if they are obviously described, then, as having a quality that each of them is subject to section 51(xxxi) because there is nothing to take one set of rights outside and leave one set in ‑ ‑ ‑

MR GLACKEN:   Correct.

GORDON J:   ‑ ‑ ‑ what do you then do about the inherent defeasibility, which is to principle that attaches to statutory rights?

MR GLACKEN:   We say a number of things about ‑ ‑ ‑

GORDON J:   You may be coming to this, Mr Glacken.

MR GLACKEN:   I will be, and I will perhaps give a short answer.  The line of cases – if I just call up 179 CLR – is very much concerned with, if I can try to conceptualise it at a broader level – rights to property that are created on terms that they will be subject to adjustment.

GORDON J:   So, your argument is, at a level of principle, there is nothing to take one set of rights out 51(xxxi) reach and leave statutory rights in?  But in the subset of statutory rights, one has got to look to the terms to work out whether there is indefeasibility.

MR GLACKEN:   Yes.

GORDON J:   Is it any more than that?

MR GLACKEN:   No.

GORDON J:   And one does not do the same kind of analysis to native title rights and interests?

MR GLACKEN:   Correct.

EDELMAN J:   And the reason why – I may be jumping ahead, but as I understand it, the reason why you are treating statutory right that the underlying theory behind extinguishment by inconsistent statutes falling outside 51(xxxi) is that they are created on terms that will be subject to adjustment.  That lines up, as I see it, almost perfectly with the example of a grant that is subject to a condition subsequent, where the condition subsequent is exercised by the grantor.

MR GLACKEN:   Yes.  There is a lovely quote of Dr Helmore in Wilson v Anderson 213 CLR 401, paragraph 89, about defeasible and determinable fees that comes to mind. What we say – and the question that your Honour asked earlier – is if you took an example of a defeasible interest by grant, and to go back to Justice Gordon’s question, we can either talk about a creator of rights, being the Parliament, because the 179 CLR cases use that expression, rights created by the Parliament – or we can use, in the common law example, rights determined or defined by grantor. Just to take that example of a defeasible fee or, perhaps a more simple example, a lease with a power of resumption, there might be three things to it.

One is that it might be simply contractual, and so therefore not an acquisition, and there is an old Privy Council case, the name of which always escapes me, to the effect that an agreement or contractual transaction is not an acquisition.  I think that is something to do with wool, or refinery, or something.  I will dig up the citation.  That is one view of that type of property.

The second one is that it would be – assume that it is not contractual, but simply imposed by statute, which is a common form of Crown lands legislation to contain a power of resumption, and a pastoral lease in this case has a power of resumption.  That is in the category – two subcategories – one is that it is either in the statutory adjustment line of authority, or it is in the subcategory adverted to by Justice Gummow at page 618 in Newcrest, where the mineral leases were subject to a power of resumption, but his Honour said in that case that the proclamation was not the exercise of that power.

The third point, at least in terms of legislative practice, when your Honour asked a question about whether compensation was payable, at least legislative practice and Crown lands legislation in the example of a resumed lease is to pay compensation for the improvements.  So, if the land were improved, then, conceptually, there would be an acquisition of the improvements.

What I wanted to say about the Commonwealth’s case, if your Honours turn up Mabo (No 2) 175 CLR 1, volume 9, tab 87 of the joint book, if your Honours turn to page 63 – I am sorry, this part has been read to your Honours, but your Honours were taken first to the title “The extinguishing of native title”. Can we emphasise that the point in the first sentence is that:

Sovereignty carries the power to create and to extinguish private rights . . . within the Sovereign’s territory.

We would read that as all private rights, not just pre‑existing indigenous rights, for reasons I will come to in a moment.  Then the Court was taken to page 64, dealing with the absence of a presumption from non‑derogation from grant, and then what was said by Sir Gerard, that:

a statute . . . will be presumed (so far as consistent with the purpose for which the power is conferred) to stop short of authorizing any impairment –

That, in itself, has a qualification that a statute may do exactly that, which is not presumed, and that is derogated from the grant, and obviously, a power of recall is an example.  But what was not read was the next substantive paragraph, which commences with the word “however”, and we would say a very large “however”, that:

However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so –

His Honour then says:

This requirement, which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts . . . in North America.

And that it is unnecessary to dwell upon the juristic foundations because his Honour says at the very end, simply:

It is patently the right rule.

The cases I had in mind, Calder at footnote (76) and Sparrow in footnote (76).  There are comments by the Canadian judges that, well, this is no different to other interests in land within ‑ ‑ ‑ 

GORDON J:   What about the next paragraph, do you rely on that?

MR GLACKEN:   Yes – well, that is venturing into the territory of ground 3.  We say the laws involved in ground 3 are exactly that.  As Justice Steward said, they create a regime of control.  Now, relevantly for minerals – and could I perhaps flag something now – the reservation for minerals which is put up in ground 3, was also, if I can use the word, a concomitant or a companion was to reserve land for public purposes, and that was all part of the development of the colonies.

So, lands would be reserved for public purposes.  When grants were made there would be powers of resumption, and then when grants were made there would be a reservation of, initially, timber, because that was important for shipping, et cetera, but extended to minerals for building.  I am digressing slightly, but the point which picks up from this next paragraph of Sir Gerard on page 64 is that in Ward at paragraphs 217, 219, or thereabouts – I will go to it later for ground 3 – is that reserving land for a purpose was certainly not inconsistent with the subsistence of non‑exclusive native title.

Now, I am sorry I have digressed, your Honour, but we embrace that last paragraph, although that is in play in ground 3.  Can I just stay with the point that there is no lesser normative force in quality with the clear and plain intention standard by just picking up some other references.

EDELMAN J:   But if your other submissions are right, then this submission about the normative force of the power to extinguish native title compared with the normative force of non‑derogation from grant only ever relates to ground 3.  In other words, if your other submissions are right that what the common law does is it brings native title in to the common law system of titles and outside that system of titles sits sovereign power, which can extinguish any, or amend any, type of title in the system, then the presumptions operate on native title or on derogation from grant only in relation to the ground 3 type issues, when one is looking at is there an inconsistency.

MR GLACKEN:   Yes, although ‑ ‑ ‑ 

GORDON J:   I mean, your propositions are the native title rights and interests are not fragile, and the fragility is made clear by the undertaking of the kind of analysis that you put to us.  One has to have a clear intention – a clear and plain intention to extinguish the native title right and interest – well, that is the intersection between grounds 2 and 3.

MR GLACKEN:   That is true, that is true, but I am dwelling on ground 2, and to answer – we use the expression “accommodated” in our written outline of argument, and we say a reason why native title rights may be impaired or extinguished is because they are accommodated by the new sovereign order.  At page 111, Justices Deane and Gaudron made the point they are not entrenched.  Then Justice Toohey, in a passage I will go to in a moment, says there is no special privilege.

GORDON J:   Well, they do not form part of it; they are recognised by it, and that is what Justice Edelman was putting to you.

MR GLACKEN:   Yes, but we whether or not I need the clear and plain intentions standard in the submission I am making about it, the point I am making, your Honour, is that it illustrates those very points of – I will put it as high as equality in treatment between non‑native title interests and native title interests in a statutory world.

BEECH-JONES J:   Just so I understand – are you saying, look, when you compare the presumptions spoken of at point 2 with the necessity for:

a clear and plain intention to do so –

in the next paragraph, there is, in effect, no substantive difference, or at least no difference that would justify one being treated as inherently defeasible and outside 51(xxxi), and one not?

MR GLACKEN:   Correct.  And that is also made by good by the – before I leave those footnotes and my reference to Calder and Sparrow, “clear and plain intention” was first used in Mabo (No 1) 166 CLR 186, at 213, in the judgment of Justices Brennan, Toohey and Gaudron, and when I last looked, although do not quote me, I think Calder was cited together with the American case Santa Fe in Mabo (No 1) as well.  I will just complete the point that was just being asked.  By going to page 111 ‑ ‑ ‑

BEECH-JONES J:   Of Mabo?

MR GLACKEN:   Yes, I am sorry, to the judgment of Justices Deane and Gaudron.  The discussion commences at the bottom of page 110, about the “Legislative powers with respect to common law native title”.  Then, in the third line, their Honours say:

To put the matter differently, the rights are not entrenched in the sense that they are, by reason of their nature, beyond the reach of legislative power.  The ordinary rules of statutory interpretation require, however, that clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation.

Now footnote (23), Hazeldell, but also, importantly, in our submission, Clissold v Perry said in the footnote to be:

a case dealing with possessory title.

And then – I will come back to page 111, but perhaps if your Honours were to make a margin note, there are two subsidiary issues about this page.  One is, and this has just been touched on by the Gumatj respondents, but their Honours do not speak, I think, contrary to the suggestion by the Commonwealth, of grants being invalid.  They speak of them, in effect, being wrongful, or unlawful, and that the power of the Crown to wrongfully extinguish would remain – so, in other words, grants would not be invalidated on that view.

Secondly, the point I will come back to, is that what is said is not driven by the difference, the split of three-three, about compensatory remedies.  And in Justice Toohey, at page 193, at the very bottom – and I should say, one difference between Justice Toohey and Justice Brennan was whether native title could be extinguished validly without the consent of its holders, but that is also because his Honour was driven by a later analysis of fiduciary obligations – but that puts some context to his Honour’s comments.  He says, at the bottom of 193, last line: 

But to say that, with the acquisition of sovereignty, the Crown has the power to extinguish traditional title does not necessarily mean that such a power is any different from that with respect to other interests in land.  The Crown has the power, subject to constitutional, statutory or common law restrictions, to terminate any subject’s title to property by compulsorily acquiring it.

Footnote, Calder, one of the Canadian cases cited by Justice Brennan.  And then, more pointedly at page 195, in the last substantive paragraph, four lines down:

Where the legislation reveals a clear and plain intention to extinguish traditional title, it is effective to do so.  In this regard traditional title does not stand in a special position, although the canon of construction referred to by Lord Atkinson . . .  is of equal application –

And one sees there a statement of interpretive principle that is no different to what is averred to by Justice Brennan on page 64 generally.

Can I make one other short point about Mabo and what was said about any supposed differences between the majority.  I already mentioned on page 15 what is said about compensatory remedies or the split of three‑three – there would be a certain irony if the Commonwealth call in aid the dissent of Justice Dawson to say it commanded a majority, but that is besides the matter, because the remedy has been someone overtaken by the Native Title Act itself.

That difference of opinion was a three‑three difference.  What the Court joined in is the declaration at paragraph 217, if your Honours can go to that.  I think it just says all that probably needs to be said about the common law acknowledgement of traditional customs.  If your Honours go to the declaration, paragraph 2, it starts with “putting to one side”, but if your Honours go to the last four lines, the declaration is that:

the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands –

Now, that is an example of what Justice Brennan said about the sort of legal and equitable remedies that will protect native title.  Then, secondly:

declare that the title of the Meriam people is subject to the power of the Parliament of Queensland and the power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective powers, provided –

because of Mabo (No 1), that:

is not inconsistent with the laws of the Commonwealth.

Now, the context, of course, in Mabo (No 2), was the powers found in the Constitution Act (Qld), dealing with the management of waste lands. Your Honour, that might be a convenient point, I think.

GAGELER CJ:   Are we on track, Mr Glacken?

MR GLACKEN:   I will be, assuming I can take up the time that I have been given de facto, so to speak, by the Gumatj respondents.  And could I say, I will ask Mr Hill, with the permission of the Court, to address ground 1.  I have a good half hour left on ground 2.  I probably can only spend about 20 minutes on ground 3, was my budgeting in terms of the allotment of an hour and fifty minutes all up.  But I may have a little bit more, given what has happened today.

Can I just say something about the affidavit by Mr Loughton, shortly.  We think your Honours should reject it.  It is contestable.  It does not establish any clear constitutional fact, and perhaps the point might be made this way.  The submission that was made in connection with this material was a supposition that if native title in the Northern Territory is

protected against arbitrary deprivation by the Commonwealth, then it is somehow more valuable than native title elsewhere in the country.

Now, there were a number of rejoinders to that which we adopt, but the point we would make is this:  the only bit of evidence, if I can call it that, is an 1895 pastoral map of the Northern Territory – I am giving evidence from the bar table, but it will not be any surprise that a pastoral map applied to Western Australia, Queensland and South Australia will look pretty much the same.  The result is that native titles continue to coexist.  So, it is a fair leap to say that the liability of the States post the Racial Discrimination Act and the institution of native title is somehow vastly different.  But that submission highlights the danger.

GAGELER CJ:   Your point is the same as Mr Moses, that the probative value of the affidavit is so slight that it should be rejected.

MR GLACKEN:   It should be rejected.

GAGELER CJ:   Yes.

EDELMAN J:   There is no section 73 point that you are taking, then?

MR GLACKEN:   That it was not before the Full Court?  It is an additional reason, but on its face, it should be rejected.

GAGELER CJ:   All right.  Thank you, Mr Glacken.  The Court will adjourn until 10.00 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 9 AUGUST 2024