Congoo v Queensland

Case [2014] FCAFC 9


FEDERAL COURT OF AUSTRALIA

Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2014] FCAFC 9

Citation:

Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2014] FCAFC 9

Parties:

TOM CONGOO & ORS ON BEHALF OF THE BAR-BARRUM PEOPLE #4 v STATE OF QUEENSLAND & ORS, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA and ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY

File number:

QUD 6030 of 2001

Judges:

NORTH, LOGAN AND JAGOT JJ

Date of judgment:

21 February 2014

Corrigendum:

14 May 2014

Catchwords:

NATIVE TITLE – statutory interpretation – defence and war – special case stated – extinguishment of native title – legislative intention – inconsistency test – construction of National Security Act 1939 (Cth) s 51(1) and National Security (General) Regulations regs 54 – whether military orders made under the National Security Regulations purported to effect an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution – acquisition of property and requirement of physical occupation – whether National Security Regulations “past acts” under Native Title Act 1993 (Cth) – whether in making the military orders all native title rights wholly extinguished

Legislation:

Constitution ss 51, 122
Acts Interpretation Act 1901 (Cth) s 23
Federal Court of Australia Act 1976 (Cth) s 25
Judiciary Act 1903 (Cth) ss 64, 79
Lands Acquisition Act 1906 (Cth)
National Security Act 1939 (Cth) ss 5, 10, 17, 19
Native Title Act 1993 (Cth) ss 11, 14, 18, 228
Federal Court Rules 2011 r 38.01
Statutory Rules 1941 No 291
National Security (General) Regulations regs 54, 55AA, 56, 57, 60B, 60C, 60D, 60E, 60F, 60G, 60H, 60I, 60J, 60K, 60L, 60M
Constitution Act 1867 (Qld)
Mining Act 1862 (Qld)
Mining Act 1898 (Qld)
Pastoral Leases Act 1869 (Qld)
Statue of Frauds and Limitations 1867 (Qld) s 16

Cases cited:

Akiba v Commonwealth (2013) 300 ALR 1; 87 ALJR 916
Attorney-General v Brown (1847) 1 Legge 312
Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480
Carltona v Commissioner of Works [1943] 2 All ER 560
Clunies-Ross v The Commonwealth (1984) 155 CLR 193
Commonwealth v Yarmirr (2001) 208 CLR 1
Cooper v Municipality of Brisbane (1990) 10 QLJ 120
Cooper v Stuart (1889) 14 App Cas 286
Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493
Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96
Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269
Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 212
Haskins v The Commonwealth (2011) 244 CLR 22
Mabo v Queensland (No 2) (1992) 175 CLR 1
Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556
Minister of State for the Army v Dalziel (1944) 68 CLR 261
Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459
Minister of State for the Interior v Brisbane Amateur Turf Club (1949) 80 CLR 123

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Congoo v Queensland [2014] FCAFC 9
Case
[2014] FCAFC 9
Decision Date

CaseChat Overview and Summary

Congoo v Queensland was a case before the High Court of Australia, where the central issue revolved around the extinguishment of native title rights under federal legislation and regulations in the context of military activities. The applicant, Congoo, sought to determine whether certain military orders made under the National Security (General) Regulations 1939 (Cth) had the effect of extinguishing native title rights contrary to the Constitution and the Native Title Act 1993 (Cth). Specifically, the case examined whether these orders constituted an acquisition of property on terms that were not just, and if the regulations constituted "past acts" under the Native Title Act.

The legal issues before the court were whether the military orders made under the National Security Regulations constituted an acquisition of property otherwise than on just terms, in contravention of section 51(xxxi) of the Constitution, and if these orders had the effect of extinguishing all native title rights. The court was also tasked with interpreting the legislative intention behind the National Security Act 1939 (Cth) and the National Security (General) Regulations to ascertain if they amounted to "past acts" under the Native Title Act.

The court found that the military orders did not constitute an acquisition of property on just terms as required by the Constitution. It held that the acquisition of property under the Constitution necessitates physical occupation, which was not present in the case of the military orders. Furthermore, the court concluded that the National Security Regulations were not "past acts" under the Native Title Act, and therefore, did not extinguish native title rights. The court also ruled that the orders did not wholly extinguish native title rights.

The court answered the questions posed in the special case stated, finding that the military orders did not extinguish native title rights, and that it was not necessary to answer certain questions as the findings rendered them moot. The court ordered that each party bear their own costs for the special case, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The questions asked in the special case stated be answered as follows:

(a) Question 1: No.

(b) Question 2: Not necessary to answer.

(c) Questions 3(a) and (b): No, and no respectively.

2. Each party bear its own costs of the special case.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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