Griffiths & Anor v Minister for Lands, Planning & Environment & Anor

[2007] HCATrans 685

[2007] HCATrans 685

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D8 of 2007

B e t w e e n -

ALAN GRIFFITHS ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

Appellants

and

MINISTER FOR LANDS, PLANNING AND ENVIRONMENT

First Respondent

LANDS AND MINING TRIBUNAL

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 NOVEMBER 2007, AT 10.05 AM

Copyright in the High Court of Australia

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.A. GLACKEN for the appellants.  (instructed by Northern Land Council)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MS R.J. WEBB, QC, for the first respondent.  (instructed by Solicitor for the Northern Territory)

MR R.G. ORR, QC:   If the Court pleases, I appear with my learned friend, MS M.A. PERRY, QC, intervening on behalf of the Attorney‑General for the Commonwealth.  (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, (Solicitor‑General for the State of Western Australia):   May it please the Court,  I appear with my learned friend, MR G.J. RANSON for the Attorney-General for Western Australia, either intervening as of right or seeking leave.  (instructed by State Solicitor for Western Australia)

MR M.G. SEXTON, SC, (Solicitor-General for the State of New South Wales):   If the Court pleases, I appear with my learned friend MR S.B. LLOYD, intervening on behalf of the Attorney‑General for the State of New South Wales.  (instructed by Crown Solicitor (NSW))

GLEESON CJ:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, this is a short case, with two points. One point turns on the construction of section 43(1) of the Lands Acquisition Act (NT). The other point turns on the construction of section 24MD(3) of the Native Title Act (Cth). I propose to address the two points fairly shortly in that order, after making one introductory contextual remark. The one introductory contextual remark is this, that both points go ultimately to the ability of the Northern Territory Minister compulsorily to acquire native title rights and interests in Crown land so as to clear the title.

That is language which has been coined by our friends for New South Wales intervening in their written submissions so as to clear the title for the grant of a leasehold or freehold interest under the Crown Lands Act (NT). That the Minister seeks to acquire the native title rights and interests for the grant of a leasehold or freehold interest under the Crown Lands Act is apparent from the face of each of the notices of proposed acquisition.

GUMMOW J:   Would the end result of this process be the operation of sections 50 and 51 of the Native Title Act, that is to say, the determination of compensation?

MR GAGELER:   Yes, it is to acquire with compensation, nevertheless to compulsorily acquire.

GUMMOW J:   Who would receive the compensation?

MR GAGELER:   The native title owners, as may be determined.

GUMMOW J:   For the time being?

MR GAGELER:   For the time being, yes.  The precise mechanism I could tell your Honour later.

KIRBY J:   Where exactly are the proceedings in the Federal Court?

MR GAGELER:   The proceedings in the Federal Court have resulted in a determination of native title at first instance, which is on appeal to the Full Court of the Federal Court.

KIRBY J:   Yes, and that appeal is pending, is it, still?

MR GAGELER:   The appeal has been heard, it was reserved in May.

KIRBY J:   Reserved?  It has been heard and reserved?

MR GAGELER:   That is right.  Your Honours, I was about to ask your Honours to just turn to our written submissions where in paragraph 9 we have sufficiently extracted the text of the notices of proposed acquisition, and it is sufficient for the purposes of illustration to go to the first of those.  What is proposed is to acquire land identified as all interests, including native title rights and interests, if any, in an identified piece of land, the only interest being native title rights and interests in fact, and to deal with that land if acquired by granting a Crown lease under the Crown Lands Act to a particular company for the purpose of goat breeding, et cetera, and upon completion of development, allowing that Crown lease to be surrendered in exchange for freehold title.  That is one example.  There are two other instances of similar proposed acquisitions.

That the Minister is seeking to take this step for the purpose of clearing the title is apparent from the ministerial memoranda put up to the Minister and accepted by the Minister in proposing the acquisitions.  There is no need to turn to those; your Honours might make a note, they are at pages 644, 646 and 648 of the appeal book.

If your Honours could turn to the Crown Lands Act (NT), it contains in section 3 a definition of “Crown lands” which means “all lands of the Territory”, the Territory, of course, the Northern Territory of Australia, the body politic established under section 5 of the Northern Territory (Self‑Government) Act, the executive power of which is vested by sections 31 and 35 of the Self‑Government Act relevantly in the Administrator, Executive Council and Ministers.

The lands of the territory referred to in the Crown Lands Act comprise those lands which became vested in the Territory upon self‑government by virtue of section 69(2) of the Self‑Government Act. They necessarily also included those lands which became acquired or become acquired by the Territory after 1 July 1978 whether under the Lands Acquisition Act or otherwise.

One then sees in section 4(1) the standard legislative restriction on executive power of a type your Honour Justice Gummow in Wik explained as reflecting invariable legislative practice since before colonial self‑government.  Your Honour’s discussion in Wik is at 187 CLR 1 at pages 172 to 174, and it was taken up in Ward 213 CLR 1 at paragraph 167. There, your Honour explained, and as was said in Ward, that provisions of this nature involve the withdrawal of significant elements of prerogative power or what would otherwise be executive power.  So section 4(1) provides that:

Subject to subsection (2), Crown lands shall not be alienated from the Crown otherwise than in pursuance of this Act. 

Subsection (2) then in paragraphs (b) and (c) contemplates:

(b)      the granting of an estate in fee simple in pursuance of an Act;

(c)      the granting of a lease in pursuance of an Act -

meaning, of course, an Act other than this Act.

So far as this Act is concerned, one goes to section 9(1) and you see the general residual power to alienate otherwise unalienated Crown land. So what it says is:

the Minister may, in the name of the Territory by instrument in the appropriate form under the Land Title Act, grant an estate in fee simple in or a lease of Crown land. 

That is again subject to this Act, subject to limitations elsewhere found including the limitation in section 12 which ordinarily requires the land to be leased or granted on a commercial basis. It is pursuant to section 9(1), that is, that general residual power to alienate Crown land that the leases and grants of fee simple are proposed to occur in the present case. That is the preliminary contextual observation.

If your Honours could then go to the Lands Acquisition Act which we have provided behind tab 2 of the annexure to our submissions. The proposition that we here seek to advance is this, that the Act, in particular section 43(1) does not authorise an acquisition of an interest in land merely to facilitate its application under section 9(1) of the Crown Lands Act, that is, it is not to be construed as a source of some general power to take land from A so as to give, sell or lease land to B. 

We have provided your Honours with a little bundle of general compulsory acquisition statutes which we have collected from the States and Territories and so far as we can see – I do not ask your Honours to turn to it, this is really just a negative proposition – the only State or Territory which at least clearly and unambiguously provides a general power for the Executive to take from A and to give to B is found in Western Australian legislation fairly recently introduced.  Our learned friend from Western Australia can explain that if necessary.

KIRBY J:   Can you explain why the Northern Territory Act alone does not have a year as part of its short title?  Is that some style of drafting?

MR GAGELER:   It is a style and I think there may be something in the Interpretation Act about it.  It is pretty annoying, your Honour, but that is the way they do it.

KIRBY J:   It is a bit confusing given that there are a series of such Acts throughout the Commonwealth.

MR GAGELER: Yes, I agree. Your Honours, the long title to the Act, page 69 if your Honours are looking at our materials, is “an Act relating to the acquisition of land by the Territory”. Section 3 defines “land” to include “an interest in land” and defines “interest in land” to mean “a legal or equitable estate or interest in the land” and to include “native title rights and interests”. It is important in construing the general provisions of the Act to recognise that this Act purports, as it must, to comply with the Native Title Act, purports to apply equally to legal or equitable estates or interests in land and to native title interests in land.  So if it is possible to acquire native title interests in land to give to someone else, it is equally possible under this Act to acquire freehold title to give to someone else.

One then goes to section 32, which is within Part IV.  It provides for a pre‑acquisition procedure involving the giving of notice of a proposal to compulsorily acquire land – I should say compulsorily to acquire land.  The form of that notice is spelt out in section 33, and the notice in each case, if your Honours look at section 33(1)(b) and section 33(3)(b), the notice must in each case contain details of the manner in which it is proposed that the land if acquired will be dealt with within the context of the Act.  It would be our submission that that means will be dealt with by the Territory.

One then goes to section 43 at page 92 of our annexure.  It provides:

(1)     Subject to this Act, the Minister may acquire land under this Act for any purpose whatsoever –

I will come back to those words –

(b)if the pre-acquisition procedures in Parts IV and IVA as applicable have been complied with – by compulsory acquisition by causing a notice declaring the land to be acquired to be published in the Gazette.

The consequence of ‑ ‑ ‑

KIRBY J:   You passed over (aa) which makes a specific reference to indigenous land use agreement ‑ ‑ ‑

MR GAGELER:   Yes.

KIRBY J:   ‑ ‑ ‑ which rather suggests that in enacting 43(1) in its present form with its very large words in the chapeau that attention was paid to indigenous land use.

MR GAGELER:   Indeed, and, of course, that is by agreement, that is where the native title owners agree.  The provision that I am referring to, (1)(b), is a provision that applies equally to native title interests and to freehold interests, your Honour.  But it may have some bearing on the width of the reference to purpose, I accept that, and I am coming back to that.  One goes then to section 46 to see one of the effects of a notice being given under section 43.  It provides that:

(1)     Subject to this section, upon publication in the Gazette of a notice of acquisition –

(a)the land described in the notice vests in the Territory freed and discharged from all interests, trusts, restrictions, dedications –

et cetera, and –

(b)any interest that a person had in the acquired land is divested, modified or affected to the extent necessary to give effect to this subsection.

Section 59) provides that:

(1)     Subject to section 63, the interest of any person in land acquired under Division 1 of Part V is, at the date of acquisition, converted into a claim for compensation against the Territory.

So upon publication of the notice of acquisition under section 43 the land becomes by virtue of section 46 vested in the Territory, discharged from all other interests, and by virtue of section 59 the interest that any person otherwise had becomes converted into a claim for compensation against the Territory.

GLEESON CJ:   In the Northern Territory, save for land in respect of which native title has been extinguished, as for example by - say for land subject to freehold title, virtually all the land would be subject to actual or potential native title rights and interests, would it not?

MR GAGELER:   Yes, and one method for which the Native Title Act provides is that before you do anything on the land you determine whether or not native title exists, and then move on from that point. You take a surgical approach rather than taking a bulldozer to it. One goes then to section 48, which is significant for my argument. Section 48 provides that:

(1)     The Minister may, at any time while no person (other than the Crown) has an estate or interest in the land, by notice published in the Gazette, declare that any land acquired under this Act is no longer required for the purpose for which it was acquired.

(2)     Land referred to in a notice under subsection (1) may be dealt with as unalienated Crown land under a law in force in the Territory.

Section 48, in our submission, is drafted on the understanding manifest in section 43(1) that land will be acquired “under this Act for” a purpose. It will be a purpose identified as at the time of acquisition. It is drafted on the understanding that the purpose may well involve some other person being granted an estate or interest in the land. That is obvious from the language of subsection (1). Your Honours might also note that section 54(1) confirms that by imposing a restriction on entering into possession either by the Territory or by any person for whom the land is acquired.

So we accept that the purpose under section 43 may involve some other person being granted an estate or interest in land and that other person actually physically entering into possession of the land. But what section 48, in our submission, is indicative of is a legislative contemplation that the purpose for which the land will be acquired under section 43 will be something other than the land simply being dealt with as unalienated Crown land available for alienation in accordance with that general residual power conferred by section 9(1) of the Crown Lands Act.

What it says is that land may be so dealt with – that is the language of subsection (2) – only upon the – it does not say “only” but this is our reading of it – may be so dealt with upon the publication of a notice under subsection (1) and the publication of a notice under subsection (1) is something that can occur only where the land is no longer required for the purpose for which it was acquired, the legislative contemplation being that the purpose for which land is acquired under section 48(1) will not be a purpose that can be defined as being dealt with as unalienated Crown land under a law in force in the Territory, the relevant law being section 9(1) of the Crown Lands Act.

So going back to section 43(1) and looking again at the text of the chapeau, the power is conferred “Subject to this Act”, significantly subject to the restriction which is implicit in section 48, enacted against the background of the general provision in the Crown Lands Act to which I have drawn attention.  The power to acquire is expressed to be “for any purpose whatsoever”.  The word “whatsoever” obviously reinforces the width of the word “any”.  It could be equally written in capital letters or underlined, but what it is emphasising is that it is a power to acquire “for any purpose” but nevertheless, it is a power to acquire for a purpose.

The purpose, in our submission, is a purpose of the Territory.  That flows from the context of the Act.  “Purpose” here means use.  What one is looking at is the use to be made of the land by the Territory in the exercise of Territory executive power.

It extends, we fully accept, to the granting of a lease for an estate in fee simple if and to the extent that the execution or maintenance of a particular Territory law permits or requires that to occur.  We have in footnote 45 of our written submissions given the examples that we could readily find of Territory laws that specifically permit the acquisition of land to be then dealt with by way of grant to a third party ‑ ‑ ‑

HEYDON J:   I can see how the second and third examples support what you say, but how does the first example support it?  It just says “to compulsorily acquire the land”.  Period.

MR GAGELER:   Local Government Act, your Honour?

HEYDON J:   Local Government Act, sections 129 to 130.

MR GAGELER:   Yes.  There are other provisions in the ‑ ‑ ‑

HEYDON J:   It is not significant.

MR GAGELER:   I think there are other provisions.  I just have not quite picked them up, your Honour.

HEYDON J:   This is only an example.  I appreciate that.

MR GAGELER:   That is right.  The other two are probably enough.  There is somewhere else a provision in the Local Government Act, I think, that allows for the gifting of land to a council. I will try to find that, your Honour. So the bottom line is that the “purpose” referred to in section 43, in our submission, does not extend to the purpose of alienation under section 9(1). That is something that only arises within the scheme of this Act under section 48 if the identified purpose fails.

We get some support, and it is only support in a general way, for that construction from the decision of the High Court in Clunies-Ross 155 CLR 193, if your Honours could turn to that. There are just a couple of very short passages that I wanted to draw your Honours’ attention to at page 198.

KIRBY J:   What was this case about?

MR GAGELER:   This was a rather infamous case really, your Honour, in which the Commonwealth sought to use the power of compulsory acquisition under section 6 of the Lands Acquisition Act 1955 to take Mr Clunies‑Ross’ house away from him, not because they wanted the house for any particular purpose but because they did not want him to have it, they did not want him on the island. That was said to be beyond the power conferred by that section, which was a section expressed to be to acquire land for a public purpose. You will see at page 198 at about the last paragraph in the second sentence, the relevant text of section 6 of the Commonwealth Act. In the last two lines on that page the joint judgment says:

Adapting words used in this Court in a different context, the “purpose of which [s. 6] speaks” is “the use to which” the land acquired is to be put –

At page 202 in the paragraph at the bottom of that page in the first sentence, it is said that:

It follows that the power compulsorily to acquire land for a public purpose which is conferred by the Act is limited to a power to acquire land for some purpose related to a need for our proposed use (be it active or passive) or application of the land to be acquired.

That is how we equate purpose with ‑ ‑ ‑

GLEESON CJ:   Would the legislative formula “may acquire land for any purpose whatsoever” be used to overcome the effect of a decision like Clunies‑Ross?

MR GAGELER:   Obviously to a point the public purpose has gone.  It does not have to be public and the nuances as to whether a use for a racecourse is a public use that occurred in the Randwick Case, for example, does not arise.

GLEESON CJ:   Could the Northern Territory acquire land for the purpose of alienating it by sale to a medical practitioner in the hope to encourage a doctor to come and live in the area?

MR GAGELER:   In our submission, not unless authorised specifically by statute.  It is not a surprising result if you are thinking about freehold title.  It is simply that it can be done, obviously, where specifically authorised by statute.  It cannot be done, in our submission, in the exercise of a general or residual executive power.  At page 201 there is a statement of principle that we rely upon in the present case.  In the last paragraph it is said:

Secondly, an executive power of acquisition of land for a public purpose is different in nature to a legislative power of a national Parliament to make laws with respect to the acquisition of land for a purpose in respect of which the Parliament ‑ ‑ ‑

GUMMOW J:   What are they talking about there?  They are talking about Burmah Oil v Lord Advocate which is a case about the prerogative.  There is no prerogative involved in your case.

MR GAGELER:   No.  What they are doing, your Honour, is they are contrasting the – I know your Honour does not like this word – plenary nature of a legislative power with the confined nature of an executive power.  That is why they are citing Burmah Oil, to draw the contrast.

GUMMOW J:   I do not think Lord Cottenham was construing an executive power either, was he?

MR GAGELER:   Burmah Oil?

GUMMOW J:   No, no, just drop down the paragraph, reference to Lord Cottenham in Webb v Manchester and Leeds Railway.  I am sure the British prerogative was not being exercised in favour of the Manchester and Leeds Railway Co.  It was some legislation in the railway age.

MR GAGELER:   Of course, your Honour is absolutely right.

GUMMOW J:   I just do not know what the paragraph is talking about.  This notion of executive power, is it a power the Executive has because of the prerogative or is it a power conferred upon the Executive by legislation and if the latter, what is the point, as it always will be in modern times.

MR GAGELER:   I will take them in order, your Honour.  There is no executive power compulsorily to acquire land.  That is what Burmah Oil holds, except perhaps in the most extreme circumstances.

GUMMOW J:   That is right, except in the war prerogative.

MR GAGELER:   That is right.  So that is proposition one.  So far as a statutory power is concerned, then Lord Cottenham was talking about the approach to construction of a statutory power and that is all their Honours were referring to here as well.  They are faced with an argument and it is really the argument that is to some extent deployed against us in the present case and was seized upon by Chief Justice Martin in the judgment under appeal.  What was there said and what is now said is, well, the Territory legislative power is expressed in the broadest terms.  Because the Territory legislative power is expressed in the broadest terms one ought read “any purpose whatsoever” as going to the full amplitude of Territory legislative power. 

That is the argument put against us.  The answer to that is, no, we are not here concerned with the amplitude of Territory legislative power which can be fully accepted.  We are concerned with the construction of a particular power conferred upon the Executive to acquire property and the approach that should be taken to the construction of that provision and that is what their Honours were ‑ ‑ ‑

GUMMOW J:   How do you answer that question by having regard to the absence of a naked executive power?  I just do not understand it.  The Executive lost out.  It only has the power if the Parliament gives it to it and the Parliament has ample powers, so what is the debate?

MR GAGELER:   I am not sure that I am having a debate with your Honour.

GUMMOW J:   In that passage.

MR GAGELER:   What is the passage?

GUMMOW J:   Yes.  You cling to that passage and hold it up and flourish it.

MR GAGELER:   I am going to say it one more time, your Honour, but I think I have said it.   The passage is saying ‑ ‑ ‑

GUMMOW J:   I think it has holes in it.

MR GAGELER:   I am not sure.  It is saying you do not ‑ ‑ ‑

GUMMOW J:   It is a piece of potted history which is imprecise.

MR GAGELER:   Sufficient for my purposes, your Honour.  What it is saying is that you do not construe a conferral of statutory executive power as if it is a grant of constitutional power, and you read it as confined purposively.  That is what it is saying and that is what we get out of it.  So far as your Honour the Chief Justice asked me here about the legislative history, does one see in the change from the language that one saw in the Commonwealth Act in Clunies-Ross to the language that one now sees in the Northern Territory Act some intention to take a broader approach?  The answer to that is, yes, to some extent.  That history is surveyed in the judgment of Chief Justice Martin, which your Honours have in volume 2, relevantly at page 881. 

Before I get to that, your Honour Justice Gummow, at page 890 in paragraph [37] in the last sentence is the sort of proposition which I was seeking to deploy Clunies-Ross in response to. In our submission, it is wrong to approach a grant of statutory executive power by saying that provided the purpose is a lawful purpose in respect of which the legislature has power to make laws, the acquisition will be within that power. But the actual history, looking at page 881, or really the bottom of page 880, you see it starts off with the Self‑Government Act, at which time it was the Commonwealth Act which was applicable.

What followed, it is noted in paragraph [6], is that the Territory enacted the Lands Acquistion Act almost immediately in the same terms.  In paragraph [7], the definition of “public purpose” as it then was.  In paragraph [8], an amendment in 1982 which deleted all reference to purpose, but then in paragraphs [9] and [10] it is noted that the amendments in 1998 reintroduced the reference to “purpose”.  One does not get very much out of that.  We know it is not any longer necessarily a public purpose, but we know that the legislature for some reason reintroduced the requirement for purpose. 

Your Honours, we do in our written submissions develop what we propose as a more general presumption which we seek to employ, that is, a general presumption against reading a general statutory power to acquire as going to the point of allowing acquisition from A so as to give, grant, lease or sell to B ‑ ‑ ‑

GLEESON CJ:   That does not matter, according to your proposition, whether it is for consideration or not for consideration.

MR GAGELER:   No.

GLEESON CJ:   Nor does it matter what B proposes to do with the land.

MR GAGELER:   Correct.  It is a presumption, your Honour.  We are invoking it as a general statutory presumption which can, of course, be overcome and is overcome in many cases by express statutory power.  But yes, that is the general proposition.

KIRBY J:   What is the foundation of the presumption?  Is it the respect that is normally paid by Parliament to basic rights?

MR GAGELER:   Yes.  It has its roots in the same notion as underlies the respect for property rights that one sees manifest in many cases but is spelt out, for example, in Coco v The Queen, one of the many cases we have referred to – and also underlies the statement in Clunies‑Ross that I have referred your Honours to.  There is a useful article by Professor Gray that we have referred to.  Your Honours have a copy of it.  He wrote it recently while he was in this hemisphere.  It refers, if your Honours have it, in footnote 4 to the pithily expressed and often repeated statement of Justice Chase in Calder v Bull in 1798.  Almost the same words were used by Justice Higgins in Werribee Council v Kerr 42 CLR 1 at page 33, no doubt inspired by what Justice Chase had said.

This article at page 75 contains a paragraph which I will not read but which collects Australian authority which supports the existence of a presumption of the kind which we seek to invoke.  One does not in any of the cases find a specific expression of doctrine or principle.  What one finds in the cases is an attitude, and that attitude is a manifestation of the broader attitude that courts have traditionally brought to bear upon the taking or provisions authorising the taking of property.  Your Honours, we have developed that, as I said, fairly fully in our written submissions and there is nothing that I wish to add to those submissions.

HEYDON J:   What do you say about paragraph 31 of Mr Jackson’s submissions?

MR GAGELER:   There is some difficulty in placing reliance upon the decisions of the Supreme Court of the United States, based upon the express words of the takings clause of the Fifth Amendment, your Honour.  We do not seek to draw anything specifically from that jurisprudence.  Justice Chase’s statement that we do draw attention to – I may be wrong, but I think that was made at a time before there was a Fifth Amendment.  It was expressing a general common law attitude.  Again, the Fifth Amendment cases are concerned, of course, with limitations on legislative power as much as executive power.  The particular presumption that we are seeking to invoke in the present case is one that is related to the construction of a legislative conferral of an executive power to take.  That is our response.

GUMMOW J:   Well, there is a discussion of Kelo by Professor Gray in his article.

MR GAGELER:   There is.

GUMMOW J:   That is what triggered it.

MR GAGELER:   No doubt, and ‑ ‑ ‑

GUMMOW J:   He gets a bit emotional at page 77.

MR GAGELER:   Yes, well, he is sitting in the tropics somewhere.

GUMMOW J:  

Kelo brought together many features of the enduring American paradox.

MR GAGELER:   Yes, yes.  It is dealing with a similar issue, there is no doubt.

GUMMOW J:   “[C]onfrontation between little people and big business”.

MR GAGELER:   Exactly, like this case.

KIRBY J:   But if we come down from these general principles to the particular and the circumstances of the sensitivity in Australia, rightly so, following the decision leading up to and following the decision in Mabo and the responses of the legislatures to the protection of Aboriginal native title.  Was anything said – what is the legislative history precisely of this section of the Land Acquisition Act (NT)?  Was anything said to the Parliament of the Northern Territory at the time of the passage of 43(1) that it was intended to encompass interests in the nature of native title?

MR GAGELER:   It was obviously intended to encompass interests in the nature of native title.  It was enacted after the Wik amendments to the Native Title Act, there is no doubt about that.  Indeed, there are other indications ‑ ‑ ‑

KIRBY J:   And paragraph (aa), I do not know when that was added, is a clear indication.

MR GAGELER:   Yes, that is a clear indication, as is section 5A(1) which cross‑references to the Native Title Act.  So there is no doubt that it was intended to comply with the provisions of the Native Title Act.  It was intended expressly to encompass within the interests that could be acquired native title rights and interests, and insofar as ‑ ‑ ‑

KIRBY J:   Is that not a problem for your submission to the Court that it should read down this provision?

MR GAGELER:   No, not at all.  What I am talking about, your Honour, is the identification of the purpose for which land can be acquired, whether that land be native title land or common law or statutory title land.  The proposition that I am now advancing is not one that focuses purely on native title, and indeed my case is strengthened when one realises that this provision for the compulsory acquisition of land is one that is designed to apply equally to freehold land as to native title land.

So if it is possible under this general provision to take native title rights and interests in one group of people so as to grant to another person a lease for a goat farm it is possible to take freehold title in the Territory from one person, give them full compensation, to grant a lease to someone else for a goat farm. Now, that is something that we say can occur under specific legislation. It is not authorised under the general provision of section 43, read in the light of section 48. That is it.

KIRBY J:   How do you submit that it could have been done and should have been done if it had been the purpose of the Parliament or the legislature in the Northern Territory to enact a provision that would permit a course to be adopted that was adopted here?

MR GAGELER:   Well, we think it has been done in Western Australia, we have given your Honours a bundle of material which collects together legislation from around the country, and we think it has been done in Western Australia.  If you look at section 165 of the Land Administration Act of 1997, it appears at page 31 of that bundle.  But interestingly we do not see in other compulsory acquisition statutes around the country something that can be interpreted as allowing taking from A to give to B.  We see taking for particular purposes, including in some cases for the purposes of establishing infrastructure to be owned by a private infrastructure operator, but no general power.

KIRBY J:   “Purpose” is different from “means”.  The means that was used here was to have compulsory acquisition so as to acquire the entire interest and thereby to expel your client’s interest.  That was the means, but the purpose allegedly, or at least arguably, was the development of a township that had been there for 100 years and had not really flourished and here was a suggestion of an investment in goat farming and other farming that would be, on one view, to the benefit of that area, and that was the purpose.

MR GAGELER:   Your Honour, putting it in statutory terms, the purpose to which reference is made in section 43 is the use to be made by the Territory or, again using statutory language, how the land is to be dealt with by the Territory.  That was quite precisely identified in the notices of proposed acquisition.  The land was to be dealt with by granting a lease for a goat farm and then subsequently on certain conditions granting freehold title.  That is the purpose or use or dealing with the land in question.  No doubt there will always seem to be good reasons for the Executive to take from A to give to B.  Your Honours, I move on to the next point, which is the Native Title Act point.

GUMMOW J:   In this determination in the Federal Court, is there going to be a body corporate to hold the native title rights on trust?

MR GAGELER:   Yes, there is one already.

GUMMOW J:   What section of the Act brings that about?

MR GAGELER:   I am not too sure, your Honour.  I will look at that.  I deliberately did not look at any of this because technically your Honours cannot look at it.  It is not part of the record it has all happened.

GUMMOW J:   We can take judicial notice of it.

MR GAGELER:   You probably can, but I will ‑ ‑ ‑

GUMMOW J:   Anyhow, you both agree we can look at it so.

KIEFEL J:   Mr Gageler, is there a cross‑appeal in the Federal Court as well?

MR GAGELER:   There was a cross‑appeal, yes.

HAYNE J:   But the footing of the cross‑appeal was that there were some native title rights and interests in the land, not those which were identified at trial, but it was accepted on both sides, was it not, that there are native title rights and interests in the relevant land?

MR GAGELER:   I am reminded that if the cross‑appeal were to be successful, then the result would be that there is no native title in the land.  Your Honour, I need to check on ‑ ‑ ‑

HAYNE J:   I think you do, because the footing on which leave was granted was that on any view of the outcome of that appeal there were native title rights and interests and I thought the Territory went into the appeal on the basis that native title rights and interests, though different from those found at trial, existed.

MR GAGELER:   Yes. Your Honour, I will have to give you a very precise answer to that. My understanding, and this is subject to correction, was that the Territory’s position was to accept that there was some native title, but to question the extent of the native title and who held the native title rights. But I will need to be more precise. The answer to your Honour Justice Gummow’s question about the statutory source of the power to establish the body corporate lies in section 56(2) of the Native Title Act, your Honours.  Your Honours, can I deal with ‑ ‑ ‑

GUMMOW J:   I do not quite understand what would happen to the trust if there is the resumption?  If there is a compulsory acquisition, what happens to the trust?  It just collapses, does it?  Do they get some money?

MR GAGELER:   They certainly get some money, yes, which is what I think it comes down to.

GUMMOW J:   When I say “they”, the trustee gets some money.

MR GAGELER:   Yes, that is right.

GUMMOW J:   This puts an end to a communal right.

MR GAGELER:   Correct, yes.

GUMMOW J:   Not owned by the people who get the money.

MR GAGELER:   Right, yes.  That is right. 

KIRBY J:   I took the Full Court to have accepted the basic principle of construction that you had urged but to have said that the legislative history overcame that principle.  Is that a correct understanding of the approach of the Full Court, the Court of Appeal?

MR GAGELER:   I do not think it is, your Honour.  They did not embrace the approach to construction that I have sought to advance.  They certainly referred to Clunies‑Ross but not in a way that captured the presumption that we ‑ ‑ ‑

KIRBY J:   There would be no point in referring to Clunies‑Ross if they were not responding to the submission put for your interest that that was the way they should be approaching the construction of section 43.  Just assume for the moment that they approached the matter with those principles in mind, what is the flaw in the reasoning which their Honours unanimously reached contrary to that of Justice Angel?

MR GAGELER:   The flaw in the reasoning most specifically is at the conclusion of Chief Justice Martin’s lengthy concurring judgment at page 890 in the last sentence to which I referred in paragraph [37].

KIRBY J:   Yes, I have circled that.

MR GAGELER:   One cannot, in our respectful submission, consistently with that passage in Clunies‑Ross, which I debated with Justice Gummow, take that approach to the construction of a statutory power of compulsory acquisition.  That is quite the inverse of what Clunies‑Ross holds.

KIRBY J:   But, given, as your answer to the Chief Justice indicated, that a very great part, if not the majority, of the land of the Northern Territory would be land which would be undeveloped Crown land and given the need of government in any part of the Commonwealth to have power to acquire land, why would one not assume that one purpose of the acquisition of land, and in particular in such a Territory with such a deployment of land, be to acquire the land for the purpose of extinguishing native title and providing for it to be passed on for development subject to requirements of compensation?

MR GAGELER:   It is no part of my argument to say that that cannot be done by specific legislation provided, of course, that that legislation complies with the freehold test in the Native Title Act which I am about to come to in a moment.

KIRBY J:   Yes, I am addressing your first argument at the moment.

MR GAGELER:   Yes, that is right.

KIRBY J:   I am asking why, in the context of the Northern Territory and the distribution of the land of the Northern Territory, one would read a power expressed in such very large words down so that the purpose has a confined meaning?

MR GAGELER:   One approaches it with an attitude to construction which does not lead to it having a broader application than a purposive approach to its language read in context would permit. One reads it particularly in the context of section 48, which provides for a particular mechanism for land to be dealt with as residual “unalienated Crown land” if the purpose of the acquisition fails. In that context, it can be seen that the purpose of the acquisition is not or cannot be treated as a general purpose of simply treating the land as something that can be given away, sold or leased under the residual power to alienate Crown land. Your Honour asked me why not, but really the answer needs to be exactly the same for freehold as it is for native title interests. One cannot approach this by somehow singling out native title interests.

KIRBY J:   I once knew a bit about acquisition of land when the Law Reform Commission did an inquiry into it, but I would be helped if there is somewhere where one can find out this fact whether or not it is not a common practice for government, being the only sovereign that has the power to do so, to acquire land in order to pass it from A to B.

MR GAGELER:   It is not common practice.  It is certainly not common practice and it is not common ‑ ‑ ‑

KIRBY J:   Where do we find the details of the practice of land acquisition in Australia in this respect?  Is it in any textbooks that explain and state clearly that this is not a purpose for which acquisition of land compulsorily under the power of the sovereign government is exercised commonly in this country?

MR GAGELER:   You can go to the statutes, your Honour.  We have provided you with the current statutes.  If you look at ‑ ‑ ‑

KIRBY J:   The statutes are porous and we have to give meaning to the statute.

MR GAGELER:   I understand, but if you ‑ ‑ ‑

KIRBY J:   So if you can establish that the practice in Australia - we have had lands acquisition tax forever.  The practice has not been that the government of a colony or a State acquires land from A to give it to B under conditions, perhaps, that it has to give compensation?  I would be helped by that fact.

MR GAGELER:   If your Honour is asking for a more historical conspectus, we will provide that.  It will take a little time and we will provide it in writing in due course.  What we have given you is the contemporaneous statutes and what one does not see in those contemporaneous statutes is a general provision of that nature.  Historically, if you go back to the 19th century and look at the origins of compulsory acquisition statutes, they were generally very narrowly expressed as being acquisition for public works or it later became public purposes, and ‑ ‑ ‑

GLEESON CJ:   Where did all this soldier settlement land that was set aside for more intensive agricultural purposes after the war come from?

MR GAGELER:   We think Crown land, but I ‑ ‑ ‑

GLEESON CJ:   Previously unalienated Crown land?

MR GAGELER:   I cannot give your Honour a precise answer to that.  I will look at that and we will put that in the note that we provide in answer to Justice Kirby’s question.

KIRBY J:   It would be a pretty telling argument for you if you could demonstrate that it started off with very specific and particular grants to the governmental power to take land, and then that was expanded into broader notions of public purposes, but that it has not been interpreted as a matter of law or practice in Australia. The government can use it because it thinks it is a good thing if somebody else has the land than the person who currently has the interest in the land.

MR GAGELER:   We can easily do the law.  So far as the practice is concerned, we cannot go beyond textbooks and we will provide your Honour with whatever textbook references we can find.

KIRBY J:   I would like to see that.  There may even be something in the Law Reform Commission Report on lands acquisition which led to a number of statutes.

MR GAGELER:   We will look at that as well, your Honour.  Your Honours, I was moving on to the Native Title Act, section 24MD(3), and I will not, I think, take a great deal of time over that.

GUMMOW J:   Maybe you should.

MR GAGELER:   Perhaps I should.  We will see.

HEYDON J:   What section?

MR GAGELER:   Section 24AA which contains the overview to Division 3.  It explains in chatty language in subsection (2) that:

Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

A future act is, of course, an act occurring after 1 January 1994 which affects native title.  One gets that from section 233.  The basic provision to which illusion is made in section 24AA is a provision that one finds in section 24OA in the current print, Reprint No 5, that is at page 100.  Section 24OA provides that:

Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.

Going back to the chatty explanation in section 24AA, you see in subsection (3) that:

A future act will be valid if the parties to certain agreements . . . consent to the act being done.

Then in subsection (4) that:

A future act will also be valid to the extent covered by any of the following –

and within the following the relevant one is (j) which is a reference to section 24MD and acts that pass the freehold test. Going to page 89 of Reprint No 5 your Honours will see section 24MB(1) which is within Subdivision M of Division 3 and section 24MB(1) provides:

This Subdivision applies to a future act if . . . 

(b)either:

(i)the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it –

Ordinary title one can equate with freehold title.  So this subsection applies to an act affecting native title if the act could be done in relation to the land concerned if the native title holders were not native title holders but freehold title holders.  That is the freehold test.

GUMMOW J:   That proceeds from a notion of equality of treatment, does it not?

MR GAGELER: Yes, it does, very much. I will say something in a moment about section 7 which requires a construction in a case of ambiguity, section 7(2)(b), construction in a case of ambiguity that is consistent with the Racial Discrimination Act. Section 24MD(1) then provides:

If this Subdivision applies to a future act –

that is, if you get through the freehold test in section 24MB(1)(b)(i) ‑ ‑ ‑

KIRBY J:   I am sorry, Mr Gageler.  What section are we on now?

MR GAGELER:   We are at section 24MD(1):

If this Subdivision applies to a future act, then, subject to Subdivision P ‑

with which we need not be concerned ‑

the act is valid.

Then subsection (2) provides:

If:

(a)the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

(i)the compulsory acquisition . . . of native title rights and interests; and

(ii)the compulsory acquisition . . . of non‑native title rights and interests ‑

so that is this Act – “and”, and it is (b) and (ba) that we are concerned with here:

(b)the whole, or the equivalent part, of all non‑native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired…in connection with the compulsory acquisition of the native title rights and interests;

That is the first condition – “and”:

(ba)the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non‑native title rights and interests when their rights and interests are acquired;

then:

(c)the compulsory acquisition extinguishes the whole or the part of the native title rights and interests ‑

GUMMOW J:   But the acquisition does not have the same character in terms of consequences, does it, where what is extinguished is native title and what is extinguished is freehold title.  What is acquired?  What is the nature of that which is acquired in each case?

MR GAGELER:   The nature of that which is acquired is different, obviously.

GUMMOW J:   Different.

MR GAGELER:   Yes; it is different.  What we are looking at here is the effect of the extinguishment.  When you say that, of course the juridical nature is different ‑ ‑ ‑

GUMMOW J:   Yes.

MR GAGELER:   But the human rights nature, if one can look at it in terms of the Racial Discrimination Act, is equivalent. That is the point of section 7(2).

GUMMOW J:   That is a paradox, yes.

HAYNE J:   Well, equivalent on the assumption that both kinds are in play.

MR GAGELER:   On the assumption that both kinds are in play?

HAYNE J:   There is an equivalence observable if both kinds of title are in play.  The case with which we are concerned is one where only one form of title – native title – is in play.

MR GAGELER:   Yes, and in the end, we are concerned here with the construction of paragraphs (b) and (ba) in the light of the more general principle in section 7(2). That is what the case comes down to. But can I come back to that in just a moment and just give a little more of the context. If (b) and (ba) are satisfied, then the consequence in (c) is that the compulsory acquisition extinguishes the whole or the part of the native title rights.

KIEFEL J:   What is (ba) intended to refer to, Mr Gageler?

MR GAGELER:   It is intended to look at the process of acquisition, and it is intended to achieve an equivalence between the processes that are applied to the native title holders in question and the processes that are applied to the non‑native title holders in question.

KIEFEL J:   What is the greater disadvantage that can result?  Is that in terms of compensation?

MR GAGELER:   No, this is practices and procedures in terms of notice, in terms of ability to make representations, perhaps ‑ ‑ ‑

KIEFEL J:   I see, yes.

MR GAGELER:    ‑ ‑ ‑ as to why a particular acquisition should not occur, perhaps as to the processes that ‑ ‑ ‑

KIEFEL J:   Yes, I follow.  Do your submissions deny the prospect that the native title rights and interests here could have been acquired of themselves?

MR GAGELER:   Yes, they do.  That is really the burden of my submission here.  What I say is ‑ ‑ ‑

KIEFEL J:   But that was not the process undertaken?

MR GAGELER:   No.  What I say is that (b) and (ba) can only be engaged where there exists both native title interests and non‑native title interests in the same land and that (b) and (ba) cannot be fulfilled where there exists only native title interests in the land and not non‑native title interests in the land.  So, if there are both interests, then section 24MD(2) allows for both interests to be resumed if done in the manner set out in (ba), but where there is only one interest, native title interest, then this form of acquisition cannot occur.  That is really the burden of the argument.  I will come back to that textually and contextually in a moment.

Paragraph (c), the consequence is that:

the compulsory acquisition extinguishes the whole or the part of the native title rights and interests -

That has to be read with section 237A, page 415, so the word “extinguish” here “means permanently extinguish the native title”.  It is quite important to recognise that section 24MD(2) is concerned with a mechanism that leads to the permanent extinguishment of native title.  Then subsection 24MD(3) one needs to look at as well.  It provides:

In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):

(a)     the non‑extinguishment principle applies to the act -

The non‑extinguishment principle is that referred to in section 238 at page 415, relevantly in subsection (2) and subsection (3). Subsection (2) says that:

If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

(3)In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.

They are effectively suppressed. So it is important to recognise here that section 23MD(2) is providing a mechanism that allows for the permanent extinguishment of native title. If that does not apply, then relevantly it is the non‑extinguishment principle that is brought in by section 24MD(3)(a).

The other provision that should be noted within section 24MD is subsection (6B), which provides that:

If the act is:

(a)     the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory –

et cetera, then certain conditions and consequences must be met. What that clearly enough indicates is that it is contemplated that section 24MD(2) may well, if the State or Territory acquisition statute is cast in appropriate terms – which, of course, we say here it is not – but may well provide for the compulsory acquisition of native title interests, rights and interests, so as to allow for the conferring of interest on third parties. So it is in that context, that is contemplating the power to take from A to give to B that section 24MD must be construed, and that in itself, in our submission, is something that affects the approach to its construction. That is spelling out, or that ought inform, a strict approach to its construction.

What we say about section 24MD(2) is this – I will say it, I think I have said it, and then I will seek to justify it.  We say for paragraphs (b) and (ba) to be engaged there must be in relation to the relevant land or waters both native title rights and interests, and non‑native title rights and interests, and both must be acquired.  An example that one could readily give is a case where there is a pastoral lease over the land in question and where both the leasehold interest and the native title interest in the land ‑ ‑ ‑

GLEESON CJ:   What is the consequence of (b) and (ba) not being engaged because there are no non‑native title rights and interests?

MR GAGELER:   The consequence of (b) and (ba) not being engaged, in our submission, is that the non-extinguishment principle applies. That is, you go to subsection (3), you see that this is a case that is not covered by subsection (2), the non-extinguishment principle applies. You then go to section 238 and you see that by section 238(2) that the native title is not extinguished. You then compare that with what the Territory Act purports to do in section 46, that is, upon the publication of a notice of acquisition to discharge and free the land of all interests referred to in the notice. You get to a point of repugnancy or direct inconsistency between the non‑extinguishment principle made applicable by section 24MD(3)(a) and spelt out in section 238(2).

GUMMOW J:   What is the section in the Territory Act?

MR GAGELER:   Section 46(1).  So that is the invalidity for which we contend.

GUMMOW J:   Is 24MD to be understood in this setting, that it is protective, in a way, of the rights of native title holders in that it is saying that if freehold title is taken, the acquiring authority has to take the native title as well, otherwise it is discriminating in terms of section 7? It is not giving equality of treatment. If the resuming authority is not taking any freehold title, section 7 is not engaged and the non‑extinguishment principle remains.

HAYNE J:   Because, if I may add to that, you cannot compulsorily convert native title rights and interests to money except in circumstances where there are also non‑native title rights and interests which are being compulsory converted to money.

MR GAGELER:   Yes.  Your Honour Justice Gummow used the word “freehold”, but if you use that more generally as non-native title rights and interests, yes.  That is what we are saying, yes.

GUMMOW J:   I am referring to the property law system that otherwise exists.

MR GAGELER:   Yes.

HAYNE J:   The proposition as I would understand it to be is that you do not read a provision directed to the protection of a particular form of title, namely, native title rights and interests, any more broadly than the words permit.

MR GAGELER:   That is exactly right, yes.

HAYNE J:   In particular, you do not read it to permit compulsory conversion of those rights and interests, which are by their nature enduring, into a money sum.

MR GAGELER:   Exactly.  We embrace that.  It puts the proposition more eloquently than I was able to do, but yes, that is the point.

HAYNE J:   I doubt that, Mr Gageler.

MR GAGELER:   Your Honour is always more precise and more eloquent.

HEYDON J:   Do you get anything out of section 24MA?

MR GAGELER:   MA?  That deals with legislative acts, your Honour.

HEYDON J:   I see.

MR GAGELER:   We had got to section 24MD through section 24MB(1)(b).

HEYDON J:   Yes, but you also satisfy (a), which you have to.  It is an Act other than ‑ ‑ ‑

MR GAGELER:   Yes, of course, (a) and (b). Your Honours, can I just support what I have said? If there is an ambiguity, then one would go to section 7 and one would look for the most consistent outcome with the Racial Discrimination Act and your Honours looked at this in Ward and your Honours identified the relevant provision of the Racial Discrimination Act to be section 10 and your Honours ‑ ‑ ‑

GUMMOW J:   We referred to this in Ward, did we not?

MR GAGELER:   You did.

GUMMOW J:   It is often not understood, but it is that appreciation of how the Racial Discrimination Act works that drives so much of this legislation.

MR GAGELER:   Yes, it does.  Your Honours refer to it in Ward 213 CLR 1, page 99 and following. At page 99 your Honours set out section 10(1) of the Racial Discrimination Act.  It is concerned with ensuring that by reason of a provision relevantly of a State or Territory law, persons of one race do not enjoy a human right to a more limited extent than persons of another race, human right including, as your Honours point out, the right to enjoy the holding of property in the broader sense.  What your Honours pointed out at paragraph 115 in the second sentence is that:

Section 10(1) is directed at the “practical operation and effect” of the impugned legislation –

We would say that the construction for which we contend, that is just a strict literal construction, “all” means all, not any, in paragraph (b). In (ba) when there is a reference to a comparison between the native title holders and the holders of non-native title rights and interests, that comparison can only be made where there are holders of non-native title interests, but that strict literal construction is more consistent with the substantive operation of section 10(1) than the alternative for two reasons.

One is that it ensures equality in the practical operation of the law in a particular case, that is, it ensures that the operation of a State or Territory compulsory acquisition statute only occurs in a particular case where there exist both forms of interests.  So by definition one will find equality in the particular case because both forms of interest will exist, but more generally - and this is the second point – if one starts with the observation of which your Honours can take judicial notice that State and Territory compulsory acquisition statues are not ordinarily used to acquire the freehold of one person so as to give some interest to another, what this prevents is native title rights and interests being acquired more often or more readily than non-native title rights and interests.

So moving beyond the particular case to the general operation of the statute, this is a provision which on literal construction is more consistent where there is substantive equality for which section 10(1) provides, in our submission.

GUMMOW J:   One also has to look at Ward, paragraph 98, I think.

MR GAGELER:   Yes.

GUMMOW J:   Your starting point is section 11.  A starting point is section 11.

MR GAGELER:   Yes, a starting point, section 11, yes.  So, your Honours, for those reasons we contend for a strict construction.  It is put against us that there is something that one can find in a supplementary explanatory memorandum that suggests that “all” means any, or “all” means if any.  I should deal with that now, and I will only take two or three minutes to deal with it.

The point that one gets out of the parliamentary materials is at the end of the day they are inconclusive and highly ambiguous, and one is thrown back on the statutory language, but I should just demonstrate that really to deal with this point in advance.  Your Honours have from us some extrinsic material dealing with the 1993 Act and its amendment in 1997 relevantly.  I am not going to go through all of it, it is extremely tedious, but if you go to page 25 you see the Bill for the amending Act as introduced into the House of Representatives.

As it emerged from the House of Representatives, page 27 - at the bottom of page 26 you see section 24MD as it then was. You see at page 27 paragraph (b), the bracketed words were more truncated than they finally emerged, there was no paragraph (ba), and paragraph (c) was in a different form, but paragraph (b) importantly had those important words:

the whole, or the equivalent part, of all non-native title rights and interests -

That was explained in the explanatory memorandum at page 40 in terms consistent with a literal construction, paragraph 15.2:

The non-extinguishment principle will apply unless the act is the compulsory acquisition, under a non-discriminatory law, of native title and non-native title rights are also acquired (i.e. the acquisition power is exercised in a non-discriminatory way).

That is entirely consistent with our literal construction.

You then go to the Senate at pages 56 to 57.  What you see relevantly for present purposes at page 56 is a statement by the Special Minister assisting the Prime Minister in the Senate, the right‑hand column, first full paragraph:

Section 24MD sets out the consequences for future acts which pass the freehold test set out in sections 24MA and 24MB. Acts that pass the freehold test are valid. Native title can only be extinguished by a compulsory acquisition provided that the acquisition law permits acquisition of native title and non‑native title rights and native title and non-native title rights are acquired.

Again, consistent with the literal construction.  You go across to page 57, left‑hand column, first full paragraph, second sentence:

New section 24MDB –

that is necessarily MD(2)(b) –

provides that a requirement for extinguishment is that the compulsory acquisition take both native title and any relevant non‑native rights in relation to the land.

You see the proposed amendment 28 a little further on ‑ ‑ ‑

GLEESON CJ:   That expression “any relevant” - the word “all” in paragraph 24MD(2)(b), in your construction, does not mean all or any?

MR GAGELER:   No, it means all.  That is right.  So one sees what the Special Minister said at the previous page.  What I am seeking to show is that at its best one can see confusion and inconsistent use of language within the debates, your Honour.  One saw quite a clear explanation further on.  One saw a clear explanation page 56 and one sees an ambiguous explanation here.  You see paragraph (ba) being proposed and that is what emerged from the Senate with paragraph (ba) in.  The Bill as reintroduced into the House of Representatives you then see at page 73, and at page 75 you see (ba) as by then being introduced.

The explanatory memorandum for the Bill with (ba) in it is then at pages 78 and following.  You see at page 79 under the heading “Introduction” there is a reference to an overview of the Bill, including the 1997 Senate amendments.  At page 80, paragraph 15.2 explaining the Bill with all of the critical words in that we rely upon, says:

The non-extinguishment principle will apply unless the act is the compulsory acquisition, under a non-discriminatory law, of native title and non-native title rights are also acquired ‑ ‑ ‑

KIRBY J:   Where is that, I am sorry?

MR GAGELER:   First sentence, 15.2.  Again, the same explanation and entirely consistent with the literal reading upon which we rely.  The Bill goes back to the Senate and at page 98 you see the proposed government amendments, (31) and (32).  So (31) is to change what occurs within the bracketed words in paragraph (b), and (32) is to substitute what became a form of paragraph (c).

You see then in a supplementary explanatory memorandum in the Senate at page 104 these words “if any” creeping in.  This is in explanation of amendment (31).  Remember, amendment (31) at page 98 is simply to change what occurs within the bracketed words, but it is here that it says at page 104:

This amendment to proposed subsection 24MD(2) makes it clear that when native title rights are subject to a non‑discriminatory compulsory acquisition process, the non‑native title rights in the area concerned, if any, must be acquired –

et cetera.  It is only seeking to explain the bracketed words and it is at this point after the Bill has been through a number of iterations, after the critical words upon which we rely have been explained in other terms, that one sees this reference to “if any” creeping in.  But even then it is not consistent because you go to the debate that occurs in the Senate at pages 98 and 99 and you see the Special Minister Assisting the Prime Minister, page 99, the first full paragraph in the first sentence, uses the word “any”.  So he is speaking there consistently with this supplementary explanatory memorandum. 

Then when it gets to debate with Senator Harradine, pages 101 to 102, it becomes all vagued up again.  Of course, Senator Harradine is suggesting another form of words to be used, the bottom of the page.  He is making it abundantly clear, at the bottom of the page and over to the top of the next page, that he is concerned about anything in the operation of this provision that looks like racial discrimination.  The Special Minister of State in response to that, at the top of page 102, first full paragraph, says:

We are talking about ensuring that there is non‑discriminatory acquisition of all property interests in the area concerned.

So there you have it.  So the point is your Honours should not be beguiled into thinking that the explanation in this supplementary explanatory memorandum is indicative of the intention of the Parliament, particularly not the Senate ‑ ‑ ‑

HEYDON J:   Your simple point is that on 7 April 1998 late at night the amendment was passed.  What someone else wrote six or seven days later has utterly no significance.

GLEESON CJ:   Is there any evidence from the parliamentary history that anybody adverted to this issue?

MR GAGELER:   If you read the exchange between Senator Harradine and the Special Minister of State, Senator Minchin, in full, and I am not going to do that, yes, there was concern being expressed and being echoed to the effect that this provision ought not be used so as simply to acquire native title rights and interests.  That is the gist of what is being said at those couple of pages 101 and 102, in our submission.  We have not reproduced the entirety of the debates.  They are lengthy and there are a lot of issues in play.

GUMMOW J:   What it left up in the air really was this.  There is a concern that if there is a resumption proposal for Blackacre and Blackacre also has attached or associated with it some native title rights that Blackacre should be resumed only if the native title rights were assumed as well, with similar procedures for notification, assessment and so on, and compensation.  What really was not faced up to, though, was how you would ever fix a measure of compensation now for the extinction of this perpetual and peculiar communal right.

MR GAGELER:   Yes.

GUMMOW J:   It is a question of the future, I suppose.

MR GAGELER:   That is right.  It is not this case, your Honour.  I accept that it is a difficulty.  Your Honours, they are essentially our submissions.

HAYNE J:   Do you say that if the construction of MD advanced by the Territory were to be adopted that any question would then arise about section 7?

MR GAGELER: Section 7, yes. What I sought to say about section 7 is that the construction for which we contend is the most consistent.

GUMMOW J:   Yes, but what about your opponent’s construction?

HAYNE J:   Is it inconsistent?

MR GAGELER:   I have a difficulty with this word in this context because equality, when you are talking about substantive equality, can be seen as a question of degree.

HAYNE J:   But you see in the debates the differing ways in which “discriminatory acquisition” was an expression employed.

MR GAGELER:   Yes. I have lost enough cases on discrimination, your Honour, to realise the ambiguity in the terminology. I am sorry, I did not mean to cut your Honour off. So certainly as a matter of degree, yes, ours is the most consistent with section 10 of the Racial Discrimination Act. Is the alternative inconsistent, that is, would it be struck down in some way under section 10? I do not think I would go that far.

KIRBY J:   You say you have lost those other cases – what, in the Federal Court?

MR GAGELER:   I do not want to fight old battles, your Honour, I am sorry.

GUMMOW J:   We are not interested in your litigious history, really, Mr Gageler.

HAYNE J:   The scars are obvious.

MR GAGELER:   Just one, your Honour.  Those are our submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Gageler.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Before I go on to deal with the questions in the order in which our learned friend dealt with them, may I deal with one matter first and that is that of course the position was that at the time when the relevant notices initiating the acquisition were sent, there was no claim for native title in respect to these lands.  So the position was they were then Crown lands in relation to which there had been previously various interests granted but none were in existence at the time and it was after that occurred that there was the claim made in respect of native title.

KIRBY J:   I thought the notice itself actually referred to “and any interest in native title”.  I thought it specifically referred to it.

MR JACKSON:   Yes.  It specifically referred to an acquisition of them, if any.  Now, what occurred after that, your Honour, was that there was a claim made in respect of native title, and there is presently the determination in respect of native title which was made by Justice Weinberg in the Federal Court and in respect of which there are appeals.  In relation to those appeals, the position – may I just endeavour to state what we understand the position to be.  There was an appeal by those who obtained the benefit of the native title determinations.  The native title determinations that were made were ones which did not give any form of exclusive rights, but there is an appeal seeking exclusive rights.  There is a cross‑appeal by the Northern Territory and if one of the grounds of appeal were successful, the result would be no native title.

However, during the course of argument in the appeal, it was indicated by the Northern Territory that it would accept that native title could be made out in respect of a smaller subgroup of claimants.  There was no contention by the appellants’ interests to that effect before the Full Court, but, your Honours, that is the current position, so there was an acceptance that there could be a claim made out by a smaller subgroup.

HEYDON J:   In relation to this very land?

MR JACKSON:   Yes, your Honour.

KIRBY J:   When did the Full Court reserve its decision?

MR JACKSON:   I think it was May, your Honour.  Your Honours, could I just say one other thing in relation to the position of the land.  Your Honours will see in our written submissions in paragraphs 7 and 8 that we refer to the previous history of the lands.  That is set out shortly and satisfactorily, in our submission, in the reasons for judgment in the Court of Appeal in the present case, which you will see in volume 2 of the appeal books at page 892, in Justice Mildren’s reasons for judgment.

In paragraph [44] he deals with the proposed Lot 109.  He refers to the previous interests that had been held in it, that is, grazing licences via Mr Fogarty or his company and the development of the land, an application being made by Mr Fogarty ‑ this is about line 20 on page 892 “to purchase the lot”, the Minister being favourable to that and setting out the notice of proposed acquisition.  Your Honours will see in paragraph [45] a reference to Lot 47.  I will not read it out, but your Honours will see what had taken place in relation to that.  Then paragraph [46], the other lots, where the view is taken that the area of land available to be used in the town should be increased for the purposes that are there set out.

Now, your Honours, what one sees from that is that one has the proposal that Crown land in the Territory be used for the purpose of, on the one hand, grazing, a purpose for which it has been used before, on the other hand, the production of goats.  I think that is probably the wrong word, although one always tends to laugh when thinking of goats for reasons that are not germane, perhaps, and also, various forms of other production on the land and then that there be land in the town made available for more interests; common things that happen in areas that are relatively undeveloped. 

Your Honours, what one has in those circumstances is not, in our submission, what Professor Gray, in the article that your Honours have been handed up, said at page 87 where in the conclusion of some rather elaborate statements of what might be involved in this case concerned he says in the second new paragraph on that page:

The Griffiths application currently before the High Court thus pinpoints, as a matter of general public importance, the question whether compulsory acquisition is permissible where the ultimate aim of the acquisition is to alienate the subject land –

Then he says parenthetically – 

not for the purposes of the government, but for the private profit of another citizen.

Now, your Honours, that takes a very, very narrow view of what the purposes of government might be.  Why is it not for the purposes of government to say the government thinks the area of land available in the town should be increased, on the one hand?  Why is it not for the purposes of government for it to say, “We think this land should be used for the purposes of production” of whatever it might be? 

Your Honours, could I come then, dealing with the first question our learned friends have referred to, to the issue whether native title rights and interests may be acquired in order that they may be passed onto others.  Your Honours, that is something that turns ultimately on the construction of the Lands Acquisition Act. In that regard the starting point is section 43(1) and may I take your Honours to that.

Your Honours will see that section 43(1) provides, relevantly, that “the Minister may acquire land under this Act for any purpose whatsoever”. Three features may be noted about the provision. The first is that it is a power to acquire land. “Land” is a term defined by section 4(1) to which your Honours have been taken. It includes “an interest in land” and that term is itself defined by the same provision to include “native title rights and interests”. So it is clear that section 43(1) includes a power to acquire native title rights and interests.

Your Honours, that is also made apparent by section 5A, and I will come to it in more detail a little later, but your Honours will see that it refers specifically to the Act applying “in relation to an acquisition of an interest in land that comprises native title rights and interests”. 

Your Honours, the second point about section 43(1) is that it uses the phrase “for any purpose whatsoever”. That term is extremely broad. It is not defined. There is no special reason to read it down in the way in which our learned friends have suggested and one does need to bear in mind that the law in question is a law of a developing Territory. The land needs to become available to accommodate development of various kinds and, hardly surprisingly, much of the development will be by private enterprise.

The third feature of our section 43(1) is its legislative history and, your Honours, that can be seen in the judgment of Chief Justice Martin in volume 2 of the appeal book at page 881. Your Honours have been taken to that already. May I just make some very brief comments about it.

KIRBY J:   What do you say in response to the question that I asked relating to practice because, as I understand it, Mr Gageler submits and is going to support with material that what Professor Gray says in his article is a fair statement of what has previously been the practice in Australia of the purpose of acquisition for public purposes by government?

MR JACKSON:   Your Honour, might I say in relation to that that the compulsory acquisition of land has always been by statute.  If one goes back, indeed, to the English history of it, one sees that the Enclosure Acts were in fact taking land from A for the purpose of being given to B to ensure that the land could be better utilised.

What has occurred in Australia has been that the Land Acquisition Acts have in the main stated the purposes of acquisition as being in terms of public purposes, sometimes defined, often by a list, lists sometimes with a kind of dragging a clause at the end, sometimes not; sometimes just saying “public purposes”.  Also, your Honours, there have been many enactments allowing acquisition by particular statutory authorities.  Now, your Honours had that in the Darling Harbour Case that the Court heard the second half of the other day where the Darling Harbour Authority ‑ ‑ ‑

KIRBY J:   In that case of Chang v Laidley Shire Council there was some reference in the context of Brisbane to the history.  There were special provisions in the City of Brisbane Act at one stage and then they were amalgamated in general legislation.

MR JACKSON:   Yes.  Your Honour, the City of Brisbane, of course, was I think the largest municipality, at least geographically, in Australia because ‑ ‑ ‑

KIRBY J:   There is no need for you to say that to us.

MR JACKSON:   Your Honour, I ‑ ‑ ‑

KIRBY J:   We all know how important Brisbane is in our nation.

MR JACKSON:   Your Honour, may I say the reason I was saying that was to indicate why it was that one might expect to see a body having power over such a wide geographical area itself having a power to resume, and of course, powers have been given to various statutory authorities and local authorities.  But the point I am getting to, your Honour ‑ ‑ ‑

KIRBY J:   Just as a footnote, why did the Crown not have a power of acquisition out of its prerogative as, for example, in wartime or in times of national emergency?  Is there any explanation or is that just out of the great respect for private property which Magna Carta recognised that the Crown did not assert any such right?

MR JACKSON:   Well, your Honour, it is no doubt in one sense a development of history, constitutional and legal, in a way, but underlying it was the notion that a balancing of an interest of property and the interests of the Crown.  Once the powers of the Crown were treated as powers they had to be exercised according to law.  The notion that the property of A could not be taken away for the Crown or for any purpose without statutory authority was established.  A different question, of course, as Durham v New South Wales in this Court demonstrates, is whether that carries with it the notion of compensation.  Does it necessarily, at least in the case of the States, as the Court had there held.

Sorry, I know it is a very long answer, I am sorry, to your Honour’s question.  What I am trying to say in the end is that it does turn on the question of statute, and there is not, in our submission, a proposition that one can derive which has the effect, first of all, of saying that in no circumstances may there be an acquisition of property so it can be given to another, it simply turns on the question of construction of the statute.

Of course one might expect there to be a situation where a court would be unlikely to say that the power conferred by statute could be utilised simply to take the house of A and give it to B.  It would seem an unusual construction, but perhaps a possible one and one would expect provisions having that general effect to be likely to lead to contentions as to misuse of power, not because it was for something that was not perhaps permitted by the statute, but for an exercise of power that was exercised corruptly.

KIRBY J:   Well, that would be one explanation.

MR JACKSON:    That is a different thing, of course.

KIRBY J:   Another might be that normally in Australia the Lands Acquisition Acts provide for compensation by government if it takes, and then you would have the disharmony between the government paying compensation to the person from whom the land is acquired but the benefit going to a third party who may or may not pay for that benefit to government.

MR JACKSON:   It may not necessarily pay directly for that.  There may well be some redevelopment scheme of some kind.

KIRBY J:   Was there evidence in this case of payment, by the interest that wants to develop it for goats, to government?

MR JACKSON:   There was an application, your Honour, in each case.  I think your Honour can see the ‑ ‑ ‑

KIRBY J:   There is the tantalising prospect of freehold in the distance.

MR JACKSON:   Freehold in the distance, but what was proposed was there be leasehold, but expect there to be some rental payable for it.  The applications – I will not take your Honours to them, but you can see them at pages 602 and 619 in respect of the two parcels of land, proposed Lot 109 and Lot 47.

Your Honours, may I go to the matter I was next going to, and that was the legislative history of section 43, which is at page 881 in volume 2.  To put it very shortly, as your Honours will see in the paragraphs going from paragraphs [6] to [10] on pages 881 and 882, in paragraph [6], the original Lands Acquisition Act said that there could be land acquired for public purposes.  A definition, paragraph [7] of “public purpose” was added.   Your Honours will see it said:

“… a purpose in relation to the Territory and includes a purpose relating to the carrying out of a function by a statutory corporation.”

You then see, as referred to in paragraph [8], that “public purposes” goes out altogether.  Now, your Honours, then in paragraphs [9] to [10], perhaps to discourage arguments of the kind one has heard from the appellants, with respect, one sees the phrase inserted “for any purpose whatsoever”.  Now, your Honours, that phrase, “for any purpose whatsoever”, seems at least a rather clear expression of legislative intention that the ambit of the provision was to be broadened.  Our submissions are that if one goes to what was said by Chief Justice Martin at page 882 in paragraphs 11 through to 14, the conclusions and observations he makes there reflect the effect of the changes.  Your Honours, that is the first thing.

The second thing is that the Land Acquisition Act itself does contain some other indications that interest in land may be acquired in order that the land may be vested in others.  Now, your Honours, one such indication is section 54.  Section 54, your Honours will see, says:

(1)      Subject to this Part, neither the Territory nor any person for whom the land is acquired is to enter into possession of acquired land before the expiration of 3 months from the date of acquisition.

(2)      Subsection (1) does not apply if . . . 

(b)      the Minister and the former owner of the land or –

your Honours will note –

former native title holder in relation to the land enter into an agreement in relation to the entry by the Territory –

and your Honours will again see the words –

or other person into possession of the land -

Now, your Honours, those provisions assume, in our submission, fairly clearly that the land may be acquired for another person, meaning acquired by the Territory, in order to be passed on to others.

But a second and perhaps more significant in the present context indication is found in section 5A(1)(a). If your Honours would go to that section, you will see that it says:

This Act applies in relation to an acquisition of an interest in land that comprises native title rights and interests –

(a)that is an act to which the consequences in section 24MD(6A) or (6B) of the Native Title Act apply -

Section 24MD(6A) does not matter for present purposes but section 24MD(6B) does. It matters because, if I can take your Honours to that, it refers specifically to acquisition for the purpose of conferring rights on persons other than the acquiring polity. Could I, in that regard, take your Honours to that. Section 24MD(6B) says:

If the act is:

(a)the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable ‑

Now, your Honours, it is clear really that section 24MD(6B) does contemplate that there may be the compulsory acquisition of native title rights and interests in order to confer rights or interests on someone other than the acquiring polity.  Section 5A, going back to the Lands Acquisition Act, refers specifically to that provision.  Also, going back to the Lands Acquisition Act, if one goes also to section 31B of that Act, you will see in section 31B(1)(b) a reference again to section 24MD(6B), and also in subsection (1A). Then could I refer to section 42(1) and section 42(2)(a)(ii) and to (2)(b).

They refer in various ways to the application or non‑application as the case may be of a provision of the Native Title Act which specifically contemplates acquisition by the Territory for an order that the land acquired may be the subject of some grant to somebody else.

GLEESON CJ:   Mr Jackson, do stock routes sometimes involve easements over land?

MR JACKSON:   It depends, your Honour.  What I mean by saying that is that in the ordinary course of events, stock routes, depending on the particular statute – one would expect them to be either a reservation as – or sometimes a declaration found – it is something probably equivalent to a reservation.  Ordinarily speaking, you find the area and description of the stock route listed in something – in a gazette under one of the statutory powers.  Yes.  I am sorry, your Honour, I am conscious that it is a very vague answer.

GLEESON CJ:   I just wondered whether an interest like that could be acquired for the purpose of relieving the land from that interest?

MR JACKSON:   Your Honour, the provisions dealing with stock routes would ordinarily give licences – a kind of statutory licence – to persons to use them, normally speaking, for the purpose of passing from point A to point B along them with power to use it for fodder and resting places and this kind of thing.  But, your Honour, if they amounted to an interest, they would be acquired, yes, to the extent to which acquisition is apposite.  One is speaking of the radical title.

Your Honours, what follows, in our submission, from the provisions to which we have referred is that the Lands Acquisition Act does enable the acquisition of land for the purpose of being leased or sold to others. Could we just say these things. Why is it not a purpose within the very wide words of section 43(1) to make more land available for private use within a township? Again, why is not within the very wide words of that provision to make land available for cattle husbandry or for the purposes stated in relation to lot 47 where the lands have already been used for those purposes?

Your Honours, in our submission, there is nothing in Clunies‑Ross v Commonwealth (1984) 155 CLR 913 which could be regarded as against those contentions. May I in that regard go very briefly to that case and may I take your Honours to page 198 of it. At about point 4 your Honours will see that what was said that:

On the facts which are to be assumed . . . the Commonwealth threatens . . . compulsorily to acquire the land upon which the plaintiff’s house is erected . . . not by reason of any need for or proposed active or passive use of that land but for the purpose of bringing about the exclusion –

of it.  So your Honours will see the parenthetical qualification “not by reason of any need for or proposed active or passive use of that land”.  Again, your Honours will see, if one goes further down that page in the last paragraph on the page, they refer to the fact that:

The power of acquisition which it confers is a power to “acquire land for a public purpose”.

Your Honours will see the emphasis is on the word “for”.  Then at page 199 at about point 6 on the page it said:

On that prima facie construction, the provisions of the Act would fall short of enabling the Commonwealth compulsorily to acquire land in circumstances where it is not suggested that the Commonwealth’s purpose relates to any planned use, application or preservation of the land itself or of any buildings thereon but is for the purpose of depriving the owner of his possession of the land with the motive of thereby achieving some consequential advantage which can properly be described as a “public purpose” -

Even if one took those observations as applicable to this case, one still sees that there are purposes for which the Territory proposes that the land should be used.  Your Honours, could I say there is one further feature of the Lands Acquisition Act to which we would refer and we have set that out in paragraph 18 of our written submissions.  We have referred in paragraph 21 to two provisions of other State enactments.  I must mention, your Honours, we have sent to the Court a correction of footnote 21.  It should be a reference to section 9(7) rather than 10(7) of the Queensland Act.  Very often the notices of acquisition or proposed acquisition and so on have to set out the public purpose for which the land is acquired. 

Now, your Honours, what one sees, however, is a distinct difference of language when the terms of the Northern Territory statute are referred to.  Could I go in that regard to section 33 of the Northern Territory statute?  Your Honours will see that it speaks in subsection (1) of the “notice of proposal”.  It is to contain:

(a)      a description of the land proposed to be acquired -

and then, your Honours, consistently with our submission, we would submit:

(b)details of the manner in which it is proposed that the land, if acquired –

not “will be used” but –

will be dealt with  -

That phrase, “will be dealt with” and so on, can be seen in the other provisions as well to which we have referred at the end of paragraph 18 of our written submissions.

Now, your Honours, may I move from that to the second aspect of the case.  That is to be found in the Native Title Act. The starting point is, in our submission, section 24MB(1) and, your Honours, it is not in dispute that that provision is applicable and the consequence being that Subdivision M applies and that means that one goes from there to section 24MD. Now, your Honours, one has to bear in mind that the first provision of section 24MD, subsection (1), says that:

If this Subdivision applies –

and it is made to apply by section 24MB(1) – then the Act, which is the compulsory acquisition, is valid. That is what is stated by the Commonwealth Act. It says the acquisition is valid. Then one goes to see what are the consequences of the acquisition on native title. That is provided for by subsections (2), (2A) and (3), of which subsections (2) and (3) are potentially relevant here. If section 24MD(2) applies, the consequence is that provided for by section 24MD(2)(c), that is, the native title rights and interests are extinguished and extinguishment means, by section 237A, that they cannot revive.

Now, if the future act is, to use the language of section 24MD(3), “not covered by subsection (2)”, then the consequence is that referred to by subsection (3)(a), and that is that “the non-extinguishment principle applies to the act”. The non-extinguishment principle, your Honours, is defined by section 238. May I come to it in a little more detail in a moment, because the way in which it actually works is germane, particularly to the ultimate issue relied on by our learned friends, the notion of inconsistency between section 46 of the Lands Acquisition Act and the provisions of section 24MD(3). Your Honours, but whether it be that subsection (2), the extinguishment, or subsection (3) applies, the way in which section 24MD deals with the matter is yet to say that the act of acquisition is valid.

Now, your Honours, as Justice Mildren said in this case at page 900 in volume 2, paragraph 74, one or other provision will apply, but, of course, section 24MD(1) has the consequence that the notice of acquisition is not invalid. Your Honours, may I come then to section 24MD(3) first, and your Honours will see that it speaks of any future act, or the opening words of it speak of, “any future act to which this Subdivision applies” which is not covered by subsection (2).

Now, your Honours, the first proposition we would seek to make is that section 24MD(3), and your Honours, could I cite – I should have prefaced what I am saying by saying that the point I am seeking to deal with is to say, first of all, that the present case is one to which subsection (2) applies rather than subsection (3) - I am conscious what I am getting to, to put it more specifically and briefly – is to say that subsection (2) of section 24MD applies to acquisitions where the land is Crown land and the only other interest is native title rights and interests.

But may I start in dealing with that with subsection (3), and one has to look to see what subsection (3) refers to.  It is speaking only of future acts that are not covered by subsection (2), what are the ‑ ‑ ‑

GUMMOW J:   Well, we have to look at the definition of “future act”, do we not, at some stage?

MR JACKSON:   Yes, your Honour, I am sorry, I just do not have the reference here at the moment.  Could I give it to your Honour in a moment?  This is a future act ‑ ‑ ‑

GUMMOW J:   Section 233.  It is not all that easy a definition.

MR JACKSON:   Yes, I did not think there was any doubt about it applying, your Honour, but I will have to look at the detail of it.  Was there a particular issue your Honour had about it?

GUMMOW J:   Paragraph (c).

MR JACKSON:    It is section 233(1)(b), it is any other act that takes place after 1 January 1994, it is not a past act.

GUMMOW J:   Subsection 1(c).

MR JACKSON:

(c)      apart from this Act, either:

(i)     it validly affects native title . . . 

(ii)     the following apply –

Your Honours are not ‑ ‑ ‑

GUMMOW J:   I am not sure what (c)(ii) is getting at.  Anyhow, do not look at it now.

MR JACKSON:   Your Honour, it is not a matter that has been in issue before.  May I have a look at it and come back to it and if I need to say any more about it I will do so after lunch, if I may, your Honours, with respect.  But one goes - one is looking to see what is the act.  The act is the compulsory acquisition.

Now, your Honours, if one goes back then to subsection (2) you will see that it is only in a sense subsection (2)(a) that it refers to the act and identifies – that is what is being identified by paragraph (a) of subsection (2).  Your Honours, our submission is that subsection (3) is dealing with cases which are not cases of compulsory acquisition of the nature referred to in the opening words of (2)(a).

Your Honours, the second matter we would say about it is this. If that submission is not correct and subsection (3) deals with the case where one has to look at the whole of subsection (2), the question is, what is, in order to see whether subsection (3) applies – I am sorry, what I am seeking to say is, if the expression not covered by subsection (2) in subsection (3) requires that there be compliance with subsection (2) in toto, one has to look to see what compliance is required with subsection (2). That comes down to the question whether the terms of section 24MD(2)(b) should be treated as meaning all non‑native title rights and interests if there are any, which is our submission.

Your Honours, there are substantial reasons, in our submission, for adopting the view that section 24MD(2)(b) does mean all non‑native title rights and interests, if any. The first reason, in our submission, is that to which we have referred in our written submissions in paragraph 41 and that is that section 24MD(2) is the provision which refers specifically to compulsory acquisition. The object is to obtain extinguishment but to give compensation. It seems a little odd if – there is a possible view the other way – but it does seem a little odd, with respect, if the provision which deals specifically with compulsory acquisition does not apply to cases of compulsory acquisition from native title rights and interests.

GUMMOW J:   What do you understand by compulsory acquisition and extinguishment of native rights and interests?  What is the consequence of it?  How would it be turned into money?

MR JACKSON: Your Honour, one goes to Division 5, that is provided for by 24MD(2)(e) and if you go to Division 5, section 51(1) sets out the criterion for just compensation. Then one goes to subsection (2) of that and that says:

have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.

You then go to subsections (5) to (8), only be money.  Subsections (5) to (8) deal with qualification but it is really what is just compensation.

GUMMOW J:   To whom?

MR JACKSON:   Just compensation to the native title holders, that is 51(1), and the native title ‑ ‑ ‑

GUMMOW J:   Who are they?

MR JACKSON:   The native title holders will be either the body that is constituted pursuant to the determination or the other persons involved.

GUMMOW J:   It is unclosed class, is it not?  It is a perpetual class.  Is that not a problem?  Of many persons yet unborn.

MR JACKSON:   No, with respect, your Honour, no, because at the time of extinguishment the persons then around are the persons who are entitled to it.

GUMMOW J:   What does “entitled” mean?

MR JACKSON:   Entitled to be paid.

GUMMOW J:   I see.

MR JACKSON:   Entitlement to money, your Honour.

GUMMOW J:   So entitled to the native title, is that the question?

MR JACKSON:   Your Honour, they are native title holders, that is a defined term, of course, and they are entitled to compensation for loss, diminution, impairment or other effect of the act on their native title rights and interests.  No doubt there may be difficulties because of the concepts involved in quantifying that, but it has to be money.  That is subsection (5).  Your Honours, the law commonly quantifies matters of this kind and lore and law develop in relation to the items that properly go into it.  It will vary from place to place. 

That is the nature of native title rights and interests.  But it is a sum of money and once paid, it is paid.  That is what covers, in the case of extinguishment, the fact that those rights no longer exist.  In the case where it continues, your Honours, or has the potentiality to continue and under the non-extinguishment principle, then the period in which it is ineffective – I will come to this in more detail in a moment – is relevant to the quantum of compensation.

GUMMOW J:   What I am putting to you is, essentially, in the light of section 11, why would one lean towards a construction of section 24MD which read words into it to achieve a distinction where otherwise it would not happen?

MR JACKSON:   Your Honour, what section 11 says is not able to be extinguished contrary to the Act.  It is a question of what the Act means.

GUMMOW J:   That is right.  Well, obviously.  Why would one tend though to construe the Act where it does not expressly achieve this by the necessity of reading the words “if any” into it?

MR JACKSON:   Your Honour, to say “reading the words in” is to give a short version of construction.  What it is really saying, to put it in another way, is to say when 24MD(2)(b) says:

the whole, or the equivalent part, of all non-native title rights –

“all” is an expression which of itself contemplates all ‑ ‑ ‑

GUMMOW J:   If I can add to that, when there is a construction of section 24MD which indicates it may be driven by Racial Discrimination Act considerations flowing from section 7, is it, which would not be present, those Racial Discrimination Act considerations, on the facts of this case.

MR JACKSON:    Could I say, your Honour, that if one goes to the Racial Discrimination Act provisions, or the concept – in a sense it is the concept rather than the provisions because what 10(1) of the Racial Discrimination Act does is to put persons who are within a particular group in circumstances where they are treated equally with others.  That is where you see 24MD(2)(a) doing that because paragraph (2)(a) requires that the law have that effect, and then paragraph (2)(ba) says that there cannot be discrimination in fact in terms of the practices or procedures.  But if one makes those two assumptions, it does not follow, we would submit, that one has to treat subsections (2)(b) and (2)(ba) as necessarily having application to every case, meaning of course that the effect of MD(2)(c) cannot be obtained, unless you happen to have some other interest in the land.

That, your Honours, brings me in a sense to the second and third points I would seek to make about it, the second being that to which we have referred in our written submissions in paragraph 42, and that is, your Honours, that a very great deal of the land to which the provision is capable of applying will be land where the only interests are native title rights and interests and that would be, in our submission, surprising if the provision had no application before there were no other interests.  The third point, your Honours, is this, that if our learned friend’s argument is correct, any attempt at compulsory acquisition of land ‑ ‑ ‑

GUMMOW J:   Why does that conclusion follow?  It would be surprising.

MR JACKSON:    It would be surprising, your Honour, if you ‑ ‑ ‑

GUMMOW J:   Surprising to whom?

HAYNE J:   Disclosure of the premise, surely, Mr Jackson.

MR JACKSON:    Well, of course, your Honour, but all construction does involve some elements of context and premise.

HAYNE J:   But is not the point in paragraph 42 simply circular?  The surprise that is asserted is surprising because the asserted construction is not adopted.

MR JACKSON:    Well, your Honour, surprising perhaps is an advocate’s albeit faint flourish, but what I perhaps should have said, better, the better construction is that.

Your Honour, the third point we would seek to make is that if our learned friend’s argument is correct, any attempted compulsory acquisition of native title where there is no other interest would be ineffective because you could not extinguish native title, because to extinguish native title you would have to have some other native title interest as well.  For example, if there were at the time of the acquisition or proposed acquisition still in being the lease on the land that had been earlier held by the interests in question, then the position would be the native title rights and interests would be extinguished because section 24MD(2) would apply. 

Your Honours, could we in that regard refer to the submissions on behalf of Western Australia in paragraphs 23 and 24?  Your Honours will see that they refer in those submissions to the effect of the approach taken by the appellants and if there were an order requiring all interests in three parcels of land, which I assume for present purposes were neighbouring, one freehold, one with native title and other interests and one native title only, then the results would be those that are in paragraphs 24(a), (b) and (c) respectfully, which does seem, with respect, a rather, if I may venture into the word, curious result as a practical matter. 

Your Honours, could we refer also to what is said on behalf of New South Wales in their written submissions in paragraphs 5.5 and 5.6.  There are significant issues of uncertainty which would result.  Your Honours, I will not read it out, but your Honours will see the propositions that are there set out.  Might we refer also, your Honours, to the consequences of application of the appellants’ contentions which are referred to in paragraph 5.8 of those submissions.

Could we also say, your Honours, and finally in relation to this question of construction of 24MD(2), that 24MD(2)(b) does not in terms require that there actually be non‑native title rights of interest.  What it requires is that the whole, or the equivalent part, of such interests be acquired.  In our submission, your Honours, that means if there are any to acquire.

Could I come then, your Honours, to the third aspect and that assumes that what we have just said about section 24MD(2) is wrong with the consequence that 24MD(3) is applicable.  That, it is said, gives rise to the potential inconsistency between the Lands Acquisition Act, section 46 and the operation of section 24MD(3). If I could go first to section 46 of the Lands Acquisition Act your Honours will see its terms in both paragraphs (a) and (b). Then there will of course be no possible inconsistency if 24MD(2) applied, but if one looks at 24MD(3) you will see that paragraph (a) says “the non‑extinguishment principle applies to the act”. If one goes to the non‑extinguishment principle you will see in section 238 of the Native Title Act and subsection (1) says that it:

sets out the effect of a reference to the non‑extinguishment principle applying to an act.

Your Honours, one goes then to section 238(2). It says, as the broad proposition that:

the native title is nevertheless not extinguished, either wholly or partly.

But there are then two other provisions. One is section 238(3). It says:

if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.

No effect, your Honours. One also sees then section 238(6) which says:

If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect. 

Your Honours, if I could pause at that point, the operation of those two provisions is similar to that of a State law during a period while it is inconsistent with a law of the Commonwealth.  It is inoperative and it has no effect, but there is the potentiality that it could re‑vilify and if one returns to section 46 of the Lands Acquisition Act – I do not think I need take your Honours to its actual words – but we would submit, how could it be said that its terms are inconsistent with section 24MD(3) when the Native Title Act itself, picked up by 24MD(3)(a), says that during the subsistence of the act and its effects that the native title rights and interests have no effect and only revive when the act and its effects have wholly come to an end.

Your Honours, the point we would seek to make is that whilst there is a preservation, perhaps of not much actual effect or utility by the operation of the non‑extinguishment principle, if one looks at the way in which the non‑extinguishment principle is expressed to operate, then the native title rights and interests have no effect at any time while the Act in question does have effect and only could revive when it has come wholly to an end. That has the consequence, in our submission, that there could be no inconsistency between section 46 and the provisions of section 24MD(3).

GLEESON CJ:   Is that a convenient time, Mr Jackson?

MR JACKSON:   Yes, your Honour.  I expect to be about 10 minutes.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours. May I deal with three matters raised this morning before moving on. One concerns a future Act that initially your Honour Justice Gummow asked me about. The definition of “future act” is in section 233(1) of the Native Title Act. May I go in particular to section 233(1)(c). One sees in relation to that provision that an act will be a future act, in terms of section 233(1)(c), if it possesses the characteristics in either paragraph (i) or paragraph (ii).

Your Honours will appreciate the opening words of paragraph (c) are “apart from this Act”.  Bearing that in mind, if one goes then to paragraph (c)(1) – an Act to which it applies may in fact be non‑discriminatory both in its terms and in its application – when I say “in its terms” I am using that as a shorthand to describe the enactment pursuant to which it is done.  So, your Honours, that would be a future act.

The second thing would be, if one goes then to paragraph (c)(ii), one looks first at the combination of paragraph (c)(ii)(A) and (c)(ii)(B).  If one looks at those two provisions, they make it apparent, in our submission, that the invalidity referred to in paragraph (c)(ii)(A) is brought about by the existence of native title.  That is likely to be because of inconsistency with the Racial Discrimination Act because the assumption is that the invalidity, by reason of native title, occurs apart from this Act, this Act being the Native Title Act.

Your Honours, then one goes to section 233(c)(ii)(C).  The expression “if it were valid to that extent” refers back, in our submission, to paragraph (A), that is, if it were valid to the extent to which it is invalid it would affect native title.  It is a complicated definition but that is the way in which, in our submission, it works.  Then one sees that the term “affect” is one which itself is defined by section 227 and your Honours will see that:

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

So, your Honours, that is, in our submission, the way in which the provision operates to determine what is a future act.  The second matter to which I wish to refer was in relation to the holders of native title.  Your Honour Justice Gummow again asked me something about that.  That is a term which is defined actually in section 224 and your Honours will see it means if there is a prescribed body registered, it is that body corporate and in any other case it is “the person or persons who hold the native title”.

Could I invite your Honours to note also the next definition in section 225 and that is that the determination of native title has to indicate the matters set out in the several subparagraphs of that definition including paragraph (a):

who the persons, or each group of persons, holding the common or group rights comprising the native title are –

Your Honour the Chief Justice asked about stock routes, the position about stock routes.  In the Northern Territory the Crown Lands Act by section 96 allows the declaration of stock routes and it simply provides that:

The Minister may, by notice in the Gazette, declare routes, not exceeding 1,610 metres in width, through Crown lands or reserved or dedicated land, whether or not that land is held under licence or lease granted under this or any other Act, to be routes for the passage of travelling stock.

There is a provision, your Honours, in section 106(1)(f) for regulations to be made dealing with matters of that kind and others. Could I refer also to section 76(1)(a)(iii) of that same Act which allows the Administrator to resume any Crown lands which are the subject of leases, except for some particular kinds of ones, to resume them “for stock routes and travelling stock” and also, your Honours, section 76(1)(c) and (d) allow, on the one hand, reservation of land for stock routes again, and also paragraph (d) allows a reservation to be revoked wholly or in part. Your Honours, those are the other provisions.

The next matter to which I wish to refer is in connection with the matters I was addressing before lunch. Could I just take your Honours to section 8 of the Native Title Act?  In determining the interaction of the Territory law and the Native Title Act, one does have to bear in mind that the intention expressed by section 8 and, your Honours, if the two Acts are capable of operating concurrently, then the Native Title Act does not affect the law of the Territory.

Your Honour, could we say two further things.  The first is as a more general proposition, that if one looks at the provisions of the Lands Acquisition Act, we would submit it is to be read as conforming to the Native Title Act provisions and enacted in the light of their existence.  Could I in that regard refer your Honours to the many – I will not go to every occasion on which the Native Title Act is referred to in the Lands Acquisition Act.  What I wanted to say, however, was that the Lands Acquisition Act in the form which it has, following the 1998 amendments to it, clearly is an Act which recognises the existence and the operation of the Native Title Act.

Could I in that regard refer your Honours just to a number of examples.  One is to the many references to the Native Title Act in the definition sections in section 4 of the Lands Acquisition Act.  Your Honours will see, for example, the definitions of “alternative provision area”, “approved determination of native title”, “future act”, “indigenous land use agreement” and so on.  Your Honours, there are many.

The second thing, your Honours, is section 5A, to which I have taken your Honours earlier, the application of the Act in relation to the acquisition of an interest in land comprising native title rights and interests. Then, your Honours, if one goes, for example, to section 31B you will see that it is dealing with the part applying to:

(a)the compulsory acquisition of an interest in land . . . on the landward side of the mean highwater mark of the sea –

and your Honours will see a reference to section 24MD(6B) in section 31B. We would refer also to section 31C, and may I mention the various provisions of section 32 and also section 38AA(2). Your Honours, there are many other references.

HAYNE J:   If I could take you back a moment, Mr Jackson, to the matter you were dealing with most immediately before lunch, and the operation of section 238? Have you completed what you were going to say about that or is it a subject ‑ ‑ ‑

MR JACKSON:   Yes, I have, your Honour.  I was going to add something but it is slightly off that point.

HAYNE J:   In considering 238, particularly subsections (2), (3) and (4), it is necessary to identify the act.

MR JACKSON:   Yes.

HAYNE J:   What relevantly do you say is the act which is to be considered here?

MR JACKSON:   The act of compulsory acquisition.

HAYNE J:   That is to say, does it follow then or how does 238(6) operate on that understanding of the Act, in particular, in relation to the onward sale or lease to the interests that are in contemplation?

MR JACKSON:   Yes, your Honour, if I may say two things about it.  The first thing is that in the ordinary course of events, assuming that if one took, for example, one of the pieces that is to become town land, which is perhaps the simplest case, if one took that, the probability is that the occasion for the native title rights and interests to have a practical effect is probably very small.  What I have just said involves an assumption I will come back to in just a moment.  However, it is possible for it to occur in really I suppose two circumstances.  Circumstance one would be if it were determined that the compulsory acquisition having taken place, a change of mind occurred and the land was not to be used for that or any other purpose.

HAYNE J:   What is “that” in that proposition?

MR JACKSON:   I am sorry, the “that” was to be leased out or ultimately to be – a title in fee simply to be granted.

HAYNE J:   Because that seems to identify the relevant act as acquisition plus onward transaction.

MR JACKSON:   Well, your Honour, no.  Subsection (6) says “acts or its effects”.

HAYNE J:   Do you say then that (6) has the consequence that once acquired the act or its effects are not later wholly removed or otherwise wholly cease to operate ever, that at least they do not cease to operate upon onward transaction?

MR JACKSON:   Yes, your Honour, that is so.  May I say a little more fully perhaps what I seek to convey.  What we would say is that in the case of compulsory acquisition, that being the act, you have a situation where that may or may not have some further effect.  Now, if it be assumed that the view that the land should be made ultimately fee simple were changed and it did not ever become fee simple and it was not desired to have the land dealt with for any of those purposes but otherwise to remain, as it were, vacant land, then in those circumstances it would be at least very arguable that at that point the native title rights would come back into being.

HAYNE J:   Is not the act sufficiently, perhaps completely, identified by fastening upon section 46 of the Lands Acquisition Act which would identify the relevant act as completed upon vesting in the Territory, in which event reviver occurs at the moment of onward disposition?  If that be not so, the consequence is that you have worked indirectly an extinguishment of native title in, I would have thought, contradistinction to that which is intended to be achieved.

MR JACKSON:   Your Honour, may I say a couple of things about that. It is the position, your Honour, that all this arises if one takes the view that it is section 24MD(3) which is germane, not 24MD(2).

HAYNE J:   Just so.

MR JACKSON:   If the consequences that your Honour is referring to were the apposite consequence, and I will come to that in a moment, then that militates, in our submission, against the adoption of the view that 24MD(3) is the relevant provision. It supports the contention that compulsory acquisition is really dealt with by subsection (2). Your Honours, one comes then to look to see what section 238 does. Section 238(2) says that “If the act” – and if one assumes that to be the compulsory acquisition – “affects any native title . . . the native title is nevertheless not extinguished”. “Nevertheless” is a provision which would apply to section 46. One then sees in subsection 238(3) the native title has no effect in relation to the act.

Your Honours, then one goes to look to see subsection (6) and subsection (6) recognises that acts do not take place in a vacuum, as it were.  One looks to see the act and its effects.  If you have compulsory acquisition, the effect of it is that the land becomes land which can be disposed of in other ways.  That is part of the effects.  There is not much point in dealing with it otherwise.  One has to give, in our submission, the act, as the various speeches have said in the various documents, an effect which applies to native title but also to create some certainty. 

So, your Honours, what we would say is that it may be that in one sense the end of compulsory acquisition is provided for by section 46 but, at the same time, the effects of it can be seen via onward dealings in subsection (7).  Your Honours, it would be perfectly possible, of course, that at some point it might be thought that land should not be Crown land or that it should be resumed again in which case the native title rights and interests might well come alive. 

Your Honours, could I just say that if there is thought to be some inconsistency, then, in our submission, we would say two things. One is that section 238 picked up by 24MD(3) would, in our submission, be simply the Commonwealth defining, as it may do, the extent of the inconsistency. We have referred to that in paragraph 47 of our written submissions. The final thing we would say, your Honours, is this. Section 59 of the Interpretation Act 1978 (NT) – I think your Honours should have a loose copy of it – provides that:

Every Act –

of the Northern Territory –

shall be read and construed subject to the Northern Territory (Self-Government) Act 1978 of the Commonwealth and any other Act of the Commonwealth relating to the power of the Legislative Assembly to make laws in respect of particular matters, and so as not to exceed the legislative power of the Legislative Assembly –

Then there is a reading down provision which is to apply. Your Honours will see that in relation to the enactments of – one sees in section 8 of the Native Title Act that:

This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act. 

We would say, your Honours, that if one takes that provision and one takes also section 11(1) of the Native Title Act, that “Native title is not able to be extinguished contrary to this Act” but it may be extinguished, of course, in accordance with it, that those provisions on the one hand, but entirely separately section 59 of the Interpretation Act, are provisions which would allow the two Acts to be read together with the result that if there is a qualification to section 46 of the Territory Act and that there is some reviver, sobeit, your Honour. Section 46 would be read down in the way in which is contemplated by section 59 of the Interpretation Act.

Could I just say, your Honours, that section 59 speaks of any other Act of the Commonwealth relating to the power of the Legislative Assembly to make laws in respect of particular matters. But, of course, so far as one goes to the Native Title Act, you will see in section 11(1) – I should have taken your Honours to this before – that it is the provision that native title cannot be extinguished contrary to this Act – does appear to be a restriction on the legislative power of the Territory, as of course is section 8 which deals with how the Acts are to be read.

HAYNE J:   Is the later grant of a freehold estate to the commercial interests – the name of which escapes me – itself a future act?

MR JACKSON:   It would not be, your Honour.  There are two things about it.  The first is this.  If it falls within 24MD(2) the situation would be that native title would be extinguished.  That is the first thing.  The second thing is, if it falls within MD(3), then, in our submission, native title has no effect in relation to the acquisition. 

HEYDON J:   But for how long?  When the Northern Territory alienates the land to the Fogarty interests, is that another future act or does it cause the rendering non‑effective of native title to cease so that native title becomes effective again?

MR JACKSON:   Your Honour, I am sorry, it is a little difficult to catch what your Honour said.  Is your Honour talking about the position if there was no grant to the Fogarty interest?

HEYDON J:   Assume subsection (3) operates, in the period of time while the Northern Territory has title to the land, native title is not effective, but it is contemplated that the Northern Territory will alienate the land to Mr Fogarty’s company.  At that moment does the rendering ineffective of native title cease so that it becomes effective again or what is the position?

MR JACKSON: No, your Honour, no. That is because the – I think it is subsection (6) of the definition of the non-extinguishment principle in section 238 – it is speaking of the act or its effects wholly removed.

HEYDON J:   So the effects of the acquisition by the Territory you say are not wholly removed, they are simply a chain in the title of Mr Fogarty’s company?

MR JACKSON:   Yes, your Honour, because what happens is that the compulsory acquisition puts the land into a category where it can otherwise be dealt with and that is the purpose of acquisition and the object of acquisition and one of the effects of acquisition is to have the land capable of being dealt with in those ways.

HAYNE J:   The relevant hypothesis for consideration is that (3) is engaged of 24MD, not (2)?

MR JACKSON:   Yes, your Honour.

HAYNE J:   Effectively the same result obtains under (3) in relation to the onward transaction of the Fogarty interests as is achieved if (2) is engaged?

MR JACKSON:   Your Honour, the answer is effectively, probably, not necessarily.  Now, the same could happen if the land were acquired for many different purposes.  If a powerhouse were constructed there by the State, by the Territory, so be it. 

Your Honour, could I just in response to your Honour Justice Heydon say one more thing.  Of course, section 24MD(6B) does contemplate that the act may be for the purpose of conferring rights or interests on persons other than the Territory and if that is so, then there are other steps that have to be taken.  That is set out in the remaining provisions and that concept I think, we would submit, militates against the notion that you have a situation where the effect is gone as soon as it is transferred.

KIEFEL J:   Mr Jackson, in one sense it is not really possible to acquire a native title right or interest, is it?

MR JACKSON:   No, your Honour.

KIEFEL J: Could that be why section 24MD(2) of the Native Title Act refers to an act of the State or Territory that permits both the compulsory acquisition of non-native title interests that might have running with them native title interests, but it does not purport to speak of an acquisition of native title alone because it cannot?  I suppose the corollary of that is the Lands Acquisition Act, can it really be seen to refer to the acquisition only of the native title right?

MR JACKSON:   Your Honour, if I could deal with the second of those first.  The Lands Acquisition Act does appear specifically to contemplate the acquisition of native title.

KIEFEL J:   You say it accepts the operation of the Native Title Act but that could be consistent with its application to an acquisition of other than Crown land but where native title interest is running.

MR JACKSON:   Your Honour, one does have to bear in mind that the act is an act which applies to a very large area where there are unlikely to be individual rights other than native title rights.  If one goes, of course, to section 43 your Honour will see that section 43 says that land can be acquired for any purpose whatsoever, and land is defined, land and interests in land are defined to include native title rights and interests.  Your Honour will see the definition of interests includes native title rights and interests, and there is not any particular reason why they cannot be acquired, we would submit, acquired by themselves.

KIEFEL J:   You cannot deal with them, no one can deal with them, apart from the native title holders.  In a way there would be no purpose to the acquisition, would there?

MR JACKSON:   Well, your Honour, in many cases, we would assume there are rights to cross over to access to various things that go through the land.  It may be extremely difficult to allow that to continue where there is to be a particular ‑ ‑ ‑

KIEFEL J:   But they are non-assignable, are they not?  I mean, they are personal only to the native title holders.

MR JACKSON:   But, your Honour, assume that to be the case, it may be just impossible to allow – just to take the simplest case – public works of a particular kind to be created if those native title rights and interests are allowed to continue, albeit nothing to do with their inability to be assigned.

CRENNAN J:   I suppose one other relevant possibility is that holders of native title in respect of a piece of unalienated Crown land might approve of a purpose for which notice has been given in relation to an acquisition and might possibly be content with just compensation in relation to such an acquisition without trying to explore the reasons why.  I am not sure what would be open to them on the appellants’ construction of 24MD.

MR JACKSON:   Presumably, I suppose, the answer would be they would seek to have some agreement about it. Then in relation to the compensation, there might be, if one goes to section 51 of the Native Title Act, there is provision in subsections (6) to (8), I think, for there to be some possible alternatives to actual money for it.  So there may be some other possibility.

CRENNAN J:   Yes.  I just have in mind perhaps a government instrumentality running a tourist centre.  It was not quite like having an agreement with a miner, for argument’s sake.

MR JACKSON:   No.

GUMMOW J:   If you could just look at section 46 again, Mr Jackson, of the Acquisition Act, further to what Justice Kiefel was asking you, section 46(1) says:

upon publication in the Gazette of a notice of acquisition ‑

(a)the land described in the notice vests in the Territory freed and discharged ‑

“The land” is defined as including an interest in land.  An interest in land includes native title.  So it seems to be saying upon publication in the Gazette the native title vests in the Territory.

MR JACKSON:   So your Honour is assuming that (3) applies.

GUMMOW J:   Yes.  What I am getting to, Mr Jackson, is they needed to be upfront, and they need to say that in certain circumstances native title is destroyed, not acquired.  To use the language of acquisition in this Act is inapt – that is their problem – in the Northern Territory legislature.  I am not saying they cannot do it, but they do not seem to have done it.

MR JACKSON:   Your Honour, could I say about that that you see that section 46(1) has two provisions.  One is paragraph (a) and the other is paragraph (b).  So far as paragraph (a) is concerned, it speaks of the land – that is true – vesting in the Territory.  It also goes on to say:

any interest that a person had in the acquired land is divested, modified or affected to the extent necessary to give effect to this subsection.

One has to read the section as one which in terms applies to native title rights and interests.  What one sees, in our submission, is that if you have a circumstance where the non‑extinguishment principle applies the modification or affectation that occurs to that interest is this.  First of all, during the period when the compulsory acquisition has effect – I include that in the broader sense to which I have referred – then it is right to say what is said in paragraph 46(1)(a) because it is vested in it.

Of course the interest that the person had is modified or affected to the extent necessary to give effect to that subsection.  The modification which takes place is that the native title rights and interests do not have any effect during the period, which means that paragraph 46(1)(a) applies, but after that of course they come back, if that ever occurs.  So there is not any conflict in our submission.  But if there is, why cannot one read it down pursuant to the Interpretation Act?  Your Honours, those I think are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Orr.

MR ORR:   Your Honours, the Attorney-General for the Commonwealth argues two points. First of all, that the requirements for extinguishment, section 24MD(2) of the Native Title Act, are met in this case and therefore the native title is able to be extinguished. Secondly, we argue that if the requirements for extinguishment in section 24MD(2) are not met, then the compulsory acquisition will be effective and valid though modified by the non‑extinguishment principle in section 238 of the Native Title Act.

If I could just deal with the first question and that is the interpretation of section 24MD(2)(b) of the Native Title Act. I would like to deal with the words of the provision in their statutory context and in the light of the purpose of the provision. To begin with the words of the provision, as we have seen, the requirement in section 24MD(2)(b) is that if native title is to be extinguished, then the requirement is that “all non-native title rights and interests, in relation to the land” must also be acquired.

In our submission, the plain, ordinary and grammatical meaning of that provision is that all native title interests and all non-native title interests in relation to the land are to be acquired.  I will come back to what “acquired” means.  But in its terms, the fact that there are no such non‑native title interests in relation to a particular piece of land, the land being acquired, does not prevent this requirement being met.  The requirement can be met whether there is none, one, two, some or many non‑native title interests.  If there is none, then the requirement is met.  If there are one, two, some or many, then those non-native title interests need to be acquired, but the fact that there is none, does not prevent the requirement being met. 

It would have been possible to insert “if any” in the provision, but, in our submission, that would be by way of emphasis, not by way of changing the clear terms of the grammatical construction in the sentence.  If it was intended the requirement was that you could only extinguish native title by compulsory acquisition of both native title and non-native title interests, then that could have been specifically provided for as a requirement, but it is not.  The only requirement is that all non-native title interests in the land are required.

HAYNE J:   Why would one read it that way in the light of provisions like Subdivision K, which are facilities for services to the public, or in relation to the other provisions concerning public works in Subdivision J?  Why would one struggle to read it in the fashion in which the Commonwealth urges?

MR ORR:   The first position is that they are the words that are used.  There are other future act provisions, it is true, your Honour, which can operate in specific circumstances.

HAYNE J:   Chief amongst which are the provisions of works for the wider public with very elaborated and specific protection of native title rights in respect of them.  Here we are concerned with the translation of native title right interests compulsorily into money, which at once leads you to the fact that you have this mismatch between the rights in issue and that to which they are to be translated.  Translation to money presupposes market, the very antithesis of native title rights and interests.

MR ORR:   Yes.  Subdivision K operates and, indeed, the future act provisions before Subdivision M operate in specific limited circumstances.  Just with regard to the public works provision, that does enable governments to construct a public works but the areas on which those constructions take place, the native title holders still have access to them.  The non-extinguishment principle applies ‑ ‑ ‑

GUMMOW J:   Exactly.

MR ORR:    ‑ ‑ ‑ and there cannot be any compulsory acquisition.  So if the government wants to create a new suburb in which people are to live, Subdivision K cannot do that.  It can create electricity lines under which people can walk, it can create other services, but it could not be used to create a new suburb.  There is a need, therefore, in the Native Title Act to have a mechanism where governments can exercise their traditional, compulsory acquisition powers in order to pursue a number of appropriate actions.

KIRBY J:   You say it is traditional, but that is a matter of apparent dispute.

MR ORR:   The power of government’s to compulsorily acquire is a traditional power.

KIRBY J:   That exists, but whether that power has traditionally in Australia been used in this way is, as I understand it, a matter of dispute.

MR ORR: That is true, your Honour, but if we leave to one side the particular case at hand here and look at Subdivision M itself and section 24MD, that is allowing compulsory acquisition for a range of purposes. In its terms it is not limited to an acquisition to acquire land to give it to someone else. It is able to deal with all compulsory acquisitions for whatever purpose, and we have the most limited purposes if they were to build a power station or irrigation works or those sorts of purposes. It has also to be able to work there and many of those works are not able to be brought within Subdivision K because of the limited nature of Subdivision K. So, in our submission, you do need in the end powerful governments to compulsorily acquire ‑ ‑ ‑

GUMMOW J:   Why do you need Subdivision K?

MR ORR:   Because there are a range of more limited things which are able to be done without the significant protections which are here in Subdivision M.  Subdivision K is a more limited provision.  It does not extend to the broad range of things which governments may wish to ‑ ‑ ‑

GUMMOW J:   It is a species of a genus.  If you have the wider genus in which you can wash the native title away, why do you need this particular species?

MR ORR:   Because there are significant limitations ‑ ‑ ‑

GUMMOW J:   I know.

MR ORR: - - - in relation to Subdivision M which we are coming to, in fact, which we are grappling with here. So the more extreme effect on native title, which is extinguishment under section 24MD, is subject to specific limitations which are not applying to Subdivision K. If I could come to purpose, your Honour. Our first submission is that the plain grammatical reading of the words “all the non‑native title interests in relation to the land” ‑ ‑ ‑

GUMMOW J:   It has gone beyond plain grammatical reading when looking at statutes, Mr Orr.  You know that as well as I do.

MR ORR:   Yes, which is why we need to come to the purpose.

GUMMOW J:   We look a bit more around about the section.

MR ORR:   Exactly, your Honour.  In our submissions we set out a range of provisions in the Native Title Act including the preamble, paragraph 11 in particular, section 3, sections 10 and 11 and the structure of the future acts regime of the Native Title Act to support the view that there are three principal purposes for the future act regime of which this section forms part.  I will not take your Honours to those particular provisions but I will set out what we say the purpose is.

The first is the protection of native title from discriminatory treatment and I think it is clear that that is an underlying purpose.  I will take your Honours to the freehold test in a moment.  In some cases there is significant protection, but the underlying protection is the protection from discriminatory treatment.  But with that is security for governments and third parties in relation to land management dealings with native title because it is important that those land management dealings be able to continue.

If I just take your Honours to section 3 which is the objects of the Native Title Act. As I said, section 3 is the protection of native title from discriminatory treatment, which is:

(a)to provide for the recognition and protection of native title; and

(b)to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings –

So that is what the future acts regime is doing.  It is enabling governments for the benefit of the wider community to securely take actions in relation to native title.  The third purpose, which is related strongly to the first and second, is that these future acts need to be able to be taken even if it is not known whether native title exists.  In fact, that was the position which the native title came to operate in where it was not known, except for one place in Australia, whether native title exists or not.

What the future act regime means is that where it is unclear whether native title exists or not, future acts can be taken and if the requirements are met, the Act will be valid even if native title exists in relation to the land.  This is key to providing security for governments and third parties in their dealings with native title.

KIEFEL J:   How does the right to negotiate sit with compulsory acquisition as a future act?

MR ORR:   I am sorry?

KIEFEL J:   To almost inconsistent future acts.

MR ORR:   No, for most compulsory acquisitions of native title need to go through the right‑to‑negotiate process. That is why section 24MD(1) begins, as I think we were taken to this morning, says:

If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.

GUMMOW J:   Negotiate about what?

MR ORR:   Negotiate about whether that acquisition, with an extinguishing effect, should take place in relation to the native title land.

GUMMOW J:   Should by reference to what criteria?

MR ORR:   There are a range of criteria, but Subdivision P sets out quite a detailed process which involves giving notice to the native title holders that this is about to occur.  It gives them an opportunity to negotiate with the government about whether it should occur and, if so, on what terms.  It provides for determination by an independent tribunal, a National Native Title Tribunal, about whether the act should proceed and, if so, on what terms.  It is only after that process is gone through and with appropriate decision making by the tribunal that a compulsory acquisition can occur in relation to Native Title Act land.

KIEFEL J:   It is going to be a fairly hollow negotiation if all you have to negotiate about is a compulsory acquisition though, is it not, or not?

MR ORR:   Not at all, your Honour.  If the government comes along and says, as to some extent happened in this case, “We would like to compulsorily acquire this land”, the native title holders can put forward alternative means of doing this, can put forward reasons why that should proceed and that is part of both the negotiation and the determination by an independent tribunal as to whether that should occur or not.  It is quite a detailed provision.  One of the main purposes of the right to negotiate was in relation to acts of compulsory acquisition in relation to Native Title Act land.  The other one was in relation to mining leases and there again the negotiation is to whether the mining lease should be granted and, if so, on what terms.

KIEFEL J:   Mr Orr, could you tell me when section 24MD was inserted?

MR ORR:   It was inserted by the 1998 Native Title Amendment Act.  Perhaps I could show you how this ‑ ‑ ‑

KIEFEL J:   I did not mean to interrupt your ‑ ‑ ‑

MR ORR:   No. If I could just do one thing first, I will take your Honour to this. The one thing I would like to do first is point out the overarching freehold test in section 24MB of the Native Title Act which Mr Gageler took us to this morning. This is the basic test about whether acts can be done on native title land. It says in section 24MB(1)(b)(i):

the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it –

In our submission, that is an implementation, there is a protection of native title from discriminatory action.  An important point I would like to make about this provision is, however, that the comparator for discrimination purposes is a notional one.  The section does not say that the act could be done if it is also done in relation to this land to the freeholder.  The reasons for that are obvious because, in relation to land subject to native title, there can be no freeholder.  As this Court has held in Fejo, Ward and other cases, freehold would have extinguished native title.  So there needs to be, as is generally the case in discrimination provisions, a notional comparator and there is here; the ordinary title holder.

The 1993 Act before it was amended by the 1998 Act dealt with the next issue, that is, once an act has passed this freehold test, can the acquisition actually extinguish the native title in a different way? If I can just take your Honours to footnote 16 on page 8 of our submissions - the footnote itself begins on the previous page, but this footnote on page 8 sets out what the equivalent of section 24MD, what it looked like until it was amended in 1998. First of all, section 23(3) of the 1993 Native Title Act said, under a heading “Extinguishment of native title by compulsory acquisition”:

If the act is the acquisition, under a Compulsory Acquisition Act, of the whole or part of any native title rights and interests:

(a)the non-extinguishment principle applies to the acquisition; and

(b)nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests -

So it took a different approach to that taken by section 24MD. It said the acquisition, or the act of compulsory acquisition, did not extinguish native title, but what was then done with the land could extinguish native title. That could, of course, involve the grant of a freehold interest. Importantly, there was a definition of “Compulsory Acquisition Act” in section 253 of the 1993 Native Title Act which said:

“Compulsory Acquisition Act”, in relation to the Commonwealth, a State or a Territory, means a law of the Commonwealth, the State or the Territory that:

(a)      permits both:

(i)the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

(ii)the compulsory acquisition by the Commonwealth, the State or the Territory of other interests in relation to land or waters -

Then it went on to talk about compensation. So that provision, that paragraph (a) of the definition of “Compulsory Acquisition Act”, is the direct analogy or predecessor of section 24MD(2)(a) of the current Native Title Act. In other words, what it is saying is that before you can have extinguishment, you need to have a compulsory acquisition. You need to have a law that permits both compulsory acquisition of native title and compulsory acquisition of non-native title rights. There was no provision equivalent to section 24MD(2)(b) about also acquiring the other non‑native title interests. That was because this 1993 Act was based on a, perhaps unstated assumption that native title would be equivalent to freehold to a large extent, that the example of native title that was apparent was the example in Mabo (No 2) of the Miriam people who had the equivalent of freehold in their land. 

This Court in the Wik decision clearly stated that there could be co‑existing rights of pastoral lessees with native title in relation to one piece of land.  That was a significant development in the thinking about native title.  What that meant was that the freehold test and the test for extinguishment which was in the 1993 Act and which is set out in that footnote 16 on page 8, would not have protected co‑existing native title on pastoral lease land, because a government could have come along and said, “We have a law which permits both the compulsory acquisition of native title rights and the compulsory acquisition of other rights so the law will meet the test in compulsory acquisition act”, but what that section and those provisions would not stop is the government using that law to acquire on a pastoral lease the native title interests only and leaving the pastoral lessee to have his or her rights in relation to the land.

That very mischief is what 24MD(2)(b) is trying to address.  It is an addition to the Act.  It is saying that it is not enough, there is no protection, there is little protection to native title on pastoral lease land by the 1993 provision because all that requires is an act which is non-discriminatory which can apply to both sets of rights.  Paragraph (b) takes that further and says, no, if a government is going to acquire, for example, native title on a pastoral lease land, it has to acquire both the native title interest and the pastoralist interests, that is, the other person’s interests that are actually in the land, and that test is required because of the Wik decision which provided that that position could exist.

In our submission, the paragraph (b) does not go further and say there have to be other interests in relation to the land.  In our submission, to take the test further and say there has to be other interests is saying that discrimination needs not only a notional comparator but an actual comparator in the factual situation that exists and, in our submission, non‑discrimination thinking does not require an actual comparator.

KIEFEL J:   But the section might be proceeding upon an assumption that what is to be acquired are other interests which – not just native title – that what is involved in an acquisition will involve other interests necessarily, that you are not going to just have Crown land that has not been dealt with by way of pastoral lease or otherwise involved in an acquisition.

MR ORR:   Your Honour, I think the provision is trying to work without assumptions.  It is trying to deal with whatever situation there is.  In our submission, what (b) is saying is if there are other interests, they have to be acquired.  The acquisition cannot pick out the native title interests and leave the other interests alone.  If there are not any other interests, then the native title will be acquired, but it is not a rational policy to say there have to be other interests.

The rational policy, in our submission, or the way the development of this has occurred is, if there are other interests, they have to be acquired because you cannot just acquire as a matter of practice the native title interests.  But it is not seeking to prevent an acquisition affecting native title land when there is only native title in relation to the land.

HAYNE J:   What is the difference in kind between what you say is the operation of MD(2)(b) and the example of acquiring only the native title rights and interests held over land the subject of a pastoral lease leaving the pastoralist unaffected?  What is the difference in kind?

MR ORR:   The difference in kind, your Honour, is that where there is only native title interests, then, of course, provided the government is acting under its Lands Acquisition Act and appropriately for a legitimate purpose, it can acquire those native title rights and interests.  This provision is not seeking to stop that because there will be many occasions where that is necessary, where the pipeline goes from A to B and in between that pipeline which might be necessary, desirable, even essential, for the survival of a community, there is a period of land in which only native title interests exist.

That land can be acquired under our proposal under section 24MD(2)(b). Under the way it is read by the appellants, even though A to B is the route for the pipeline, the pipeline will have to only go through land where there are both native title interests and other interests. In other words, it will have to take a completely irrational path to get from A to B because the only – sorry, I am putting this too highly – in order to extinguish native title in relation to this pipeline it would have to take an irrational route in order to only pass through land in which there is both native title and other interests.

HAYNE J:   The difficulty with the example, drawing upon public works, is that the other subdivisions are engaged.  The example you have to grapple with is the commercial exploitation of the land for private interest.  That is the relevant example, not the pipeline.

MR ORR:   We would say a number of things.  First of all, K deals with some pipelines, not all pipelines.  If the policy of the government was that they needed exclusive possession for the land through which this pipeline went in order to ensure a range of factors which will be legitimate factors, it cannot rely on K.  It needs to compulsorily acquire the land.

In our submission, the Native Title Act does not of itself allow State or Territory governments to acquire land from A to give to B.  It is up to the State or Territory Acquisition Act whether that can occur.  What the Native Title Act is saying is for that to occur the requirements in this Act need to be complied with.  So that native title needs to be effected in a non‑discriminatory way.  The Native Title Act is protecting native title.  It is not requiring State or Territory Land Acquisition Acts to be of a particular form.

KIEFEL J:   Just to be clear, Mr Orr, are you saying that 24MD(2) applies in the case where there are only native title interests the subject of acquisition?

MR ORR:   Yes.

KIEFEL J:   In that sense the Commonwealth statute is then saying to the government of the State or Territory the Commonwealth will permit extinguishment of native title if you need the land to be free of native title.  That is effectively what it is saying.

MR ORR:   Yes, if these requirements are met.

KIEFEL J:   The assumption that the Commonwealth would be working on, or would be based would be that there is a law by which the State or Territory requires the land for some purpose of the State or Territory.

MR ORR:   That is correct, your Honour.

KIEFEL J:   You would not suggest that the Native Title Act would be proceeding upon the basis that it would permit extinguishment to enable a government of a State or Territory to transfer the land or deal with the land free of native title with a third party?  Would you go that far?  Would you say that is not a matter with which the Native Title Act is concerned?

MR ORR:   That is correct, your Honour.  The purpose for which the acquisition proceeds is a matter for the State law.

KIEFEL J:   Except, I suppose, you would have to deal with what is meant by the term “under a law of the Commonwealth, a State or a Territory that permits” and whether or not the permission is all that the Native Title Act is concerned with or whether, with a mind to ensuring native title is not extinguished except for good cause, one would read in that that it is a law of that State or Territory for that State or Territory’s purpose.

MR ORR:   Yes.

KIEFEL J:   Do not agree too quickly to that.

MR ORR:   That is right.  It is true.  There needs to be a law of the State or Territory under which this acquisition can take place.

KIEFEL J:   But nothing about purposes.  You are saying the Commonwealth is totally unconcerned about the purpose?

MR ORR:   That is true, your Honour.  What this Act is doing is protecting the native title.

KIEFEL J:   Which means that the statute is unconcerned about when and for what reason native title is to be extinguished?

MR ORR:   Yes.

KIEFEL J:   That does not seem entirely consistent with the idea of protection of native title.

MR ORR:   In relation to acquisition for third party interests there are some procedural protections and I have mentioned this earlier and I say it again.  The right to negotiate applies in relation to the acquisition of land for third party purposes.  The right to negotiate is a significant process in relation to negotiation about whether this acquisition should proceed.  One of the main areas that applies is in relation to the acquisition of land by governments for third parties.  If the land is acquired by the government for its own purposes, the right to negotiate generally does not apply.  If it is a compulsory acquisition by the government for third party purposes, generally the right to negotiate applies. 

It does not apply in this case because there is an exception for compulsory acquisitions in towns and cities, but even where that exception applies – and I think we looked at this briefly this morning - section 24MD(6B) of the Native Title Act does deal with this provision.  So it does deal with this situation.  So the situation we are dealing with is where there is a compulsory acquisition by the government for third party purposes which for some reason does not go through the full right to negotiate process.  But if it does not, it needs to meet the requirements under section 24MD(6B) and they are set out there and what the Act is here doing is saying, before there can be a compulsory acquisition of native title for third party purposes there needs to be full and active consideration ‑ ‑ ‑

GUMMOW J:   Where does the Act reflect in terms this notion of third party interests?

MR ORR:   If you go to section 24MD(6B), your Honour, it says:

If the Act is:

(a)      the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable –

And (b) is a special type of mining lease.  The paragraphs that follow, (c), (d), (e), (f), (g), are putting in place special procedural requirements.

KIEFEL J:   What are the “interests in relation to the land or waters” meant to refer to?  Sounds like native title rights.

MR ORR:   Yes.  I think that is just meant to get anything.

KIEFEL J:   I see.  It is meant to capture the native title rights.

MR ORR:   Yes.  Subsection (6B) applied in this very case, that is, it was “the compulsory acquisition of native title rights and interests”, or it may have been, “for the purpose of conferring rights or interest in relation to the land or waters concerned on persons other than the Commonwealth”, or in this case, other than the Territory.  So that is why these requirements in (c), (d), (e) have to be complied with.  I do not want to read them.  If I take your Honours to paragraph (e):

the following consequences also apply –

in this case, the Territory Government –

must consult any claimants –

that is native title claimants –

and bodies corporate –

that is holders of native title –

who object –

to the acquisition and its effect on its native title –

about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done –

So it has put in place a process where full consideration is given as to whether this ‑ ‑ ‑

GUMMOW J:   Just a minute.  Look at (g)(iii).  At the end of the day, the Territory could just say, “It is in our interests not to comply.  Good day”.

MR ORR:   They cannot not comply with the process, your Honour.  In the end of the day they can make a ‑ ‑ ‑

GUMMOW J:   But the could comply with it.

MR ORR:   But, your Honour, what the Act is doing is saying, there is a limited scope for extinguishment of native title into the future.  That limited scope is essentially by a compulsory acquisition process which is a non‑discriminatory law applied in a non-discriminatory way to a piece of land and subject to a process which has given the native title holders the right to object, to be consulted, to negotiate and to be heard by an independent tribunal as to whether that acquisition and its effect on native title can proceed.

GUMMOW J:   Is that notion of independent personal body spelt out elsewhere?  It refers to it in (f) but what does it identify?

MR ORR:   In this case, as I understand it, it identified the body which was involved here, which I think was the Lands and Mining Tribunal of the Northern Territory.  Your Honours will see in the appeal papers there is the decision of that body which gave extremely detailed consideration to this particular acquisition.

GUMMOW J:   Yes, I understand that.  What is it that the law of the Commonwealth postulates is the criterion for independence on the part of a State or Territory body?

MR ORR:   I do not think there is a statute, your Honour ‑ ‑ ‑

GUMMOW J:   There is not, is there?

MR ORR:   There is no statutory definition of that, but of course if the body which was established was thought not to be independent, then you could not comply with these provisions and the acquisition could be injuncted.  The point I was making is the Act recognises that in the end governments may need to be compulsorily acquiring native title or may need to be compulsorily acquiring land on which there is native title rights and interests.  In the end, that may be necessary, and the Act recognises that.  As I have said, it puts up a number of barriers to that, both in terms of non-discrimination and process, but in the end it allows that to occur.

If I could just say to your Honours a number of things about discrimination just to expand on the position here? As I said, our proposition is that section 24MD(2)(b) requires any non‑native title interests in relation to the land to be acquired but does not prevent the extinguishment if there are no such rights, and in our view that is in line with general discriminatory thinking.

I would just like to refer to briefly – I will give your Honours the citation to the Native Title Act Case, Western Australia v The Commonwealth 183 CLR 373 at 437 at about point 4 where the Court described the effect of the Racial Discrimination Act in relation to native title, and it said that the Racial Discrimination Act:

confers on protected persons rights or immunities which . . . allow protected persons security in the enjoyment of their title to property to the same extent as the holders of titles granted by the Crown.

So the basic test is that the native title holders must enjoy their rights to the same extent as holders of titles from the Crown.  Again, our submission is, that is a notional comparator, it does not actually have to be in relation to the particular land of such other title holders, there needs to be a notional title holder.  That is confirmed by the decision of this Court in Western Australia v Ward 213 CLR 1. I would just like to take your Honours to a couple of passages in relation to that decision.

At paragraph 115, which we came to to some extent this morning, the majority judgment said:

In determining whether a law is in breach of s 10(1) –

of the Racial Discrimination Act –

it is necessary to bear in mind that the sub-section is directed at the enjoyment of a right; it does not require that the relevant law, or an act authorised by that law, be “aimed at” native title, nor does it require that the law, in terms, makes a distinction based on race. Section 10(1) is directed at “the practical operation and effect” of the impugned legislation and is “concerned not merely with matters of form but with matters of substance” . . .

Some care is required in identifying and making the comparison between the respective “rights” involved.

I will just pause there and point out that it needs to be the rights involved which are affected, and not the actual rights involved of the comparator, but the notional rights involved of the comparator.  We must not confuse the effect of a provision when it is being talked about in these paragraphs with the actual practical effects factually; it is the effect legally that is important, and again, that is confirmed in paragraph 119:

The rights upon which s 10 of the RDA operates are defined in s 10(2) –

and that sets out the rights, but they are the rights.  If we go to paragraph 124 where there is a discussion about a particular provision:

Finally, the legislation may attract s 10(1) of the RDA because it purports on its face to extinguish native title without compensation or on less stringent conditions . . . than those which govern the expropriation of the property of the people of another race.

The Court goes on to discuss that further.  But just pausing there, what is being compared is the rights of native title holders and the rights of others.  It is the notional rights of others, it is not saying that in relation to a particular acquisition both the native title holders and other people have to actually get compensation, it is that under the law if native title is affected those holders must get compensation if other people get compensation in the same case, and therefore at the end of that paragraph:

In such cases, it is appropriate to compare that lack of compensation in respect of native title with what it appears are rights of compensation generally afforded to holders of other forms of title.

It is the rights of the other people.  It is not that other people might in a particular situation get compensation.  It is whether they have a right to compensation.  In our submission, this point is made more powerfully if we go to a particular example in relation to the consideration of the Court in Ward at paragraph 278 and this is of the operation of the Public Works Act.  In paragraph 278 the provision of the Public Works Act is set out and it is remarkably similar to the provisions of the Lands Acquisition Act (NT) which we are considering in this case. If we go to page 156 but still in paragraph 278 the Court says:

Both that Act and the notice that was given under it were intended to have entirely general effect on any and every kind of interest that may have existed in the land immediately before it was resumed.

There is the Act, the law under which this was done and the actual notice of acquisition had a general effect.  Then we go to the end of that paragraph:

The Public Works Act provided no different treatment of native title rights and interests from the treatment of other rights and interests in the land and it has not suggested that the practical operation of that Act resulted in the different treatment of native title rights and non‑native title rights.  That being so, no question of inconsistency . . . arises.

If we go to paragraph 280:

All this being so, there was no inconsistency between s 18 of the Public Works Act and the RDA.  It follows that the vesting of the estate in fee simple in 1975 . . . was valid and it extinguished all native title to the land.

What the Court looked at there was the law and the law applied to both native title holders and non‑native title holders.  It then looked at the notice.  The notice sought to acquire the interests of both native title holders and non‑native title holders.  On the basis of that, the Court said it complied with the Racial Discrimination Act.  The Court did not go to the next step and ask in relation to this particular piece of land, was there in fact both native title and non‑native title interests in that land and require that step to be taken before the acquisition complied with the Racial Discrimination Act.  That step was not necessary because the relevant comparator is a notional comparator.  There is no requirement for an actual comparator and, in our view, the submissions put by the appellant in this case are inconsistent with the finding in Ward in that case.

If I could just take one step further, if the appellants are right with regard to the non‑discrimination issue, then in a sense every acquisition of land in Australia which only acquires one person’s interest is potentially racially discriminatory because there will only be an acquisition of the rights of a person of one race in relation to that acquisition and that cannot be correct.  It cannot be that an acquisition of one person’s rights or of a number of people who are all of the same race that that acquisition of itself is racially discriminatory. 

What is, in our submission, racially discriminatory under both the Racial Discrimination Act generally and clearly under Native Title Act is if there are two rights in relation to a particular piece of land and the government acquires just the rights of one racial group, the native title holders, and leaves the rights of the other racial group alone that is clearly inconsistent with non‑discrimination principles, generally in breach of the Racial Discrimination Act and would not pass the test in section 24MD(2)(b) and that is what it is aimed at.

It is not creating for native title a super title because freeholders, in relation to freehold land, it would not be the case that if the only interest in a piece of land was freehold that the freeholder is immune from compulsory acquisition.  That is not the case, in particular on Racial Discrimination Act provisions.  To say that native title in that case is immune from compulsory acquisition is to give the native title holders significantly greater rights than the freeholder has which was not the policy of the Native Title Act.

Could I mention in relation to this first point just two further matters.  One of them is that we also said that the purpose of the Native Title Act was to enable land management to proceed.  As I have said, and I think a number of the other interveners have said, if the interpretation of the appellants is correct, then it will not be possible for significant amounts of traditional land management in Australia to proceed.

The third purpose I proposed was an uncertainty purpose.  In our submission, the appellants’ reading of paragraph (b), far from removing uncertainty, creates further uncertainty because in order to determine whether this compulsory acquisition will in fact extinguish native title, you need to know first of all if there is native title but, secondly, you also need to know if there are other non‑native title interests, on their argument, and it may often be the case that before an acquisition proceeds, it is not clear whether there is native title in relation to the land.  That was certainly the case in this acquisition and is still the case under many acquisitions in Australia.

What the Native Title Act is trying to do is say, well, you can actually put that one issue to one side provided you follow the rules in the Native Title Act.  In other words, if you follow these rules, even if native title exists in the future, the act will proceed.  But on the appellants’ argument, you also need to know whether there are non‑native title rights and interests.  It is common to not know before an acquisition whether there are in fact any other non‑native title rights and interests.  There may be all sorts of unregistered interests which come to light because of the notice.

So, in a sense, a government acquiring land, on the appellants’ submission, will not know what the effect of their acquisition is going to be until they have worked out or until it has been determined whether there is native title and whether there is non‑native title in relation to the land.  In our submission, therefore, that reading of the provision does not pursue this purpose of dealing with the uncertainty which native title gives rise to in Australia.

I would like to briefly deal with the second question which is, what is the effect if the requirements for extinguishment in section 24MD(2) are not met? We have covered much of this ground, but I do need to take your Honours to the provisions, which are section 24MD(3). As was pointed out, on the construction of the appellants, this acquisition would not meet the requirement of section 24MD(2)(b) and therefore the effect on native title falls to be determined under section 24MD(3). As (3)(a) provides, the non‑extinguishment principle applies in relation to the land. The non‑extinguishment principle is set out in section 238 of the Act, and we have been taken to it.

In our submission, what the non‑extinguishment principle means in this case is that the compulsory acquisition can have an effect on native title.  Because the acquisition will be wholly inconsistent with the continued existence of native title, the effect is that the native title rights and interests have no effect in relation to the act which, in our submission, is the compulsory acquisition.  The position is, under subsection (6), that if the act or its effect are later removed or otherwise wholly cease to operate, the native title rights again have full effect.

The operation of this provision is easier to understand where it is a time‑limited act, like the grant of a mining lease.  What this would mean is that for the term of the mining lease the native title rights have no effect but when the mining lease ceases to exist at the end of the term, the native title rights and interests again have full effect.  It is more difficult with regard to future acts which are not time limited, such as the grant of a freehold title, but as was the case in Fejo, it is clear that freehold titles can cease to exist at some time in the future, unusual as that might be, because those were the very facts the Court had to deal with in Fejo, where there was a freehold title which ceased to exist.

So in that circumstance, if the effect on native title by the future act is a freehold grant, when the freehold grant ceases, the native title comes back.  It is even harder with regard to compulsory acquisitions but, in our submission, it is still possible to envisage that a compulsory acquisition could be revoked or in future a law could provide for the relinquishment of the compulsory acquisition.  In those cases, the native title may come back. 

In footnote 45 of our written submissions we have given a couple of examples of these.  Indeed, in some compulsory acquisitions there are provisions such as if the land is required for a purpose, the land is no longer needed for that purpose, then the land can revert to the person from whom it was acquired or to the person next door.  So it is possible to envisage that the compulsory acquisition may cease at some time by revocation or relinquishment. 

The point that the appellants make is that this non-extinguishment principle is inconsistent with section 46 of the Lands Acquisition Act (NT). The Northern Territory met this principle, but I would just like to say a couple of things more about it. Of course, if there is inconsistency and if the Northern Territory law is repugnant to a valid Commonwealth law, then the Northern Territory law will be invalid and it may also be the case that because this is an exercise of federal jurisdiction, section 79 of the Judiciary Act operates.  It could well be that under that provision the Commonwealth law otherwise provides.  So there may be bases upon which the Commonwealth Act can stop the Northern Territory Act operating.

In our submission, it is important to consider the non-extinguishment principle in the light of section 46 and, in our submission, those provisions are doing the same things. They are working within the same scheme and we say that for these reasons. First of all, as we have seen under section 238(3) of the Native Title Act, the native title interests have no effect in relation to the act, the compulsory aquisition.  This Court considered what that meant also in Ward.  If I can just take you to one paragraph, paragraph 7 of the decision in Ward, which is ‑ ‑ ‑

GLEESON CJ:   How long do you expect to require to complete your argument, Mr Orr?

MR ORR:   Only another ten minutes.

GLEESON CJ:   How long do you think you will be, Mr Solicitor?

MR MEADOWS:   No more than five minutes, your Honour.

MR ORR:   In Ward 213 CLR 1 the Court considered the non‑extinguishment principle and it is said at paragraph 7 of the decision:

This “principle” is spelled out in s 238 of the NTA. In general terms it involves the suspension of what otherwise would be native title rights and interests so that, whilst they continue to exist, to the extent of any inconsistency (which may be entire) they have no effect in relation to the “past act” in question. The native title rights and interests again have full effect after the “past act” ceases to operate or its effects are wholly removed.

So that is the statement of the principle and we take from that the suspension of the native title rights.  The native title rights are, in this case, wholly suspended and have no effect.  We take “no effect” to mean not enforceable.  They do not attract enforceable rights for the period of the effect of this compulsory acquisition on the native title rights. 

Similar things were said in regard to the suspension principle in the Native Title Act case at page 458, point 3 and also, as we refer to in the submissions, Justice French in Lardil has said at paragraph 46 that the non‑extinguishment principle provides for “temporary non-recognition of native title rights and interests in land affected by an act”.  That might be taking the concept a step further, but it is certainly in line with the basic principle.

So that is what the Native Title Act is saying in relation to the effect of the compulsory acquisition on land subject to native title.

To take the next step further, as Mr Jackson said, the Native Title Act is generally defining the area in which State and Territory laws are able to operate in relation to native title. Those provisions, those areas, are exceptions to the general sterilisation in section 11 of the Native Title Act, and the future act regime in particular prescribes the extent by which Territory law can operate.

What section 24MD(1) is providing is providing for this Northern Territory acquisition to be valid. Section 24MD(1) says:

If this Subdivision applies to a future act, then, subject to . . . the right to negotiate), the act is valid -

and “valid” is defined as having full force and effect in section 253. So the regime for the Native Title Act is that it is saying the native title rights have no effect and the compulsory acquisition is valid and has full force and effect until the acquisition is revoked or relinquished.

As I think Justice Gummow was saying this morning, we should not be misled by the reference to the term ‘compulsory acquisition” in section 24MD and in other provisions because it is clear that what is happening here is not that the native title rights are being acquired by the government in the sense that the rights are transferring from the native title holders to the government. That is clearly not happening. What is happening is that the compulsory acquisition is having an effect on the native title rights. At common law that effect would be extinguishment, but here in a sense if the non-extinguishment principle applies it is not extinguishment but it is still an effect as prescribed by section 238.

So to take those principles from the Native Title Act and to look at section 46 of the Northern Territory Lands Acquisition Act, it says in 46(1)(a):

(a)      the land –

which we take to be the actual land in that provision - I do not think land in (a) is actually referring to the rights, but we can come back to that –

described in the notice –

because that is what is described in the notice, the physical land –

vests in the Territory freed and discharged from all interests -

We say that that wording of “freed and discharged” is consistent with what the Native Title Act provisions are saying, which is that the native title has no effect for the period of the acquisition, and that the acquisition is valid and has full effect.  In our submission, the Northern Territory law here does not seek to alter, impair or detract from the operation of the Commonwealth law, to use the words of Justice Dixon in Victoria v The Commonwealth, rather it seeks to work with the architecture of the Native Title Act in this regard.

If the compulsory acquisition were revoked or relinquished in some way in the future then we say that is when the non-extinguishment principle will have an operation and the native title rights will return.  That is likely to be an unusual position but we say that that is possible.  It is similar in a sense to revoking the acquisition.  Section 46 in its terms does not talk about revoking the acquisition, but of course, if the acquisition were revoked then the operation of the provision would be changed.  We do not see that as an inconsistency, rather we see that as providing for a development of that provision.

If, contrary to those submissions, the Court thought there was an inconsistency between the Native Title Act and section 46, in our submission, that is just a limited textual inconsistency which would be clearly subject to reading down provisions.  In our view, the Native Title Act has made it completely clear that it wants an acquisition which meets the requirements of that Act to have effect and operate in relation to native title; that is what it is seeking to do. It is seeking to put in place requirements, but if those requirements are met it is seeking to give force to the acquisition. It is not seeking to strike down the acquisition, and in our view section 59 of the Interpretation Act (NT) should operate.

Can I just conclude by one issue.  One of the arguments in the appellants’ submission, and this was a matter which was discussed to some extent this morning, was that because the non‑extinguishment principle applies in relation to the native title which has been subject to this compulsory acquisition, that the government will not be able to make a freehold grant because somehow that freehold grant will be prevented by the non‑extinguishment principle or the other terms of the Native Title Act.  We deny that operation for several reasons.

First of all, as we have seen, section 238(3) of the Native Title Act provides that the native title rights have no effect. That means they cannot operate to prevent the government taking actions consistent with its compulsory acquisition. So once it is compulsorily acquired and dealt with the existing rights in the land, not acquired them in the case of native title, but suppressed them, it can then deal with that land to the full extent of that compulsory acquisition, and that is what section 238(3) is specifically providing for, for that effect.

Further, that grant of the freehold will not be, in our submission, a future act under the native title regime because it is not an act which will affect native title as required by section 233(1)(c)(i) which we went to earlier this afternoon. Because the government has acquired all the rights in the land and suppressed all the native title rights, the grant of a freehold right will not further affect those native title rights. The grant of the freehold by the government is equivalent to once a person has a freehold title to that person selling the freehold, mortgaging the freehold, leasing the freehold. Those things will not be future acts under the Native Title Act regime because they do not further affect native title any more than the grant of the freehold.

This stands in contrast to other things which can happen under the Act.  For example, if the acquisition was just of an easement, the acquisition was just by the government to get enough rights in the land so that it had an easement, then the rights of the native title holders would be suppressed not

wholly but just to the extent of their inconsistency with that easement and they would continue to have rights in relation to that land.

If the government then wanted to grant a lease or a mining lease or some other greater interest, that further grant would clearly affect the native title holder’s right.  The acquisition was only of enough to get the easement.  If there is going to be another acquisition of a greater right or the grant by the government of a greater right than it obtained by the compulsory acquisition, then that clearly needs to go through the future act process and needs to comply with the freehold test and the other requirements of the Native Title Act.

If what the government acquires with the compulsory acquisition is a significant right and the actions it has taken are all encompassed in relation to the right which it has obtained, the Native Title Act does not prevent those sorts of actions.  It enables and allows those actions because they do not further affect native title. 

GLEESON CJ:   Yes, thank you, Mr Orr.  Mr Solicitor for Western Australia.

MR MEADOWS:   May it please the Court.  I take it from the hearing that my learned friend received he either had leave or it is accepted that he had a right to intervene.

GLEESON CJ:   That sounds like a reasonable assumption.  Go ahead.

MR MEADOWS:   I am hoping to be in the same position, your Honour.

GLEESON CJ:   We will let you know if there is a problem.

MR MEADOWS:   I appreciate that.

KIRBY J:   New South Wales did not seem to be so doubtful.  They just barged on.

MR MEADOWS: I think if one reads their submissions one can see that they did think that they needed leave. Be that as it may, may we adopt the submissions of the first respondent and the submissions that have been put by the Commonwealth and in relation to section 24MD(2), may I specifically adopt what my learned friend, Mr Orr for the Commonwealth, said about section 24MB and its effect.

What we would submit is that section 24MD(2) is intended to achieve equality of treatment in relation to the compulsory acquisition of land for all persons having rights and interests in land whether those interests are non‑native title interests or native title interests. 

So whatever the rights and interests might be, the holder of those interests finishes up with an entitlement to compensation so that there is an equality of treatment. On the appellants’ construction, section 24MD(2)(b) would have exactly the opposite effect. In other words, there would be a discriminatory regime where the respective interests would be treated not equally, but differently. Our examples in paragraphs 23 and 24 of our written submissions, in our submission, exemplify that point. We refer in addition to what we have said in paragraphs 25 and 26 of our written submissions.

The only way in which a non-discriminatory outcome can be achieved is if the construction contended for by the first respondent and the Commonwealth is upheld.  The other extraordinary result which we say could clearly not have been intended is that if the appellants’ construction is accepted, there would be no means whatever of compulsorily acquiring native title interests where they were the only interests in the land.

There are two other points that I wanted to advert to and the first of those is in relation to section 24MD(3). Again, we would adopt the submissions of the first respondent and the Commonwealth and just point to section 165 of the Western Australian Act.

KIRBY J:   Is this the section Mr Gageler identified earlier in the day?

MR MEADOWS:   Yes, section 165, but I am referring to it for a different purpose, your Honour, just to show that there are provisions which do allow for the revocation of a compulsory acquisition.  If one looks at section 165, which is attached to our submissions in the annexure 1 at page 7, in subsection (4) you can see that there is a situation where if land was compulsorily acquired for the purposes of that land being disposed of, the Minister may be order revoke that order if need be.

So there is a situation, certainly in Western Australia, where the scenario painted by my learned friend, Mr Orr, could arise where the suppressed native title would revive.

GUMMOW J:   What is the section in your State?

MR MEADOWS:   Section 165(4).  It is at page 7 of the annexure.

GUMMOW J:   Yes, thank you.

MR MEADOWS:   The only other point I wanted to advert to was to provide some support to my learned friend, Mr Orr, in relation to the operation of Subdivision K and to refer to the explanatory memorandum for the 1997 amending Act which, I am afraid, your Honours only have Chapter 15 of that in the materials that were provided by way of extrinsic materials.  This particular passage I wanted to refer to is in Chapter 13, dealing with Subdivision K.  I refer to paragraph 13.7.  It says:

Large scale works (e.g. an airport) are not intended to be included among the facilities covered by Subdivision K.  Large scale works are either likely to require exclusive possession or significantly impede access by native title holders.  Any native title should be acquired for such works.  This could be done by agreement or by a compulsory acquisition which would be valid because of Subdivision M.

If it please the Court, those are our submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Mr Solicitor for New South Wales.

MR SEXTON:   If the Court pleases, three short matters. We have made written submissions on the construction of section 24MD of the federal legislation and those submissions are in support of the Northern Territory and also largely reflect the submissions of the Commonwealth and of Western Australia. As to the consequences if that argument be not accepted, we have not made written submissions but we adopt the submissions of the Northern Territory and the Commonwealth to the effect that section 46 of the Northern Territory legislation is not inconsistent with or repugnant to the relevant provisions of the Native Title Act.

The third matter is that we have referred in our submissions to the relevant New South Wales legislation, which is the Land Acquisition (Just Terms Compensation) Act 1991. I will not take your Honours to it at this time, but if I could just ask your Honours to note these four provisions. Section 19 provides for an acquisition notice to be given by what is described as “an authority of the State”, which is defined in section 4(1) – an authority of the State that is authorised by law “to acquire land by compulsory process”. That term is also defined in this case in section 4(2).

Section 20 then provides for the acquisition to occur and the effect of that acquisition.  Finally, section 29 provides that this can occur even though it is Crown land that is acquired by the relevant authority of the State.  Crown land is also defined and it is defined in section 4(1).  Unless there are any other matters, those are our submissions.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Gageler.

MR GAGELER:   Your Honours, six points.  The first is in reply to myself.  I had wrongly said in-chief that New South Wales had coined the phrase “clear the title”.  The actual phrase in paragraph 5.3 of the New South Wales submissions is “cleanse the title” which perhaps more accurately reflects what is afoot.  Secondly, if your Honours have Reprint No 5 of the Native Title Act and turn to page 83, your Honours will see a provision that deals specifically with pipelines.  At page 85 in section 24KA(7), your Honours will see within both paragraphs (a) and (b) the reference to “(if any)” when referring to non-native title rights and interests. 

It is those bracketed words, “if any”, that the respondent and each of the interveners would have the Court read into section 24MD. Why those words ought be read in given the object in section (3)(a) and given the clear statement of legislative intent in section 10 is, in our submission, not adequately explained, nor why those words should be read in to a provision, section 24MD, that occurs at the end of a whole litany of provisions allowing for future acts to be undertaken which will have an effect on native title, is not spelt out.

The next point is, if your Honours in the same print turn to page 93 and look at section 24MD(6A), its provisions have not been specifically drawn to your attention. What it says is that the native title holders and any registered native title claimants in relation to the land or waters concerned have the same procedural rights as they would have in relation to the Act on the assumption that they instead held ordinary title. There you have within section 24MD a notional comparator. Compare section 24MD(2)(ba). We have here not a notional comparator, but an actual comparator.

On our learned friend’s construction it is difficult to see what 24MD(ba) possibly adds to the general provision in 24MD(6)(a).

HEYDON J:   MD(2)(ba).

MR GAGELER:   Your Honour is absolutely right. The fourth point, your Honour Justice Crennan asked what if native title holders agree to the purpose of the proposed acquisition. That is specifically covered in section 24MD(2A), but it could also be adequately covered by an indigenous land use agreement, something for which provision is made in a couple of places but, for example, in section 24CA one of the things that can be dealt with in an indigenous land use agreement – and you see this in section 24CB(e) – is the extinguishment of native title by surrender.

The fifth point deals with the first of the ways in which we put the repugnancy or inconsistency point if we are correct in saying that section 24MD(2) is not engaged and therefore we are in the territory of section 24MD(3)(a), that is the non-extinguishment principle applies to the act. What is the act? The act is the act of acquisition at a particular point in time by virtue of the publication of a notice under section 43(1).

On the one hand you have section 24MD(3)(a) read with section 238(2) and (3) which say by force of Commonwealth law native title continues to exist in its entirety and on the other hand you have section 46(1) and 59(1) of the Lands Acquisition Act which say, or purport to say, by force of Northern Territory law at a particular point in time, that is, upon the publication of the notice, the native title interests are divested – that is the language of section 46(1) – and they are converted into a claim for compensation against the Territory – that is section 59(1) – in our submission, a direct contradiction in terms.

This really brings me to the final point. There is another way in which the repugnancy or inconsistency arises. I did not touch upon it orally in‑chief, but it has been touched upon in the submissions of Mr Jackson and of some of the interveners. It arises in this way. Under section 238(2) it is said correctly against us that native title continues to exist. If that is right then any subsequent grant of a leasehold or freehold interest in fulfilment of the purpose of the acquisition is necessarily an act that affects that native title within the definition of “affect” in section 227 and as an act affecting native title, it is a future act within the meaning of section 223 and it is a future act that could not pass the freehold test in section 24MB(1)(b) and it could not pass the freehold test, because you cannot grant freehold over freehold. If it does not pass the freehold test, that means that section 24OA applies and the act is invalid.

So putting all that together, even if one accepts our learned friend’s response that the actual acquisition cannot be invalid and that native title continues to exist, the purpose of the acquisition is one that cannot lawfully be fulfilled.  It cannot lawfully be fulfilled because it envisages a future act that could not pass the freehold test and therefore falls foul of section 24OA.  If the Court pleases, those are our submissions in reply.

GLEESON CJ:   Thank you, Mr Gageler. 

MR JACKSON:   Your Honours, may I give a reference to one provision?

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours were referred to various subdivisions.  One does need to bear in mind when dealing with them that there is the kind of cascading provision referred to in section 24AB(2) which applies to section 24AA(4) so that it is really like putting a coin through your money box in the shaker they used to have at the Commonwealth Bank and coins only got to the bottom if they had not been caught on the way down.

GLEESON CJ:   Thank you for that, Mr Jackson.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.

AT 4.11 PM THE MATTER WAS ADJOURNED