State of Queensland v Congoo and Ors

[2014] HCATrans 273

[2014] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B39 of 2014

B e t w e e n -

STATE OF QUEENSLAND

Appellant

and

Tom Congoo, Layne Malthouse and John Watson on behalf of the Bar-Barrum People #4

First Respondent

Attorney-General of the Commonwealth of Australia

Second Respondent

Attorney‑General Northern Territory

Third Respondent

Tablelands Regional Council

Fourth Respondent

Ergon Energy Corporation Limited CAN 087 646 062

Fifth Respondent

Telstra Corporation Limited

Sixth Respondent

Consolidated Tin Mines Limited

Seventh Respondent

Ms Laurelle Ursula Gundersen

Eighth Respondent

Mr Grant Henrik Gundersen

Ninth Respondent

Thomas Samuel Mauloni

Tenth Respondent

Dianne Calmsden Mauloni

Eleventh Respondent

Mathew John Mauloni

Twelfth Respondent

Robert Thomas Mauloni

Thirteenth Respondent

thomas John Mauloni

Fourteenth Respondent

Mr Robert Graham White

Fifteenth Respondent

Ms Robyn Doris White

Sixteenth Respondent

Stephen John Crossland

Seventeenth Respondent

Dale Albert Crossland

Eighteenth Respondent

Elizabeth Hazel Dawn Crossland

Nineteenth Respondent

Renato Dovesi

Twentieth Respondent

Lina Dovesi

Twenty-First Respondent

WilliaM David McGrath

Twenty-Second Respondent

sharon Lesley MCGRATH

Twenty-Third Respondent

FRENCH CJ
HAYNE J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 DECEMBER 2014, AT 10.17 AM

(Continued from 2/12/14)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Mr Solicitor.

MR GLEESON:   Your Honours, just to conclude on ground 1 this morning, I wanted to recap on the difference between the parties on the question of statutory construction and then say a little about the underlying principles involved to show that our approach is consistent with those principles.

As to the question of statutory construction and the nature and content of the right of the Commonwealth, you essentially have before you these starkly competing positions.  The Commonwealth’s submission is that it took possession of the land, limited by time and by the purpose of the war effort and, most importantly, it did so on a basis that it treated all pre‑existing interests the same way and, in short, during the period of the war pre‑existing interests would continue but would sound in money, not in use.  That is because of the compensation provisions.  After the Commonwealth’s possession ended, pre‑existing interests would be exercisable in full.

So, in the manner in which the Commonwealth seeks to construe the scheme, the questions of the time limit, the purpose limit, the liability to compensation and the intention that after the war the pre‑existing regime re‑emerge in full, are part of the identification of the right.  What has been put by Queensland is essentially this:  well, that may or may not be true in respect to all non‑native title interests.

Ms Brown at line 1196 went close to accepting that this would be true for non‑native title interests, but the world is totally different, they say, for native total interests, and it is totally different because once the native title holders are deprived of their right to enter and they have to ask permission, that is the end of their right.  It has ceased to exist under the scheme and the effect of that construction, as I sought to put at the very end of yesterday, is firstly to confer a benefit on Queensland as the radical title holder.  It is now freed of native title.

KIEFEL J:   What is the relevance of that?

MR GLEESON:   Because in understanding the effect of the purported construction and comparing it to the statutory purpose, one can see whether (a) it is an acceptable construction, and (b) one can see whether, as I put yesterday, it would in fact take the scheme outside section 5.

KIEFEL J:   Does the difference of approach between the Commonwealth and Queensland come down to this, that the Commonwealth seeks to have this Court have regard to the scheme of the Act, its purposes and the intention objectively ascertained as a process of construction, whereas Queensland focuses entirely upon the rights which are provided to the Commonwealth by the statute and says that one focuses only upon the right of exclusive possession, and as I understand Queensland argument says that the inconsistency of rights approach or test which has been dealt with in a number of cases now really limits the inquiry to the question of rights and it puts out of the picture intention either objectively or subjectively ascertained?  That seems to be the difference of approach.

MR GLEESON:   Your Honour, that is essentially the difference in approach.

KIEFEL J:   How do you say we can have regard to the scheme of the Act and the objectively ascertained intention of the legislature in not undermining any rights?  How do you say that is consistent with the authorities?

MR GLEESON:   It is consistent because it is part of the identification of the nature and content of the Commonwealth right, so we agree one has to identify rights and then compare them.  The Queensland approach is to understand the Commonwealth right you observe one aspect of it.  You observe exclusive possession and you do not inquire into the relationship that the right has with every other right in the land.  As Justice Starke indicated in Dalziel, we are dealing here with a right in the land of another, jura in re aliena, and to understand and identify the Commonwealth right, we submit it is too narrow, it puts the blinkers on to say I will simply look at exclusive possession and I will ignore the qualifications which have been attached to the right.

FRENCH CJ:   Do you define the right more widely than exclusive possession.

MR GLEESON:   Yes.  Exclusive possession does not give you an adequate definition of the right.  It is exclusive possession for a period subject to a purpose and on terms that to the extent you exercise the right you must pay for the interference you cause.

FRENCH CJ:   The problem is when you bring in “for a period”, putting to one side for a moment “purpose” you then bring in, in a sense, by a back door, the notion of suspension.

MR GLEESON:   Well, we disavow what has been identified as a heresy, the adverse dominion test, page 74 of Ward, and we disavow Justice North’s approach which has been rejected that, in general, the common law views this matter in such a fashion that if at all possible you prefer suspension to extinguishment.  We disavow those.  What we embrace is paragraph 82 of Ward that if there is a qualification in the statutory scheme in the manner in which the rights have been created, then the common law respects the qualification and ‑ ‑ ‑

HAYNE J:   What is the difference between the description of the right you attribute to that created by the order and the description that one would inevitably give to a lease for a term of years which gives over exclusive possession for a time, which at the end of that time will lead to the resumption of the status quo ante and in the meantime the tenant pays for the occupation.  What is the difference? 

MR GLEESON:   Yes.  With the conventional lease there will be both the creation of the term or estate for the tenant and there will be the creation of a reversion.  It is not necessarily true with every lease but with a conventional lease there will be the creation of the estate in the tenant and there will be the creation of the reversion.  The radical title of, let us say, Queensland or the Commonwealth under a conventional lease has now been transformed into a situation of the estate in the tenant and the reversion in the Crown.

Now, in that circumstance there will be, absent some other very, very special fact, inconsistency with the right of native title holders, assuming they take a relatively conventional form.  There will be inconsistency.  Now, what is different in the present case?  The first difference is that during the period of the impairment of the native title right and every other right there is the express recognition that the right is now to sound in money rather than in use, and the right is treated as continuing because it is the foundation for the compensation claim, and as Justice Brennan discussed in Mabo at around page 61, part of the common law recognition of native title involves the making available of common law remedies, whether legal or equitable, which reflect the recognition of the native title.

His Honour said that at page 61 at the commencement of the middle paragraph.  A way of conceptualising this difference is that during the period of the Commonwealth’s possession, the fact that the native title holder, as well as everyone else, can claim compensation under section 60D as on a trespass for the continuing interference is part of the protection given by the law to that continuing right and interest.  So, that is one critical difference. 

The other differences – if your Honour were to go to our written submissions at paragraph 62, we have sought to identify four, or perhaps five, matters which indicate how in this case – and this would not be true of the conventional lease – the native title right can be said to continue in existence.  The first is that if permission is granted to come onto the land to exercise the rights associated with the title, it is meaningful to speak of that as being an exercise of the right in a similar manner to that in Akiba.  It was meaningful to speak of the native title right to fish being exercised where the necessary license was obtained.

The second matter we note – and this distinguishes it from the lease – is because there is the purposive limit, the generous purposive limit around the Commonwealth’s possession, judicial review would be available to any holder of an interest to restrain uses by the Commonwealth which exceeded the generous limit.  We give the example of a capricious denial of access to carry out activities connected with continuing native title, or for that matter to meet a legitimate need of a freeholder or a leaseholder, and so the native title holders, as with other interest holders with that right to judicial review are in a different position to the conventional lease.

I will pass over 62.3.  I have mentioned paragraph 62.4 which is that the ability to get the statutory right of compensation can be viewed as part of the bundle of legal and equitable remedies which the common law recognises as remaining available to vindicate the continuing protection and finally, there is the position that at the end of what is a temporary scheme there is the recognition, we say, in the scheme that all pre‑existing interests resume in their full glory. 

Now, that is different to the conventional lease.  If one was to compare that with the lease one would have to say, well, what if the lease said that at the end of the period of time all persons who may have had interests in the land resume those interests in full or said more specifically native title holders resume their interests in full.  That would place one into paragraph 82 of Ward which is where one would see a statutory provision providing for what might be termed “suspension” or might be termed “temporary impairment”.

KEANE J:   But is not the perhaps crucial but certainly an important difference between the position of a lessor and lessee and the Commonwealth and the holders of pre‑existing titles that in a lessor/lessee situation the lessee pays the lessor - the lessee pays the lessor for the use of the property? 

MR GLEESON:   Yes.

KEANE J:   In this situation, it is a condition of the Commonwealth’s taking possession that it pays the holder of the pre‑existing title.  So that one does not need to talk about resumption or revival, one simply has a situation where the Commonwealth takes possession – exclusive possession, if you like, and while that temporary arrangement subsists it pays the holder of a pre‑existing title on the express footing that the pre‑existing title does exist and that is why the Commonwealth has to pay.  So that what one sees is the enjoyment being measured in terms of money rather than kind but it only ever makes sense because the pre‑existing rights continue to subsist.

MR GLEESON:   Yes, and in that sense it is not suspension and revival, it is a continuance because the pre‑existing right is the foundation for the right to the payment from the Commonwealth and the obligation of the Commonwealth to pay.  That creates, we would submit, a crucial difference.  Because the scheme is general in its terms, it treats the compensation right in the same way for everyone, everyone who has an interest.  It seems accepted by Queensland that that expression “interest” in section 60D is sufficient to include all pre‑existing interests including common law native title.

It operates in the same way, we would submit, for native title as it does for non‑native title, whereas it would seem to be the logic of Queensland’s position that instead of the native title holders being paid for the use as it occurs of the land in which they have the interest, it is said that the scheme extinguishes their interest on day one, and one then asks, what is the Commonwealth to pay under section 60D?  Is the Commonwealth to pay as on a purchase of the entire interest?  Is that what it means?

Now, that is a matter of statutory construction, and coming back to your Honour Justice Kiefel’s question, why it is permissible to look at these surrounding matters.  The logic of Queensland’s position is their interest, but no other interest under this scheme, is extinguished on day one.  The Commonwealth pays as on a purchase, as opposed to paying as on continuing use and the Commonwealth pays as on a purchase in order that, at the end of the war, Queensland, as the radical title holder, obtains the ultimate benefit.

Now, that produces, we have said, a discriminatory scheme.  It produces a distinction which has no apparent difference in the purposes of the scheme and it would produce a scheme, we do not resile from saying, which would go outside section 5 because it would be a scheme whereby the Commonwealth is extinguishing property and paying as on a purchase as opposed to a scheme where the Commonwealth takes and possesses and pays for use.

So, for those reasons we would submit, yes, as part of the identification of the right fully identified one gets the answer which then, applying the accepted principles, without any development, one avoids inconsistency.

HAYNE J:   Mr Solicitor, a possible point of view is that the analysis that you have just made is one which does not take account of the radical nature of the question presented.  The radical nature of the question presented is about the manner of intersection of two different normative systems.  The answer you give treats the answer to that intersection as assumed.  That is, that the preservation which you say is worked by the Act is preservation of not only rights created under one system, but preservation of all rights, and what I invite your attention to is whether the analysis you make does not have within it a premise which concludes the question.

MR GLEESON:   Not a premise which concludes the question but a premise of statutory construction that an available and the better view of this statute, particularly giving the words their meaning under the ordinary principles, but also allowing legality its proper role as per paragraph 24 of Akiba.  So an available and better construction is, the Commonwealth has said, if I am to take possession, the terms are that I treat any and every interest known to law the same way and the way I treat them is to pay for the use that I am temporarily taking from them.

That is a premise in the argument.  If that is not what the scheme means, our argument fails.  I accept it is a premise, but it is not a conclusion.  It is a premise reached by all the ordinary tools of statutory construction applied to this scheme.  On the other hand one says, well, it is a premise of Ms Brown’s argument that this statutory scheme intended to treat one category of pre‑existing interests in a radically different way.  Subjective intention is irrelevant.  We are looking at objective intention.  One asks where are the indicia in this scheme which would lead to the conclusion objectively that it intended to treat one category of pre‑existing interests in a radically different way to all other pre‑existing interests.

HAYNE J:   This shows the difficulty in the metaphor of intention.  A central difficulty in the metaphor of intention is that it connotes the idea of desired outcome.  Desired outcome is irrelevant.  The question is one of construction, and the moment we resort to intention I suggest that we are at grave risk again of presupposing the answer to the question presented.

FRENCH CJ:   I suppose another way of putting the problem is that we are dealing with not just the impact of a statutory right upon a common law right generated by the common law rule of recognition of traditional title, but the common law rule of recognition itself.  In other words, it is not just a matter of statutory – the statute apply to this set of rights as though they were in the same bag as what one might call non‑indigenous rights which are recognised by reference to statutory and other common law rules.  This is a common law rule of recognition which has within it limitations relating to such issues as extinguishment and so forth.

MR GLEESON:   Yes, your Honour is, with respect, correct, but part of the common law rule of recognition, which is why we have gone back to Mabo [No 2], is the recognition that although when the sovereign arrived that did not wipe away the native title, the sovereign as the sovereign is respected by the common law so that its dealings, necessarily inconsistent with the native title, take priority but that ‑ ‑ ‑

FRENCH CJ:   The common law was taken to have recognised native title from the time of annexation.

MR GLEESON:   Yes, but that same respect for the sovereign says if the sovereign chooses to structure the right that it takes or the right that it grants in a way which is qualified so as to respect the continuing existence, then the common law rule of recognition says we agree.  Now, if one says, well, let us not be distracted by metaphors of intention, but simply went back to the text of the scheme, we maintain the proposition that as I have said under section 5 a power to authorise the taking of possession and control of property which is crafted in distinction to a power to acquire property other than land is not a power which enables a taking of the sort Queensland contends for.

It is not a power which would enable a scheme which stays at the stage of taking of possession and control in respect to one category of interests, but in respect to other interests extinguishes them and pays as on a purchase.  So one need only go to section 5 to see that the premise of our argument is one which observes the scope of the power.

Then one goes to regulation 54 and says, well, does it indicate the scheme is intended to operate differently in respect to any particular class of interest?  There is absolutely no indication in regulation 54 that it is not to treat all interests in the same fashion, and if one asks why is it that native title is even affected by regulation 54 given that people may not have thought about native title at the time, it is because one looks at the generality of the expression “take possession of land” and so on and one says, well, the common law rule of recognition means that the native title cannot trump whatever it is that regulation 54 is authorising.  So one sees the perfect generality of regulation 54 and when one comes to regulation 60D which is the rub, the Commonwealth has to pay for the use it has taken, it has to pay people where there is property in which they have a legal interest or a legal right. 

Now, as I have said, Queensland correctly accepts that the native title interests, through the common law rule of recognition, are embraced within that expression of “legal interest” or “legal right”.  That is the basis upon which the section 51(xxxi) issues are no longer before the Court.  So the statutory language, the words of the most general description - “legal interest” - embrace the native title as well as embracing non‑native title.

Then one has a singular method of compensation, compensation for the loss or damage from the use being taken by the Commonwealth.  Where in that language, we submit, does one see support for a notion that any form of title is to be treated any differently to any other form of title?  It does not come from the statute and the only place it can ‑ ‑ ‑

HAYNE J:   But there is the rub.  Any form of title compared with any other form of title, and we are talking about two radically different notions.

MR GLEESON:   Accepting that, the starting point for 60D would have to be if you have a common law recognised native title is that a legal interest or a legal right in property?  That is the starting point.  If it is not – if it is not, then you do not get compensation and that would take the argument down a particular direction.  The parties are agreed, correctly, I would submit, that the native title as recognised at common law falls within the description of legal interest or legal right.  If Queensland resiles from that I would like to be given notice of that resiling so I can respond to it.

BELL J:   But how does the question of the acceptance by Queensland of the availability of compensation deal with the application of the test of inconsistency of rights in the sense of a court in 1943 considering whether the right to come on the land and perform ceremonies and to fish and to hunt is consistent with a right to take possession and do anything a person having an unencumbered interest in the fee simple would do?  Was your argument that the court resolving that issue would say that the availability of compensation ‑ ‑ ‑

MR GLEESON:   Is part of the right.

BELL J:   ‑ ‑ ‑ is part of the common law recognition of the native title right and so the test of inconsistency is met in that way.

MR GLEESON:   In defining first the Commonwealth right, one would need to bring into the right that you go onto the land as if a fee simple owner but you pay for the use.  That is an essential part of the right.  If you ignore the duty to pay for the use then you are not fully identifying the Commonwealth right.  Then one comes to the native title right and says your right at its source is the right to go onto the land and do certain things on the land. 

What has happened under this scheme is that – I will try not to talk about trees and fruits again – but what has happened is that your ability to make valuable use of that right has, for the purpose of the war, been converted, as it were, into a right to get money.  That is the effect that the scheme has had upon you.  Your right to use has been converted into a right to money.

However, when one then puts those two things together – can the common law without logical contradiction contemplate a world where those are the two rights – if I have correctly characterised the rights, there is no contradiction in that conclusion.  So the native title holder in 1943 who sought to go onto the land and was denied permission would come to the court and say this is property in which I have a legal interest or a legal right.  I have suffered loss or damage through a continuing interference with that right.  I seek an order for money.  Within Justice Brennan’s approach, the granting by the court of that legal remedy to vindicate the statutory right would be part of the common law’s continuing recognition of the title originally sourced in native custom.

HAYNE J:   But the remedy that would not have gone is injunction to preclude use – preventing preclusion of use.  Injunction could not have gone to prevent preclusion of exercise of native title.

KEANE J:   What if the Commonwealth refused to pay compensation?  Could there be an injunction then?

MR GLEESON:   Well, then the Commonwealth would not be honouring the statutory condition.

KEANE J:   Because the Commonwealth’s right to take is circumscribed.

MR GLEESON:   Yes, yes.  The Commonwealth would not be honouring the statutory condition and there could be, perhaps, a mandatory injunction to order the Commonwealth to observe its right and that could be then enforced by further remedies.  I leave aside the extreme case where the Commonwealth’s use of the land fell outside the defence purpose.  That would be the subject of judicial review which the native title holder, as much as anyone else, could seek to move the court for. 

So, your Honours, in the end, what is unique about this case – illustrating the proposition that native title cases are still unfolding in their various facets and any formula will not necessarily capture every case – but what is unique is that we have a statutory scheme which is designed to cause what, on its face, is an immediate impairment of the native title right, the impairment because use is stripped.  But it is a scheme that comes with the obligation to compensate for that use and it is meaningful to speak of the right continuing to exist under such a scheme.

I gave an answer to your Honour Justice Gageler’s question yesterday at lines 3215 to 3220 which was incorrect.  I should have answered your Honour’s question yes, and I seek to give that answer.

GAGELER J:   I cannot remember the question, I am sorry.  I do have another question for you, Mr Solicitor.

MR GLEESON:   I will probably get this one wrong as well, your Honour, and I will not be able to withdraw it.

GAGELER J:   I think my provisional reading of regulation 54 is somewhat different from your reading and I just want to have your submission on what is wrong with reading it this way.  The regulation does not say “exclusive possession”.  It just says “possession”.  Subregulation 2 then spells out what can occur where land is in possession of the Commonwealth by virtue of regulation 54(1).  The land could be used for certain purposes and then in addition there are paragraphs (a) and (b).

At the moment, I have difficulty reading paragraph (a) when it says what may be done and what other persons may be authorised to do as referring to anything other than the undertaking of activities, doing things on and in relation to the land, not in any broader sense the exercise of the rights that a person who might have an unencumbered interest in fee simple in the land might have.  I then read paragraph (b) as acknowledging that all other rights in relation to the land continue to exist, all of them but with an ability by order to prohibit or restrict their exercise which, of course, was done in this case.  What is wrong with reading paragraph (a) in that way?

MR GLEESON:   I first need to direct your Honour to what Justice Williams said in Dalziel at page 301 in the middle paragraph where his Honour referred first to (a) and said:

The regulation therefore confers upon the Commonwealth for the purposes of defence the express right to do in relation to the land anything which any person having an unencumbered interest in the fee simple in the land would be entitled to do –

Then he went on to (b) and said -

and also confers upon the Commonwealth rights against the owners of incorporeal hereditaments not exercisable by any person having any estate or interest in the land at common law, namely –

and then he captures both limbs of paragraph (b) not just the first limb as Mr Glacken put yesterday -

namely, rights to prohibit or restrict the exercise the rights of way over the land and of other rights relating thereto which are enjoyed by third parties whether by virtue of an interest in land or otherwise. 

Now, I may have misread that paragraph.  I read his Honour as treating the whole of (b) as referring to incorporeal hereditaments.

GAGELER J:   It certainly encompasses that, on any view.

MR GLEESON:   Yes.  Now, it may be in the final language of his Honour’s statement where he says:

and of other rights relating thereto which are enjoyed by . . . 

third parties –

whether by virtue of an interest in land or otherwise.

It may be his Honour is giving paragraph (b) a broader meaning and if it is then that would support what your Honour put to me.  I did certainly want to emphasise in relation to (a) that whether it is limited to activities on the land or excluding people from the land, it is all about the use of the land.  It is not a power to sell the land.  It is not a power to extinguish interests in the land.

So one of the textural reasons why Queensland’s premise is incorrect is that when you simply read 54 you get a power to possess, you get a power to use, you get a power to do things, not including determining interests in land, and you get a power to prohibit the exercise of rights which are deemed to continue.  You do not find anywhere in 54 a power to acquire as in bring to an end rights or interests in property, and that is why it is consistent with section 5 and not beyond power.

Your Honours, at that point we were going to move to ground 2 unless there were further questions on ground 1.  Could I invite the Court to permit Mr Lloyd to deal with ground 2, if that is convenient?

FRENCH CJ:   Yes, thank you.

MR LLOYD:   Ground 2 concerns a second controversy between the parties that arises if, contrary to the Commonwealth’s position, the taking of possession under reg 54 does extinguish native title over the land the subject of the taking.  The State contends that the taking of possession is effective immediately upon the execution of the printed forms of the kind contained at pages 91 to 106 of the appeal book.  The Commonwealth Attorney contends that the execution of those documents without more did not result in the Commonwealth being in possession and the former owners and occupiers being trespassers.

The starting point is regulation 54(1).  It confers two powers.  First, it confers the power to take possession.  There were existing common law principles concerning how possession can be taken.  Parliament should be understood to have used this language in order to invoke those principles.  Secondly, regulation 54 conferred the power to give directions in connection with the taking of possession.  This power enabled the Minister or a delegate to direct others to do acts such as occupy land, which acts would effect the taking of possession or the maintaining of possession previously taken.

Now, these powers were, we understand, extensively exercised.  I think at one earlier point of the proceedings, the State put on an affidavit indicating that they had been exercised in the order of about 13,500 times during the war.  Under regulation 54(2), it begins with the word “While” which we apprehend to mean, meaning during the period:

While any land is in the possession of the Commonwealth in pursuance of a direction given under –

reg 54(1) ‑ further powers of use and control were conferred.  Now, the Solicitor‑General has just made submissions as to the ambit of those powers.  I do not propose to discuss those because it is not relevant to my submissions, but we say that these powers arise only once the Commonwealth had taken possession in pursuance of a direction under 54(1).

There is nothing in the legislation that in terms indicates that the taking of possession can be affected by the completion of an instrument.   The State’s only basis for an implication of this effect is that the power to take possession was conferred upon a Minister or a delegate of the Minister.  In context, this circumstance cannot bear the weight the State puts on it.

First and foremost, the Minister had an express power to give directions authorising others to take possession.  Therefore, there is no reason for saying one has to say that the Minister takes possession by filling in a form.  The possession is taken by somebody who has received a direction in connection with the taking of possession and when the Minister’s direction is given effect to that is when possession is taken.  The taking of possession, as I have said, can have its ordinary meaning.  The Minister did not personally need to arrive at every location to dispossess people.  Further, the Minister could have delegated the power to others, so in addition to the direction, the power itself is delegable.

We do not deny that the taking of possession could have been affected by a communication by the Minister or a delegate to an owner or occupier, in an appropriate case.  The Court was taken yesterday to the case of James Macara Limited which was somehow said to support the State’s contention. If I can take the Court back to that, that is [1945] 1 KB 148. One sees in this case the argument that was advanced. Well, first of all, it was about taking possession of a house and surrounding land, and then the argument which appears at the bottom of page 153 was that:

It is contended by the vendor, first, that the power is not effectively exercised unless and until there has been an actual entry on the land by a competent authority, or, put in another way, that it cannot be exercised by a notice given to the person in occupation ‑

Now, what is said at page 154 is that actual entry under this regulation is not required to give effect to possession.  We do not say that actual entry is required to give effect to possession in every case.  It would depend ‑ and I will take the Court shortly to a House of Lords decision which addresses what is required to take possession ‑ but we say it will depend on each case.  What their Honours in the Court of Appeal say at the bottom of the page, having said actual occupation is not required, is that:

If actual entry be not necessary, there can, we think, be no doubt that the power is effectively exercised by notice which fairly brings to the mind of the person affected that the power is being exercised.  A present intention stated to be exercised and communicated to the persons concerned is sufficient.

Now, that is, we say, consistent with our view that the mere signing of the form is not enough.

FRENCH CJ:   Well, the form says “I do hereby take possession”.

MR LLOYD:   I accept that it says that, and we say it does not have that effect.  It cannot have that effect, and it does not have that effect ‑ ‑ ‑

FRENCH CJ:   Well, is it beyond power?

MR LLOYD:   It is beyond power insofar as it purports to have that effect.

GAGELER J:   Insofar as it purports to go on and make the order to which regulation 54(2)(b) refers, is that also beyond power?

MR LLOYD:   No.

GAGELER J:   Why not?

MR LLOYD:   Because the Minister or the delegate is indicating an intention which is required in order to take possession.  There are two elements that are required to take possession.  One is an intention, and clearly, the statement by stating that I hereby take possession is an intention to take possession, and then secondly, there is a direction to certain officers to occupy land and when that takes place we say ‑ ‑ ‑

FRENCH CJ:   What does this all lead to in terms of practical outcomes for the purposes of this appeal?

HAYNE J:   They were lobbing artillery shells over this land at one point, were they not?

MR LLOYD:   What it turns upon – and perhaps I should have started with this if it is not otherwise clear – is the ambit of the area.  It is not accepted – this is a very vast area of land involved in these five military orders and there is not evidence of occupation that anyone has found so far of the entirety of the area.  Some area was no doubt used.  There is not evidence so far found that the whole area was occupied or that anyone was given notice in respect of the whole area.  There were – the forms have been made, but that being so ‑ ‑ ‑

HAYNE J:   Who should have been given notice on your argument, Mr Lloyd?  Who could have been given notice?  How?

MR LLOYD:   There was, I think, a pastoral lessee who could have been given notice.  There was a person with a mining tenement or perhaps more than one mining tenements who could have been given notice.  The State could have been given notice.  They might – it might ultimately be proved that they were given notice.  If it is, if it is proved by the State that that is so, then so be it.  The point will not have any significance on the facts of this case.  But there may be other cases where, for example, an order was made, the war needs changed and no one ever did anything. 

On the State’s case, the Commonwealth – there is extinguishment merely by signing the letter.  In fact, given that there is no obligation for a direction under regulation 54(1) to be in writing, on the principle behind the State’s case, if the Minister says “I hereby take possession of Brisbane” that is it.  Possession has been taken from that moment. 

HAYNE J:   Yes, it was taken from that moment because this was World War II.

MR LLOYD:   Well, we say that it was not taken from the moment of the Minister’s utterance.  The Minister has to have an intention to do it and then someone has to carry that into effect.  If it was not, in fact, carried into effect then there was, even if there otherwise is extinguishment contrary to our argument, then there was not extinguishment.  So the reason why it has significance in this litigation and all of the cases – not just this case – but all of the cases involving these so‑called military orders is that there may be a need to establish that occupation or some other – or notice – or something was done in respect of the whole of the area.

GAGELER J:   Were these orders gazetted, Mr Lloyd?

MR LLOYD:   No, they were not.  So the significance of it and the reasons for question 3, if the Court looks at question 3, ultimately all of ground 1 is actually not directly raised by a question before the Court.  It is indirectly raised in answering question 3 and ground 2 actually goes to question 3.  So the premise to extinguishment, if there can be no extinguishment it is clear the answers to question 3(a) and (b) is no, as the majority of the court below said.  If there can be extinguishment, as the State contends if there is the taking of possession, then in order to answer question 3 the Court has to identify when and by which means extinguishment takes place.  We say it is not simply by the completion of a form, but it is by conduct if it was in fact done to carry out the form.

KEANE J:   To bring to the notice of affected title holders that the order had been made.  Is that the point?

MR LLOYD:   In many instances, such as Mr Dalziel’s case, no doubt sending him a letter would have been enough.  We do not say ‑ ‑ ‑

KEANE J:   But as long as it is brought to their attention, is that enough?

MR LLOYD:   Well, again, it would depend upon the circumstances of the case, but at least in the case of Mr Dalziel and the case of the James Macara Case, we would not dispute that a letter sending it to the occupier saying that possession is taken would be sufficient notice not only of the intention but would constitute an act manifesting the giving effect to that intention.

KEANE J:   It just seems to be such an unrealistic point given that when this land was occupied by the Commonwealth artillery shells were falling around.  I mean, people who were there would have at least contacted their local MP, one would think, if they did not know what was going on.  That would have come as something of a surprise to them, would it not?  It just seems a very unrealistic point this.

MR LLOYD:   Your Honour assumes that the entirety of the area which is a vast area was the subject of the artillery.  There is no doubt – and it is not a disputed fact, it is agreed, that some part of this vast area was the subject of occupation.  What we say is – what is clearly the agreed position between the parties is it is not agreed that the whole of the area was the subject of occupation.

HAYNE J:   How is that consistent with regulation 56?  Regulation 56 gives any member of the defence force, apparently from private soldier to chief of the general staff, power to enter any land generally - see regulation 56(c) - for all sorts of purposes.  Under 56(a) any power to enter land for the purpose of exercising any of the powers conferred in relation to that land by regulation, amongst others, 54.

MR LLOYD:   Yes, so it is covered by 54 if the land has been taken into possession and is in the possession of the Commonwealth.  If it has never been in the possession of the Commonwealth then 56 does not add anything to it.

HAYNE J:   Regulation 56(c) I think might, nonetheless, give any officer of the defence force general power.

MR LLOYD:   That is true, but that is then over any land, not even regulation 54 land.  So, it does not assist, in my submission, in working out what constitutes taking possession because 56(c) is, in fact, in respect of any land in Australia.  It is consistent – the view of the majority in paragraph 64 at page 148 is that something more than simply completion of the form was required, and we say that the James Macara decision relied upon by the State is entirely consistent with ‑ ‑ ‑

FRENCH CJ:   The problem is this characterisation of what occurred as the completion of a form rather sets up an assumption about what is being done when the order is made.  It is not just the – I mean the other view is it is not just the completion of a form.  It is a legally effective act – “I do hereby take possession”.  It sort of begs the question, in a sense, to call it the completion of a form, does it not?

MR LLOYD:   Well, your Honour, the point that I sought to make earlier was the regulation says the Minister may take possession.  It does not say he may do it by a form that says “I hereby take possession”.  If it said that there would be no dispute, and my friends yesterday gave an analogy and they said, well, having this order is analogous to somebody with paper title in a Torrens system, but someone with paper title in a Torrens system has an Act which says if you register the piece of paper then it has effect.  There is nothing like that in this legislation.

FRENCH CJ:   The Minister is making an order – or the Minister’s delegate is making an order pursuant to an authority conferred by the regulation.  He is not just signing a form.

MR LLOYD:   With respect, regulation 54(1) does not mention making an order; it just says the Minister may take possession.  So, it does not say it can be done by order.  The only reference to order is in regulation 54(2) for excluding people; there is a discretionary power to do that.  There is a power under regulation 54(1) to direct people in connection with the taking of possession which, we say, supports the notion that what the Minister was empowered to do was to direct people to take possession.  Well, direct people to take possession, yes, so he has a power to take possession.  How is that done?  We say, in accordance with the normal way that possession is taken, by having an intention and by having some act manifesting that intention and then he gives a direction to somebody saying “take possession” and then that person has to carry it out. 

HAYNE J:   How?  What would the person do?

MR LLOYD:   The person could do any number of things.  A person could go and build a fence around the land.  A person could go and evict the person.  The person could send a notice, as in James Macara – if the kind of land is ‑ ‑ ‑

HAYNE J:   This is war time, Mr Lloyd.  This is national security.  This is the defence of the realm.  The notion, for example, that the government would gazette the location of its military activities during wartime is, shall we say, a little odd.  You are propounding a construction which requires the Minister to do more than sign the order.  Is that right?

MR LLOYD:  That is so.

HAYNE J:   What more?

MR LLOYD:   What needs to be done – well, we would accept that it could be done in many ways.  It could be done by the person – the occupier of the land being given notice.  If the effect is that it is done by the Minister signing the order then people, even without knowing about it, would become trespassers on their own land.  They do not even have to be told.  Nothing need be done, on that view.  We say something needs to be done and many things would be sufficient.  In many cases writing a letter would be sufficient, perhaps posting a note on the door if no one was home, perhaps notifying the State.

FRENCH CJ:   How do you take possession as against native title holders in a context in which native title is not recognised or known?

MR LLOYD:   Well, they could have ‑ ‑ ‑

FRENCH CJ:   Which at common law says it does not exist ‑ ‑ ‑

MR LLOYD:   We would not deny that if they notified the State of Queensland that could have been enough, but there is no suggestion – there is no evidence to that effect.  We do not know what was done and we simply say they have said it is enough that a form was completed and we say no, the form is not enough because we apprehend there are going to be situations where forms were completed and nothing was ever done and we do not want to say that that extinguished native title if nothing was ever done beyond the completion of the form. 

We are not saying it is a high hurdle to beat.  Maybe the State will beat it.  But the answer to question 3(a) should be no, it is more than the making of the so‑called military order.  It is the military order being carried out in some form such as to constitute the taking of possession.

Now, in the authorities, in a decision of the House of Lords, JA Pye (Oxford) v Graham [2003] AC 419 – if, in answering your Honour Justice Keane’s question I perhaps misstated something, we certainly would accept if you show up somewhere and you start shelling that would certainly constitute taking possession. We are not suggesting – in fact, a great deal less than shelling would constitute taking possession, but if I gave the impression that I was suggesting even that would not constitute it, we accept it is a low bar; we just say it is not nothing. It is not just the Minister saying or writing that he is taking possession. There has to be something more.

In this JA Pye Case, the House of Lords considers the matter.  Starting at page 426 one sees that Lord Bingham, and then in 427 Lord Mackay, agreed with Lord Browne‑Wilkinson.  His Honour addresses the matter perhaps most succinctly from about paragraph 39 on page 435, cites a passage from a decision called Powell’s Case and then at about letter F:

To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession:  (1) a sufficient degree of physical custody and control (“factual possession”); (2) an intention to exercise such custody or control on one’s own behalf and for one’s own benefit –

Then, down at about H:

But in any event there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession.  Such intention may be, and frequently is, deduced from the physical acts themselves.  But there is no doubt in my judgment that there are two separate elements of legal possession.

Then there is another passage in paragraph 41 from Powell’s Case.  Noting the passage at the second half of that in particular, from about D down to E, which I will not read, but the nub of it is what will constitute the taking of possession can vary according to the circumstances of the case.  We embrace that and we simply say when this regulation used the formula the Minister may take possession, it was making reference to the age‑old concept and it did not give any special power to do it by simply saying it or by completing a piece of writing that is never carried into fruition.  Perhaps I should, to be complete, just note at pages 445 to 446 from the letter G across to A, Lord Hope says much the same thing.

So what acts are necessary to constitute the taking of possession?  Is it something the Court is required to call upon in this case, save to the extent that the completion of the – what I call the form itself – is enough.  I note that in respect of the suggestion that this was a wartime matter and anything was palatable in that respect, if I draw the Court’s attention to a wartime case – In re Fish Steam Laundry (1945) QSR 96 - Justice Philp, starting at the bottom of page 98, did not seem to think that the Minister had power there:

By an order purporting to be made under reg. 54 of the said regulations and dated 18th February 1943, the Minister, by a delegate, purported to take possession of the land and improvements of the claimant –

and he continues.  Then he notes no point was taken about the validity, but his Honour clearly had doubts that simply saying that you take possession is effective.  His Honour notes that there can be ways and at about the end of the third paragraph, he says:

The power to acquire under reg. 54 may be operated without any order –

which is certainly true –

so that no notice to any person is necessary –

by which we apprehend to mean you could just show up – you could just take actual possession.  His Honour, over on page 100, in the second full paragraph, identifies the date when actual possession was taken.

FRENCH CJ:   Under section 5 of the National Security Act, I think orders made under the regulations were not covered by the Rules Publication Act, I think it is called.  Is that right?  They did not require to be published, they were not statutory instruments?

MR LLOYD:   Your Honour put it as statutory instruments.  I think it is statutory instruments of a legislative character were not required to be ‑ ‑ ‑

FRENCH CJ:   I am sorry, shall not be deemed to be statutory rules within the meaning of the Rules Publication Act 1903, et cetera.

MR LLOYD:   That is so.  I think under section 5 of the National Security Act ‑ ‑ ‑

FRENCH CJ:   That is what I was just referring to.

MR LLOYD:   Sorry.

FRENCH CJ:   Section 5(3). 

MR LLOYD:   There is also subsection 4, I think, which is the section I had in mind which maybe is not facially clear what that is referring to, but it says section 48 requires the gazettal but it does not require it or it applies section 48 other than the requirement for gazettal to legislative orders.  Now, there is a question whether or not this would be a legislative order which I do not propose to get into but, in any event, on either view there is no requirement to gazette.

So In re Fish Steam Laundry the court there focused upon when actual possession was taken.  In Dalziel, and I accept what I am taking the Court to now was not exactly the burning and central part of Dalziel, but in Dalziel, to the extent that this provides assistance, on page 283 Chief Justice Latham in about the middle of the larger full paragraph says:

The Minister for the Army took possession of the land on 12th May 1942.

So that is taking possession, that is something done, and that is the date that he showed up.  One gets that more clearly on page 297 where Justice Williams in the third paragraph of his Honour’s judgment says:

On 12th May 1942 the Commonwealth, acting under the powers conferred upon it by reg. 54 . . . entered into possession of the land.

Possession was taken –

which we apprehend to mean that possession –

pursuant to a notice in writing dated 5th May 1942.

That is how we say it works, that the date of the notice is one date and then the taking of possession happens at a later point in time.  We handed up yesterday or maybe it was this morning, I am not sure, two cases, one an appeal, but if I go to the first instance decision first, East Asia Navigation Company v Fremantle Harbour Trust Commissioners and this is a decision of the Chief Justice of the West Australian Supreme Court. 

This concerned a claim in tort in relation to a fire that happened during the war when a ship just outside of an area that was used by the various navies – and there were several navies that used it, the US Navy, the Royal Navy, the Australian Navy and the Dutch Navy – and the history of the relevant matter and his Honour’s findings really begin at about the first or the main paragraph on page 102.

HAYNE J:   What is the point we are looking for in the case?

MR LLOYD:   It shows at the bottom of page 103 that his Honour saw ‑ and in this case possession happened prior to the making of an order and his Honour was saying that it is the taking of possession, the factual taking of possession is what governed the position, not any formal order, which suggests that it is consistent at least with our contention that one looks for physical manifestations of the taking of possession and not the formality of the order.

GAGELER J:   Mr Lloyd, in the special case, page 8 of the special case book, paragraphs 34 and 35, we are told that at about the time of the first military order the Commonwealth physically occupied at least some of the special case land ‑ that is paragraph 34 ‑ and then paragraph 35 says:

The Commonwealth ceased physically to occupy any part of the special case land . . . on or about 31 August 1945.

Are we to take it from that that at all times, from about the time of the first military order to about 31 August 1945, the Commonwealth physically occupied at least some part of the land?

MR LLOYD:   Yes, and so the reason why this point has significance, the difference between us, is because it is not accepted that all of the land was the subject of the taking of possession, and so that is why it refers to “at least some” which is why question 3(b) asks a question which is, in effect, if you take some, does that mean you have taken possession over all, or if you take some does it mean you have only taken possession and therefore extinguished native title over the bit that you took?  So if you were authorised to take 10 pastoral leases but you only took five, did you extinguish it over all 10 or did you only extinguish it over the five you in fact took?  That is the point.

Now, I was going to go to the decision of this Court now in Eastern Asia Navigation 83 CLR 353. Justice Fullagar, on page 393, treated the “orders”, which he puts in inverted commas, as not having done very much and for not really being significant. It is the actual possession that was of interest to his Honour.

BELL J:   Was that because the orders were not in evidence?

MR LLOYD:   No, the orders were in evidence.

BELL J:   I am sorry.

MR LLOYD:   The orders I am sure were in evidence because they are referred to by, in the trial judge ‑ ‑ ‑

BELL J:   I thought there was ‑ ‑ ‑

MR LLOYD:   I will be taking your Honour shortly to Chief Justice Latham’s reasons ‑ ‑ ‑

BELL J:   Yes, I am sorry.

MR LLOYD:   ‑ ‑ ‑ but he refers to the orders ‑ ‑ ‑

BELL J:   Yes.

FRENCH CJ:   It just seems a surprising proposition to me that the Commonwealth has said ‑ or the Minister or his delegate has said, “I hereby take possession of the land”, from about the time of the order.  As Justice Gageler has pointed out by reference to the special case, there has been an entry upon the land, and it is then said that because all the land is not physically occupied, the part that is not physically occupied is not in possession and therefore extinguishment, if there is a consequence of possession, has not occurred.  Now, how granular does that get?  What little pockets of non‑occupation is one able to discover under that general proposition?

MR LLOYD:   Well, I gave the example before, if you have a pastoral lessee who is, let us say, never told because these things are not published ‑ ‑ ‑

FRENCH CJ:   Your proposition does not depend upon pastoral lease boundaries.  It talks about part of ‑ ‑ ‑

MR LLOYD:   I accept that, but if there is a large area, as this is a large area, which includes a number of interests in it and the people are never taken off the land, they are never told about the – because it is not published they are never told – they are never asked to move, and they never know and still do not know about it, we would say that was not taking possession.  In no sense has the control of the land been taken from them if they do not know about it.

KIEFEL J:   Mr Lloyd, I can understand the Commonwealth’s interest in ground 1 and the development of the law relating to native title, but I have to say, speaking for myself, I am struggling a little to understand the Commonwealth’s position in relation to this ground which appears to be awfully like that of a party.

MR LLOYD:   Well, the Commonwealth ‑ ‑ ‑

KIEFEL J:   It looks like an interest in an outcome.

MR LLOYD:   You are referring in respect of the Commonwealth Attorney’s intervention.  Well, the Attorney intervenes under section 84A I think it is, on the basis that each State and Territory in the Commonwealth has a broad range of interests in relation to native title.  In this area, as I have indicated, there are at least 13,503 ‑ ‑ ‑

KIEFEL J:   This is not a question of principle.

MR LLOYD:   Well, with respect, it is, because we apprehend there are many native – many cases involving these matters and if it is not resolved here then it will have to be resolved in another case.

KIEFEL J:   But it will not be resolved here either because the outstanding evidence to determine the extent to which native title might have been extinguished may lie in the records of the Commonwealth, may it not?

MR LLOYD:   It may well do.  Perhaps if I answer your ‑ ‑ ‑

KIEFEL J:   But you will run the argument in the meantime.

MR LLOYD:   Perhaps if I answer your Honour’s question this way.  Mr Glacken, as I understand, adopted our submissions on the point.  If I cannot put our submissions on the point he as a party does not get to put his submissions on the point.  We apprehend that there are many cases and we seek to resolve the question of principle as to how – what act effected extinguishment?  Is it ‑ ‑ ‑

HAYNE J:   But we end up getting then an opinion about which at best, from your point of view, would say an act of taking possession is required.  That I think is the best you could ask us to do, is it not?  Could you ask us to do any better?

MR LLOYD:   No.

HAYNE J:   That leaves utterly unanswered what an act of taking possession is, does it not?  That is the – is that the difficulty?

MR LLOYD:   Well, it would at least allow the Court to answer question 3(a) which is simply the existence of the order is not itself enough, and then people would know that in this litigation they would have to establish an act of taking possession.  Inevitably, in any case involving an act of taking possession, as I have indicated from the J A Pye Case, it seems to be a fairly variable idea as to what ‑ ‑ ‑

HAYNE J:   That was an adverse possession case, Mr Lloyd.  For my own part I think it has absolutely nothing whatever to do with the present matter, but there we are.  An act of possession more than the issue of the order is, I think, an answer of, well, what utility is it to either the parties in this litigation or more generally?

MR LLOYD:   Well, if for example there was a dispute as to whether or not possession was ever taken, it would have utility in that case.  It would have utility in this case because the State of Queensland would know that they would, if they want to rely upon this as an extinguishing act, have the onus of establishing that there had been an act of possession over the entirety of the area covered.  Their position is and has always been, as I understand it, they can tender the order and that shows that the Commonwealth had possession.  We say you cannot just tender the order and show you have possession.  You have to show something was done pursuant to the order.  I accept that would be difficult so many years after the event, but that is not a reason for construing the words “take possession” as meaning simply filling in a form.  Justice Philp did not think so.  Justice Fullagar did not think so.  No case ‑ ‑ ‑

HAYNE J:   Well, neither of those judges adverted at all to the point.  You should not assume that I accept that either of those judges said anything that bears upon that issue.  Justice Philp explicitly said the validity of the regulation – the order is not at stake, and Justice Fullagar’s statement was about whether the Commonwealth had taken possession of the water, the water on which the nuisance occurred.

I said that the slide occurred at the third point.  The proposition that it has no greater effect on existing rights than a temporary interruption on the exercise of those existing rights is to assert the conclusion to the question at issue.  It is either made good or it is not made good, and whether identified as purpose, intention or construction, that is the critical step and at the moment it seems to me it is a matter of assertion, not demonstration.

MS BROWN:   Your Honours, the final point I think that I wanted to address was the point of the compensation and the argument by the Commonwealth that you see that native title – that it was intended to preserve all rights and interests by the operation of the compensation provisions and the width of the compensation provisions in terms of the operation of regulation 54. 

A couple of points about that - the first point is 60D obviously operates in terms of a number of regulations but the second point is that 60D recognises - and I appreciate that your Honour said it was not one of my best points yesterday and I take that on board, your Honour, but in terms of using it to say that it shows that there is this notion of preservation or continuing rights we say the fact it refers to “has had” is in fact a recognition that that is not the case and it cannot be used to try and say, well, there is this system that is in place in relation to preserving rights as against when they are taken.

Your Honours, there is one case which I was just going to hand up to your Honours which is not of great report but it is just from the point of view of – it is an English case of Swift v Macbean which was really more to do with frustration – but there is a reference in that case by his Honour Justice Birkett, where he refers there to the fact that the Compensation (Defence) Act ‑

provides for compensation to be paid in cases of requisitioning, was clearly passed, so far as lessees were concerned, on the view that in

English law the fact a lessee had been deprived of the possession of the premises is no excuse for the non‑payment of rent ‑ ‑ ‑

FRENCH CJ:   Is it being handed up or not, it seems to be moving along the Bar table to ‑ ‑ ‑

MS BROWN:   I am sorry, your Honours – apologies for that.  The passage that I have just referred you to and, as I say, it is only just in terms of the context ‑ ‑ ‑

FRENCH CJ:   What page was the passage?

MS BROWN:   Pages 378 at the bottom of the page, and the top of page 379.  The only point of it is the context of the passing of the legislation, your Honour, but I have not got the terms of the legislation.  Your Honours, unless you have any questions.

FRENCH CJ:   Thank you, Ms Brown.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 12.34 PM THE MATTER WAS ADJOURNED