State of Queensland v Congoo & Ors

[2014] HCATrans 271

[2014] HCATrans 271

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 TUESDAY, 2 DECEMBER 2014, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MS S.E. BROWN, QC:   May it please the Court, my name is Brown, initials S.E.  I appear with my learned junior, MR G.J.D. del VILLAR, on behalf of the appellant, the State of Queensland.  (instructed by Crown Law Brisbane)

MR S.A. GLACKEN, QC:   If the Court pleases, I appear with MR P.D. HERZFELD, for the first respondent, the Bar‑Barrum People.  (instructed by the North Queensland Land Council)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR S.B. LLOYD, SC and MS C.J. KLEASE, for the second respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Thank you.  I note there is no appearance for the third respondent, submitting appearances for the fourth to twenty‑first respondents and no appearance for the twenty‑second and twenty‑third respondents.  Yes, Ms Brown.

MS BROWN:   Your Honours, the question in the present case is whether an executive act by which five military orders were issued pursuant to regulation 54 of the National Security (General) Regulations, which are referred to in the submissions as “the security regulations” and which I will refer to them as subsequently, between 20 December 1943 and 1 June 1945, taking possession of land which is the subject of the special case, extinguished native title rights and interests over the land which was the subject of the military order.

As your Honours are aware, there is some dispute about what area of land was taken by the orders and when possession was taken which I will turn to subsequently in due course. The matter came before the Full Federal Court as a result of an order of Justice Logan who ordered a case should be stated pursuant to section 25(6) of the Federal Court of Australia Act.  Relevantly, question 3 of those questions, the finding of which is the subject of the present appeal and which is set out at paragraph 16 of the appellant’s submissions and is also to be found at the appeal book, page 10, were:

Did the act of the Commonwealth in:

(a)making the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land, and, if not,

b)being in physical occupation of at least some of the special case land pursuant to Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land or that part of the special case land that had been physically occupied?

The majority of the Full Federal Court answered the questions in the negative.  Special leave was granted by this honourable Court to appeal.  Those findings that the order in that regard is found at page 181 of the appeal book, paragraph 2.  It is common ground between the parties that the question of extinguishment is to be determined at common law and the Full Federal Court proceeded on that basis.

The majority of the Full Federal Court accepted the military orders in combination with regulation 54 conferred a right of exclusive possession upon the Commonwealth.  That can be seen in the appeal book at page 145, paragraph 52, point 10, paragraph 53, point 30 and at page 146 at paragraph 54.  Key to the majority’s decision was, firstly, the absence of the Commonwealth which exercised the power holding radical title in the land.  In that regard, I refer you to the appeal book page 144, paragraph 51, page 145, paragraph 54, point 48 and page 146 at paragraph 57.

Secondly, that the right to exclusive possession was for a limited purpose for a limited time.  In that regard, I refer you to the appeal book page 145, paragraph 53.  Thirdly, that there was an underlying intention in the legislative scheme that all underlying rights and interests should be preserved.  I refer you to the appeal book at page 145 at paragraph 53.

Fourthly, that to the extent that there was a prohibition on the exercise of the rights, there was no extinguishment because the taking of possession by the Commonwealth did not sever the connection of the Bar Barrum people to the land – appeal book 147, paragraph 58.  Finally, that on its correct instruction, regulation 54 of the Security Regulations requires some manifestation of the Commonwealth’s intention to take possession of the land external or in addition to the Administrative Act of making a direction and order – appeal book 148, paragraph 30.

Paragraphs 34 to 66 of the appellant’s submissions outline in detail the errors it submits were made by the majority of the Full Federal Court in reaching the conclusion that the native title rights and interests of the first respondent were not extinguished.  Paragraphs 67 through 76 of the appellant’s submissions outline the errors in terms of construction. 

In short, the appellant submits that the majority did not correctly apply the inconsistency of rights test in determining that any inconsistency was overcome by an underlying statutory intention to preserve all interests and having regard to the fact that the right of exclusive possession was given for a limited period and a limited purpose; secondly, that the majority erred in concluding that there was an objective intention to preserve all native title rights and interests on the correct construction of regulation 54 and had regard to relevant contextual matters to support such an intention.

FRENCH CJ:   This is a case involving the exercise of statutory powers under national security legislation for a particular purpose and for a particular time.  What is the nature of the rights which attract the notion of inconsistency that you are advancing here?

MS BROWN:   The nature of the rights that attract the inconsistency, your Honour, are the rights of exclusive possession that were enjoyed by the Commonwealth upon the making of the orders, rights which were recognised by this Court in Dalziel and particularly Justice Williams as overriding all other individuals who had any right to possession in relation to this land.  Now, your Honour, obviously it is not exclusive possession in the sense of a lease that we are dealing with.  It is an exclusive ‑ ‑ ‑

FRENCH CJ:   The Commonwealth did not grant itself a statutory lease or a fee simple.

MS BROWN:   It did though grant itself a – or confer upon itself a statutory right which was tantamount to exclusive possession.

HAYNE J:   It took exclusive possession.  It acquired property. 

MS BROWN:   It did and that was the finding of Dalziel and that is why there had to be compensation on just terms pursuant to placitum 51(xxxi) of the Constitution, that subsequently being recognised at least by two members of this Court in the case of JT Holdings.  We say, your Honour, no it is not a lease and no it is not fee simple but relevantly in terms of applying the inconsistency of rights test which has been established as being the primary test in determining whether there is a clear intention to extinguish native title, there is no point of distinction. 

Indeed, there is some similarity between the fact that the rights granted in relation to Dalziel were – provided the Commonwealth with everything that a lease would have provided it and potentially more insofar as it also overrode any restrictions in relation to the land which, of course, would have been binding upon any fee simple holder or any leaseholder.

HAYNE J:   But other than for the purposes of argument or illumination, what is the point of seeking to compare the rights in issue with rights granted under some other instrument or according to some other scheme?

MS BROWN:   Your Honour, you only draw upon those cases in terms of the principles that have been established by this Court.  As this Court has also clarified each right must be examined on the basis of the particular legislative scheme pursuant to which it is granted and analysed in order to determine the legal nature of that right before any comparison can occur.

Relevantly, in terms of the grant through a statutory means of exclusive possession the native title holders, in the same way as in the case of a lease, their rights could not stand with the rights of the Commonwealth granted pursuant to these terms of the order, particularly since the rights were dependent on access to land.

Your Honours, there are five questions which we say call to be answered by this appeal.  The first is, in the present case, was extinguishment to be determined by a comparison of the legal nature of the right granted to the Commonwealth under the military orders and security regulations with the native title rights, and was the statutory intention relevant to the characterisation of the right or did it call for the Court to further examine some underlying statutory intention?

Secondly, was the limitation of the defence purpose and the indefinite nature of the time for which the order could operate such that the right of possession granted to the Commonwealth did not extinguish native title?  Third, was the grant of exclusive possession qualified by a statutory intention to preserve all rights, including native title rights and interests, such that that overrode any inconsistency between the rights?

Fourth, did regulation 54 regulate rights such that the orders affected the exercise of rights in a way that otherwise presumed their continued existence, or does the prohibition of rights extinguish native title rights and interests on the basis that their continued existence is inconsistent with the prohibition of the exercise of rights?  Finally, whether on the proper construction of regulation 54, was possession taken upon the making of the order or were further separate acts required?

Now, your Honours, I was proposing to take you briefly to the relevant parts of the appeal book in terms of the special case.  It is to be found at appeal book page 5.

HAYNE J:   With a view to demonstrating what?  What are we looking for in this travel through the case?

MS BROWN:   In terms of the relevance of the appeal book, your Honour, and the special case, it is to demonstrate three things.  One is to indicate to the Court what the special case land is that we are dealing with that is the subject ‑ ‑ ‑

FRENCH CJ:   Why are we concerned with the particular limitations of the special case land?  We are concerned with the relationship between the regulation and the orders and the ‑ ‑ ‑

MS BROWN:   Yes, your Honour.

FRENCH CJ:   ‑ ‑ ‑ native title rights, are we not?

MS BROWN:   I will not go to that point.  The second point was to take you to the paragraphs dealing with the military orders which demonstrate the changes that were made in relation to the five orders that were issued which was only a change in terms of area that the orders applied to.  You will find that at appeal book 6 and 7.

FRENCH CJ:   There is an extract from one of the orders set out, I think, at page 131 of the appeal book. 

HAYNE J:   The orders themselves are at pages 92 and following, are they not?

MS BROWN:   Yes, your Honour, the orders are at pages 92, 95, 98 and 101.

FRENCH CJ:   My question was is there any relevant difference between the orders that is not ‑ ‑ ‑

MS BROWN:   Not as to their terms.  It is only as to the schedule which defines the area of land, your Honour.

FRENCH CJ:   Yes.

MS BROWN:   Each order had the effect of revoking the earlier order.

FRENCH CJ:   Yes, I understand that.

MS BROWN:   That is the only relevance.  The only other point about the special case book to which I would direct you to is paragraph 37(a) which is an agreement by the parties that the military orders were validly made, save for a determination about the effect of placitum 51(xxxi).  Your Honour, could we turn to the relevant regulation with which we are dealing?  Your Honours, the relevant provisions in terms of the National Security Act are set out at paragraphs 5 to 7 of the appellant’s submissions. In particular, section 5 provides for the making of regulations by the Governor in two circumstances. We are speaking about section 5(1)(b) which is at page 66 of the National Security Act 1939. Your Honours will note that it provides for the making of regulations:

for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth, and in particular –

. . . 

(b)for authorizing –

(i)the taking of possession or control, on behalf of the Commonwealth, of any property or undertaking; or

(ii)the acquisition, on behalf of the Commonwealth, of any property other than land in Australia.

At the time there was legislation in place – the Lands Acquisition Act - which provided for the compulsory acquisition of land by the Commonwealth.

Your Honours will see in the submissions reference to section 10 of the National Security Act which creates an offence for, amongst other things, non‑compliance with any order in pursuance of such regulations. That is found at page 69. Your Honours, the other thing I will just point out in relation to section 10 is that there is quite an extensive process that is set out there in order for somebody to be tried, prosecuted either summarily or by way of indictment.

Section 19 provides for the time at which the Act will operate. At the time of the 1939 Act, the war that was contemplated was that between the King of England and Germany. By the 1940 Act, the definition was changed in terms of the present state of war to refer to “any war in which His Majesty is or may be engaged”, but otherwise similarly provided for the Act to cease six months after the cessation of war.

HAYNE J:   Which on one view, if you look at the Treaty with Japan Act, it might be as late as 1951 or thereafter I think, but I do not think we need to get into exactly when the war finished.  The Treaty of Peace with Japan Act is, I think, an Act of 1951.

MS BROWN:   And there was debate in this Court in relation to whether there had been cessation of war and whether regulations were still operative ‑ ‑ ‑

HAYNE J:   Yes, we do not need to get into any of that, do we?

MS BROWN:   ‑ ‑ ‑ and that is relevant for the present purposes, your Honour. The relevant point is it is of indefinite duration. Can we turn to provisions where regulation 54 is contained? Your Honours, I am referring to the consolidation of the National Security Regulations as at 15 November 1943. In terms of regulation 54, there was no material change. There are some additional regulations which were included which the first respondent has referred to specifically later which are contained in the National Security (Supplementary) Regulations as in force at 2 September 1945. Regulation 54 is found at page 478 of the regulations. Your Honours, can I ask you to note the following features in relation ‑ ‑ ‑

FRENCH CJ:   Now, this is the regulations as at September 1945, I think, is it not?

MS BROWN:   The consolidated version.  I think the consolidated version which I am referring to is actually as at 1943, your Honour, but there is also a version ‑ ‑ ‑

FRENCH CJ:   In that version, regulation 54 appears at page 411.  In the 1945 version, regulation 54 appears at 478.

MS BROWN:   I am sorry, your Honour, then obviously it is – I am dealing with 2 December 1945.  Thank you, your Honour.

FRENCH CJ:   Thank you.

MS BROWN:   There is no material difference, I should say, between the two of them.  Now, your Honour, in terms of the features of regulation 54, there is a provision whereby the Minister of State has to be satisfied of one or more of the particular purposes that are set out in regulation 54(1) prior to the taking of the possession of land.  Your Honours will see that the matters of which the Minister had to be satisfied were of a broad nature and that possession was taken – that the decision in terms of taking possession was on behalf of the Commonwealth.  We will return to the question of construction, your Honour, but just while we are here, it refers to:

he may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land.

It is the appellant’s contention that, upon the making of the order, that the Commonwealth acquired an immediate interest and that was a right of exclusive possession.

KEANE J:   Ms Brown, would it make any difference to your argument if it said – if the regulation said “he may, on behalf of the Commonwealth but otherwise without adverse effect upon the rights of any owner or occupier of the land take possession et cetera”?  Would those additional words make any difference to your argument?

MS BROWN:   They could, your Honour, insofar as the argument that was found against us by the Full Federal Court was that there was an underlying intention to preserve all interests.  Now, we say that is not established, but it is at least contemplated by the majority in Ward that there could be a statutory mechanism which provided for the suspension of rights, but otherwise that where there are inconsistent rights there is no suspension of rights and the effect is extinguishment.  If there was a provision of the nature that your Honour suggests – could you just repeat it in terms of ‑ ‑ ‑

KEANE J:   The Minister may, on behalf of the Commonwealth but otherwise without adverse effect upon the rights of any owner or occupier of the land, take possession.

MS BROWN:  So that would certainly assist in an argument to say that by implication there is a preservation of all rights.

KEANE J:   Well, the passage in Ward to which you are referring, I think, to paraphrase it, says suspension is something that is very unusual, did not need to consider it in Ward, possibly may arise, depending on the terms of a particular statute, that there may be ‑ depending on the terms of the statute that authorises the exercise of the particular power, there may be some suspension.  It depends on the terms of the statute.  If this statute, properly construed in terms of the provision, it makes for the power that it confers is understood as operating without adverse effect upon the rights of any owner or occupier beyond the temporary and limited taking which it authorises, this might be one of those very rare cases of suspension.

MS BROWN:   It could be, your Honour.  It certainly could not be said that it was outside the contemplation of the majority when they were referring to the notion.  The question is, how far do you take that reference?  Your Honour, I think it is a reference to paragraph 82 ‑ ‑ ‑

KEANE J:   Yes.

MS BROWN:   ‑ ‑ ‑ of Ward, which is found at page 91 of the case and specifically which refers to –

Two rights are inconsistent or they are not.  If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.  Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise.

Now, if there was a provision in a statute which was construed in such a way as to preserve all rights, then it may be that such a provision is of the kind that was contemplated by the majority in Ward.  It seems in the context of Ward what is actually being referred to indirectly there are actually the specific provisions in the Native Title Act.

FRENCH CJ:   On your argument, exclusive possession is everything, is that right and neither duration, nor purpose, affect your argument?  If the order were made for a month, or six months, or three years, it does not make any difference.

MS BROWN:   Well, we would say that that is no different than a statutory lease that is granted for a year for a specific purpose.

FRENCH CJ:   I understand your argument, yes.

MS BROWN:   We obviously say, your Honour, and to the extent that it has been suggested otherwise, we do not suggest that you do not engage in a process of analysis to determine the proper nature of the right.  Obviously, on the basis of the decisions of this Court in decisions such as Wik, or indeed, in a number of instances in Ward, the question – the limitation in terms of purpose has been one of the factors that regard has been had to in determining whether there is truly a grant of exclusive possession.  That was also the case in Western Australia v Brown, although in Western Australia v Brown, of course, there was a very broad provision granting rights of entry to third parties in relation to the land in question as well.

HAYNE J:   But it is necessary to identify the rights which are at issue and to compare them.

MS BROWN:   That is right.

HAYNE J:   Here, do I understand you to say that it is – or at least was below – undisputed that the Commonwealth took exclusive possession?

MS BROWN:   Well, we say that the majority expressly found that there was exclusive possession in a number of instances in their judgment.  What they then referred to, your Honour, was exclusive possession limited in time for – limited as to time and limited as to purposes with an objective underlying intention that all rights be preserved.

HAYNE J:   I should say to you at once, Ms Brown, that the statement about intention always requires unpacking.  Statements about the intention of the law are often – I think often enough in this case – no more than statements of conclusion about the legal effect that is assigned to the particular legal act.  Intention is the start of the – if you use the word “intention”, at once the question becomes, well, whose intention, what, why, how?  That is why in Ward the majority said what it said at paragraphs 78 and following about Delgamuukw.

MS BROWN:   Yes.

HAYNE J:   Reasoning of a kind which seems to have more than faint echoes in the Full Court’s decision in this case.

MS BROWN:   Yes, your Honour.  Your Honours, we are not saying in terms of the appropriate test to adopt that you do not have regard to statutory intention insofar as of course you have to revert to the terms of the statute to determine what the nature of the right is that was granted.  That is what we would submit Chief Justice Gleeson was actually referring to in Wilson v Anderson.  He was actually not referring to some separate process.  He was referring to the process that you undertake in determining the proper characterisation of the Act in order to determine what the legal character of the right is. 

We say that that is demonstrated by a number of passages in Wilson v Anderson (2002) 213 CLR 401. Your Honours, at page 417 is reference to paragraph 6. It seems to endorse the very approach that your Honour was referring to in terms of the question of an examination of intention and talking about the comparison of third party rights, in particular, the passage, no question arises:

Where, as in the present case, the Court is considering an argument as to whether there has been extinguishment by reason of the second of three kinds of law or act referred to by Brennan CJ –

That being the creation of third party rights -

then no question arises as to whether, at the time of the act said to extinguish native title, there was any specific intention to extinguish native title or even as to whether anyone adverted to the existence of native title.  In such a case, the test is one of inconsistency.  If it is satisfied, the extinguishment results from the inconsistency, not from the existence of a purpose of abrogating native title rights or interests.

That is not to say that matters of intention are irrelevant. 

But when one sees in the context of this case what his Honour is referring to, his Honour is clearly referring to the characterisation of the right.

FRENCH CJ:   We speak of statutory purpose as something distinct from the notion of legislative intention which as Justice Hayne has mentioned is – and I think we have said it in Lacey’s Case, for example, an “after the event” statement that we have construed according to rules understood by courts and drafters.  Bu, we look to purpose.  We may find purpose in statements of objectives.  We may find it in texts and structure.  We may find it in extrinsic materials.  Purpose informs construction.  Does purpose have any part to play in the characterisation of rights when they are conferred in aid of a particular power as inconsistent or do you just do a sort of Hohfeldian comparison?

MS BROWN:   Your Honour, the purpose can only be relevant insofar, in my submission, as it varies the right that has been granted – that it affects the nature of the right being granted.

HAYNE J:   Well, do you challenge what Chief Justice Gleeson said at paragraphs 9 and 10 of Wilson v Anderson at 418 and 419?

MS BROWN:   No, your Honour, we do not.  I think we are speaking at cross‑purposes here.  I was actually referring to the defence purpose in this scenario.  I am not saying that the purpose of the legislation gets ignored but, of course, one of the reasons that the inconsistency of incidents test was developed was for the very reason that in terms of ascertaining the purpose of legislation and the mischief to which it was directed in the context of legislation passed where the law was the converse of, in fact, what it is now being declared to be was not a fruitful purpose.

But, of course, in terms of construing statute you have to have regard to a number of things, your Honour.  We do not suggest that there is any alternative approach to that but we say that in relation to native title and the question of extinguishment of rights that because of the nature of how the law has evolved, the primacy has been given to inconsistency of rights because of the fact that ascertaining purpose at the time in relation to that is a difficult process, if not impossible.

The other passages I was going to refer you to of Chief Justice Gleeson were at page 419, paragraph 12, halfway down, where he refers to:

What is relevant is that, objectively considered, there was an intention to create an estate that was inconsistent in its incidents with continuing native title rights and interests.  The same applies to the creation of a leasehold estate which confers a right of exclusive possession in the lessee.

Then at page 420, paragraph 14, in the context of Wik, his Honour said:

in so far as there was a question of intention to be decided, the question was whether the intention was that the lessees should have exclusive possession of the land.

At page 422, paragraph 21, his Honour indicated that the intention of the legislation in that case was to confer rights of “exclusive possession”.  But, your Honour, in terms of limitations of time, we submit that the duration of the right is something - if it is inconsistent with the native title right and interest - which is an irrelevance on the basis of this Court’s rejection of the adverse dominion principle and also of the approach of Justice North in Ward in terms of there having to be some permanence in terms of the right that is created and the fact that rights are either inconsistent or they are not.  If on the true characterisation of the right that was granted in relation to the present matter it was a right of exclusive possession the fact that it was of indefinite duration does not lead to a different conclusion in terms of extinguishment, in our submission. 

Your Honours, we were looking at regulation 54 - if I could just finish on that.  Regulation 54(2) informs of the broad nature of the right that is granted upon the taking of possession, again that the land can be used for one of the identified purposes, notwithstanding any restrictions on the use of land:

and that Minister, so far as appears to him to be necessary or expedient in connexion with the taking of possession or use of the land . . . 

(a)may do, or authorize persons so using the land to do, in relation to the land, anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest; and

(b)may by order provide for prohibiting or restricting the exercise of rights of way over the land, and of other rights relating thereto which are enjoyed by any person, whether by virtue of an interest in land or otherwise.

Your Honours, we do not contend in terms of the reference to the conferral of the power upon a person to use the land in the way which any person having an unencumbered interest in fee simple would be entitled to.  De facto confers a fee simple title.  But what we do contend is that it does confer powers upon the authorised person to exercise all the rights that could be exercised by an owner in fee simple in the enjoyment of the possession of the land.

So that in this case we say that by expressly granting that right, to the extent that there would be any doubt – and we will return to this – that the Commonwealth by virtue of the fact that it has a statutory right of possession could sue for trespass or in ejectment, we say that that is made clear that they could by the fact that they have conferred upon them the rights of a fee simple owner.

Now, we say that makes the position clear, but we say that the fact that there is the statutory right of possession that is granted and that the Commonwealth enjoys that statutory right of possession, would entitle it to enforce its rights of possession ‑ ‑ ‑

FRENCH CJ:   Well, there can be a statutory prohibition on entry, contravention of which would be an offence, is that right?

MS BROWN:   Well, that is the further point, your Honour.  There is a statutory prohibition on entry that has been made in relation to this case and the ‑ ‑ ‑

FRENCH CJ:   You mean an order?

MS BROWN:   By the order ‑ and the exercise of all rights.  Now, we say that that has two purposes.  We say that in terms of the possession that is conferred upon the Commonwealth upon taking possession that, properly construed, that does mean exclusive possession, and your Honours are familiar with the cases which are referred to, particularly, albeit in dissent, but the authorities are sound in terms of possession and exclusive possession not being distinct and the word “exclusive” often being seen to be superfluous.  But we say to the extent that these orders confer the rights of fee simple owners or, rather, the power to exercise those rights, and also prohibit entry by any persons and the exercise of rights by any persons in relation to the land, whether it arise from an interest land or otherwise, makes it clear that there is a complete prohibition upon the relevant delegate being satisfied of the requisite purpose.

We say that the further purpose of regulation 54(2)(b) is one too for the ease of enforcement in terms of providing for an order rather than requiring necessarily civil proceedings to be taken, and the second is because there are interests that may well be enjoyed in relation to land which would not be binding upon – sorry, which would apply to an estate in fee simple or a leasehold such as a public right of way, which need to be – for it to be made clear that those rights cannot be exercised by anyone.

FRENCH CJ:   The authority given under (a) to do to persons using the land, to do things which any person having fee simple could do, is such as is expedient in the interests of – sorry, necessary and expedient in connection with et cetera. 

MS BROWN:   Yes, your Honour.

FRENCH CJ:   It is an incidental power in a sense.

MS BROWN:   Yes, it is, if it is thought to be necessary and expedient in connection with taking the possession of land.  We say that is to ensure that there is no question that the full rights of an owner can be exercised by the Commonwealth while it is in possession.

HAYNE J:   Does that not just provoke attention to what the order was? 

MS BROWN:   In what sense, your Honour?

HAYNE J:   There is the power, what is the asserted limitation on the effect of the order that is to be divined by paying strict attention to reg 54?

MS BROWN:   In terms of the limitations, we say that looking at regulation 54 demonstrates that the order has – that the decision‑maker in making the order has exercised all of the powers in making the order so that the Commonwealth enjoys rights of exclusive possession to the full extent and that there is a broad power that is provided in regulation 54 and that the purpose which has to be satisfied is a broad purpose.  We say that that fact militates against there being any effect on the nature of the right to mean that it is not a right of exclusive possession that has been granted.

HAYNE J:   A possible point of view is that reg 54, standing as it does in the context of the time, is to be read as permitting the Commonwealth to assert total control over land in the context of what was then understood to be total war.  It is not at least immediately apparent to me what is said to follow from paying close attention to the text of regulation 54.  When we go to the orders we find that the orders seem to track, I think reasonably faithfully, the text of regulation 54 in relevant respects.  Now, ultimately, what is the point that we are grappling with here?  What is the point you are seeking proleptically to answer by this focus on 54 before we come to the orders?

MS BROWN:   Well, your Honour, the point that we are focusing on is in terms of the legislative context is to show that the terms of the order do the very thing that your Honour has indicated, that this is a regulation which provides for the Commonwealth to be able to take total control of the land and that by the terms of the order that is, in fact, what was done.  Then if when one looks at the passage in Ward, which I think is found at paragraph 52, the majority there refer to the fact that the control of the land – it is the control of the land which is one of the telling features in terms of a party having possession with rights against all of the world.

We say that is why the correct interpretation of the orders is as was found by at least two of the Judges in Dalziel to be rights of exclusive possession - that it is wide ranging and made in the context of war to give the Commonwealth all‑encompassing rights and powers while they are in possession of the land.  In effect, your Honour, it is to ensure that the Commonwealth has all but the title of a legal owner, that they have all of the enjoyment of the rights. 

We say that that interpretation is supported by the context that we are in, in terms of this being legislation made to meet all the exigencies of war and to enable the Commonwealth to be able to take all steps that are necessary in order to secure the security of the nation.  We say the width of the power has been – and the necessity for such regulations – has been referred to by this Court as an example in Farey v Burvett, and particularly passages there by Justice Isaacs.

FRENCH CJ:   Really, your argument comes down to the very short point as to exclusive possession and that is the end of the road.  I am not trying to trivialise it when I say that, but that is at the core of it, is it not?

MS BROWN:   No, no, I know.  Your Honour, in a sense our case is very simple.  You are right.  Our case is that by these orders the Commonwealth had conferred upon it right of exclusive possession.  That right of exclusive possession is inconsistent with the continued existence of native title rights and interests and that there is nothing in terms of the legislation which calls for a different approach than determining in this case the intention by virtue – other than by the comparison of the rights.  That is, in simple terms, what the State’s position is.

Your Honour, I do not think – and I am not going to dwell on it – but just for the completeness we say that the fact that this is a right that has been taken by the Executive, pursuant to the terms of the regulation, does not call for any different test than has been set by this Court in terms of inconsistency of rights. 

We say that, indeed, the assertion of rights by the Executive was specifically contemplated in the context of the inconsistency of rights test by the majority in Ward, in particular at paragraph 26, page 69 of the judgment, and paragraph 46, subparagraph 5.  Those passages were referred to by this Court and adopted in Akiba by Justices Hayne, Kiefel and Bell at paragraph 61, which you will find at page 240 of the judgment, and by Chief Justice French and Justice Crennan at paragraph 35.

Now, obviously in terms of the judgment of Chief Justice French and Justice Crennan, there was a more detailed analysis in terms of the statutory intention and the recognition by Justice Gummow in Wik of the difficulties in construing the statute at the time when the existing state of the law was perceived to be the opposite of what had been held, that ultimately the pre‑eminence of the inconsistency of rights test was to be maintained.

One of the issues that we will come to in terms of this case is that the majority of the Federal Court said that the legislation was directed to the exercise of rights such that it was more akin to a legislative scheme which regulated native title rights and interest.  That calls for a different test per se, but the primary point is still one of inconsistency, but that looks to the inconsistency between the legislative scheme and the native title rights and interest.  We say though that that approach ignores the fact that here there was a right created and that it is the comparison of that right created with the native title rights and interest which is the correct approach.

Your Honours, could we turn to the terms of the order and, as your Honours have pointed out, it can be found in the appeal book without having to go to the individual orders, at page 131 of the appeal book.  What the terms of that order show, as your Honour Justice Hayne pointed out to me before, is that the order generally follows the provisions of regulation 54 and exercises all – and purports to confer all of the powers that could be conferred pursuant to regulation 54(2), and in particular, paragraph 2, which confers the rights to do –

anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do –

and paragraph 3, that –

While the said land remains in possession of the Commonwealth, no person shall exercise any right of way over the land or any other right relating thereto, whether by virtue of an interest in the land or otherwise.

FRENCH CJ:   Well, it begins with the substantive take possession of the said land, does it not, in the ‑ ‑ ‑

MS BROWN:   Yes, it does and in fact specifically refers to taking possession of the said land now.  So we say that the orders and the directions made maximised the right that was conferred upon the Commonwealth.  Now, your Honours, as we have indicated, the majority of the Full Court as well as Justice Logan accepted that a right of exclusive possession had been conferred, albeit that the majority qualified it.  But they only qualified it in terms of finding that to the extent that there was the exclusive possession right and that it prohibited the exercise of native title rights, that the native title rights were subordinated. 

The real point of contention in terms of whether possession is exclusive such that it would be extinguishing native title in the present case appears to be whether somebody could be excluded for any reason or no reason.  In terms of the arguments that have been raised by the first respondent and the Commonwealth, they are obviously relying on the passage from this Court in Western Australia v Brown in referring to being able to exclude any person from access to land for any reason or no reason.

GAGELER J:   Could the exclusion ever be for no reason, consistently with the regulations?

MS BROWN:   Your Honour, in terms of whether the person who might decide to exclude could have no reason in making the order.

GAGELER J:   Yes.

MS BROWN:   The difficulty I have with that question, your Honour, is this - that the relevant decision‑maker has to be satisfied of the requisite purpose prior to the making of the order.  That is clearly a jurisdictional fact which must be in place.  Once they have been satisfied of the purpose, in this case, they have made an order which has excluded all people so in a sense to ask whether somebody could be excluded for no reason is to ask a question that is not apt given that there is a prohibition by all people. 

Now, obviously if there was an individual decision being made without such a prohibition, the exclusive possession – let me take that back.  By the terms of the order the Commonwealth takes possession of this land and insofar as that is a right, it is a right of exclusive possession and that would enable the Commonwealth to exclude all parties from the land and it did.  To the extent that there is a further question of whether, in establishing exclusive possession, you have to show it is for any reason or no reason, if an exclusion was ultimately made by the Commonwealth for no reason at all it may well be that there would be some sort of judicial remedy.

HAYNE J:   Why?  If the Commonwealth had taken fee simple possession, if it had resumed the land it could exclude anyone for any reason or no reason, could it not?

MS BROWN:   Well, it has the rights of a fee simple owner, so we would say yes it did. 

HAYNE J:   Just bear with me a moment.  If the Commonwealth had resumed the land and taken fee simple possession it could exclude anyone and everyone for any reason or no reason, could it not?

MS BROWN:   Yes, it could.

HAYNE J:   If you are right that the Commonwealth took exclusive possession of this land the same conclusion follows, so I do not know ‑ ‑ ‑

MS BROWN:   It does, your Honour, and can I withdraw what I said before because in the sense that there is no question that prior to exercising that right you had to be satisfied of the relevant purpose in taking possession but upon being satisfied of that purpose the right of exclusive possession you obtained was one of exclusive possession, was one where you were entitled to exercise all the rights of a fee simple owner and that would entitle you to exclude anyone and everyone.

HAYNE J:   What his Honour’s question may direct your attention to, though, is whether what was taken was truly exclusive possession.  Now, you have either made good that proposition or you have not made good that proposition but I think we do – we have, I think, grasped that that is at the core of your case.  But if you conclude exclusive possession, end of game.  If the right is less than exclusive possession, we are into another game.

MS BROWN:   In which case it requires the comparison of the right with the native title rights and interests, yes.

GAGELER J:   If it is exclusive possession in the sense that you are using the terminology, what role is there for regulation 54(2)(b)?

MS BROWN:   Two roles, your Honour.  The first is for the ease of enforcement in terms of being able to easily permit the enforcement of the exclusive possession by putting it in the form of an order.  Secondly – well, your Honour, that is the primary purpose, in fact.  The second one is an irrelevance ‑ ‑ ‑

HAYNE J:   Regulation 54(2)(b) is there, is it not, because if a 54(2)(b) order is not made there would not be exclusive possession?  If you did not make a 54(2)(b) order, if you did not say no one else can have access to this, there would be a real and lively question, would there not, about whether the Commonwealth had taken to itself exclusive possession of the land.

MS BROWN:   We say that the exercise of 54(2)(b) makes that question redundant, yes, your Honour, that it makes it clear that this is a right of exclusive possession.

FRENCH CJ:   It does not say, does it, that – and 54(2)(b) does not provide for an order to say that no person shall enter the land.  I just wonder why they have used the language of shall exercise any right of way or any other right.  Is that to be equated to a prohibition against entry?

MS BROWN:   Yes, your Honour. 

FRENCH CJ:   Is it to be equated to an inability on the part of the Commonwealth to permit entry?

MS BROWN:   Well, to the extent that the order prohibits all people making such entry, it would be an offence obviously to act contrary to the order, but in terms of if the Commonwealth as the body which has the possession of the land and therefore has the power to decide who can enter and who cannot, they have that power but in the face of the order in its terms no one can enter the land.

HAYNE J:   Well, test it against the case of a drainage easement or sewerage easement over the land.  Let it be assumed that there is first a reg 54(2)(b) order.  You cannot use the land, you cannot use the drainage or sewerage easement, I would have thought.  If there is no 54(2)(b) order, presumably you can still continue to use the drainage or sewerage easement.  As I say, there may then be a lively question – maybe, maybe not – about whether what the Commonwealth took was exclusive possession, but the orders with which we are concerned are orders in which there was a 54(2)(b) order, are they not?

MS BROWN:   Yes, they are, and returning to the question that you asked before, Justice Gageler, that is the second purpose of 54(2)(b), is that to prohibit any entry by people who may be able to have a right of entry as against a fee simple owner or a leasehold owner, pursuant to some other interest, although that given that the Commonwealth can exercise the rights of land without, notwithstanding whatever restrictions upon the land, there may be an argument that that was not necessary.

GAGELER J:   I am sorry, that what was not necessary?

MS BROWN:   That the provision of the order in those terms, given that the Commonwealth exercises all the rights without regard to the restrictions on the land, it could be argued that perhaps that order was not necessary but, in my submission, what the order does is to make clear that anyone who does have access rights through some other interest such as an easement cannot exercise them, but they would be able to against a fee simple owner.

It is consistent in terms of the context which we are dealing with.  The absoluteness of the right that is granted is consistent with the context in which we are in in terms of allowing the Commonwealth to take possession of the land in order to be able to expedite the defence of the country in whatever way is necessary.

KIEFEL J: Ms Brown, do you accept that the effect of section 19 of the National Security Act is that, putting aside native title holders, other holders of interests in the properties in question would regain all of their right title and interests at the conclusion of the war?

MS BROWN:   No.

KIEFEL J:   No?

MS BROWN:   For this reason, your Honour.  Certainly, in terms of there is no determination of any legal estate or interest by the Commonwealth taking possession, whether other rights may not be lost during the period in which the Commonwealth holds possession ‑ ‑ ‑

KIEFEL J:   Well, take the owner, that would be the easiest example, in the case of the owner who has been deprived of possession and control of property during the war, that that person regains full interests of ownership at the conclusion of the war and the period thereafter?

MS BROWN:   Yes, they do.

KIEFEL J: So section 19 is to be read to say the regulations may provide for possession and control of property during the war and for its purposes, to the exclusion of others, but not thereafter. That is how one reads it?

MS BROWN: You are referring to section 19, your Honour?

KIEFEL J:   Yes.

MS BROWN:   Of the National Security Act?

KIEFEL J:   Yes.

MS BROWN:   The National Security Act is in relation to the duration of the war. Are you referring to section 5?

KIEFEL J:   Yes, “and for a period of six months thereafter”.

MS BROWN:   Yes.

KIEFEL J:   But I am just reading it in the context of what it authorises and with a view in mind of whether or not – and it may well not be – but whether or not it is the type of provision referred to in paragraph 82 of Ward; that is, a statutory provision actually having the effect of suspending rights in favour of other rights.

MS BROWN:   No, we say that you cannot construe it in that manner.

KIEFEL J: Well, the words might not all be there, but we can imply it. If we look at section 19 and read section 19 with section 5, can you not read section 19 to convey that the regulations may provide for possession and control of property to the exclusion of others by the Commonwealth during the war and for its purposes, but not thereafter? Is that not how you would read section 19?

MS BROWN:   Well, the regulations and the orders obviously cannot operate beyond the term of the Act itself.

KIEFEL J: Well, that is right, that is why we are looking at section 19.

MS BROWN:   Yes.

KIEFEL J:   But if that is the case ‑ ‑ ‑

MS BROWN:   But what – sorry, your Honour.

KIEFEL J: The question is, if that is how it is to be understood to operate and the regulation‑making power is thereby limited, is section 19 a provision of the kind to which their Honours referred to in Ward at paragraph 82?

MS BROWN: No, your Honour, we say that section 19 was only a provision which goes to the duration and, in this case, indefinite duration of the orders, but it does not have the effect of preserving interests, and clearly ‑ ‑ ‑

KIEFEL J: What if the interest that section 19 creates is sui generis and in the nature of commandeering property? That relates mostly, I know, to personal property, but if we are talking about a sui generis right or power to be exercised in time of war are we getting any closer to the kind of suspension that was referred to in Ward – a statutory provision having that effect?

MS BROWN: Well, the difficulty I have with your Honour is actually reading section 19 in that manner because section 19 – while I can see your point is to say, look, it is only going to operate for this particular duration, to then say that implied from that is that all rights and interests would be otherwise unaffected is, in my submission, not open on that particular provision.

KIEFEL J:   Well, what you are saying is it has to expressly identify the rights and interests.  Is that it?

MS BROWN:   There has to be a clear statutory provision or, at least, a clear implication that might arise from the statutory provision which would lead you to conclude that the statutory intention was that all rights be preserved however they may be affected.

KIEFEL J: We have the context and purposes of the statute here. We know that it is intended to give the Commonwealth certain powers with respect to land to possess and control it, but the Commonwealth, because it is not acquiring the property, it has no interest in the property rights of those affected by the orders at the conclusion of the war; so much is evident from section 19.

MS BROWN:   That is true.

KIEFEL J:   Well, can we not draw inferences ‑ ‑ ‑

MS BROWN:   It does not have an interest but it is a further leap to say that it does not have an interest in those property rights to say that there was a positive preservation of all the rights.

KIEFEL J:   It only has limited purposes that are necessary for the purpose of the land – limited purposes, limited time – no interest in acquiring property at the conclusion of the period in question.  Does that not tell us something about the nature of the Commonwealth interest?

MS BROWN:   Well, your Honour, in terms of what it tells you about the nature of what the Commonwealth is acquiring, it tells you that the right that the Commonwealth is acquiring, while not an interest in land such as a lease is, in our submission, in no different position from a short‑term lease granted under a statutory provision.  That may well be ‑ ‑ ‑

KIEFEL J:   It does not have all of the rights of a lessee.  Has it got a right of subletting – countersigned?

MS BROWN:   It does not have the rights to assign and there is certainly authority which would indicate that it could not sublet.  It could provide a ‑ grant a licence.

KIEFEL J:   Within its own purposes – for its own purposes – within the statutory purposes?

MS BROWN:   Within the statutory purposes which are very broad, your Honour.

FRENCH CJ:   I suppose there might be a distinction between a legal regime which does not have, as a purpose, effect on underlying rights, or rights on the land which is affected by that regime.  The absence of a purpose may not assist you in resolving questions of inconsistency – you look to the rights.  But if one can identify in the legislation a purpose not to affect underlying rights because of the nature of the regime, can that inform – can that statutory purpose – I am not talking about intention – that statutory purpose, inform the characterisation of the relationship between what is created by the legal regime and the native title rights as one of inconsistency?

MS BROWN:   It does not inform as to the inconsistency.  What it does is introduce an additional element, insofar as it does not inform of the characterisation of the right, if it is a right of exclusive possession that is granted under the statutory provision.  What it informs of is the fact that the statutory intention is that these rights are granted consonant with the position in terms of war, but in terms of an inconsistency of rights, to say that, well, because it is only in the context of war which will be of a limited duration, that that affects the way that you approach the inconsistency of rights.  We submit it does not.  In effect, what is being sought to do there is reintroduce the notion of there having to be some sort of permanent effect on native title rights.

HAYNE J:   That is something that was discountenanced in Ward.  If we go to page 90, paragraph 81 in the last four lines, there is a passage from Justice North’s reasons in Ward, where his Honour spoke of permanent rights and permanent consequences.  In paragraph 82, he expressly discountenanced that approach.

MS BROWN:   That is right, your Honour.  I think it was paragraph 78 which discounted ‑ ‑ ‑

HAYNE J:   I have in mind the introduction to paragraph 82:

This approach to extinguishment as understood with respect to the withdrawal . . . should not be adopted.

MS BROWN:   Yes, and paragraph 80 also addresses the question of duration.  That is, we would submit, to introduce – have regard to the purpose in the way which your Honours are contending, Chief Justice French and Justice Kiefel, would be to reintroduce such a notion which has been discarded because it does not affect the characterisation of the right in terms of the legal nature of the right granted is not altered by the fact that it is being granted in the context of the war, and pursuant to the National Security Act and regulations. 

Can we say while that no doubt can be said, and has been said to be a harsh result, because people who have a right in fee simple or a lease are not in a similar position, it is actually consistent with the authorities in this Court in terms of extinguishment, because it is an act of sovereign power, and that act of ‑ ‑ ‑

KIEFEL J:   Well, that is one way of viewing it.  The other is that native title is inherently more vulnerable, and that is a result of the Native Title Act.

MS BROWN:   I was going to say that, your Honour, that in order to determine the states or interests you need express statutory provisions generally to have that effect, but native title rights, while recognised by common law, are vulnerable to the exercise of sovereign power which gives rise to a right which is inconsistent with the continued existence of native title rights and interests.

Your Honour, in terms of the nature of the exclusive possession, could I take you to Dalziel?  Chief Justice Latham was the dissenting judge and he found that the nature of the right that was conferred upon the Commonwealth or that was acquired by the Commonwealth was not a proprietary right but rather was an occupation licence.  The remaining Judges, however, found that there was an acquisition of property by the rights that were granted to the Commonwealth, particularly arising from the fact that possession is the root of all title and is one of the essential matters which any holder of an estate or interest is entitled to enjoy, and indeed that can entitle a party to be able to sue even if they are not the superior title holder if they actually hold possession. 

If one turns to page 285, one can see the description by Justice Rich of the right that is granted, and particularly the passage which is at about point 45, beginning:

Not only is a right to possession a right of property –

Then further down, he quotes the reference from Pollock & Wright:

“Possession confers more than a personal right to be protected against wrongdoers:  it confers a qualified right to possess, a right in the nature of property which is valid against everyone who cannot show a prior and better right.”

Over the page to page 286, is his Honour’s often quoted passage that Mr Dalziel was left with “the empty husk of tenancy”.  Over at page 289, his Honour says:

It is evident that the draftsman of reg. 60H proceeded upon an erroneous supposition, apparently shared by the framers of s. 5(1)(b) of the National Security Act 1939, that the appropriation by the Commonwealth to itself, for an indefinite period, of the exclusive possession of property did not constitute an acquisition of property within the meaning of s. 51(xxxi.) of the Constitution, and that the Executive Government could therefore exercise an arbitrary discretion as to the compensation –

the key point being the reference to “an indefinite period, of the exclusive possession of property”.  Justice Stark took a different approach ‑ ‑ ‑

KIEFEL J:   “Indefinite” there means as yet unascertained at the time their Honours were writing. 

MS BROWN:   That is obviously right, your Honour.  It is also why Justice Williams, when he was seeking to draw an analogy in terms of an estate or interest, drew the parallel with a tenancy at will.  Just turning to Justice Starke about halfway down the page his Honour did not think it was appropriate to engage in any process of trying to compare the right with other estates and interests but found that:

The right conferred upon the Commonwealth may be classified, I think, under the denomination of jura in re aliena, and so a right of property –

So in the present case if one – as per paragraph 51 – as it were  opens and closes the frame on day one after this order came into effect, was there inconsistency between rights?  No.  The Commonwealth right was paramount.  Native title holders, as with everyone else, retained their right but with a very significant restriction on exercise but on terms that they would be paid for that interference.

If your Honours could go to paragraph 14 of our outline please – it is important to bear in mind what the effect of Queensland’s construction of the Commonwealth scheme is.  The effect of the construction is that the Commonwealth took its right on terms whereby Queensland, as the native – as the radical title holder would obtain a positive benefit out of this scheme, namely, that it would be freed from the burden of native title rights and interests, which would place it is a particularly beneficial position at the end of the war.

I might also add to that the effect of the argument is that at the end of the war, the Commonwealth scheme had imposed, on this argument, a special burden on one class of pre‑existing interest holders that was imposed on no other class and, finally, that the related effect would be that the Commonwealth would be liable to pay compensation to the class of native title holders greater than the scale of compensation we would be paying to everyone else.

Now, questions of intention and purpose have to be viewed in a particular light, as the Court has raised, but that is ultimately what the effect of Queensland’s construction of the Commonwealth scheme is.  It produces that rather, we would say, bizarre result, and the positive indications in the text are against such a conclusion.

FRENCH CJ:   It might be a convenient moment, Mr Solicitor.

MR GLEESON:   If your Honours please.

FRENCH CJ:   The Court will adjourn until 10.15 tomorrow.

AT4.13 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 3 DECEMBER 2014