State of Western Australia v Manado & Ors; State of Western Australia v Augustine & Ors; Commonwealth of Australia v Augustine & Ors; Commonwealth of Australia v Manado & Ors

[2019] HCATrans 238

[2019] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 2019

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Appellant

and

ERNEST DAMIEN MANADO AND CECILIA CHURNSIDE AND ALEC DANN AND BETTY DIXON AND WALTER KOSTER AND PHILLIP McCARTHY ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

SHEFFIELD RESOURCES LIMITED

Fourth Respondent

JAMIE PETER BURTON

Fifth Respondent

VICTORIA JANE BURTON

Sixth Respondent

KURT ELEZOVICH

Seventh Respondent

YEEDA STATION PTY LTD

Eighth Respondent

J D ARROW

Ninth Respondent

S J ARROW

Tenth Respondent

Office of the Registry
  Perth  No P35 of 2019

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Appellant

and

RITA AUGUSTINE AND ELIZABETH DIXON AND CECILIA DJIAGWEEN AND IGNATIUS PADDY AND ANTHONY WATSON ON BEHALF OF THE JABIRR JABIRR/NGUMBARL NATIVE TITLE CLAIM GROUP

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

CLIPPER PEARLS PTY LTD

Fourth Respondent

THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD

Fifth Respondent

Office of the Registry
  Perth  No P36 of 2019

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

RITA AUGUSTINE AND ELIZABETH DIXON AND CECILIA DJIAGWEEN AND IGNATIUS PADDY AND ANTHONY WATSON ON BEHALF OF THE JABIRR JABIRR/NGUMBARL NATIVE TITLE CLAIM GROUP

First Respondent

STATE OF WESTERN AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

CLIPPER PEARLS PTY LTD

Fourth Respondent

THE AUSTRALIAN SOUTH SEA PEARL COMPANY PTY LTD

Fifth Respondent

Office of the Registry
  Perth  No P37 of 2019

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

ERNEST DAMIEN MANADO AND CECILIA CHURNSIDE AND ALEC DANN AND BETTY DIXON AND WALTER KOSTER AND PHILLIP McCARTHY ON BEHALF OF THE BINDUNBUR NATIVE TITLE CLAIM GROUP

First Respondent

STATE OF WESTERN AUSTRALIA

Second Respondent

SHIRE OF BROOME

Third Respondent

SHEFFIELD RESOURCES LIMITED

Fourth Respondent

JAMIE PETER BURTON

Fifth Respondent

VICTORIA JANE BURTON

Sixth Respondent

KURT ELEZOVICH

Seventh Respondent

YEEDA STATION PTY LTD

Eighth Respondent

J D ARROW

Ninth Respondent

S J ARROW

Tenth Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 DECEMBER 2019, AT 10.00 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MS N. KIDSON and MS C.I. TAGGART, for the appellant in appeals P36 and P37 and for the second respondent in P34 and P35.  (instructed by the Australian Government Solicitor)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, with MR G.J. RANSON I appear on behalf of the State of Western Australia in each of the appeals.  (instructed by the State Solicitor’s Office (WA))

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friends, MR R.W. BLOWES, SC and MR A. ROMANO, for the first respondents in each of the appeals.  (instructed by Kimberly Land Council Regional Office Broome)

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, there are two issues raised by the Commonwealth’s two appeals. The first issue concerns the construction of section 212(2) of the Native Title Act, which permits the confirmation of “any existing public access to and enjoyment of” beaches, waterways and various other prescribed areas. The second issue is whether section 225 of the Native Title Act requires a determination of native title to record any public access or enjoyment that is confirmed pursuant to a State law passed as contemplated by 212(2).

Our submission is that if the Commonwealth succeeds on ground 1, then success on ground 2 should fairly readily follow for this reason, that if existing public access and enjoyment of beaches has been confirmed pursuant to the relevant State law then any exclusive native title that was found to exist in the determination that was made which would otherwise, prima facie, have given rise to an entitlement on the part of the native title holders to exclude the public from the relevant beach would not in fact have that effect. 

So, to make a determination in that way that did not acknowledge the confirmed public access would be to make a determination that would have the potential to be clearly misleading.  In our submission, there is no reason, as a matter of statutory construction, why the determination should not record that interest, if confirmed, and therefore we submit that the critical issue, and my main focus, is on ground 1, although I will say something brief about what is ground 3 of our appeal at the end.  Your Honours will have noted in writing that we do not press ground 2 in the notice of appeal.

Can I start, your Honours, with the facts.  The trial judge made two determinations of native title on 2 May 2018, recognising native title held by members of the Jabirr Jabirr/Ngumbarl Claim Group and the Bindunbur Claim Group.  Both of those determinations recognised both some areas of exclusive and some areas of non‑exclusive native title, and I will take your Honours to the determinations in a few moments. 

If your Honours could turn to volume 1 of the core appeal book, to the first decision of the trial judge, Justice North.  If your Honours turn to page 217 of the book his Honour was of course dealing with numerous issues, but the issue with which this appeal is concerned starts to be addressed on page 217 of the book where your Honours will see extracted the key relevant statutory provisions, so 225(c), which is the provision dealing with the content of the determination:

requires the determination to include the nature and extent of interests other than native title interests.

Section 253 of the Act defines “interest” in relation to land and waters. Your Honours can see the definition there, relevantly in:

(a)      a legal or equitable estate or interest in the land or waters; or

(b)      any other right . . . or privilege over, or in connection with:

(i)     the land or waters ‑

Ultimately, where my end point will be to submit that a confirmed public access is an other right or – rather, is an other privilege over, or in connection with the land or waters and falls within that definition.

In the next paragraph, 635, your Honours see 212.  I will come back to the detail of the construction of 212 but, for the moment, if your Honours note that subsection (1) is concerned with, in (1)(a), empowering Commonwealth, State or Territory laws to confirm:

ownership of natural resources by the Crown –

Then, in (b) and (c):

existing right of the Crown . . . to . . . regulate the flow of water; or

. . . existing fishing access rights –

So, the language of “rights” is used.  Then, immediately following in subparagraph (2), the critical subsection here, no reference to rights:

A law of the Commonwealth, a State or a Territory may confirm any exiting public access to and enjoyment of –

a list of identified areas which, for the sake of convenience, I will refer to simply as “beaches”.  But when I say “beaches”, unless I distinguish otherwise, I mean all of those identified interests.

So, subparagraph (2) of 212 is contemplating laws that may confirm that existing public access, whether they be Commonwealth, State or Territory laws. Here, the relevant law is the State law, relevantly quoted in the next paragraph at 636 – section 14 of the Titles (Validation)and Native Title (Effect of Past Acts) Act 1995 – which I will call the TVA.  Your Honours will see it uses almost exactly the same language as you see in 212(2).  It does not use the words “any existing public access”, it just says:

Existing public access to and enjoyment of the following places –

And instead of saying “may be confirmed”, it says:

is confirmed –

because this the confirmatory law and enlists the same identified places.  So, ground 1 is concerned with what those sections – sections 212, in combination with section 14 – do.

The trial judge identified the argument put by the State and adopted by the Commonwealth in paragraph 639, on the next page of the core appeal book:

The State argued that the purpose of s 212(2) is to ensure that existing public access to areas of recreation such as beaches and waterways could continue even if that continued access impaired the unfettered exercise of native title rights and interests. The section was therefore concerned with the relationship between the exercise of native title rights and interests and the enjoyment by the public of places of recreation. It is concerned with the activities undertaken by people, not with the rights held by them.

The contrast between subparagraph (1) and (2) of 212 is noted:

Section 212(2) provides for the confirmation of the ability of the public to access areas, not a confirmation of a right to access an area.

That is, in essence, a reasonable summary of the argument that we maintain in this Court.  The contrary argument was briefly summarised at 642.  The appellants said that if the construction of 212(2) did operate in the way that that argument just identified ‑ it does not deal with existing rights but activities ‑ then it was said it would not intersect with the definition of “interests” in 253 that your Honours have seen.

That raises a question that I will come back to, but it involves the question of whether one looks at the position before confirmation or after it, and we say it may well be the case that pre‑confirmation the capacity of the public to access the beach would not have fallen within that definition.  But post‑confirmation, there is a legal effect that qualifies the possible exercise of native title rights and that that qualification does fall within the definition of “interest” for reasons that I will develop.

So the primary argument – well, the native title parties put, one, that if that is what the section does, then it still does not get into a determination.  And then two, in the alternative, and this is at paragraph 643, it was said the provision:

is concerned with rights and interests of access and not merely –

with capacity to access.  And his Honour, at 644, resolved that debate in favour of the view put by the State and the Commonwealth, in view of the width of the definition of “interest” in 253.  So his Honour situated his conclusion in terms of the 253 definition:

the public access referred to in s 14 of the TVA is likely to have been intended to fall within the definition. Further, the purpose of s 225(c) –

setting out the other interests:

is to require identification of the interests which must coexist with the native title interests and thereby to allow notification to those concerned of the relationship between the two sets of interests so that people may regulate their conduct accordingly.

But what his Honour then found was that it was not sufficient just to replicate the list of areas prescribed in 212(2).  He said that in addition there needed to be – and this is at the end of that paragraph – some identification of the places at which that access was to be undertaken within the determination area, and at 645 the parties were sent away to attempt a greater degree of identification of those geographical places where the public access could be exercised.

BELL J:   Before you move to his Honour’s identification of the geographical places, just to be clear, his Honour’s analysis did not depend upon a view that after confirmation 253 applied.  Is that a fair reading?  In other words, he saw the width of 253 as sufficient to include the access and enjoyment as an interest prior to confirmation. 

MR DONAGHUE:   Your Honour, in my submission, going back to the first sentence of 644, what his Honour refers to there, having noted the definition of “other interests”, is the public access referred to in section 14 of the TVA.  That is the confirmed public interest. 

BELL J:   Yes, I see.  So your contention is that the primary judge’s analysis is of it being an interest within 253 because it is a post‑confirmation interest?

MR DONAGHUE:   Yes.

BELL J:   I understand.

MR DONAGHUE:   And what I will ultimately submit is, because it is post‑confirmation, that is what gives it the character of a privilege so as to fall within 253.

BELL J:   Yes, I understand.

NETTLE J:   Was there no privilege before then?

MR DONAGHUE:   Well, there was a common law freedom to do that which was not prescribed.

EDELMAN J:   How can that be the case?  If there is a common law freedom and also exclusive native title, they cannot coexist, can they?

MR DONAGHUE:   Well, your Honour is anticipating where I am going.  There was a common law freedom that, on the decision of this Court in Mabo, was recognised as being possibly subject to a limitation that had not previously been recognised, whereas pre‑Mabo it was thought the only person who could prohibit access was the Crown.  Post‑Mabo, there was another person, or group of persons who could prohibit access, potentially, the native title parties, and that is what 212 was dealing with, in my submission.

EDELMAN J:   But 212 is talking as at 1994, which is post‑Mabo, and it is talking in a universe where it is known that exclusive native title must, by definition, extinguish any mere liberty.

MR DONAGHUE:   And it is changing that position.

EDELMAN J:   Well, that is the question.

MR DONAGHUE:   Well, indeed, that is the question, and that is what I am – that is the submission I am going to develop.

GORDON J:   The mere liberty had changed, had it not, not just from a common law liberty, but one which had found some foundation in the Land Act, through the lack of prohibition.

MR DONAGHUE:   Through the lack of prohibition.  But it was ultimately still a lack of prohibition, rather than ‑ ‑ ‑

GORDON J:   I accept that, but the statute had turned its mind to it, at the local level.

NETTLE J:   Is not a lack of prohibition coupled with a limited prohibition an implied permission to do that which is not prohibited?

MR DONAGHUE:   From the perspective of the Crown, certainly, yes.

GORDON J:   And the public?

MR DONAGHUE:   Of the public - whether I could go so far as to say from the perspective of the public that - the question would be, I think, whether the scenario your Honour Justice Nettle put to me was sufficient to partially extinguish exclusive native title to the extent that it would otherwise have entitled the native ‑ ‑ ‑

GORDON J:   No, one steps through it.  One says is there a privilege that exists in the form Justice Nettle put to you, then one says, well, what did the Native Title Act do in 1990 when it was passed and what is the effect of it?  Chronology is that Mabo follows on, intersects after those - both common law and statutory lack of prohibitions giving rise to an implied permission.  Then there is Mabo, and then there is the Native Title Act and Ward says you look at the Native Title Act and work out what it had, what impact it had, having regard to that series of events.

MR DONAGHUE:   I do not disagree with that, your Honours, but 212 is an unusual and particular kind of provision in the Native Title Act and it does throw up a question of construction as to what Parliament meant when it talked about any existing public access, and that is where I am going with these submissions.  But I ultimately do not need to get to the point of demonstrating that there was privilege pre‑confirmation under section 14 because I have confirmation under section 14, and if confirmation under section 14 is enough to constitute a privilege, whether or not there was a privilege beforehand does not alter the legal answer.

NETTLE J:   On that analysis, confirmation is, in truth, creation.

MR DONAGHUE:   Well, in my submission not, because what was being - I am anticipating where I am going so if I can give a short answer, which I will develop, but the short answer is that there was no need to create a right in the public, using “right” in a particular technical sense.  All that was necessary was that there was no right in the native title holder to exercise the capacity it would otherwise have had to exclude the public and the no right in the native title holder, the restriction on the right that would otherwise have existed, has a correlative, which Hohfeld identifies as a privilege.  That is, in fact, his definition of a privilege - is the no right to exclude. 

So, if the effect of section 14 was no right in the native title holder to exclude, then yes there was a fetter on native title, the Act did do that, but it did not create some affirmative or new positive right in the public.  The fetter was enough to allow the existing access that had been thought to be permitted in the absence of any prohibition.

EDELMAN J:   But you say that 212 did, as I understand, create something.  It created a liberty, did it not?

MR DONAGHUE:   It created a fetter on the exercise of exclusive native title.

NETTLE J:   The no right.

MR DONAGHUE:   The no right.

NETTLE J:   The correlative of that was the liberty.

MR DONAGHUE:   Yes, well, actually, section 14 that created it, but yes, those sections.

GORDON J:   The liberty existed beforehand without the creation, without the need of section 14.

MR DONAGHUE:   Well, the liberty‑ ‑ ‑

GORDON J:   I just do not understand why you do not embrace that.  What is the downside to your argument?

MR DONAGHUE:   Your Honour, I am not opposing it.  I am just saying they do not need it because ‑ ‑ ‑

GORDON J:   But it is an easier route home, is it not?

MR DONAGHUE:   Your Honour, I do not seek to dissuade you at all from that path, if your Honour is content that that is so.  It seems to me that there was a hurdle here in the need to demonstrate that that liberty was capable of fettering - not something created by the Native Title Act but the common law of native title under Mabo pre the commencement of the Native Title Act would, as Justice Edelman put to me earlier, have recognised potentially exclusive rights.

NETTLE J:   Well, it would certainly do that if it were created by the Land Act implicitly.

MR DONAGHUE:   One then has an issue of the interaction of the Land Act and the common law of native title independently of the Native Title Act.

GORDON J:   That is what the Native Title Act sought to resolve.

MR DONAGHUE:   Indeed, and that is why ‑ ‑ ‑

GORDON J:   That is what the preamble says.

MR DONAGHUE: But that is why I am going there, your Honour. That is why I am going to 212 and section 14 and saying the Act, 212 and 14, answer the question so I do not need to answer the question pre‑Native Title Act.  I am not saying you could not answer it in the way your Honours are putting to me.  I am just saying that ‑ ‑ ‑

EDELMAN J:   But on your approach then it is a very odd form of words to talk about confirming an existing liberty when there was no existing liberty to confirm.  Unless you can find one independently of the common law, almost by definition exclusive native title is inconsistent with an existing liberty.

MR DONAGHUE:   Your Honour, in my submission, viewed in its context, the context of what the Native Title Act was doing, the phrase “any existing public access” does not mean any existing public access that existed subject to the exercise of exclusive native title rights because what Parliament was doing was confirming that the newly recognised native title rights from Mabo did not change what was thought to exist.  That is what was called in Parliament the principle of public access to beaches and it was, in my submission, clear that what was sought to be done as part of the overall compromise or balance between competing rights and interests that was drawn by the Native Title Act was to say native title holders do not get to exclude the public from beaches.  That is my submission as to what 212 was doing.

EDELMAN J:   That colloquial language is also quite consistent with the respondents’ case and with the Full Court’s decision, which is existing factual public access to the beaches.  There is still a compromise.  There is still a circumstance where there is a confirmation.  It is just one does not then get into the impossible legal contradiction of saying that you are confirming an existing liberty that does not in fact exist.

MR DONAGHUE:   Your Honour, I am not denying the existence of question of construction.  The submissions that I am hoping to develop will urge an answer to the question of construction consistently with what I have been saying to your Honours.

So I noted, your Honours, at 645 of the first trial judge reasons that the parties were went away to identify the geographical areas.  One then gets Justice North’s second judgment that commences on 253 of volume 1.  If your Honours then turn to 256, you will see in the introductory paragraphs his Honour identifies what he is doing in this judgment.  There were five outstanding areas, he notes in paragraph 1, being those referred to in a list of paragraphs, one of which was 645, the paragraph I just took your Honours to.  Two of those issues were since resolved, so this judgment was dealing with the other three.

If you turn over to 258, you then see where his Honour deals with the unresolved issue about public access and enjoyment.  He sets out what the State had sought, which identified the areas in question in various ways.  The State explained - you see this in paragraph 17 - that what it was seeking to do was to:

recognise as an “other interest” the existing ability of the public to access and enjoy –

the identified areas.  At 18, the Bindunbur applicants accepted that there was:

a right to access and enjoy –

to the extent of:

the public right to fish and to navigate.

But otherwise at 19, said:

the public was able to access and enjoy the contested areas only because there was no proscription preventing such access or enjoyment.  But they contended that the ability of the public to access and enjoy those coastal areas by reason of the absence of any proscription does not fall within the definition of an other interest.

At 20, his Honour rejects that argument:

Section 253 of the NTA defines interest to include a privilege in connection with land or waters. The ability of the public to access and enjoy coastal areas because access is not proscribed falls within the definition of an interest because it is a privilege in relation to land –

which is, as I have indicated, the argument that we will seek to defend.  The determinations that were made – there were obviously separate determinations for the Jabirr Jabirr and the Bindunbur Claim Groups.  If I could just take your Honours to the Jabirr Jabirr determination which commences at page 337, you will see it is an order of the court identifying in order 1 that:

Native title rights and interests exist in those parts of the Determination Area described in Schedule 2 Part 1 . . . 

do not exist in those part of the Determination Area described in Schedule 2 Part 2.

If you turn over the page to paragraph 4, paragraph 4 identifies the areas of exclusive native title, being those referred to in Schedule 4.

BELL J:   I am sorry, what page are you on?

MR DONAGHUE:   I am sorry, your Honour, 338 now, of the book.

BELL J:   Thank you.

MR DONAGHUE:   So at the top of 338, paragraph 4 is cross‑referencing to Schedule 4 as the areas of exclusive native title.  Paragraphs 5 and 6 of the orders then identify areas of non‑exclusive native title.  At the bottom of that page, in paragraph 9, there is a heading “Other interests [s 225(c) and 225(d)]”:

The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 6 (other interests). 

Paragraph 10 deals with the relationship between those interests, as is required by 225(d) of the Act, noting that

the other interests co‑exist with the native title –

But in (c):

to the extent of any inconsistency, the native title rights and interests yield to the other interests.

So the other interests are those in Schedule 6.  Schedule 6 commences on page 360 of the book but if your Honours can go to 363, is the relevant page. 

KIEFEL CJ:   I am sorry, what was that page, Mr Solicitor?

MR DONAGHUE:   I am sorry, 363, your Honour.  So this is paragraph 8 within Schedule 6, “Other Interests”.  And it finishes with a catch‑all, “Other Rights and Interests” – “The following rights and interests” ‑ and there is a long list of paragraphs, if your Honours go to paragraph (h):

Pursuant to section 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) public access to and enjoyment of the following areas ‑

And if your Honours then go down to (iii), at about point 7 on that page: 

Those parts of the following areas of unallocated Crown land ‑

And there is a list of parcels of unallocated Crown land: 

being those parts where there are

A.      waterways;

B.      beds and banks or foreshores of waterways; or

C.      beaches.

being areas which are ‑

And then it just tracks the language again of section 14.  Of those parcels of land identified in (h)(iii), all except the first two are also listed in Schedule 4.  I will not take your Honours back to that, but that means, with the exclusion of the first two, the other areas are all areas where there was found to be exclusive native title, so that this determination was recognising in that paragraph the interaction of the confirmed existing public right of ‑ public enjoyment, access and enjoyment, and the confirmed public access interest, if I can call it that. 

GAGELER J:   Mr Solicitor, to the extent that a member of the public was limited in the enjoyment of Crown land by specific statutory prohibitions, the right of public enjoyment to which you point was curtailed.

MR DONAGHUE:   That is so.

GAGELER J:   This declaration – this part of the declaration at page 363, does it take that curtailment into account?  That is one part of the question I have, and the other is, what if the statutory provisions change?  Does the confirmation operate at some particular point in time to freeze the scope of the right of enjoyment? 

MR DONAGHUE: So, your Honours, taking the questions in turn, in my submission, because this whole paragraph in (h) is headed “Pursuant to section 14” of the TVA, it is picking up the limit that is inherent in the statutory confirmation exercise, which is to confirm, as at the date of the commencement of the Native Title Act, various interest.  So if at the date of the commencement of the Native Title Act, a particular beach was the subject of statutory prescription or had been the subject of some other grant that meant that there was no public access available to the beach, then that limit was operative and this determination does not go higher than that because it is only purporting to record things that are confirmed pursuant to section 14.

So, in my submission, while obviously it is true that the judge in making the determination has not gone through each of those parcels of land and identified whether there is any inconsistent interest in relation to each beach, if there were such an interest – and one would expect it would have found expression somewhere in the rather comprehensive list of other interests in the determination area – but if there were to be such an interest, then section 14 would not purport to go higher.

In terms of the freezing question, in our submission, all that was confirmed was what was there already as at the date of the Native Title Act.  So if what was there already was a capacity to go on to the land subject to inconsistent provision being made pursuant to the Crown lands legislation in any relevant State, it did not thereafter become immune to some further development under the relevant laws of the State that would have prevented access to the relevant beach as it was confirming what was there as at that time, but not otherwise altering the governing legal framework.  So it would have been open to Western Australia to amend section – I think it is 164 of their Land Act to include an additional prohibition on what could be done on the beach, and that would not have generated inconsistency, in our submission.  I will not take your Honours to the Bindunbur determination, but it follows the same structure, as you see in the Jabirr Jabirr determination.

If I could come then to our argument on ground 1, which attacks the conclusion that your Honours will see expressed by the Full Federal Court in the second volume of the core appeal book on page 512 which is right near the end of the Full Court’s judgment, and I will come to the Full Court’s reasoning a little later, but the conclusion that the court reached, expressed in paragraph 171, was:

there are but two ways in which s 212(2) applies in circumstances such as the present ‑

The first is where the public access was:

shown to be the subject of an existing common law or statutory right or interest –

So that is the right‑based limb. The second was where access was established “as a matter of fact” to have “existed at the time of the enactment of s 212(2)”.

As we read the Full Court’s reasons, its logic was that on the facts of this case the existing public access to the beaches in the determination area did not fall within either of those two limbs and therefore that there was nothing that section 14 could confirm, and because there was nothing ‑ ‑ ‑

EDELMAN J:   As I understand it, what they are saying is that it was not proved to fall within those limbs.  In other words, they do not exclude the possibility that, had evidence been led to show factual access to the beaches, that would have been sufficient.

MR DONAGHUE:   I accept that, your Honour.  The court was not satisfied that there was anything that fell within either of those two limbs, therefore it was not satisfied that section 14 of the TVA had operated to confirm anything and, therefore, there was, the court reasoned, as we read it, nothing to be recorded as an interest, as another interest in the determination. 

I should say, having said that, that, as we understand it, Western Australia read the Full Court’s reasons differently in that, as I understand their submissions, they read the Full Court as having accepted that section 14 of the TVA operated to confirm the liberty to access the beach, but then concluded that that liberty was not an interest of a kind that would be - that attracts the obligation to record it in the determination.

So there may be an initial issue as to the construction of the Full Court’s reasons.  If you read them in the way that we have read them, so that section 14 operates only to confirm access if it meets paragraphs 1 or 2 in 171, then our submission is that that involves an error because properly construed, in our submission, the section permits a State to confirm, and if by section 14 the State has confirmed, whatever means of lawfully accessing enjoying beaches was available to the public prior to the recognition of native title and that that is so even where access was available only as a result of an absence of prohibition.  So that one does not need to identify a right in the public, it is sufficient that there was understood to be an absence of prohibition.

The Full Court quite deliberately excluded that kind of access from its analysis and did not accept the very well‑known common law principle that a person can do that which is not prohibited, which is obviously reflected in many places, but one place is the unanimous judgment of this Court in Lange 189 CLR 520 at 564, which you have not got.

The Court recognised that principle, which is a principle that in our submission is of critical significance in relation to beaches, for the reason that, as I am about, I hope, to demonstrate, public access and enjoyment to beaches usually will not involve the exercise of a common law right because the common law recognises no such right, the only exception being where access to a beach is an incident to the public right to fish and navigate.  If it was an incident to the public right to fish and navigate, then there would be a common law right, but other than that, when the public walk on a beach, use the beach to swim in the water, to surf, to play with their kids, to lie on the beach, none of that is in the exercise of a right.  It is all pursuant to the general principle that, absent prohibition, there is an entitlement to do those things.

EDELMAN J:   But that is all caught by the Full Court’s construction.  The only difference between the approach you are urging and the primary judge’s approach and the Full Court is where no one has ever previously exercised those liberties, no one has ever previously gone on to the beach to swim or to play or to sit.  That is where the two constructions diverge.

MR DONAGHUE:   It would be caught by, yes, the second limb, but the difficulty, your Honour, is that the second limb, which appears in the Full Court’s reasons almost by way of afterthought - it is really, paragraph 170 is, I think, the only paragraph that develops ‑ ‑ ‑

EDELMAN J:   But that may be because there was no factual evidence led.

MR DONAGHUE:   The foundation for it – for thinking that physical access to the beach was critical to the operation of the section was a misreading of one paragraph in the extrinsic materials.  That was the foundation for it.  In my submission, there is not any firm foundation for concluding that what Parliament was seeking to do here was to make the capacity to confirm access to a beach subject to a factual question about access which would raise myriad and difficult questions in terms of what does it actually mean if a beach is three kilometres long and people use one end of it.  Is that public access to the whole of the beach or just to one end of it?  Which people are we talking about in terms of public access?  Is it one person using the beach once?  Is it people using the beach regularly – if so, how regularly?

There is an endless array of possible gradations of public use – from the public has never set foot on this beach even once – to it is Bondi Beach and it is used every day.  There is just nothing to hint that Parliament was making the capacity of a State Parliament to confirm access contingent on the answers to factual questions of that kind.  What was being talked about was referred to in Parliament as the principle of public access to beaches.  It was general.  The factual question is resolved at the level of what goes in the determination when you find out whether there is, in fact, native title with respect to a particular beach – but not at the level of what Parliament was being – what State Parliaments were being empowered to confirm.

The Full Court’s rejection of the idea that common law liberty was enough appears most clearly at paragraph 158 of their Honours’ reasons back on page 509.  Your Honours can see there – and I will not read out the paragraph – it is a critical paragraph of the Court’s reasons – but reference in the second line to converting the:

ill‑defined custom or convention . . . that members of the public may access and enjoy any unallocated Crown land because there is no law preventing them from do so, into an “interest” –

As you go on you see multiple references in that paragraph to the creation of public rights – creation of “a broad new right”.  In my submission, that reason is in error for the reason I foreshadowed to Justice Nettle earlier.  There is no need to create any right in any one to allow what has historically happened in relation to public use of beaches to continue.  All that is necessary is, having identified a new possible source of prohibition, to exclude the exercise of that prohibition by recognising a limit or an impairment of the native title right and once that right is limited in that way, all continues as it did before.

So, there was no creation of a right in the public, in our submission, and that aspect of the Full Court’s reasoning was wrong.  It is just that Mabo, having decided that there might be another source of exclusion – the exclusive native title holder – Parliament, as part of the compromise that was the Native Title Act – and recognising the possible intersection of rights under traditional law that might allow the exclusion of the public with what had previously been understood to be the position – resolved the balance between those rights in favour of public access.

GORDON J:   Is that right?  Do you need to go that far?  It is not balancing an exercise of rights.  It is identification of something which is not even a right – it might be a privilege – and resolving the disconnect, if there is one, between exclusive or non‑exclusive native title rights and a privilege.

MR DONAGHUE:   I should not have said “balancing of rights” – I accept that, your Honour.  It is a right on the one side, the native title holder’s right.  On the other side it is something different.  I accept that.  The fact that it is something different, in my submission, highlights the difficulty with the Full Court’s analysis that leads to one way of 212 applying, being to confirm common law or statutory rights because, at least so far as the common law is concerned, there is no such right.

To try to make that good, can I ask your Honours to turn to the case in volume 4, tab 25, which is R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council [2015] AC 1547. I think, for some reason, your Honours, the joint book of authorities has the unreported version of that case. But it is reported in the authorised reports of the citation I just gave.

The leading judgment is that of Lords Neuberger and Hodge, with whom Lady Hale and Lord Sumption agreed.  The case, if your Honours turn to paragraph 17, arose in the context of a question whether it was possible to declare a village green over a beach that had come into existence a few centuries ago in Newhaven.  The relevant statutory provision at section 17 allowed any person to apply to register land as a village green in a case where subsections (2), (3) or (4) applied and those sections, relevantly, each provided that:

a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.”

That was the question.  At paragraph 23 their Lordships point out that “perhaps somewhat confusingly” the phrase “as of right” means without any right.  So the question was:  had people used the land without any right for 20 years or more.  If they had used the land with some right, including pursuant to a licence from the owner, then that would have negated satisfaction of the “as of right” criteria. 

So what was happening in this case was that the port authority was arguing that there was a right to use the beach because if there was a right of a kind to use the beach that would have prevented it from satisfying the statutory criteria and it could not have been declared as a village green. 

But the issue, squarely raised decision by the Supreme Court, concerned whether or not there was a right to use the beach because if there was then the application to register a green would have failed.  At 26 in the report it is recorded that:

The foreshore around England and Wales, by which is meant the area between the high water and low water mark, is owned by the Crown, although it is open to the Crown to alienate it –

and the court was told about half the foreshore around England and Wales was still owned by the Crown.  As your Honours have already mentioned in questioning, in Western Australia the position is governed by the Land Act – it was governed by the Land Act of 1933 at the time the Native Title Act commenced.  The relevant Act is now the Land Administration Act.  But in both of them, in section 3(2) the foreshore is identified as Crown land.

In paragraph 28, the Supreme Court recognised that:

The state of the law relating to public rights over the foreshore . . . is more controversial than one might have been expected . . . in particular the right to use the foreshore for the purpose of bathing and the sort of familiar activities which people indulge in on a beach – at least in good weather.

At 29, their Lordships identify three possibilities, three possible constructions.  So one, about halfway down paragraph 29:

The first is that members of the public have, as a matter of general law and irrespective of the wishes of the owner of the foreshore, the right to use the foreshore for the purpose of bathing, as a matter of general common law.

The second was that there was presumed permission:

unless and until the owner communicates a revocation –

And the third was:

no right to use the foreshore for bathing ‑

And it is between those three possibilities that the court then focuses.  But it is important to note that at the end of 31, it is recorded that no argument was advanced in favour of the first possibility.  So the common law right to use irrespective of the wishes of the owner was not developed as a possible outcome so the main contest was between options 2 and 3.

At paragraph 33, having noted in the previous paragraph Blundell v Catterall, which is treated as the leading authority on the topic since 1821, that the court, with Justice Best dissenting, had:

decided that, unless such a right could be established by usage and custom, there was no “common‑law right for all the King’s subjects to bathe in the sea and to pass over the seashore for that purpose”.

So that was the holding in the leading case of Blundell.  Passing over the detail of some of the older cases, if your Honours go to paragraph 40, about 80 years later, the matter came back before the Court of Appeal where Justice Buckley followed Blundell:

and proceeded on the basis that members of the public did not have the right to go on the foreshore for the purpose of bathing or getting access to the sea ‑

In the Court of Appeal, Lord Justice Vaughan Williams said that:

the majority view in Blundell, even if technically obiter, “has been recognised ever since by the whole of the profession as an accurate and binding statement of the law”.

The other two members of the court took the same view.  In paragraph – again passing over some of the discussion ‑ in paragraph 43, which is the end of the discussion of Alfred F Beckett v Lyons in the late 60s, it was recorded in 43, in the last six lines of the paragraph:

it is questionable whether, under common law as opposed to statute, a right to use the foreshore for bathing could be claimed by a fluctuating group of people such as the inhabitants of a neighbourhood or locality, as opposed to each owner of an alleged dominant property –

So that is recognising some of the difficulties that I mentioned earlier about, well, who is this publican?  How do they have to use the beach, if it is said to give rise to a right of some kind?  In paragraph 47, where their Lordships are coming to their conclusion on the topic, they say in 47:

There is a great deal to be said for the third possibility –

that is the no right:

namely that the public have no rights to use the foreshore for bathing, on the basis that their rights are limited to access for navigation and fishing, given the reasoning in, and long‑standing nature of, the majority judgments in Blundell.

But, ultimately, their Honours note that the first possibility not – and this is paragraph 50 – the first possibility not having been argued, it should not be decided unless it was: 

necessary . . . for the purpose of . . . this appeal . . . The issue is one of wide‑ranging importance, and we would be uncomfortable about determining it in circumstances where it was common ground that the first possibility could be ruled out. 

And their Lordships note, the food for thought in the draft judgment of Lord Carnwath, who wrote separately ‑ Lord Carnwath’s reasons I will not focus on in any great detail, but if your Honours could go on to paragraph 106 in the judgment. 

NETTLE J:   It is a fairly persuasive criticism of Blundell v Catterall, is it not?

MR DONAGHUE:   Absolutely.  But it comes some decades after the enactment of the provisions with which your Honours are now concerned.  And, in my submission, whatever criticisms can be made of it, there was a very long history of the common law not recognising the right in Blundell.  Now, yes, there are criticisms there of it but, in my submission, the Parliament should not be thought to have legislated on the basis that there was a right of a kind inconsistent with Blundell in circumstances where there was no case that identified such a right, and even though some criticisms had been made, the law had stood in that state for quite some time. 

NETTLE J:   There is no English case, but as his Lordship points out, there was Scottish law, there was law in a lot of American jurisdictions, and in the European jurisdiction obviously from which Justice Best took most of his judgment. 

MR DONAGHUE: Your Honour, I accept that, and that no doubt is why the court chose not to finally resolve the question in a case where it did not need to do so. But if one is ‑ as your Honour’s are not engaged on the task of trying to ascertain what Parliament was doing when it passed section 212(2) back in 1993, I am going to this to demonstrate that it is most unlikely that Parliament was intending a situation where it would confirm existing public access to beaches only where there was a common law or statutory right to such things in circumstances where there was no reason to think that there was a common law right to access the beaches on the law as it then stood. There was Blundell, there was Beckett, there was Lyons I think in 1967, so a series of judgments decades apart each time but denying the existing of that right. 

GAGELER J:   So you are going to this English case in 2015 for what purpose?

MR DONAGHUE:   For the convenient purpose of showing your Honours an authoritative encapsulation of what the common law on the question of access to beaches was thought to be, which ends with the conclusion, with their Honours saying, there is a great deal to be said for the view – reflected in all of these cases – that there is no right. 

GORDON J:   In England. 

MR DONAGHUE:   Yes, in England. 

EDELMAN J:  Subject to the controversy. 

MR DONAGHUE:   Well, your Honours, there is no Australian case that is inconsistent with any of these cases.  It is just not an issue that tends – has been litigated in Australia, as far as our researches have demonstrated. 

KEANE J:   There was a statute – The Land Act ‑ ‑ ‑

GORDON J:   The Land Act.

KEANE J:   ‑ ‑ ‑ in Western Australia, which prohibited certain activities, by members of the public, on unallocated Crown land and it did not prohibit these activities. 

MR DONAGHUE:   Your Honours, if that is ‑ ‑ ‑

KEANE J:   So that someone – some member of the public – exercising a right of recourse to the beach for recreational activities, not to exploit it by fishing from it or using it for navigation, but just for recreational activities that person would not have been a trespasser. 

MR DONAGHUE:   I absolutely embrace that, your Honours.  If your Honours ‑ ‑ ‑

KEANE J:   And that was the effect of an Australian State statute.

MR DONAGHUE:   Absolutely, your Honours, and pursuant to ‑ ‑ ‑

GORDON J:   Since 1898.

MR DONAGHUE:   Well, pursuant to that statutory regime, it is clearly the case that a member of the public accessing the beach and not doing one of the prohibited activities would have been entitled to use and enjoy the beach as they saw fit.  Nothing that I am submitting is intended to dissuade your Honours from that view.  If that is enough, for that to be an existing right of access that can be confirmed, then ‑ ‑ ‑

GORDON J:   An existing privilege.

MR DONAGHUE:   I am sorry, I should not have used the word “right”.

NETTLE J:   It was enough in Newhaven, Mr Solicitor.

MR DONAGHUE:   I emphasise, I do not seek to dissuade your Honours from this perspective.  The reason that I am doing what I am doing is that it seemed to me, to us, perhaps wrongly, that it was not necessarily an answer to say that if an exclusive native title holder said, I know the Land Act does not prohibit you from doing what you are doing on the beach, but I am now, post‑Mabo, seen to be the holder of exclusive native title over this beach, and I want you to get off it.  To say that I am entitled to use it under the Land Act may not have been seen as an answer to that assertion of rights under native title law.

GORDON J:   That is what I put to you, I think earlier when we started this morning, Mr Solicitor, the question is the chronology.  You have got what Justice Keane put to you, you have Mabo, and then you had the Native Title Act, you have got to work out what 212 was doing.

MR DONAGHUE:   That is what I am trying to do, your Honour.  In my submission, what 212 was doing was saying, now that there is another possible source of exclusion independently of the Land Act, we have to make sure, put beyond doubt, to confirm that the native title rights cannot be used to exclude you where the Land Act did not.  That, in my submission, is what 212 and section 14 were doing.  So they were restoring the position that if the Land Act allowed you to do it, you could do it.  So I am not trying to distance myself from the fact that the Land Act allowed what was occurring, it allowed it because you could do it free from prohibition.  That was the understood basis of access to the beaches, consistently with Newhaven, because Newhaven recognises, admittedly ‑ ‑ ‑

GORDON J:   Newhaven is a bit difficult because it describes the thing in so many different ways.  It describes it as an implied license, permission.  It talks about the fact that it cannot characterise what it is.  That is why ‑ it is English rather than Australian.  Does one not have to look to see what we have got here?  Do we not have to look to see what it is that the Land Act did or did not do, in sitting with the common law right?

MR DONAGHUE:   In my submission, if one asks the question ‑ well, we know what the Land Act did.  The Land Act allowed a liberty by not imposing a prohibition to use the unallocated Crown land.  If one asks, was there some affirmative common law right to use and enjoy the beach, then one would ordinarily seek to find some foundation in a common law case that recognised the existence of that right, and all I am seeking to do is to say if you look for that, you do not find it.  You do find some controversy, but you do not find a case that says, as a matter of common law, the public have something you could call a right to use the beach.  So a construction of 212 ‑ ‑ ‑

EDELMAN J:   That construction of 212 would have to go for beaches, coastal waters, beds and banks, waterways and so on.

MR DONAGHUE:   Yes, and the way our friends seek to give some content to this is they say, well, what about the public right to fish and navigate?  That was a right, you can use that to give content to 212, the problem with that being that if you look at the previous subsection (1)(c) you see the Parliament expressly dealing with that right.  That one is pulled out and identified because that one is right.  What is being dealt with in 212 is not rights, it is a capacity by reason of a permission falling short of a right.  That, in our submission, is the work that 212 was intended to do and it does it using general, ordinary language.

None of the terms are relevantly defined in section 212(2) so Parliament is just using ordinary language bearing its ordinary meaning to say any existing public access ‑ it is a wide word ‑ public access and enjoyment to any of those identified places ‑ again none of which are defined ‑ can be confirmed by Commonwealth, State or Territory Parliaments. It is confirming them, it is confirming what was there in the existing public access, but to read it as only allowing such confirmation subject to any exclusive native title right that might have been recognised in Mabo is to deprive it of any work because it was the native title right that created the question as to whether there was continuing public access. 

EDELMAN J:   Was there any work for the words “and enjoyment of” to do?

MR DONAGHUE:   In my submission, that is a compound phrase, access and enjoyment.  It is dealing with recreational use of the beach, in my submission.

GORDON J:   While you are on this topic, can I just ask you one question about this?  Under 47B(3) of the Native Title Act dealing with vacant Crown land covered by applications, it says that:

If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(a)      the determination does not affect:

(i)the validity of the creation of any prior interest in relation to the area –

Does that have any role to play here?

MR DONAGHUE:   I think, your Honour, we are only in that territory at all if we are in the universe of cases covered by 47B(1) which is cases, as I understand it, where there was an interest that would have extinguished native title but which that did not break the existing connection with land and that interest has then lapsed, and what 47B is doing is saying notwithstanding what would have been the extinguishment the native title determination should be resolved on the basis that the native title claim can still be made good because the connection to land has been maintained, and I think it is only in that universe, that is the effect of sub (2) disregarding the prior act of extinguishment, and then the determination having disregarded those prior acts, what (3) is doing, I think, and I may be corrected by my learned juniors who ‑ ‑ ‑

GORDON J:   That is the provision used for coexistence.

MR DONAGHUE:   Yes, once Parliament has deemed things to have happened in the past to be disregarded in their effect on native title.

GORDON J:   One argument might be that that is what 212 is doing in a similar vein.

MR DONAGHUE:   Well, it is dealing with coexistence, certainly, but it is recognising, in my submission – and you see this most clearly, perhaps, in subsection (3) of section 212 which I have not taken your Honours to yet – but subsection (3) records that the confirmation:

does not extinguish any native title rights and interests –

That section, when it was enacted, said, does not extinguish or impair native title interests.  In 1998 – amongst a number of other changes including, I think, those that insert at 47B – the words “or impair” were removed in recognition, in my submission, of the possibility that while confirmation does not extinguish native title, it does impair it – it might impair it – because if the native title in question is exclusive native title, then the effect of confirmation is to prevent the exercise of that exclusive native title to exclude the public.  While that does not extinguish, it does, evidently, impair.

Your Honours, in our submission, the extrinsic material is of some assistance in answering the constructional question that confronts your Honours.  The Full Court was right, in our submission, in recognising that the explanatory memorandum and the second reading speech do not provide much help.  The explanatory memorandum – I will not take your Honours to – if you wish to go to it, it is in volume 6, tab 32.  Its discussion of section 212 is extremely brief.

It does, in the course of that discussion, use the phrase “public rights of access” and the respondent draws attention to that in their written submissions.  It is not particularly clear what they seek to take from it, given that the words of the section evidently do not use the words “rights of access” in contrast to subsection (1)(b) and (1)(c).  Indeed, the claim that is made in writing at paragraph 39 of our friends’ submissions is the modest claim that that language supports a construction that does not exclude the possibility of confirming a right of access to a particular place.

Can I pause there to interpolate that, at many places in our friends’ submissions, they attribute to us a submission that if there did happen to be a right of access of some kind – pursuant to statute – this section would not confirm it. That is not our case. We do not put that. So, that if, for the sake of argument, there were a statutory reserve over a beach, pursuant to which the public had something that could be described as a right to access the beach, it is possible that that would, in our submission, be confirmed by section 212. But, it is worth looking at why that is so, if your Honours still have section 212(2) in front of you, because if you direct your attention to paragraph (e), paragraph (e) concerns:

areas that were public places at the end of 31 December 1993. 

That language “public place” is not defined in the Act ‑ nor have we been able to identify any judicial consideration that sheds much light upon what it would mean – but, in our submission, it is at least an open reading – and, probably, the correct reading – to read that paragraph as picking up an area that is reserved or dedicated for public use in the sense discussed in Rutledge’s Case which was discussed by the Full Federal Court. 

Some strength is added to reading the provision in that way when one notes the date, 31 December 1993, because if the provision is concerned with public places pursuant to a statutory grant, that date makes a lot of sense because under the Native Title Act as originally enacted – and I will not take your Honours through these provisions, but I will just give you a summary of their operation – the Act distinguished between what it called permissible future acts and impermissible future acts.

And the effect of the distinction was than an act was a permissible future act if it could be done in the same way to freehold title as it could be done to native title. So if it was non‑discriminatory, you could do it. That was a permissible future act. If it was not an impermissible future act, it was impermissible. And if it was an impermissible future act, it was invalid, pursuant to section 22 of the Native Title Act as originally enacted, now 24OA of the Act.  So if (e) is understood as dealing with statutory reserves, then its effect was that you can confirm them, if they already exist, prior to the commencement of the Native Title Act, but you cannot keep making statutory reserves of a kind that – unless they are of a kind that could also be made over freehold title.

And so there is some reason, in our submission, to read (e) as dealing with the case of reservations pursuant to State government land Acts.  Now, if that be right – and it is (e) that would allow confirmation, in the case of any Rutledge‑style reservations that happen to exist throughout the country in relation to beaches and there was no evidence before the court one way or the other as to how many beaches there are of that kind, although no doubt there would be some, particularly in major urban centres ‑ that then points, in our submission, quite heavily against a reading of sub (d), in dealing with beaches, as being concerned only with situations where there are statutory rights because they have been dealt with somewhere else.  They have been dealt with under (e).

So reading the section as a whole, there being no recognised common law right of access, their statutory rights of access being dealt with somewhere else, the word “right” not being used at all ‑ in contrast to (1)(b) and (c) – in our submission, the proper way to read this is to recognise (d) as picking up the liberty in the absence of prohibition idea upon which we have focused.  That, in our submission, is supported by, in particular, the course of the debates that occurred in the Senate.

So if the question is, is the member of the public entitled to access that beach, the answer, in our submission that is most unlikely to have been intended by Parliament to turn on the answer to difficult, perhaps insuperable, factual problems of that kind – in our submission, the answer is presented by the general notion discussed in Parliament of the principle of public access to beaches and the principle is that native title rights do not empower native title holders who have exclusive native title over a particular area of the beach to exclude the public therefrom.

The notion that 212(2) might have been concerned with access rights of that kind is actually entirely consistent with the language that your Honours used in Brown – and I do not think the Court has Brown 261 CLR 328. If I could direct your Honours’ attention – I will give you the references, particularly to paragraph 110, which is in the joint judgment of your Honour the Chief Justice and Justices Bell and Keane, your Honour Justice Nettle substantially agreed. In that paragraph the Court said:

It is not necessary to determine the nature of the right of public access which is recognised by the FMA, for example, whether it is some kind of conditional licence.  It is sufficient to appreciate that the scheme of the FMA is that persons will not be impeded in their access to forestry land or in their use of such land for any purpose so long as their presence or the activity which they undertake is not incompatible with the management of the forestry land –

That is very much the same idea as we rely upon in relation to public access to beaches.  Your Honour Justice Gageler at 189 ‑ ‑ ‑

GAGELER J:   That is okay for above the low‑water mark, is it not?

MR DONAGHUE:   Yes.

GAGELER J:   That does not help you much below.

MR DONAGHUE:   Well, below, there is just – there is even less proscription.  So the common law, if we are in the territory of confirming a Lange‑style liberty to do what is not prohibited, the position is even clearer below the low‑water mark because, whereas some things are prohibited above, perhaps carrying the reciprocal implied license, there is clearly no prohibition. 

Your Honour Justice Gageler at 189 adopted a similar analysis, and your Honour said, having referred to 800,000 hectares of permanent timber production zone land, and there being I think no evidence that all of that area was being accessed by the public at any given time, your Honour recognised that:

Without concern for Hohfeldian classification, the Second Reading Speech for the Bill for the Management Act adopted the language of everyday life in describing “the people of Tasmania” as having a “right to access the land” which would “continue so long as the access does not interfere with the management of the land”.

Again, exactly the same idea as we submit was driving the Commonwealth Parliament.

EDELMAN J:   Are you saying then that it can be characterised as a right, rather than a privilege?

MR DONAGHUE:   I am saying that as a matter of ordinary language it could be described in that way.  In terms of the technical legal analysis of it I am characterising it as a privilege constituted by no right in the native title claimant to exclude.  So I would respectfully submit that that is more than a mere liberty, because whereas prior to confirmation there might have been a difficult question potentially as to the interaction of that Lange‑style liberty with the common law native title, post‑confirmation it is clear that native title rights could not be exercised to exclude and that that is sufficient to constitute the privilege.

As against the notion that the privilege cannot be a privilege because it is not unique, it is available to the whole public, your Honours have raised some possible objections to that analysis.  Can I offer one more?  If one looks at a royal commission, for example, with coercive powers in inquiry that can potentially be exercised against the public at large, the powers of that royal commission – if they do not abrogate legal professional privilege – will be subject to the fact that any member of the public will be entitled, as against the commission, to say “I have a privilege which I can exercise to negate the right that you are asserting against me”. 

That is a conventional usage of a notion of privilege which does not mean any member of the public is unique – they just are able to resist, as against an identified person, an exercise of power.  That is what we are talking about here in our submission.  In terms of the intersection between 253, 225 ‑ ‑ ‑

EDELMAN J:   So that is the privilege against self‑incrimination you are talking about there, is it?

MR DONOGHUE:   I was actually talking about legal professional privilege but it could be either.

EDELMAN J:   But that is only members of the public who have the particular circumstances or facts that attract that privilege so that they would incriminate themselves or they would expose confidential legal material. 

MR DONOGHUE:   That, I suppose, is true, your Honour, but the same is true of the public accessing the beaches.  Anyone who comes into the possession of legal advice will be able to exercise that privilege against the government body just as anyone who seeks to access the beach will be able to exercise that privilege against the native title holder.  It does depend on the facts, I agree.  But the potential is there for the privilege to be exercised to negate the right.

Your Honours will note that much of the first respondent’s focus was on the question of what gets recorded in the determination versus the question of what section 14 actually does and late in his submissions, I think, Mr Walker said it does not actually – it is not before the Court what section 14 actually does.  We respectfully disagree with that submission.  One needs to work out what the section does before one can answer the question of what should be recorded in the determination.

If one starts at 253 and looks at the question then that invites an analysis that focuses on does 212 involve rights or privileges and that, we submit, is the kind of analysis that led the Full Federal Court into error because when you read 212(2) you will note that the words “right” and “interest” or “privilege”, none of those words appear.  The legal operation of the section just does not depend on whether there is a right or an interest or a privilege.  It just depends on there being existing public access.

Your Honour Justice Gordon explored this a little with my friend.  If that section operates on the Lange liberty, if I can call it that, to confirm the existing public access and it, in that way, prevents an inconsistent exercise of native title rights to exclude, then in that operation that one has to ask the question, well, now that we know that is what happens, the public can access the beach, notwithstanding exclusive native title, should the determination say anything about that or should the determination stay silent about that and have the section operate completely in parallel with the native title rights and interests as reflected in the determination.

So I think when Mr Walker submitted you do not need to decide the answer to section 14, he was saying all you need to decide is that it does not get recorded in the determination, and the question of whether or not the native title holder can exclude the public or not would arise in a different case where there is a debate about that topic.

That, in our submission, is a most undesirable way to construe the regime, because if the effect of confirmation under section 14 is that the native title holder cannot exclude the public, notwithstanding their exclusive native title rights, then 225(d) invites an explanation of that very fact, because it asks that, directs that, the determination deal with the intersection of competing interests in respect of the land, and the only reason not to do that is if the statutory language cannot accommodate it, which it can, because the privilege falls within 225.

Two final points, your Honours.  The first concerns the point in time of the operation of the provision.  I tend to think that Mr Walker is correct in submitting that the existence of the right must ‑ it must at least exist at the time of the Native Title Act, and it may well be that he is right in submitting that at the time of the State law, the right must still exist, there being potential for a gap.  But then it is clear, in our submission, just focusing on the first of those points in time, that the existing ‑ that the public access and enjoyment in question has to exist at that moment in time, and that is what can potentially be confirmed by the State, Territory, or Commonwealth law. 

Thereafter, the world is not frozen forever but the work of 212 and section 14 is done and any future variations that would alter the rights as they then existed have to be looked at through the lens of the elaborate mechanisms in the Native Title Act dealing with Acts of executable or legislative kinds that might alter the rights as they then existed. 

So, if a State were to choose, sometime down the track, to try to extend what can be done on a beach beyond what had been confirmed pursuant to section 14 – say, there used to be a prohibition on camping and the State proposes to get rid of the prohibition on camping on the beach – section 212 would not answer the question, can they do that?  What would answer that question is, is the new right purportedly conferred to do something on the land held by the exclusive native title holder permissible or not and that will depend on the operation of the future act regime and on extinguishment principle – possibly compensation rights, et cetera. 

So, it is not 212 answering all the questions.  It is answering a question as to what existed as at the moment in time of commencement and that is all that it does.  So, it does not need to deal with the possible complexities of future changes.

Finally, your Honours, if there were to be – or if it were right that 212 requires a claim right, 212(2) requires a claim right, it is very hard to understand why the section was necessary at all.  If your Honours still have the extract from Western Australia on Ward that we handed up earlier, I have referred your Honours to 387 but the following paragraph is instructive.  The Court was dealing here with the question of the common law right to fish.  Our friends are saying, in effect, what you need to engage 212 is a claim right of a similar kind under the common law.  What the Court held at 388 in Ward was that there could not be an exclusive right to fish arising under native title.  Why not?  Because, as Yarmirr had explained:

there is a fundamental inconsistency between a native title right and interest said to amount to a right to occupy, use and enjoy waters to the exclusion of all others –

that is, exclusive native title:

and public rights of navigation over and fishing in those waters.  Likewise, there is a fundamental inconsistency between the public right to fish in tidal waters and a native title right and interest said to amount to an exclusive right to fish those waters.

In other words, if there was a claim right to access the beaches, native title would have been inconsistent with it.  So the problem that was discussed in the parliamentary debates that was sought to be answered by reference to – by the enactment of 212 – would have been a problem that would already have been resolved in favour of the public claim right, not in favour of the native title holder.  That points, in our submission, rather strongly against the idea that that is not just a possible focus of 212, but the sole focus.  If the Court pleases.

GAGELER J:   Mr Solicitor, before you sit down, I just have one question.  You put at the centre of your argument the proposition in Lange 189 CLR 520 at 564 that everybody is free to do anything, subject only to the provisions of the law. Their Honours were talking there about the law of tort, in particular libel and slander. Is it really essential to your argument that access by a member of the public to Crown land cannot be met by the Crown bringing some tortious action against that person? You talk about criminal prohibitions, but that is really not the context in which the proposition in Lange is being put.  It is that liberty exists to the extent that the exercise or the action in question is not able to be met by a tortious action on the part of someone else.

MR DONAGHUE:   Your Honour, I certainly had not intended to limit the way that I have put the liberty, absent prohibition, to criminal prohibition.  So certainly I would accept tortious prohibition.  In my submission, in relation to Crown land, it was a liberty to use the land, to use the beach, unless the Crown excluded you by reference to whatever way the Crown was entitled to exclude you.

So your Honour’s judgment in the Berrima Gaol Case would, as I understand it, suggest that it might be that an exercise of non‑statutory executive power would entitle exclusion.  That would not change my argument either.  They are tortious public law exercises of power.  The point is you can do it unless the Crown told you you could not do it.

KEANE J:   In some cases where there is provision vesting the management and control of Crown lands in the Parliament, if the Parliament passed a law that – against the background of the liberty to do that which is not prohibited, regulating the use of land, and did not prohibit it, then the Crown could not trump Parliament’s – the measures the regime Parliament instituted.

MR DONAGHUE:   I accept that as well.  In the case where the legislation has the effect of exhaustively regulating the field, then the Executive could not trump, and the public would have a stronger right to do everything that was – indeed, there would be a strong case for the implied license of the kind your Honours have raised with our friends.  If your Honours please.

KIEFEL CJ:   Thank you, Mr Solicitor.  The Solicitor for Western Australia.

MR THOMSON: There are just a number of short points. The first is that the substantial problem, as a matter of statutory construction that lies within the case answered by the first respondents, is that it is a rights‑based case, but the problem is that section 212(1) is expressed in rights terms, but section 212(2) is not.

The way in which the first respondents try to winkle the idea of a right out of the words such as “existing” and “confirmation” and so forth is by saying, in effect, that there needs to be something that is positive that can be confirmed in order for it to be existing.

With respect, a situation where there is an ability or a liberty is a legal state of affairs which is existing and which may be confirmed and, therefore, even the attempt to try and winkle out of those words a rights‑based discourse, we would say, is going to fail because it does not acknowledge that you can confirm an existing state of legal affairs. 

Another problem that they face is that they have offered no proper legal route for dealing with the example of the Broome tourists, that is, that it is a commonplace that many tourists go on to Broome Beach and that is a question of an ability or a liberty and yet they would have the Court rule that there is a – if exclusive native title rights were acknowledged in that area that they could be exercised to prevent that continuing to occur.

There was some discussion about the low‑water mark. Can I just refer the Court to what we have said in paragraph 6 of our reply and make this comment. As I mentioned previously, below the low‑water mark the land is vested in the State by reason of the offshore settlement and it is also the case because of section 3(1)(a) of the Off‑shore (Application of Laws)

Act which is in Part B of the joint book of authorities at tab 12 at page 718 in particular. Section 3(1) says:

It is declared that –

(a)the provisions of every law of the State shall be taken to have effect in and in relation to the coastal waters of the State, including the sea‑bed and subsoil beneath and the airspace above the coastal waters of the State, as if those waters were part of Western Australia; and

(b)any reference in a written law of the State to Western Australia or to the State or to the jurisdiction or any other like reference shall be read as including a reference to the coastal waters of the State.

So, in all likelihood, the Land Act as it was enacted in 1933 by reason of the offshore settlement has been applied below the low‑water mark, therefore, the proscriptions about the activities will apply below the low‑water mark.  But even if that not be the case, then our point about it still being unallocated Crown land and without any proscription upon access or enjoyment still applies.

The last thing I would like to make a point about is that the way we have framed the second question, the second critical question, is to ask what rights and interests are acknowledged or recognised by the Native Title Act and we do so upon the basis that the recognition will then be reflected in the particular way in which terms are construed.

That means, in our submission, that section 212(2), if construed to mean that an existing public access to and enjoyment of beaches and so forth is recognised as something under the Native Title Act to cover an ability or a liberty, will feed into section 225(c), to use the language that has been advanced by my friend for the first respondents. That is because section 225(c) refers to the interaction of the native title rights and interests, with other interests in relation to the determination area. It is the case then that if you have construed the Act to recognise the ability or liberty as an interest, that it should therefore then be contained in the determination because of the terms of section 225(c). Those are our submissions in reply.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.

AT 4.17 PM THE MATTER WAS ADJOURNED