State of Queensland v Congoo and Ors [2014] HCATrans 190 (4 September 2014)

Last Updated: 15 September 2014

[2014] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B15 of 2014

B e t w e e n -

STATE OF QUEENSLAND

Applicant

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

WILLIAN DAVID MCGRATH

Twenty-Second Respondent

SHARON LESLEY MCGRATH

Twenty-Third Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 4 SEPTEMBER 2014, AT 9.32 AM

Copyright in the High Court of Australia

MS S.E. BROWN, QC: If it pleases the Court, I appear with MR G.J.D. DEL VILLAR for the applicant, the State of Queensland. (instructed by Crown Law (Qld))

MR S.A. GLACKEN, QC: If the Court pleases, I appear for the first respondent with MS H.P. BOWSKILL, QC. (instructed by North Queensland Land Council)

MR S.B. LLOYD, SC: If it please the Court, I appear with MS C.J. KLEASE for the Attorney-General’s Department, the second respondent. (instructed by Australian Government Solicitor)

HAYNE J: Submitting appearances have been filed by most respondents. No appearance has been filed on behalf of the 22nd and 23rd respondents. I have a certificate of the Registrar that the papers have been served. Yes, Ms Brown.

MS BROWN: Your Honour, three questions were asked at the Federal Court in the special case stated. They are set out in paragraph 3 of the majority’s reasons for judgment which is found at page 114 of the application book. It is only the determination in relation to question 3 which is the subject of the present application and it, in particular, relates to the extinguishing effect or otherwise of military orders that were issued in relation to the special case land which is the subject of a claim by the first respondent between 1943 and 1945. It was accepted for the purposes of the special case stated that the orders were validly made. Your Honours will see that in paragraph 37 of the special case stated.

HAYNE J: I think we are generally familiar with the background to the matter, Ms Brown. How do you crystallise the leave point which you say warrants a grant of leave?

MS BROWN: Your Honour, we are saying that this matter warrants the grant of leave for this reason. What was created by these military orders was a statutory right which was characterised by at least two of the judges in the Minister for Army v Dalziel as a right of exclusive possession. Justice Starke did not characterise the right in those terms per se, but did characterise the nature of the possession in very wide terms and that is seen at paragraph 290 of the judgment.

The accepted position of this Court has been that if exclusive possession is established, whether it be by way of statutory lease or a common law lease, that that is regarded as extinguishing native title rights and interests being regarded as inconsistent with the continued existence of those rights.

KIEFEL J: What do you say the Full Court has done in relation to that? They have not undertaken that test and have done something rather more akin to considering whether rights have been suspended?

MS BROWN: We say that there is certainly - in effect, while they say there is not a suspension of rights specifically in their findings that, in effect, that is what their findings are. We say that they have been led into error in a number of respects, your Honour. We say that because there was a right created here, albeit a right that was enjoyed by the Commonwealth, the test that is to be applied, which has been established most recently in Akiba but also Western Australia v Brown is the question of inconsistency of rights.

KIEFEL J: If you are right about that and that the Full Court did not undertake that exercise, does that mean the State of Queensland would succeed or does it mean that this Court has to consider whether it undertakes that exercise? I do not think that is something really addressed in the notice of appeal.

MS BROWN: Your Honour, if the State of Queensland succeeds in the proposition that this is exclusive possession that is granted by the creation of the order pursuant to the terms of the regulation consistent with the authorities of this Court stemming back from Wilson v Anderson or Western Australia v Ward in relation to exclusive possession and again, reiterated in Western Australia v Brown, if the Court was satisfied of that we would say that that would lead to a conclusion that there was an extinguishment of rights.

If the Court considered there should be some other approach, which is seemingly being suggested by the majority in the Full Federal Court because this is a right enjoyed by the Commonwealth when it does not hold radical title, that calls for a consideration by this Court of what those points of distinction are. As your Honours would have seen from the terms of the judgment of Justice Logan, which is seen at paragraphs 112 and 114 of his Honour’s reasons, his Honour found - - -

HAYNE J: Page?

MS BROWN: Page 154, your Honour.

HAYNE J: Thank you.

MS BROWN: A proper characterisation of the right in the present case does not call for a considered different conclusion in terms of the extinguishment of rights. We say that the Full Federal Court has deviated from the established approach of this Court in terms of seeking to ascertain the question of intention by reference to the terms of the statute and then overlaying that upon its characterisation of what the intention of the Commonwealth was and also the nature of the right granted than rather looking at the right created informed by the terms of the statutory provision and doing the comparison to determine whether there is an extinguishment of rights or not.

HAYNE J: Is there a passage in the reasons of the majority in the Full Court that most conveniently identifies what you say is the error they committed?

MS BROWN: Your Honour, paragraph 53 of the judgment which your Honour will find at page 133 of the application book probably most demonstrates the point - - -

KIEFEL J: In particular the last sentence.

MS BROWN: Yes, your Honour, but also obviously the approach which the court started with which is demonstrated – which is seen at paragraphs 51 and 52 of the reasons for judgment at pages 132 and 133 of the application book. So we say the starting point was in error in trying to discern the question of intention. We say that - - -

KIEFEL J: So you would say that special leave does not depend upon your prospects of success. If the wrong test has been applied that is sufficient for a grant of special leave?

MS BROWN: We would contend that that is right, your Honour, that it is a matter which needs to be clarified by this Court in terms of the approach that is to be adopted, particularly given the recent expressions again by this Court of what the primary test is.

HAYNE J: It might provoke a question about on what terms leave should be granted if leave were to be granted. Leaving aside the position of the Commonwealth, what would be the position as to the costs of other parties if you are right in what you say about a grant of leave - and we have to hear the other parties about that - should that be on terms that costs below not be disturbed and you pay the costs of parties perhaps excluding the Commonwealth in any event?

MS BROWN: Your Honour, I would have to take some instructions on that.

HAYNE J: No doubt.

MS BROWN: Your Honour, could I say our primary position is that the State should succeed.

HAYNE J: I understand that. I am not suggesting you hoist the white flag but - - -

MS BROWN: I am certainly not hoisting the white flag and, your Honour, if I could take you, for instance - obviously the notion of exclusive possession is, as was said by Justice Toohey in Wik, to a certain extent a phrase sometimes without content without analysis of the actual rights which, of course, is why in the case of pastoral leases and mineral leases there was a finding that even a reference to exclusive possession was not necessarily that. In the case of exclusive possession for mining leases it then found that exclusive possession was for mining purposes.

Your Honours have recently considered that instance again in Western Australia v Brown and we say here the proper characterisation of this right which was not engaged in by the Full Federal Court where they indicated it was for a limited time, which we say is an irrelevant consideration given the determination by this Court - there are no degrees of inconsistency, that rights are only inconsistent or they are not but also the assertion that the rights were for a limited purpose but the limited purpose is without content.

We say that if you subject these rights to a proper analysis, upon the delegate being satisfied that taking of possession was necessary and expedient as required by the terms of regulation 54 and that in connection with that taking of possession the exercise of powers under regulation 54(2) was justified, an order was issued prohibiting the exercise of rights of way over the land and any rights relating thereto by any party. The authorised officer was vested with the powers that would be enjoyed by an owner in fee simple unencumbered.

HAYNE J: Yes.

MS BROWN: That gave a complete exclusion for other parties – or that gave rise to a complete exclusion while the Commonwealth took possession over that land. It gave rise clearly to a right of exclusive possession and in that regard, your Honour, it is in contrast to the terms of the lease which was considered by this Court in Western Australia v Brown and one can see that when one has reference to that judgment which is found at tab 4 of the authorities, in particular, paragraphs [44], [45] and [46] at page 177 of the judgment. While the Minister or his delegate had to be satisfied with the requisite purpose in taking possession there was no reservation or limitation in terms of the order that then flowed in terms of permitting access by other parties.

HAYNE J: Did the Commonwealth under the arrangements that were made have the right to exclude any and everyone from access to the land for any reason or for no reason?

MS BROWN: We would contend that that was the effect of this order, your Honour. Now, your Honour, no doubt it would be said in relation to that well, if somebody went on a frolic and decided to use the land for a leisure park that that would be the subject of judicial review. That is so because then it would be acting outside, arguably, the terms of the order. But for the purposes of the order while it was in operation there was no limitation in terms of exclusive possession only being operative while officers were engaging in defence purposes on that land.

It was not the same as the limitation in Western Australia v Brown where the exclusive possession was in relation to the mining purposes and where the power was to go on to the land and remove iron ore. We say the requisite purpose one satisfied did give rise to a complete exclusion. We say that the findings of the Full Federal Court while it referred in paragraphs 53 to the limited time and limited purpose, certainly acknowledged the width of the right of exclusive possession in paragraph 57 of their reasons which is found at page 134.

Your Honour, in terms of the underlying intention that was identified by the court, we say that that also founds an error by virtue of the fact that the Full Federal Court in paragraph 51 of their reasons at page 132 of the application book - paragraph 51 of the application book - which is by attaching significance to the fact that:

The Commonwealth was not the holder of radical title in this land.

Now, we contend that that is an error as a matter of principle on the basis of the Court’s identification of the significance of radical title in the Commonwealth v Yarmirr and we have referred to that in our submissions. But also, as a matter of fact it is an error to take this into account as part of the statutory context as is being suggested by the Commonwealth. That is because these regulations operated in relation to all land in relation to Australia, whether it be held by the State or the Commonwealth. So the significance of the Commonwealth holding radical title or otherwise could not be relevant to the determination of any statutory intention if that, in fact, was the correct approach for this Court to be adopting.

Your Honours, the further point in terms of the findings by the Full Federal Court is that they made a finding that there was an intention that all underlying rights and interests continue. Again, we contend that that finding is in error because the clear intention of these regulations was to provide the Commonwealth with the power to take possession of property and enjoy very wide rights, in fact, all the rights of an owner in fee simple without actually acquiring property.

HAYNE J: The utility of personifying these acts is at least open to doubt and notions of intention depend upon personification, but there we are. But does the reference the Full Court makes to questions of intention go beyond the substance of the first point you make?

MS BROWN: In substance, no, your Honour. In substance we say that that should not – that the wrong test has been adopted and that has been continued but obviously the overlay of intention has permeated not only the initial consideration by their Honours but also when they have said that they have turned to consider the inconsistency of rights that they have continued to do so by reference to what they say the underlying intention is which is why, of course, we refer to those matters before your Honour in terms of pointing out that there is – it is attended by sufficient doubt in a number of respects.

Your Honours, I have directed you to the fact that the State’s contention is that from the regard to the temporal nature is inconsistent with the approach by this Court and that no different approach should be adopted other than that that has been adopted by this Court in terms of degrees of inconsistency and that if the right is found to be one of exclusive possession that was enjoyed by the Commonwealth there is no reason why that right should be characterised in any different way from exclusive possession granted under a lease for a short term or found to have a different effect.

HAYNE J: I think we have that point, Ms Brown, do we not?

MS BROWN: Thank you, your Honour. Your Honour, the further point that we make is that - and it is linked to the question that Justice Kiefel asked me earlier which said that there was a notion that – of suspension of rights which has been an underlying – almost an underlying assumption in the way the Federal Court, the majority of the Full Federal Court has approached this and it is that saying that the exercise of the power and the order made thereto is directed to the exercise of rights rather than the continued existence.

Again, we say, that confuses the situation that was considered by this Court in Yanner and Akiba in terms of a statutory regime which is found to regulate rights and affect native title rights rather than where a right has been created by the exercise of a statutory power which is the case here. As a result we say that that has also resulted in the incorrect test being applied rather than it being an inconsistency of rights test. There is a conflation of it being – the question being directed to the exercise of rights

as opposed to the existence of rights in a disconnect from the actual rights themselves.

HAYNE J: Yes, thank you very much, Ms Brown. Your time has gone, Ms Brown. What is it you wish to add?

MS BROWN: Your Honour, the only additional points that I wish to add was – and they are referred to in our submissions, is the fact that this – if it was regarded as a regulation of right does call for a consideration by this Court to determine when regulation shades into prohibition and that is demonstrated by the findings of Justice Logan in his judgment.

The other point is, your Honour, that in terms of the question of construction – the construction of the regulation would have to be examined by this Court in any event and we say that the fact that the construction has been attended by sufficient doubt is readily demonstrated by the analysis of Justice Logan in his judgment - - -

HAYNE J: Ms Brown, time is imposed for a reason.

MS BROWN: Thank you, your Honour.

HAYNE J: Thank you, Ms Brown. Yes, Mr Glacken. Ms Brown, I am reminded have you instructions about questions of costs here?

MS BROWN: Yes, your Honour, I do.

HAYNE J: Namely?

MS BROWN: The instructions are that the State would be willing to accept the costs of the appeal other than those of the Commonwealth.

HAYNE J: Yes, thank you. Mr Glacken.

MR GLACKEN: If your Honours please, we submit that this is a case where there is no error in principle involved. The case is all about the application of established principles to a particular statutory instrument. Before going to how the majority approached questions of principle, could I please commence with the statutory text, application book page 115, and if I can move through it fairly quickly. Your Honours will notice at about line 12 of the page the empowering provision, section 5 of the National Security Act, authorises the making of regulations which distinguish between - at line 20:

(i) the taking of possession or control . . .

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

In other words, the acquisition of land and the extinction of rights in land remain governed by the Lands Acquisition Act as noted in paragraph 8 of the majority reasons.

Next contextual point of the statute, section 19 mentioned at paragraph 11 of the reasons, is that the Act and the regime as a whole could not last longer than the war plus six months allowing for a winding down. Then the text of the operative regulation, regulation 54, commences at the bottom of page 115. The first point to note it is conditioned by a state of satisfaction as to expediency, necessity and purpose. That is sub-regulation (1). A second point, sub-regulation (2), the powers of direction only commence with the words:

While any land is in the possession –

and then those powers of direction include in subparagraph (a) an “as if” or fictional device as if the holder of the power had a fee simple; subparagraph (b), a direction to prohibit or restrict the exercise of rights. In terms, paragraph (b) acknowledges the continued existence of other rights in the land but seeks to sterilise or restrict their exercise. The point is confirmed by sub-regulation (3) requiring the owner or occupier of land to furnish information to assist the Commonwealth in its possession of the land, again confirmed by regulation 56 conferring powers of entry. If the operative regulation 54 really conferred a right of exclusive possession in a general law sense, there would be no need for that power of entry in regulation 56.

Your Honours, the upshot of regulation 54 is really it is a wartime requisition power which is otherwise found in regulation 57 for property other than land and requisitioned in the sense of the act of taking something over temporarily for military use. That is what the regulations are all about. Finally, compensation provisions, page 117 - your Honours will notice two features. Regulation 60D(1)(a) rights of compensation include where a person “has, or has had” an interest in property affected. Again, in terms the regulations contemplate the continued existence of such interest. Further confirmed, line 30 of the page, a provision for claim for compensation where the interference with rights is of a continuing nature.

KIEFEL J: Can you identify what you say is the interest granted by the regulation by analogy?

MR GLACKEN: A requisition, your Honour.

KIEFEL J: That is the method. What is the right?

MR GLACKEN: The right is a right to take control. We quibble with the use by the majority of the word “exclusive” but I will come to what the majority say about - - -

KEANE J: In terms it is a right to take possession, in terms. Why is it not the case that it is a right to take possession including the right to exclude any and everyone from the land for any reason or no reason?

MR GLACKEN: It lacks any reason or no reason, your Honour. The reasons must be those conditions as to purpose found within the body of the regulations.

KEANE J: Sure, but once those conditions for the exercise of the power in 54 have been satisfied, why is it not – what then happens to grant of a right of possession including the right to exclude others for any reason or no reason?

MR GLACKEN: We submit it does not have a guillotine effect, your Honour. The conditions as to need and purpose continue throughout the duration. In other words, the Commonwealth could not remain in possession if it had no need. That is consistent, entirely consistent with the premise in Dalziel’s Case that neither the tendency of Mr Dalziel nor the fee simple of the bank was destroyed by the Commonwealth taking possession of the car park in Sydney. Indeed, Mr Dalziel’s claim for damages included his liability to continue to pay rent under the tenancy.

Your Honour Justice Keane identifies the sharp point. The applicant would put that there is a guillotine effect, that once satisfaction is reached then somehow the Commonwealth can use the land for any reason or no reason at all. We submit that that is unattractive and not open on the - - -

KIEFEL J: Would you say it is closer to a licence to use land – or a statutory licence to use land for a limited term?

MR GLACKEN: I am reluctant to make analogies in the same way that I think others should be reluctant to make analogies with proprietary interests, which is the way the minority judgment puts it. We accept it is a statutory right to take possession. It overrides the rights of other users and occupiers of the land but it is entirely feasible for statute to create a right of possession and preserve other rights. An example that comes to mind is the intervention legislation in Wurridjal, five year leases to the Commonwealth but other underlying rights continue. What is put in Dalziel’s Case, for example, by Justice Williams - - -

HAYNE J: Whether underlying rights in the intervention legislation were expressly preserved, were they not?

MR GLACKEN: Yes, so for example, the rights in the Aboriginal Land Rights Act to use and occupy the land were preserved.

HAYNE J: Expressly by the legislation, were they not? I may be misremembering.

MR GLACKEN: The construction adopted by the court was the relevant provisions had that effect. There was a debate as to whether it was express or not. Some submitted it was. Some submitted it was not. Now, the point that Justice Williams makes in Dalziel’s Case, page 301, is that the rights taken by the Commonwealth are paramount to the rights of others but they do not determine or destroy those other rights. I should say the particular sentence is quoted in the minority reasons in the application book at page 154.

HAYNE J: It is said, Mr Glacken, that paragraph 53 of the majority’s reasons in the Full Court betrays error. What do you say as to that?

MR GLACKEN: Well, I think I have completed the point about - the guillotine point. Can I say a couple of things about the way the majority went about the application of principle? Can I start with paragraph 50? The complaint - which is on page 132 – the State makes is that somehow the majority preferred legislative intention over the criterion of inconsistency for extinguishment. With respect, the majority at paragraph 50, in the first line, is entirely correct to say:

that inconsistency . . . is an analytical tool –

That is in the first sentence of paragraph 50. Can we say two things about that, your Honour? What the majority says is perfectly correct because the rights in issue said to compete with the native title rights are statutory rights. Therefore, one needs to construe the statutory rights.

The second point we make – legislative intention is relevant to inquire about inconsistency because one needs to construe the legal nature and content of the rights. It is that initial step in the test of -or inquiry about inconsistency that the majority undertakes at paragraph 51. At line 32, their Honours refer to the Commonwealth taking a “right of possession” and, thereafter, their Honours identify three particular features of that right of possession.

HAYNE J: Just pausing at line 32 on that page:

It took to itself a right of possession and the capacity –

et cetera – the balance of that sentence. Is that not a proposition that the Commonwealth took to itself the right to exclude any and everyone for any reason or no reason?

MR GLACKEN: Not in their Honours’ reasoning by what thereafter follows. The three features of that right of possession were, first of all, one as to condition of purpose – the need for public safety – and we have dealt with that. The second feature, line 38 of the page, was it was a power that could only exist during the duration of the war. Then, finally, at line 41, the third feature, their Honours say, “it” recognised – I read that the legislation recognised that underlying rights and interests should continue. We have been to the statutory text. We say those three features are incontrovertible and provide an answer to the question of Justice Hayne at the outset as to whether or not the Commonwealth assumed a right that involved a right to exclude any and everyone from the land for any or no reason at all.

KEANE J: Mr Glacken, the majority in paragraph 51, at lines 28 to 30, seems to have regarded it as significant that the Commonwealth was not the holder of radical title in the land.

MR GLACKEN: Your Honour, it is contextual. It is contextual. We read – what the majority is saying is that this is not a case that involved, for example, a body politic granting rights to a third party – an examination of the third party’s rights so granted. It is a contextual thing. It is a distraction, your Honour – and we respectfully say it is a distraction in the sense that one has to examine the rights asserted - the formula in war, for example, would be rights asserted or granted. This is a case about rights asserted.

However, can I say something about the feature of radical title? One reason why we submit that a construction favouring extinguishment is very unattractive is that on that scenario this land is Crown land, Crown land of Queensland. At the end of the war, Queensland would resume control of the land because a construction of extinguishment that Crown title has had a cleansing, if you like, removing native title, yet the Commonwealth would pick up the tab for compensation. That feeds into what we submit is a conclusion that a construction favouring non-extinguishment is reasonably open. But, otherwise, your Honour, we do not say too much about the presence or absence of radical title. But it is contextual for those two contextual reasons.

Possession – what was the right of possession? What was its content? Your Honours will recall Justice McHugh in dissent in Ward took great issue with the majority about the notion that there could – and took issue with the structure of the Native Title Act that there could be any possession other than exclusive possession. We respectfully submit his Honour was in dissent on that. As I said, legislation can create something that the common law might have difficulty accommodating. Hence, the majority is entirely correct – paragraph 52, fourth line of the paragraph, to say:

Insofar as inconsistency is concerned, the question remains the inconsistency of rights. The inquiry in this case does not begin and end with the fact that the Commonwealth took to itself a right of exclusive possession.

HAYNE J: Well, why not?

MR GLACKEN: We quibble with the word “exclusive”.

HAYNE J: Yes. Well, why not? Why does inquiry not begin and end with the observation that there is exclusive possession?

MR GLACKEN: We say, your Honour, that we quibble with the use of the word “exclusive”. The text is possession. But their Honours are entirely right to say that the inquiry would not begin and end with the use of the word “possession” in the statute in the same way that an inquiry about a mineral lease granted under the Mining Act does not begin and end with the use of the words like “lease” and “demise”. So that analysis, we respectfully submit, is entirely correct. As Justice Toohey said in Wik, one has to examine further and I have gone to the statutory text to indicate in brief terms why we say this is not a right of exclusive possession in the sense that is understood in Brown’s Case.

The fourth feature of this reasoning in these paragraphs – paragraph 53 – is that their Honours then go on to consider comparison and what their Honours conclude in line 4 of paragraph 53 is that the rights, that is, the native title rights:

could not be exercised. But this does not mean that the rights which the Commonwealth took to itself were inconsistent with the continued existence of native title rights.

Your Honours will appreciate that there is a distinction between the effect that a law has and the existence of a right and its exercise. We emphasise that in this case the relevant native title rights were non-exclusive rights to use, camp on the land and so forth. No issue arises about a native title right to control access which we would acknowledge its continuation would be inconsistent in the face of these measures.

I think I have said enough about it. Can I just emphasise this, your Honour? We do not see any of this error in principle in the statement of paragraph 50 that the criterion of inconsistency is but an analytical tool for determining whether a legislative intention to extinguish native title exists. Their Honours make that statement by reference to what was said by Chief Justice French and Justice Crennan in Akiba and set out at page 122 of the application book the relevant passages. I think your Honours understand the points in issue. If your Honours please.

HAYNE J: Yes, thank you, Mr Glacken. Yes, Mr Lloyd.

MR LLOYD: If I can start with the sentence in paragraph 52 about the inquiry does not begin and end with the taking of exclusive possession. We say that that - - -

HAYNE J: Do you say the Commonwealth took exclusive possession of this land?

MR LLOYD: We say the Commonwealth took a bundle of rights which are akin to exclusive possession. It is not strictly the same. Justice Starke in Dalziel said it is not helpful to compare what is granted under regulation 54 with any pre-existing notions of property. But we accept it is akin to that.

HAYNE J: Did the Commonwealth obtain rights under these arrangements to exclude anyone and everyone for no reason or any reason?

MR LLOYD: Probably not for no reason or any reason because it would have to be limited to the defence power and to the specific purposive requirements in regulation 54. But our point is, to make it clear, we say the Commonwealth can – can today, could then – give itself or give a third person exclusive rights, exclusive possession, which could be used for any reason or no reason and still not extinguish native title. Clearly, that is correct. I would doubt that the State of Queensland would dispute that because the Native Title Act does that expressly through the non-extinguishment principle. The only question in this case was whether this legislation - - -

HAYNE J: Well, the presupposition of that proposition, Mr Lloyd, is that the Native Title Act in that respect is no more than reflective of the pre-existing general law about extinguishment. That is a very large proposition.

MR LLOYD: I do not suggest that at all. What I am suggesting, your Honour, is that the Parliament has the capacity, if it wants to, to take something like a right of exclusive possession without providing for extinguishment, if it wants to. The question is – and it did that in the Native Title Act – the question is whether it did it in regulation 54. The court, in this case, did exactly the right thing. It had a very orthodox approach of looking at inconsistency and it says that in paragraph 52. It says it again at paragraph 57. It looked at the rights that were taken by the Commonwealth and the critical aspect – the critical reason why it came to its conclusions is the last phrase in paragraph 53 because the legislative scheme contained a notion:

that all underlying rights and interests should continue.

Now, if that is the correct way of construing regulation 54, then the result is the correct result because the legislative scheme intended that all rights – now it may be that the Parliament did not know about native title rights but properly construed, if that is what the regulation did, then the result is the correct result.

At the end of paragraph 51, their Honours indicate that they see the legislation is doing that. That, in essence, we say, adopts the submissions of the Commonwealth in paragraph 27, some of which, the points of which, were drawn out by Mr Glacken where the legislation is clearly premised upon a restriction on the exercise of rights. It presumes that rights continue because the former owners or occupiers had ongoing obligations under this legislation. Also the Commonwealth, not surprisingly, only wanted to pay compensation for the period of time it had possession of the land.

On the approach of the State of Queensland, they say that the implied intention of the legislation was to free the land, free the State land of the burden of native title and to return it to the State afterwards freed from the burden. That was never, we say, any part of the intention. That is where the context, the contextual argument in paragraph 51 arises. The idea of radical title is relevant but the key to it is in the next sentence on line 30, in paragraph 51:

It was a stranger to the land –

That is, perhaps, just another way of saying it did not have radical title but, critically, the legislation is -

indifferent to the nature and extent of pre-existing interests which might be held in relation to the land.

That distinguishes this legislation from the legislation considered by this Court in every other case that it has looked at in relation to exclusive possession. In all of those cases, a State or Territory has granted to a third

person a right which is consistent with the continuing existence of native title.

In this case, the Commonwealth in wartime – it does not know who has interests. It does not care who has interests. It says nothing about those interests. It does not even suspend the interests. It is important that it be understood that it is not a suspension because that is clear from earlier decisions of this Court. Mortgagees and mortgagors – their rights continue. Landlords and tenants – their rights all continue. They are not suspended. If they were suspended, issues of favour of consideration would arise.

None of that happened. That is not what the legislation did. It just gave the Commonwealth the power to take possession and to control the land for an indefinite confined period. It did so irrespective of who had what interests. It was not trying to in any way affect those interests. It intended that they would continue and that they would be compensated.

In those circumstances, we say that whether one – as this majority did – they applied the inconsistency of rights test and they found that the right held by the Commonwealth, although in the nature of a right of exclusive possession, was, in the context of this legislation, never intended to affect the continuing existence of underlying rights. In fact, it was premised upon the continuing existence and, in those circumstances, it did not extinguish native title. We say that their Honours were clearly right in that respect and that, for those reasons, the matter does not warrant a grant of special leave. May it please the Court?

HAYNE J: Thank you, Mr Lloyd. We will not trouble you in reply, Ms Brown. There will be a grant of special leave to appeal in this matter limited to the issues raised about the answer to question 3, I think, is all that you need, is it not, Ms Brown?

MS BROWN: Yes, it is.

HAYNE J: As to terms, what do you say the terms should be, Mr Glacken?

MR GLACKEN: We say as much as your Honour said earlier in our summary of argument that if leave be granted then it should be on terms that the order below for costs not be disturbed and that the State pay the first respondent’s costs of the appeal irrespective – in any event, yes.

HAYNE J: In any event.

MR GLACKEN: In any event.

HAYNE J: Yes. Is it only the first respondent that should have the benefit of that? I leave aside the Commonwealth for special and particular treatment, Mr Glacken, but it - - -

MR GLACKEN: No other respondent has participated to date.

HAYNE J: Very well.

MR GLACKEN: While I am on my feet, your Honour, should I mention the questions in the application book below, page 12 – there were three questions - we failed on questions 1 and 2. Question 1 was the constitutional point of whether there was an acquisition of property other than on just terms and more likely we would put on an application for leave to cross-appeal. We could not do it by contention because we would need to vary the answers being given with interventions that might affect.....and I thought I should mention that.

HAYNE J: Yes. How long would counsel estimate the case would take in light of that minatory utterance from your side of the table, Mr Glacken?

MR GLACKEN: On our part not a lot because it is all a construction exercise. It would - - -

HAYNE J: Is it a day case or over a day?

MR GLACKEN: With interventions, it would put it over a day, I think.

HAYNE J: A day plus?

MR GLACKEN: Yes, if your Honour pleases.

HAYNE J: Then on terms that there be no disturbances of the orders for costs made in the court below and that the applicant pay the first respondent its costs of and incidental to the appeal in any event, there will be a grant of special leave limited in the fashion I have indicated to the issues raised by question 3. The case will be fixed on the basis that it is more than a day but considerably less than two days.

We will adjourn to reconstitute.

AT 10.21 AM THE MATTER WAS ADJOURNED