FEDERAL COURT OF AUSTRALIA

Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2014] FCAFC 9

FEDERAL COURT OF AUSTRALIA

Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2014] FCAFC 9

CORRIGENDUM

1.    On front cover page, in the parties section, under Applicant delete the words “& Ors” and replace with “and others named in the schedule”, therefore the Applicant should read as follows: “Tom Congoo and Others named in the Schedule on behalf of the Bar-Barrum People #4”.

2.    On front cover page, in the parties section, under Respondents delete the words “& Ors” and replace with “and others named in the schedule”.

3.    On orders page, in the parties section, under Applicant delete the words “& Ors” and replace with “and others named in the schedule”, therefore the Applicant should read as follows: “Tom Congoo and Others named in the Schedule on behalf of the Bar-Barrum People #4”.

4.    On orders page, in the parties section, under Respondents delete the words “& Ors” and replace with “and others named in the schedule”.

5.    On reasons for judgment page, in the parties section, under Applicant delete the words “& Ors” and replace with “and others named in the schedule”, therefore the Applicant should read as follows: “Tom Congoo and Others named in the Schedule on behalf of the Bar-Barrum People #4”.

6.    On reasons for judgment page, in the parties section, under Respondents delete the words “& Ors” and replace with “and others named in the schedule”.

7.    Insert after reasons for judgment the following schedule:

SCHEDULE OF APPLICANTS:

Applicant:    LAYNE MALTHOUSE

Applicant:    JOHN WATSON

SCHEDULE OF RESPONDENTS

Respondent:    CONSOLIDATED TIN MINES LIMITED

Respondent:    STEPHEN JOHN CROSSLAND

Respondent:    DALE ALBERT CROSSLAND

Respondent:    ELIZABETH HAZEL DAWN CROSSLAND

Respondent:    RENATO DOVESI

Respondent:    LINA DOVESI

Respondent:    ERGON ENERGY CORPORATION LIMITED ACN 087 646 062

Respondent:    MS LAURELLE URSULA GUNDERSEN

Respondent:    MR GRANT HENRIK GUNDERSEN

Respondent:    THOMAS SAMUEL MAULONI

Respondent:    DIANNE CALMSDEN MAULONI

Respondent:    MATHEW JOHN MAULONI

Respondent:    ROBERT THOMAS MAULONI

Respondent:    THOMAS JOHN MAULONI

Respondent:    WILLIAM DAVID MCGRATH

Respondent:    SHARON LESLEY MCGRATH

Respondent:    TABLELANDS REGIONAL COUNCIL

Respondent:    TELSTRA CORPORATION LIMITED

Respondent:    MR ROBERT GRAHAM WHITE

Respondent:    MS ROBYN DORIS WHITE

Associate:

Dated:    14 May 2014

THE COURT ORDERS THAT:

1.    The questions asked in the special case stated be answered as follows:

(a)    Question 1: No.

(b)    Question 2: Not necessary to answer.

(c)    Questions 3(a) and (b): No, and no respectively.

2.    Each party bear its own costs of the special case.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH AND JAGOT JJ:

1.    THE ISSUES

1    The Bar-Barrum people, the claimants for native title rights and interests, are an indigenous society which it is agreed would hold at least certain non-exclusive native title rights and interests over the land in lot 19 on plan OL 2, Parishes of Myosotis and Western, County of Hodgkinson (lot 19), but for the potential effect on those native title rights and interests of a series of five orders (the military orders) made between 1943 and 1945 pursuant to reg 54 of the National Security (General) Regulations (the Regulations) made under the National Security Act 1939 (Cth) (the National Security Act).

2    The primary issue is whether these military orders extinguished the native title rights and interests of the Bar-Barrum people. This and related issues were the subject of a case stated as a special case to be determined by a Full Court of the Federal Court of Australia in accordance with r 38.01 of the Federal Court Rules 2011.

3    The questions asked in the special case are in these terms:

Question 1

Did the Military Orders made under the National Security Regulations purport to effect an acquisition of the property of the BarBarrum People otherwise than on just terms contrary to s 51(xxxi) of the Constitution?

Question 2

If the answer to question 1 is “yes”:

a)    were the National Security Regulations (insofar as they authorised or purported to authorise the making of the Military Orders) and the Military Orders, and/or being in physical occupation of the special case land pursuant to the Military Orders, “past acts” under the Native Title Act?

b)    and, if so, were they validated under the Native Title Act?

Question 3

Did the act of the Commonwealth in:

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

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

4    It is convenient to deal first with the statutory scheme and then the questions in the case stated (albeit with the central issue of extinguishment being considered first).

2.    STATUTORY SCHEME

5    The National Security Act responded to the exigencies presented by the state of war announced by the Prime Minister, Sir Robert Menzies, on 3 September 1939. In the second reading speech for the National Security Act, the Prime Minister described the legislation as a “far reaching measure which gives extensive powers to the Government” and, as was the case in the Great War, soon to be known as the First World War by reason of the Second, it was “once more necessary that very great powers should be obtained in order to deal promptly and effectively with the various problems that will arise in relation to national defence”. The Prime Minister repeated that as “we cannot clearly foretell the future…large powers must be taken”, “flexible and far-reaching powers to carry on the war and safeguard the interests of power” were required, with Parliament being asked “to hand over to the Executive a very great reservoir of power”, a request which carries with it “grave risk in the limitation of freedom of the individual, and in the limitation of parliamentary control”.

6    The Prime Minister emphasised that any executive armed with such powers should be guided by the principle that:

there must be as little interference with individual rights as is consistent with concerted national effort.

7    By s 5(1) of the National Security Act, the Governor-General was empowered to make regulations “for securing the public safety and the defence of the Commonwealth” and, in particular:

…

(b)    for authorising:

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

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

8    The power to acquire land in Australia was provided by s 51(xxxi) of the Commonwealth of Australia Constitution Act (the Constitution) and the Lands Acquisition Act 1906 (Cth).

9    Section 10(1) of the National Security Act created an offence in respect of any person who contravened or failed to comply with the Regulations.

10    Section 17 enabled a Minister of State to delegate powers and functions vested in the Minister under the National Security Act.

11    Section 19 provided that:

This Act shall continue in operation during the present state of war and for a period of six months thereafter, and no longer.

12    The Regulations, as in force at the time the military orders in this case were made, contained in Pt V (entitled “Essential Supplies and work”), regs 54, 56 and 57 as follows:

54

(1) If it appears to the Minister of State for the Army to be necessary or expedient so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, he may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land.

(2) While any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation, the land may, notwithstanding any restriction imposed in the use thereof (whether by law or otherwise), be used by, or under the authority of, that Minister for such purpose, and in such manner, as he thinks expedient in the interests of the public safety or the defence of the Commonwealth, or for maintaining supplies and services essential to the life of the community; and that Minister, as far as appears to him to be necessary or expedient in connexion with the taking of possession or use of the land in pursuance of this sub-regulation—

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

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

(3) The owner or occupier of any land shall, if requested by the Minister of State for the Army or a person thereto authorized by him so to do, furnish to that Minister or such person as is specified in the request such information in his possession relating to the land (being information which reasonably may be demanded in connexion with the execution of this regulation) as is so specified.

…

56

Any member of the Defence Force acting in the course of his duty as such, and any person thereto authorized by a Minister—

(a)    may enter on any land for the purpose of exercising any of the powers conferred in relation to that land by regulations 53, 54 and 55 of these Regulations;

(b)    may enter and inspect any land for the purpose of determining whether, and, if so, in what manner, any of those powers are to be exercised in relation to the land; and

(c)    may, for any purpose connected with the defence of the Commonwealth, the prosecution of the war, the securing of public safety or the maintenance of supplies and services essential to the life of the community, pass (with or without animals or vehicles) over any land.

57

(1) Subject to these Regulations, if it appears to a Minister to be necessary or expedient so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, he may by order requisition or provide for the requisitioning of—

(a)    any property (other than land), including any vessel or aircraft and any article on board a vessel or aircraft; and

(b)    any ship or aircraft registered in Australia or any article on board any such ship or aircraft, wherever the ship or aircraft may be.

13    Pt V also contained a scheme for compensation in regs 60B to 60M the provisions of which, in part, were in these terms:

60D

(1) Any person who has suffered or suffers loss or damage by reason of anything done in pursuance of any of the following regulations and sub-regulations, namely, regulations 53, 54, 55, 56, sub-regulations (1.) and (2.) of regulation 57, regulation 58 and sub-regulation (4.) of regulation 59 of these Regulations, or in pursuance of any order made under any of those regulations or sub-regulations in relation to—

(a)    any property in which he has, or has had, any legal interest or in respect of which he has, or has had, any legal right;

(b)    any undertaking in which he has, or has had, any legal interest; or

(c)    any contract to which he is or has been a party,

shall, if the compensation, or the method of fixing the compensation, in respect of the loss or damage is not prescribed by any regulations other than these Regulations, be paid such compensation as is determined by agreement or, in the absence of agreement, may, within one month after the commencement of this regulation, or, if the thing is done after the commencement of this regulation, within two months after the doing of the thing on which the claim is based, or, in either case, within such further time as the Minister allows, make a claim in writing to the Minister for compensation.

Provided that, where the claim is in respect of an interference with rights which is of a continuing nature, the claimant may claim as compensation a periodical payment during the continuance of the interference, and may, within two months after the date upon which interference ceases, submit a further claim in respect of any loss or damage suffered by reason of anything done during the period of the interference (except damage resulting from war operations) which has not been made good and is not covered by the periodical payment.

…

60(E)

…

(5) Where the Minster has been requested to refer a claim to a Compensation Board, the Minister shall as soon as practicable forward the claim to a Compensation Board, together with a notice stating the address at which notices may be served by the Board on the Minister.

60(F)

(1) Where the Minister refers a claim to a Compensation Board, the Board shall assess the compensation, if any, which it thinks just…

60G

(1) If either the Minister or the claimant is dissatisfied with the assessment of a Compensation Board, he may, within fourteen days after the receipt of the notice of the assessment of the Board, or where the assessment was made pursuant to sub-regulation (3.) of regulation 60D of these Regulations, within fourteen days after the doing of the thing in respect of which the claim was made, apply to a court of competent jurisdiction for a review of the assessment.

60H

(1) The Minister may, by order, make provision regarding the basis on which compensation is to be awarded in any class of the case.

(2) Any such order relating to the acquisition of property shall provide just terms to the person from whom the property is acquired.

(3) Notwithstanding anything contained in these Regulations where a Minister has, whether before or after the commencement of this regulation, by order made any provisions regarding the basis on which compensation is to be awarded in any class of case, every Compensation Board and court shall be bound, in the assessment of compensation in any case of that class, to observe those provisions.

…

60L

(1)    For the purposes of these Regulations there shall be one or more Compensation Boards, each consisting of a Chairman and two other persons appointed by the Minister.

(2)    Except where the Minister considers that a Compensation Board cannot conveniently be so constituted, each Board shall include –

(a)     a Police, Stipendiary or Special Magistrate, who shall be the Chairman; and

(b)     a qualified practising accountant.

(3)    The Minister may appoint one or more persons having specialised knowledge of the subject-matter of the claim to act as assessors to assist a Compensation Board.

(4)    At least one of the assessors appointed to assist a Board or, where only one assessor is appointed, that assessor, shall be a person who is not otherwise in the employ of the Commonwealth…

14    These provisions were introduced by Statutory Rules 1941 No 291, made on 16 December 1941. At the same time the predecessor provision, reg 54(4) was repealed. Regulation 54(4) had been in these terms:

(4) Such compensation shall be payable for any damage or loss sustained by the owner or occupier of the land by reason of the taking of possession of the land, or of anything done in relation to the land in pursuance of this regulation, as is determined by agreement, or in the absence of agreement, by action by the claimant against the Minister in any court of competent jurisdiction.

15    On five occasions between 1943 and 1945 a delegate for the Minister of State for the Army made orders under reg 54 over land within lot 19. These orders were made in the same basic terms which included the following, after reference to reg 54:

AND WHEREAS by Instrument of Delegation dated the Twenty first day of September 1943 made in pursuance of Section 17 of the National Security Act 1939-1940 (which delegation is still continuing and of full force and effect) the Minister of State for the Army delegated to every officer who should at any time during the continuance of the delegation be holding the office or performing the duties of the office Commander of a Lines of Communication Sub Area the powers and functions conferred upon the said Minister by Regulation 54 of the National Security (General) Regulations with respect to any land within the limits of his Lines of Communication Sub Area.

AND WHEREAS it appears to me, Francis Roger North Colonel the officer for the time being holding the office or performing the duties of the office of Commander of Number 1 Lines of Communication Sub Area to be necessary and expedient in the interests of the public safety, the defence of the Commonwealth and the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, on behalf of the Commonwealth to take possession of the land described in the Schedule to this order being land within the said Lines of Communication Sub Area (which land is hereinafter referred to as “the said land”), and: to give the direction set out hereunder in connection with the taking of possession of the said land NOW THEREFORE I, acting in pursuance of the said Regulation and Instrument of Delegation, DO HEREBY on behalf of the Commonwealth, TAKE POSSESSION of the said land AND DO HEREBY ORDER AND DIRECT as follows:

1.    I direct that the Deputy Assistant Quartermaster General Number 17 Lines of Communication Sub Area or any person or persons authorised by him occupy the said land and in so doing and so far as is practicable use the existing means of access to the said land and if necessary cause to be removed therefrom all personal property not the property of the persons occupying the said land in pursuance of this order and not required for Commonwealth purposes.

2.    I authorise the person or persons specified in Paragraph 1 hereof to do in relation to the said land anything which any person having an unencumbered interest in the fee simple in the said land would be entitled to do by virtue of that interest.

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

4.    Should the said land be the subject of any previous order such order is hereby cancelled so far as it affects the said land.

16    It is also agreed that during the Second World War, at about the time the first military order was made, the Commonwealth physically occupied at least some of the land within lot 19 using it as an artillery range and live fire manoeuvre range for the training of infantry and armoured units preparing to deploy to the South West Pacific area. The Commonwealth ceased such occupation on or about 31 August 1945.

17    Immediately before the military orders were made, lot 19 was subject to a number of interests including a mineral lease validly granted under the Mining Act 1898 (Qld) over part of the land and the native title rights and interests of the Bar-Barrum people in respect of the land insofar as not affected by earlier extinguishments of those rights and interests. It is agreed that earlier grants of interest which had the effect of extinguishing the native title rights and interests of the Bar-Barrum people included a pastoral lease known as the Emerald Hills Lease issued pursuant to the Pastoral Leases Act 1869 (Qld) and other mineral leases issued pursuant to the 1898 Mining Act and its predecessor, the Mining Act 1862 (Qld). None of these earlier grants affected the whole of the land in lot 19.

3.    QUESTION 3 (EXTINGUISHMENT)

3.1    3(a) and 3(b)

18    Question 3, concerning extinguishment, is in two parts. The division of the question in this way reflects an issue of construction between the parties (and those intervening) which affects the potential extent, but not the disputed fact, of extinguishment.

19    The issue of construction is that the Commonwealth contends that although the military orders, on their face, related to identified land, the Commonwealth did not “take possession” of any land by the mere making of an order. Some act, over and above the creation of a document styled an order, was required. In the present case, at least some of the land was subject to such acts of possession, but it will be a question of fact in each case as to the extent of land of which the Commonwealth has taken possession. Accordingly, if the taking of possession of land under reg 54 has an extinguishing effect (which the Commonwealth disputes) the extent of extinguishment is to be determined as a matter of fact by reference to the land of which the Commonwealth has taken possession, and not by the terms of the order. The other parties involved in the proceeding, the State of Queensland (the State), the Northern Territory and the Bar-Barrum people, the applicants, contend that the Commonwealth took possession of all the land by the act of making the order.

20    Because this issue of construction relates only to the extent of any extinguishment, it is appropriate to resolve first the question whether the operation of reg 54 in any way extinguished native title rights and interests. The applicants and the Commonwealth contend it did not. The State and the Northern Territory contend to the contrary. It was common ground, however, that the provisions of the Native Title Act 1993 (Cth) (the Native Title Act) do not apply to the military orders; extinguishment is thus to be determined under the common law and not by reference to the provisions of the Native Title Act.

3.2    Extinguishment by operation of reg 54?

3.2.1    Competing submissions

21    The applicants and the Commonwealth submitted that all rights affecting the land, including native title rights, continued to exist during the Commonwealth’s exercise of power under reg 54 but, in accordance with reg 54, those rights simply could not be exercised during that period. Once the Commonwealth’s possession of the land under reg 54 ceased, all rights, including native title rights, could once more be exercised.

22    The essence of these submissions is that the objective intention of the legislative scheme is apparent. This is not a case of the sovereign, with radical title in the land, granting rights or interests to third parties irrespective of whatever other rights and interests might exist. Rather, the Commonwealth, which had no rights or interests in the land whatsoever (let alone the radical title to the land), exercised powers under reg 54 to take possession “from everyone who had rights in the land in full acknowledgment of the existence of underlying rights and interests, making compensation available for the period of dispossession and returning the land at the conclusion”. On this basis it is apparent that there could be no extinguishment of native title rights and interests by reason of the exercise of power under reg 54. As observed by French CJ and Crennan J in Akiba v Commonwealth (2013) 300 ALR 1; [2013] HCA 33 (Akiba) at [24]:

“Extinguishment” in relation to native title refers to extinguishment or cessation of rights. Such extinguishment of rights in whole or in part is not a logical consequence of a legislative constraint upon their exercise for a particular purpose, unless the legislation, properly construed, has that effect. To that proposition may be added the general principle that a statute ought not to be construed as extinguishing common law property rights unless no other construction is reasonably open.

23    It was further submitted that, insofar as the parties contending for extinguishment relied on an inconsistency of incidents test (that is, inconsistency between the rights of the Commonwealth once the power under reg 54 had been exercised and the continuation of native title rights and interests), it is important to recognise that inconsistency of incidents is a method for determining objective intention, made necessary by reason of the historical fact that legislation made before Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 (Mabo (No 2)) incorrectly assumed that native title rights and interests did not exist. This was also explained by French CJ and Crennan J in Akiba as follows:

[30] The early approach of this court in Mabo v Queensland (No 1) [(1988) 166 CLR 186; [1988] HCA 69] and Mabo v Queensland (No 2) [(1992) 175 CLR 1; [1992] HCA 23] to determine whether native title rights or interests had been extinguished by legislative or executive action focused upon the intention to be imputed to the legislature or the executive. For both legislative and executive action, a plain and clear intention to extinguish native title was required. Imputed legislative intention is, and always was, a matter of the construction of the statute…

[31] The identification of a statute’s purpose may aid in its construction. That identification may be done by reference to the apparent legal effect and operation of the statute, express statements of its objectives and extrinsic materials identifying the mischief to which it is directed. However, purposive construction to ascertain whether a statute extinguishes native title rights or interests is not without difficulty where the statute was enacted prior to this court’s decision in Mabo [No 2] that the common law could recognise native title. The difficulty was described by Gummow J in Wik Peoples v Queensland [(1996) 187 CLR 1 at 184-185]. The court in that case was, as his Honour pointed out, construing statutes “enacted at times when the existing state of the law was perceived to be the opposite of that which it since has been held then to have been.” That reality affected the application of the purposive approach to construction. The Court therefore focused on inconsistency as the criterion for extinguishment. In the case of competing rights — native title rights and interests on the one hand and statutory rights on the other — the question was:

whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right.

His Honour observed that that notion of inconsistency included the effect of a statutory prohibition of the activity in question.

24    According to this submission, that the objective intention of the legislation of reg 54 was to prevent the exercise of, but not to otherwise affect, all underlying rights and interests affecting land for the duration of an exercise of power under that provision is evident from four circumstances.

25    First, the context for the existence of the power was the state of war and the need for powers to be available to advance the war effort. While the future could not be foretold, it was always contemplated that the legislative regime would cease six months after the cessation of the war (s 19 of the National Security Act). Accordingly, the legislative intent was to give the Commonwealth extraordinary powers to deal with the emergency presented by the war and to enable those powers to be exercised, as the Commonwealth put it, “for a limited purpose for a limited duration”.

26    Second, reg 54 did not give any title or interest in the land to the Commonwealth or to any third party. The Commonwealth acquired only a right of temporary possession which overrode any rights to possession vested in any other person (Minister of State for the Army v Dalziel (1944) 68 CLR 261; [1944] HCA 4 (Dalziel) at 290 and 300-301).

27    Third, it is apparent from the legislative scheme that what was intended was for underlying rights to yield to the Commonwealth’s exercise of power under reg 54 for the duration of the exercise but otherwise to continue. Some of the indications present in the legislative scheme are as follows:

    Regulation 54(2)(b), enabling the Minister to prohibit or restrict the exercise of rights of way over the land, and other rights relating thereto (that is, to the land), whether by virtue of an interest in land or otherwise, assumed the existence and continuation of such other rights and interests. The regulation did not purport to terminate or extinguish those rights. It enabled the exercise of the rights to be restricted or prohibited for the duration of the exercise of power after which the rights could once more be exercised.

    The continuation of underlying rights was also pre-supposed by reg 54(3) which, while the power was being exercised, required any owner or occupier to provide information as specified relating to the land. Owners and occupiers thus remained as such despite any exercise of power under reg 54.

    Regulation 55AA ensured that if the Commonwealth later compulsorily acquired land of which it had taken possession under reg 54, compensation for the compulsory acquisition would be fixed disregarding any increase or decrease in value from anything the Commonwealth had done on or in relation to the land. This is consistent with s 5(1)(b) of the National Security Act which distinguishes between the taking of possession of property and its compulsory acquisition. While the assumption underlying the scheme that the taking of possession did not amount to the acquisition of property for the purposes of s 51(xxxi) of the Constitution was proved ill-founded in Dalziel, the distinction nevertheless exists for the purposes of the National Security Act (albeit incapable of governing the meaning of the “acquisition of property” in s 51(xxxi) of the Constitution). This was recognised by McTiernan J in Dalziel at 295. For present purposes what the distinction demonstrates is the objective intention of the Commonwealth not to permanently divest any underlying rights in relation to land, but only to take temporary possession of land. This is consistent with the analysis of Starke J in Dalziel at 290, in which his Honour described the Commonwealth’s rights as jura in re aliena, rights over the property of another. The critical matter for present purposes is that the property remains property of another. Williams J at 301 described the exercise of power under reg 54 as not determining “any estate or interest in the land” so that the owner remained the owner, the tenant continued to be the tenant, but their rights continued to exist “subject to the statutory right of the Commonwealth to take possession of the land and to use it for the purposes authorised by the regulation”. The holders of the underlying rights, accordingly, were “divested of the right to possess the land so long as the Commonwealth continues in possession”. But their rights and interests continued. Hence, in Minister of State for the Interior v Brisbane Amateur Turf Club (1949) 80 CLR 123; [1949] HCA 31 (Brisbane Amateur Turf Club) it was held that a lease could be renewed validly during the Commonwealth’s possession of the land.

    The compensation provisions enabled any person who “has or has had any legal interest, or…legal right” in land to claim compensation both during and after the Commonwealth’s taking of possession. The compensation provisions thus also assumed that persons with rights and interests in the land continued to hold those rights and interests and could exercise them again once the Commonwealth possession ceased.

28    Fourth, the purposes for which possession could be taken under reg 54 were also confined. Possession could only be taken if it appeared to the Minister that it was necessary or expedient to do so in the interests of public safety, the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community. Once possession had been taken the land could be used only for the nominated purposes. These limitations further confined the powers of the Minister in s 54(2)(a) and (b). In the submissions of the Commonwealth, the power “to do to the land anything which any person having an unencumbered interest in fee simple would be entitled to do, was limited by the requirement that it be necessary or expedient in connection with using the land for one (or more) of the stated objects or purposes”. The same limit applied to the power to prohibit or restrict the exercise of rights of way.

29    It was thus submitted that neither the making of, nor the taking of possession pursuant to, the military orders terminated or extinguished any pre-existing rights and interests in relation to the land. Native title rights and interests were in no different position from other rights and interests in this regard. The analysis of the State and Northern Territory in support of extinguishment did not recognise the essential difference between the exercise of sovereign power by the holder of radical title to land (as discussed or applied in Mabo (No 2) at 69, 80-83 and 180-184; Wik Peoples v Queensland (1996) 187 CLR 1; [1996] HCA 40 (Wik); Fejo v Northern Territory (1998) 195 CLR 96; [1998] HCA 58 (Fejo) at [43]; Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 (Yanner) at [35]-[37]; Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 (Yarmirr) at [46]-[50]; Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward); Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29 (Wilson)) and an exercise of sovereign power by an entity which held no right or interest in the land. Native title is inherently defeasible to exercises of sovereign power by the holder of radical title involving the grant of rights or interests to third parties which are inconsistent with the continuation of native title rights and interests. On the same basis, that it must have been the objective intention of the sovereign title holder to extinguish native title rights and interests given the inconsistency, native title is also susceptible to any exercise of sovereign power where an intention to extinguish is plainly discernible. In the present case, however, where the legislative regime discloses an objective intention that all underlying rights should continue, an intention to extinguish native title rights and interests cannot be ascertained.

30    The State and the Northern Territory submitted that the conferral of a right of exclusive possession leaves no room for the continued existence of native title rights and interests (Fejo at [105], Ward at [82], [369], [472] and [620]-[627] and Wilson at [11]-[16] and [36]). Further, not only are there no degrees of inconsistency (Ward at [82] and Akiba at [35]), the extinguishment of native title rights and interests does not depend on the inconsistency being permanent or of any particular duration (Ward at [82], [472] and [625]-[627]). The military orders conferred exclusive possession on the Commonwealth (Dalziel at 285-286, 289-290, and 299). The provisions in the military orders for the enjoyment of the rights of an estate in fee simple and the exclusion of all others, and the exercise of any right over the land, were not confined to any particular purpose. Hence, it was submitted, the orders “are not analogous to leases limited by specific purposes such as mining purposes or pastoral purposes”. The rights to use the land as if the Commonwealth had an estate in fee simple were inconsistent with the native title rights and interests of the applicants such as to result in extinguishment of those rights and interests.

31    Further, the State and Northern Territory contended that it was wrong for the Commonwealth to posit a test for extinguishment which ignores the rights created by reg 54 and asks instead whether there was a clear and plain intention to extinguish native title. Consistent with authority, given that native title rights and interests were not recognised at the time, it is necessary to apply the inconsistency of incidents test. The factors relied on by the Commonwealth do not weigh against extinguishment. The defence powers are broad and not subject to any real constraint, the Commonwealth’s possession was to be for as long as the duration of the war and six months when the duration of the war was unknown, and the Commonwealth’s possession constituted the acquisition of property by the Commonwealth vesting in it exclusive possession for an indefinite period. Moreover, native title rights and interests are not equivalent to other rights and interests in land. A grant of one interest in land cannot be superseded by a subsequent inconsistent grant (Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373; [1995] HCA 47, at 439) but native title rights and interests are inherently vulnerable to extinguishment (Mabo (No 2) at 64).

32    Accordingly, as the State put it:

If the rights granted by Reg 54 were inconsistent with native title, then native title was extinguished. The same need not be true of other legal and equitable estates or interests.

…

The conferral of a right of exclusive possession on the Commonwealth, underscored by a prohibition on the exercise of all rights over the land, was inconsistent with the continued existence of native title rights.

33    Even if the test for extinguishment is as the Commonwealth posited, according to the State and the Northern Territory, extinguishment would result. The exercise of powers under reg 54 prohibited the exercise of native title rights and interests. It did not merely regulate the exercise of those rights. Native title rights and interests were also extinguished on this basis (Yanner at [37] and Akiba at [64]).

34    In the submissions of the Northern Territory, when it exercised powers under reg 54 in relation to the land:

the Crown in right of the Commonwealth asserted rights…which were equivalent to the rights of the holder of an unencumbered fee simple interest in the land, including a right of possession, occupation and use which was exclusive of all other rights in respect of the land. By conventional theory [citing Yanner at [35]], those asserted rights were wholly inconsistent with the continued or unimpaired enjoyment of the Applicant’s native title rights and interests and wholly extinguished them.

…

In terms of its effect upon native title at common law, the valid assertion by the Crown of a right equivalent to rights held under a fee simple interest is not materially different to the valid vesting in the Crown of a fee simple interest. The latter would extinguish native title; and so would the former.

3.2.2    Discussion

35    The two main areas of dispute between the parties about the issue of extinguishment, the relevance of the status of the Commonwealth as a stranger to the land before its exercise of power under reg 54 and the relationship between the concepts of objective intention and inconsistency of incidents in determining extinguishment, have a single source; the fact that native title rights and interests are not founded upon the common law but are recognised by it. Native title rights and interests are founded upon traditional laws and customs. Hence, extinguishment of native title rights and interests must be understood as the cessation of the common law’s recognition of those rights and interests, not the cessation of those rights and interests under traditional laws and customs (Akiba at [10]). Accordingly, in order to resolve the dispute about extinguishment it is necessary to consider the interaction of native title rights and interests with the common law’s recognition of those rights and interests.

36    In Mabo (No 2), in the judgment of Brennan J with whom Mason CJ and McHugh J agreed, it is apparent that the analysis started from the proposition that “[s]overeignty carries the power to create and to extinguish private rights and interests in land within the Sovereign's territory” (at 63). In Mabo (No 2) the State of Queensland, by the Constitution Act 1867 (Qld), held that power over land within its territory. Further, a grant once made by the Crown cannot thereafter be derogated from by inconsistent grant without statutory authority to do so. Thus, Brennan J explained at 64 that statutes are presumed to operate consistently with this principle of non-derogation. The principle is founded on the fact that the Crown is the single source of both exercises of power. Native title is in a different position because it is not founded upon any grant by the Crown. Its source is traditional laws and customs. It follows that “there is no comparable presumption” for native title (at 64). Whether a subsequent exercise of power by the Crown extinguishes native title depends on the existence of an intention on the Crown’s part to do so. Consistent with the principles of statutory construction, the legislation must “reveal a clear and plain intention” to effect extinguishment (at 64). Such a clear and plain intention will be apparent if a Crown grant “vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land” (at 68). The analysis of Deane and Gaudron JJ at 89 to 90 is to the same effect on this point. This is not to say that the Commonwealth is precluded from exercises of power to extinguish native title merely because it is not the holder of radical title of land within the States. As Deane and Gaudron JJ said at 110-111, native title can be “expropriated or extinguished by valid Commonwealth, State or Territorial legislation operating within the State of Territory in which the land in question is situated”.

37    In Wik, when dealing with inconsistency between rights, Brennan CJ at 84 described the weakness of native title as the fact that, not being an estate of interest derived from the Crown, it is not “protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant”. As such:

Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.

38    At 85 Brennan CJ continued:

A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect “unless there be a clear and plain intention to do so”. Such an intention is not to be collected by enquiry into the state of mind of the legislators or of the executive officer but from the words of the relevant law or from the nature of the executive act and of the power supporting it. The test of intention to extinguish is an objective test.

A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title.

39    It is apparent that the tripartite classification in Wik is not exhaustive. A law may not simply extinguish native title but, as Yarmirr recognises, might in substance prohibit the exercise of native title such as to involve extinguishment. In the present case, extinguishment is said to result not from a law creating rights in third parties but a law creating rights in the Commonwealth itself.

40    In Fejo the grant of fee simple title to the land in 1882 extinguished native title. At [45]-[47] the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ revisited the analysis in Mabo (No 2) noting at [47] that:

As Brennan J pointed out in Mabo [No 2], the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title.

41    At [58] the joint judgment continued:

That the grant of freehold title extinguishes rather than suspends native title rights follows from the way in which the sovereign power to create rights and interests in land was exercised. The legislation that provided for the making of grants in fee simple of waste lands provided for the creation of rights in respect of the land that were inconsistent with any continued right to native title. The rights created by the exercise of sovereign power being inconsistent with native title, the rights and interests that together make up that native title were necessarily at an end. There can be no question, then, of those rights springing forth again when the land came to be held again by the Crown. Their recognition has been overtaken by the exercise of “the power to create and to extinguish private rights and interests in land within the Sovereign's territory”.

(emphasis in original)

42    In Yarmirr, the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at [46]-[50] considered this analysis and explained that:

[48]… radical title is, therefore, not a necessary pre-requisite to the conclusion that native title rights and interests exist. The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist…

[49] It is, however, not right to say, as the Commonwealth contended, that native title rights and interests cannot exist without the Crown having radical title to the area in respect of which the rights and interests are claimed. This contention gives the legal concept of radical title a controlling role. The concept does not have such a role. It is a tool of legal analysis which is important in identifying that the Crown's rights and interests in relation to land can co-exist with native title rights and interests. But it is no more than a tool of analysis which reveals the nature of the rights and interests which the Crown obtained on its assertion of sovereignty over land.

[50] It by no means follows that it is essential, or even appropriate, to use the same tool in analysing the altogether different rights and interests which arose from the assertion of sovereignty over the territorial sea. In particular, it is wrong to argue from an absence of radical title in the sea or sea-bed to the conclusion that the sovereign rights and interests asserted over the territorial sea are necessarily inconsistent with the continued existence of native title rights and interests. The inquiry must begin by examining what are the sovereign rights and interests which were and are asserted over the territorial sea. Only then can it be seen whether those rights and interests are inconsistent with the native title rights and interests which now are claimed.

(emphasis in original)

43    Wilson involved the grant of a lease. At [6]-[7] Gleeson CJ explained that:

[6] Where, as in the present case, the Court is considering an argument as to whether there has been extinguishment by reason of the second of the three kinds of law or act referred to by Brennan CJ then, as his Honour said, and as was repeated by the majority in Ward, no question arises as to whether, at the time of the act said to extinguish native title, there was any specific intention to extinguish such title, or even as to whether anyone adverted to the existence of native title. In such a case, the test is one of inconsistency. If it is satisfied, the extinguishment results from the inconsistency, not from the existence of a purpose of abrogating native title rights or interests.

[7] That is not to say that matters of intention are irrelevant. A decision as to whether an act, such as the grant of an estate in land, creates rights inconsistent with native title rights and interests, may turn upon a question of construction of an instrument, or of a statute pursuant to which an instrument was made. Questions of construction and interpretation are bound up with the matter of intention. But it is necessary to keep in mind what intention involves, and the intention that is relevant.

44    At [12] Gleeson CJ noted that:

It is not suggested that, in deciding whether a grant of an estate in fee simple extinguishes native title, it is relevant to enquire whether the parties to the grant addressed their minds to the position of people who might have had native title rights and interests in the land. What is relevant is that, objectively considered, there was an intention to create an estate that was inconsistent in its incidents with continuing native title rights and interests. The same applies to the creation of a leasehold estate which confers a right of exclusive possession in the lessee.

45    Ward involved similar considerations albeit in the context of the grant of leasehold interests. In this context Gleeson CJ, Gaudron, Gummow and Hayne JJ at [78] said that:

The cases often refer to the need for those who contend that native title has been extinguished to demonstrate a “clear and plain intention” to do so. That expression, however, must not be misunderstood. The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. Nor is it relevant to consider whether, at the time of the act alleged to extinguish native title, the existence of, or the fact of exercise of, native title rights and interests were present to the minds of those whose act is alleged to have extinguished native title. It follows that referring to an “expression of intention” is apt to mislead in these respects. As Wik and Fejo reveal, where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used.

(emphasis in original)

46    At [82] they continued:

Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise. Secondly, it is a mistake to assume that what the NTA refers to as “native title rights and interests” is necessarily a single set of rights relating to land that is analogous to a fee simple. It is essential to identify and compare the two sets of rights: one deriving from traditional law and custom, the other deriving from the exercise of the new sovereign authority that came with settlement…

47    The fact that the leases were temporary were thus not to the point. The Crown had granted to third parties leases which conferred rights of exclusive possession. Those rights were inconsistent with the continued existence of native title rights and interests. Thus, at [370] the joint judgment records:

The lessee having been granted a right of exclusive possession, the right thus granted was inconsistent with the continued existence of native title rights and interests and, subject to the operation of the RDA and the NTA, those latter rights were extinguished.

48    In Akiba, however, the question was the effect of regulation of fishing by successive Commonwealth, State and Territory laws on the continuation of native title rights. The judgment of French CJ and Crennan J at [24] referred to earlier but which bears repeating discloses that a conclusion of extinguishment is a result of construction of the statute under which the power is exercised. Thus:

…extinguishment of rights in whole or in part is not a logical consequence of a legislative constraint upon their exercise for a particular purpose, unless the legislation, properly construed, has that effect. To that proposition may be added the general principle that a statute ought not to be construed as extinguishing common law property rights unless no other construction is reasonably open.

49    The reasons of French CJ and Crennan J at [30]-[35] in Akiba explain the development of inconsistency as the criterion for extinguishment, inconsistency being a tool to determine legislative objective intention in circumstances where the purposive approach to statutory construction might otherwise be confounded by the fact that statutes enacted before Mabo (No 2) incorrectly assumed that the common law did not recognise native title rights and interests. The analysis of Hayne, Kiefel and Bell JJ at [61]-[64] is to the same effect.

50    Consistent with these considerations, it is necessary to understand that inconsistency between rights which have been granted and the continued existence of native title rights is an analytical tool enabling objective legislative intention to be ascertained. The relevant objective intention is that native title rights no longer be recognised by the common law. Contrary to the submissions for the State, there are not two separate tests – objective intention and inconsistency of incidents. Nor, properly understood, can a focus on inconsistency of rights lead to a result different from the ascertainment of objective intention. This is because the comparison operates at the level of rights, and the rights granted or asserted by the Crown will always depend on the same process and principles of statutory construction as the ascertainment of objective intention. Putting it another way, the rights granted or asserted by the Crown cannot rise above their statutory source.

51    In accordance with these authorities, a grant of exclusive possession by the Crown as radical title holder demonstrates the existence of such an objective intention because conferring rights of exclusive possession on a third party is inconsistent with the continued recognition of native title rights. In the present case, however, the context is different. The Commonwealth was not the holder of radical title in the land. It was a stranger to the land and indifferent to the nature and extent of pre-existing interests which might be held in relation to the land. It did not grant to a third party any right or interest in the land. It took to itself a right of possession and the capacity to do what a holder of fee simple title could do and prohibited others having an interest in the land from exercising their rights. It was able to do so and did so only because the Minister’s delegate considered it expedient to do so in the interests of public safety, the defence of the Commonwealth or for maintaining supplies and services essential to the life of the community. It was able to do so and only did so for the period during which the power was available which, whilst indefinite, could not exceed the duration of the war by more than six months. It did so in circumstances where it recognised that not only did underlying rights and interests continue but that the holders of those rights, by virtue of their status as rights holders, were required to assist the Commonwealth by providing information on request and were entitled to be compensated for the interference with their enjoyment of their rights.

52    In this context the Commonwealth cannot be imputed with an objective intention to extinguish native title rights and interests. The context and language of the statute does not disclose any intention, let alone a clear and plain intention, that any rights or interests in the land no longer be recognised. It discloses an intention wholly to the contrary. 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. The Commonwealth did not thereby grant to any person, including itself, some estate or interest in the land inconsistent in its incidents with continuing native title rights and interests. As Gleeson CJ said in Wilson at [7] “[q]uestions of construction and interpretation are bound up with the matter of intention”. It is apparent that the objective intention of the Commonwealth was that all rights and interests in the land should yield to the Commonwealth’s exclusive possession for the duration of the Commonwealth’s exercise of power under reg 54 but should otherwise continue and found rights of compensation for the interference to those rights thereby resulting.

53    This is not a case of any rights being “suspended”, a concept which was rejected absent some statutory authority to the contrary in Ward at [82]. No rights were suspended during the Commonwealth’s exercise of power, as the reasoning in Brisbane Amateur Turf Club indicates. The 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. This is because, as the Commonwealth submitted, it took to itself exclusive possession for a limited purpose for a limited time on the objectively ascertainable premise apparent from the legislative scheme that all underlying rights and interests should continue.

54    The “conventional theory” to which the Northern Territory referred (citing Yanner at [35]) is that extinguishment must be “clearly established” but that test is satisfied in respect of the grant of a fee simple “because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title” (as in Fejo) or “the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests”. In the face of a grant of a lease granting exclusive possession to a third party, even if temporarily, Ward establishes that extinguishment results. This is because the Crown as radical title holder may be said to have evinced an objective intention by the nature of the third party grant that the common law no longer recognise the continued holding of native title rights and interests. The same cannot be said of the Commonwealth in the present circumstances because the manifest objective intention of the Commonwealth was for all holders of rights in the land subject to an exercise of power under reg 54 to continue to hold their rights. On that basis, extinguishment cannot be characterised as indicated and still less “clearly established”. Neither the broad nature of the Commonwealth’s rights (as if it held fee simple title) nor the absolute prohibition on other right holders enjoying their rights for the duration of the Commonwealth’s power alters the fact that the legislation effected a scheme under which the rights of others would continue but would not be able to be exercised only for so long as required given the exigencies presented by the war.

55    While both a grant to a third party and other exercises of sovereign power may extinguish native title, the process of analysis involved is not necessarily identical as Yanner demonstrates. As noted in Ward at [151] the essential question that must be asked is:

What exactly is the right or power which is said to be asserted or exercised? That is a question which can be answered only by examining the relevant statutory basis for the assertion or exercise of a right or power in relation to the land.

56    The Commonwealth did not obtain a fee simple interest. Nor did it assert that it had done so. It asserted that, in the nominated circumstances and for the nominated purposes and for so long as its exercise of power continued (which, by the statute could not exceed six months after the cessation of the war), it could both do anything which a person having a fee simple interest could do and prohibit persons having rights in the land from exercising those rights. For these reasons, the proposition of the Northern Territory that there is no material difference between this case and the valid vesting in the Crown of a fee simple interest is not accepted.

57    Contrary to the submissions of the State, this conclusion does not assume that legislation cannot extinguish native title rights unless it also extinguishes all other rights. The conclusion is founded upon characterisation of the rights which the Commonwealth took by the exercise of powers under reg 54. It is true that the Commonwealth’s exclusive possession, for the duration of the exercise of the power, precluded the exercise of native title rights and interests. But proper characterisation of the rights the Commonwealth took, as described above, does not lead to the conclusion of any objective intention to extinguish native title rights and interests. The inconsistency of incidents test, as noted, requires a comparison between rights and thus can lead to no different result.

58    The State’s submission that every assertion of power which, for however long and for whatever purpose, precludes the exercise of native title rights and interests necessarily has the effect of extinguishing those rights by reason of inconsistency is also not accepted. This proposition operates at too high a level of generality when the cases make plain that close analysis of the nature of the rights to be compared is required. Accordingly while “regulation may shade into prohibition and the line between the two may be difficult to discern” (Yanner at [37]), the line cannot be drawn at all without first identifying the competing interests with precision. In Yanner at [38] Gleeson CJ said “saying to a group of Aboriginal peoples, ‘You may not hunt or fish without a permit’, does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing”. In the present case, it is not correct that saying to the whole world the Commonwealth is taking possession of the land because it is necessary or expedient for the conduct of the war, no-one with rights in the land can exercise them for the duration, the duration will be the length of the war plus six months and no longer, and anyone whose rights have been affected can claim compensation, severs the connection of the Bar-Barrum people to the land.

59    For these reasons question 3(a) and (b) should both be answered “No”.

3.3    Construction of reg 54

60    Although the answer to both questions 3(a) and (b) should be “No”, the parties requested that the balance of the issues be resolved, including the point of difference between the Commonwealth and all other parties in respect of the construction of reg 54 reflected in the division of question 3 into 3(a) and (b).

61    Question 3(a) assumes that the Commonwealth took possession of the land by the act of making the order. Question 3(b) assumes that the Commonwealth took possession of part of the land only when it manifested some act of possession over and above the making of the order which must be determined as a question of fact in each case. On the Commonwealth’s construction this does not render question 3(b) hypothetical because it is an agreed fact that the Commonwealth did manifest an act or acts of possession by its physical occupation of at least some of the land.

62    There cannot be much doubt that at the time the military orders relevant to this case were made the Minister’s delegate assumed that the Commonwealth took possession of the whole of the land by the mere fact of the text of the orders. So much is said expressly before the making of the orders and directions contemplated by reg 54(2)(a) and (b). However, as the Commonwealth submitted, the answer turns on the statutory scheme and not how it was applied in any particular case. Philp J in Re Fish Steam Laundry Pty Ltd [1945] St R Qd 96 (Re Fish Steam Laundry), based on the agreement of the parties as to facts relevant to compensation under s 60H, described such a notice as a purported taking of possession with actual possession not having been taken until a later date (at 98-99).

63    The submissions of the Commonwealth that possession was not taken by the creation of the documents styled military orders should be accepted. The issue resolved by Dalziel does not need to be considered because in Dalziel there was no issue that the Commonwealth had taken possession of the whole of the land.

64    First, reg 54 applied throughout Australia and thus potentially encompassed all types of land, urban, rural, occupied, unoccupied, wasteland and the like. Against this background, to take possession of land something more than a delegate completing a piece of paper had to be done. What might have to be done to take possession may vary depending on the land in question. But the notion that the Commonwealth might take possession of any land of any character by a delegate of the Minister filling in a form and no more seems inherently impractical and unlikely. Second, reg 54(1) does not contemplate that possession will be taken by the making of an order. This may be contrasted with other powers which are exercisable by order such as appear in reg 54(2)(b) and, for example, reg 57. Third, the reference in reg 54(2) to the existence of powers “[w]hile any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation…” contemplates not that a direction effects possession but that a direction authorises possession to be taken notably by whatever means seemed expedient in the circumstances. Fourth, the offence provision in s 10 of the National Security Act must be recognised. If a direction is given or order made and no more, and the direction and/or order are never manifested by some act of possession on behalf of the Commonwealth, can it be said that a person has contravened the regulation by doing something on the land prohibited by the order? These considerations indicate that the making of a direction and order and no more is not the means by which, pursuant to reg 54, the Commonwealth took possession of land. Some manifestation of the Commonwealth’s intention to take possession of the land, external or in addition to the mere administrative act of making a direction and order, was required. What manifestation might be sufficient would depend on the facts. In this regard, physical occupation was not necessary for the Commonwealth to take possession of land. It can be envisaged that the Commonwealth may have taken possession of land without any form of occupation, but some act over and above the completion of a form was required.

65    The remaining questions are considered in abbreviated form only because they do not strictly arise in view of the conclusion that, whichever construction of reg 54 is preferred, an exercise of power under the regulation does not extinguish native title rights and interests.

4.    QUESTION 1 (ACQUISITION OF PROPERTY ON JUST TERMS?)

4.1    The two issues

66    Question 4 involves two issues. First, whether the exercise of power involved an acquisition of property, the property in question being the native title rights and interests of the Bar-Barrum people. Second, if so, whether the acquisition was on just terms. It is appropriate to deal at the outset with the just terms issue because, if just terms were provided, whether or not property was acquired is moot.

4.2    Just Terms?

67    For the following reasons the applicant’s complaint of the lack of just terms should not be accepted. First, in Dalziel Rich J at 288-289, McTiernan J at 296 and Williams J at 310 considered that while the effect of reg 60H was to deny just terms, that provision was severable. As a result reg 60G, enabling a court of competent jurisdiction to review the assessment of compensation, ensured just terms.

68    Second, the notion that the terms of reg 60D, in that they refer to “any person” who has suffered loss or damage, exclude groups of persons who hold common or group rights comprising native title involves a strained interpretation which is difficult to accept. As the Commonwealth submitted, the singular included the plural (s 23 of the Acts Interpretation Act 1901 (Cth)) and the High Court, unsurprisingly, had held that (Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459; [1945] HCA 52) the general principles set out in Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82, that the market value of what is taken must be paid as compensation, applied to reg 60D. It is not apparent why the conventional concept of market value is incapable of providing just terms compensation for the impact on native title rights and interests; the concept has repeatedly proved sufficiently flexible to accommodate valuation needs as and when they arise

69    Third, the complaint about the time requirements overlooks both the capacity the Minister had to extend time (reg 60D(1)) and the decisions in Schweppes Ltd v Commonwealth (1944) 45 SR(NSW) 35 and Noble and Bear v Commonwealth (1943) 17 ALJ 184 at 185 in which the validity of the compensatory scheme was accepted. It also overlooks the fact that, contrary to the decision of Philps J in Re Fish Steam Laundry, the High Court held that the time limit runs from the commencement and cessation of the interference (Brisbane Amateur Turf Club).

70    Fourth, as the Commonwealth submitted, the insuperable difficulty confronting this argument is that the compensatory scheme in regs 60B to 60M replaced (relevantly) reg 54(4). If the new compensatory scheme is invalid, reg 54(4) must be taken not to have been repealed. The applicants’ arguments to the contrary are inconsistent with principle and are undermined, rather than supported, by the statements at [7.4] in Pearce and Geddes, Statutory Interpretation in Australia, 7th Ed. Regulations 60B to 60M dealt with the same subject-matter as reg 54(4) so that, on orthodox theory, the new provisions cannot exist independently from the repeal. Thus, if the new provisions are invalid, reg 54(4) remains. There is no reason why “owner” in reg 54(4) would be construed so as to exclude the owner of any right or interest in land, including the owners of native title rights and interests. Equally, there is no reason why native title holders would not have been “occupiers” of the land. Consistent with the approach in Brisbane Amateur Turf Club there is also no reason that compensation for “damage or loss” would not include the market value of the interest taken. Regulation 54(4) did not contain the time limits about which the applicants complain and itself provided for just terms.

4.3    Acquisition of property?

71    The Commonwealth submitted that neither the extinguishment nor the yielding of native title rights and interests to the Commonwealth’s exercise of power under reg 54 constituted an acquisition of property within the meaning of s 51(xxxi) of the Constitution because native title is inherently susceptible to having to yield to other common law and statutory rights. The State and Northern Territory concurred with this approach, albeit maintaining that the effect of the exercise of power under reg 54(4) was to extinguish native title. The applicants contended that on either basis property was acquired within the meaning of s 51(xxxi) of the Constitution.

72    Given the view that the exercise of power did not extinguish native title and, in any event, that the scheme for compensation provided for just terms if any property was acquired, the question whether the extinguishment of native title involves an acquisition of property is twice removed from the conclusions reached. Thus it is appropriate to limit the following observations, notwithstanding the request of the parties.

73    The primary observation is with respect to the Commonwealth’s submission on this issue. It contended that the considerations underlying the finding that the extinguishment of native title does not constitute an acquisition of property also support the conclusion that the exercise of the power in reg 54, which did not extinguish native title, did not involve any acquisition of property. The two circumstances are not equivalent. The reasoning of the majority in Dalziel, to the effect that there is an acquisition of property involved in the exercise of power under reg 54, is not engaged in this case.

74    The susceptibility of native title to defeasance by a subsequent inconsistent grant or exercise of power is a given. The reasoning of Gummow J in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38, at 613 would support the conclusion that extinguishment of native title does not necessarily involve an acquisition of property. So too, by analogy, would the reasoning in Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210; [2008] HCA 7. The contrary view of Gaudron and Deane JJ in Mabo (No 2) at 111 was referred to in Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232; [2008] HCA 20 at [36] but only in the context of the background case and statute law to the issue there arising under compulsory acquisition legislation. Wurridjal v Commonwealth (2009) 237 CLR 309; [2009] HCA 2, to which the applicants also referred, does not provide any real support for the applicants’ contentions in this regard.

75    If, however, it is the case that the extinguishment of native title does not involve any acquisition of property by reason of the inherent susceptibility of such title to subsequent inconsistent sovereign acts, it is not accepted that such susceptibility is material to the circumstances arising by reason of an exercise of power under reg 54(4). By reason of that exercise, the Bar-Barrum people as native title holders were prevented for the duration from enjoying their otherwise acknowledged rights to access the land, to camp, hunt, fish and gather on the land, to take and use natural resources and water from the land, to conduct ceremonies, hold meetings, teach, light fires on, and be buried on the land. Under the National Security Act regime, the Bar-Barrum people were in no different position from the tenant in Dalziel. That bundle of rights was “seized and taken away” from the Bar-Barrum people just as the rights associated with the tenancy in Dalziel were taken (at 286). If the fragility of native title to subsequent inconsistent sovereign acts arises from the fact that native title is founded on traditional laws and customs and is only recognised by, and not founded upon, the common law then it is not apparent how a sovereign act which is not inconsistent with the continued recognition of native tile can take advantage of the inherent fragility of native title so as to avoid an acquisition of property. In such a case, as here, the native title rights and interests are (as the Commonwealth otherwise maintained) in no different position from the non-native title rights and interests in the land. On this basis, and consistent with the reasoning in Dalziel, the Commonwealth did acquire property from the Bar-Barrum people by reason of its exercise of power under reg 54(4) and, even though not recognised at the time, the statutory scheme provided just terms compensation for that acquisition.

76    For these reasons question 1 should be answered “No”. While property was acquired, it was acquired on the basis of just terms.

5.    QUESTION 2 (PAST ACTS)

77    Given the conclusions above, this question does not arise. It is not appropriate to deal with the question on a hypothetical basis because, as the Commonwealth submitted, there would need to be a “sufficient nexus between s 51(xxxi) invalidity and the existence of native title rights and interests in order to give any meaning to the words, “but it would have been valid to the extent if the native title did not exist”, within s 228(2)(b) of the Native Title Act. The applicants’ submissions did not undermine the cogency of the Commonwealth’s contention that:

…unless the applicants can establish a basis for reg 54 being invalid by reason of a contravention of s 51(xxxi) that arises only in respect of the acquisition of native title rights and interests, the result would be that reg 54 was invalid, was not a past act, and not validated.

Associate:

Dated:    20 February 2014

REASONS FOR JUDGMENT

LOGAN J:

78    During the course of the Second World War (it is sufficient in this case to use that term compendiously to describe the several states of war in which Australia progressively became engaged on and from 3 September 1939), the need of the Commonwealth and its allies for land within Australia for the Defence of the Realm and for other activities associated with the prosecution of that war far exceeded the land already in the possession or control of the Commonwealth. That such a need would exist was recognised by the Commonwealth Parliament from the earliest days of that conflict by the provision in s 5(1)(b) of the National Security Act 1939 (Cth) (National Security Act) for the making of regulations under that Act authorising the taking of possession or control, on behalf of the Commonwealth, of any property or undertaking. Pursuant to that Act, the Governor-General in Council made the National Security (General) Regulations (the National Security Regulations). Regulation 54 of those regulations made provision for the taking possession of land on behalf of the Commonwealth. Pursuant to those regulations, the Commonwealth took possession of extensive areas of land throughout Australia.

79    A lifetime after the conclusion of the Second World War, a controversy has arisen as to whether the taking possession of land by the Commonwealth under reg 54 extinguished native title in respect of that land. The controversy is pervasive. It has come to intrude upon the resolution of many native title applications in Queensland and elsewhere in Australia. In light of this, I was persuaded that a case should be stated pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) for the consideration of the Full Court. As r 38.01 of the Federal Court Rules 2011 requires, the case so stated takes the form of a special case.

80    The particular application under the Native Title Act 1993 (Cth) (Native Title Act) which commended itself as a vehicle for the stating of a case was an application by Mr Tom Congo and others on behalf of the Bar-Barrum People (Bar-Barrum People #4 claim) for a determination of native title in respect of certain land on the Atherton Tableland in Far North Queensland. Extensive portions of the land the subject of the Bar Barrum #4 claim were, during the Second World War, the subject of five successive orders (military orders) made by a delegate of the Minister for the Army under reg 54 of the National Security Regulations. It is those portions of land and the claim to native title in respect of them with which this case is concerned.

81    The questions which arise for consideration in the special case are these:

Question 1

Did the Military Orders made under the National Security Regulations purport to effect an acquisition of the property of the Bar Barrum People otherwise than on just terms contrary to s 51(xxxi) of the Constitution?

Question 2

If the answer to question 1 is “yes”:

a)    were the National Security Regulations (insofar as they authorised or purported to authorise the making of the Military Orders) and the Military Orders, and/or being in physical occupation of the special case land pursuant to the Military Orders, “past acts” under the Native Title Act?

b)    and, if so, were they validated under the Native Title Act?

Question 3

Did the act of the Commonwealth in:

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

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

82    The first of the military orders was made on 20 December 1943, the last on 1 June 1945. Over the period when the orders were made, reg 54 of the National Security Regulations provided:

(1)    If it appears to the Minister for State for the Army to be necessary or expedient so to do in the interests of the public safety, the defence of the commonwealth or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, he may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land.

(2)    While any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation, the land may, notwithstanding any restriction imposed on the use thereof (whether by law or otherwise), be used by, or under the authority of, that Minister for such purpose, and in such manner, as he thinks expedient in the interests of the public safety or the defence of the Commonwealth, or for maintaining supplies and services essential to the life of the community; and that Minister, so far as appears to him to be necessary or expedient in connexion with the taking of possession or use of the land in pursuance of this sub-regulation –

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

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

(3)    The owner or occupier of any land shall, if requested by the Minister of State for the Army or a person thereto authorized by him so to do, furnish to that Minister or such person as is specified in the request such information in his possession relating to the land (being information which reasonably may be demanded in connexion with the execution of this regulation) as is so specified.

83    About half a century would elapse between when these orders were made and when the High Court, by majority, concluded in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2) that the common law of Australia recognised native title. Had the question of whether there was any such recognition arisen during the Second World War, it may well have been answered differently to Mabo No 2: Attorney-General v Brown (1847) 1 Legge 312 at 316; Cooper v Stuart (1889) 14 App Cas 286 at 291. That is as may be. The question did not then arise. As in Western Australia v The Commonwealth (1995) 183 CLR 373 (the Native Title Case), the “true inference” to draw, if not the certain fact, is that each of these military orders and the National Security Regulations and National Security Act which at least purportedly authorised them ignored native tile in general and the existence or otherwise of the native title rights and interests asserted in the Bar-Barrum People #4 claim in particular because then, too, “there was a common opinion (which Mabo No 2 holds to be erroneous) that the Aborigines had no legal interest in land”: Native Title Case at 432. If the military orders were valid when made and were effective to extinguish the native title rights and interests asserted in the Bar-Barrum People #4 claim, those orders and their extinguishing effect will be unaffected by the Native Title Act.

84    The orders took a standard form. Materially, the delegate recited in each order that:

I, acting in pursuance of [reg 54 and the instrument of delegation], DO HEREBY on behalf of the Commonwealth, TAKE POSSESSION of the [land specified in the Schedule to the order] AND DO HEREBY ORDER AND DIRECT as follows:

1.    I direct that the Deputy Assistant Quartermaster General Number 17 Lines of communication Sub Area or any person or persons authorised by him occupy the said land and in so doing and as far as is practicable use the existing means of access to the said land and if necessary cause to be removed therefrom all personal property not the property of the persons occupying the said land in pursuance of this order and not required for Commonwealth purposes.

2.    I authorise the person or persons specified in Paragraph 1 hereof to do in relation to the said land anything which any person having an unencumbered interest in fee simple in the said land would be entitled to do by virtue of that interest.

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

4.    Should the said land be the subject of any previous order such order is cancelled so far as it affects the land.

85    Notwithstanding the express terms of the military orders, which were in a standard form and, inferentially, one thought sufficient for the stated purpose by those advising the Commonwealth during the Second World War, the Commonwealth submitted that it did not by these orders take possession of the land concerned, possession only occurring as, when and to the extent it entered into physical occupancy of the land. It is neither necessary nor even appropriate to explore the occasion for this change of position, only to record that the present view should not be accepted. Indeed, there is, with all due respect, an inherent tension between this submission and the Commonwealth’s submission that the orders were valid (albeit that they did not, so the Commonwealth was submitted, extinguish native title).

86    There is nothing in reg 54 which requires that the land concerned by occupied physically before possession can be said to have been taken be the Commonwealth. There is an indication in the regulation that possession may be effected by order alone: reg 54(2) commences, “While any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation” (emphasis added). Sub-regulation 54(1) prescribes no special method or means for taking possession, which of itself admits of the taking of possession by order in writing. That this is permissible is confirmed by reg 54(2). When read in conjunction with the discretionary power at the conclusion of reg 54(1) which follows “take possession of any land”, “and may give such directions as appear to him to be necessary or expedient in connection with the taking of possession of the land”, what emerges is an ability to take possession of land by an order in writing (a “direction” of the kind referred to in reg 54(2)) and, at the time of taking possession by that order, give, if thought fit, ancillary directions “in connection with the taking of possession of the land” pursuant to the power conferred by reg 54(1). That is exactly what the Minister’s delegate did in this case in the military orders.

87    Acceptance of the Commonwealth’s presently preferred construction would lead to inconvenient, if not absurd, results. It is the Minister or his delegates who must by the regulation take possession of the land concerned. A delegation of the powers in reg 54 to all members of the 2nd AIF and of the Australian Military Forces seems unlikely. No less unlikely is a construction which would consign to the Minister for the Army, or such senior officers as one might apprehend, would be (and was in this case) delegates, the role of physically occupying for a moment each and every portion of land throughout the length and breadth of Australia needed by the Commonwealth for defence purposes so as to “take possession” of that land. Perhaps there would be scope for an application of the principle discussed in Carltona v Commissioner of Works [1943] 2 All ER 560 at 562–563, whereby authorised officers of a delegate undertook physical occupation but in a force as large, complex and organisationally fluctuating as the Australian Army during the Second World War, even keeping current positional authorisations would present formidable difficulties. This aside, of exactly what land the Commonwealth was or was not in possession as a result of physical occupation would ever fluctuate and also present formidable difficulties in accurate delineation.

88    Yet further, range safety templates for small arms can entail a need for prohibition of access to a large swath of land which might never be physically occupied by the Minister, a delegate or any other officer of the Commonwealth but which is nonetheless “used” by the Commonwealth (“used” in the sense discussed by Williams and Taylor JJ, Webb J agreeing with each, in their separate judgments in Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493); and a fortiori so with range safety templates for heavy weapons, artillery and the main armament of armoured vehicles.

89    The Commonwealth’s submission as to the construction of reg 54 conflates, in a way which the National Security Regulations do not, two separate events, the taking of possession of land, which may be undertaken under that regulation by written order and the subsequent occupation of the land of which possession has been taken.

90    In authorising the doing in relation to the land concerned “anything which any person having an unencumbered interest in fee simple in the said land would be entitled to do by virtue of that interest” and, while the land remained in the possession of the Commonwealth, forbidding any person to exercise “any right of way over the land or any other right relating thereto, whether by way of an interest in land or otherwise” the form of the military orders in question was identical to the order, also made under reg 54 of the National Security Regulations, which was the subject of consideration by the High Court in Minister of State for the Army v Dalziel (1944) 68 CLR 261 (Dalziel).

91    A number of propositions, each of which binds this Court, flow from Dalziel:

(a)    Within s 5(1)(b) of the National Security Act and in relation to the application of s 51(xxxi) of The Constitution, a false dichotomy is posited as between the legislative authority in s 5(1)(b)(i) to make regulations in respect of the taking of possession or control of land by the Commonwealth and that in s 5(1)(b)(ii) in respect of the acquisition of property other than land. So far as the grant of legislative power to the Commonwealth Parliament in s 51(xxxi) of The Constitution to make laws with respect to, “the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws” is concerned, a law authorising the taking of possession or control of land by the Commonwealth can be, and reg 54 of the National Security Regulations was, a law with respect to the acquisition of property.

(b)    As with the word “acquisition”, what amounts to “property” for the purposes of s 51(xxxi) is not, having regard to the “just terms” qualification, to be approached narrowly.

(c)    Reg 60H of the National Security Regulations, which purported to make a Ministerially determined provision for what constituted compensation on just terms binding both on the Compensation Boards (Board) established by those regulations and on a court reviewing on the merits a compensation decision of a Board, contravenes s 51(xxxi) of The Constitution and is invalid. That regulation is severable and there remains in the National Security Regulations a scheme for the determination of compensation on just terms for an acquisition of property effected under those regulations such that the taking of possession or control by an order made under reg 54 is valid.

(d)    The Commonwealth’s rights created by a reg 54 order in the terms of the order made in Dalziel (and thus also in this case) were proprietary in nature: at 285-286 per Rich J; at 289-290 per Starke J and at 305 per Williams J.

(e)    No question as to whether “physical occupation” was necessary in order for the Commonwealth to take possession of land under arose in Dalziel and none of the judges otherwise considered it.

92    The second of these propositions has been underscored by more recent authority. The requirement in s 51 (xxxi) that laws with respect to the acquisition of property provide for acquisition on just terms has the status of a constitutional guarantee and its construction is for this reason to be approached liberally: see, for example, Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201-202 and Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 509.

93    As was correctly highlighted by the State of Queensland (the State) in its submissions, question 1 in the case stated contains within it, on analysis, a number of separate issues – “Were the native title rights and interests claimed, ‘property’?”; “Were they ‘acquired’?”; and, “Was such acquisition of property ‘on just terms’?”.

94    The native title rights and interests claimed by the Bar-Barrum People are set out in paragraph 41 of the special case. They are rights and interests over the land concerned to:

a)    access, be present on, move about on and travel over the area;

b)    camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

c)    hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

d)    take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

e)    take and use the Water of the area for personal, domestic and non-commercial communal purposes;

f)    conduct ceremonies on the area;

g)    be buried and bury native title holders within the area;

h)    maintain places of importance and areas of significant to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;

i)    teach on the area the physical and spiritual attributes of the area;

j)    hold meetings on the area; and

k)    light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.

95    It is common ground that, save for any extinguishing effect of the military orders, these rights are held by the Bar-Barrum People and are “at least” non-exclusive. One of the effects of the military orders was the subsequent use of the land by the Army, principally for pre-deployment training. We are not concerned to answer in this case whether, apart from the effect in law of the military orders with respect to native title, some particular, subsequent, consequential use in fact of the particular land extinguished native title, for example, by severing any connection of the Bar-Barrum People with the land.

96    Each of the native title rights and interests claimed is of a usufructory nature. One of them, the right to maintain places of importance and areas of significance (paragraph 41 (h) of the special case) is more than just a usufruct as it additionally includes a right to “protect those places from physical harm”. The nature of the rights claimed in this case highlights a danger about the term “native title” which is, via the presence of the word, “title”, to tempt one to classify rights claimed under the Native Title Act by reference to a “common lawyer’s one dimensional view of property”: Western Australia v Ward (2002) 213 CLR 1 at [95] (Ward). That is a temptation to be resisted: Ward (ibid). What is claimed by the Bar-Barrum People is a bundle of rights possessed under their traditional laws and customs but there are a number of particular rights which constitute that bundle. Those rights are recognised by the common law and, unless validly extinguished, are capable of being claimed under the Native Title Act but they are not creations of the common law.

97    Some of the asserted rights, for example, the right to teach on the claimed area the physical and spiritual attributes of that area (paragraph 41(i) of the special case) and the right to light fires on the land for domestic purposes (paragraph 41(k) of the special case), viewed individually, look to be personal rather than proprietary. The State submitted as much. Yet an absence of a proprietary content is less obvious in relation to other rights such as the right to camp (paragraph 41(b) of the special case), the right to take and use natural resources from the land and waters for personal, domestic and non-commercial purposes (paragraph 41(d) of the special case) and the right to take and use the water for such purposes (paragraph 41(e) of the special case). Further, the very nature of the rights described in paragraph 41 of the special case inferentially bespeaks an inter-relationship between some at least of them. For example, the right to light fires for cooking, said by the State to be personal, is inferentially related to the right to camp and at least a sequel to the right to hunt if not also related to other claimed rights. In turn, the right to camp and the right to hunt and to take water are inferentially inter-related.

98    Yet further, the rights concerned are stated to be “at least” non-exclusive. To the extent that there is any exclusivity, that feature would tend in favour of classifying a native title right as proprietary. Absence of exclusivity is relevant to but not in itself adversely determinative of whether the rights claimed are proprietary. The same applies in relation to an absence of ability to alienate, which might be thought to tend against the rights being proprietary but the risk in such thinking is, again, to import common law notions of property, to the exclusion of appreciating that these rights are communally held and pass in communal succession in accordance with the laws and customs of the Bar-Barrum People.

99    Bearing in mind the liberal construction to be given to the word “property” in s 51(xxxi), I am inclined to hold that the rights claimed by the Bar-Barrum People are “property” for the purposes of that provision in The Constitution. It is not necessary though finally to determine that issue in order to answer any of the questions in this case. That is because even if, as I do, I make the assumption, warranted for the reasons given, that the rights claimed are proprietary, they were, for the reasons which follow, just extinguished by the military orders, not acquired. Those reasons substantially accord with a submission made both by the State and, intervening, by the Northern Territory.

100    The starting point for my conclusion that the military orders extinguished native title is supplied by observations made by Gummow J in Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513 at 613 (Newcrest Mining) in rejecting a submission by the Commonwealth and the Director of Parks and Wildlife that Teori Tau v The Commonwealth (1969) 119 CLR 564 (Teori Tau) should not be reopened because so to do might have the consequence of invalidating all freehold and leasehold grants in the Northern Territory since 1911. Teori Tau was a case originating from Papua New Guinea, then an external territory of the Commonwealth. In it a Full Court of the High Court, constituted by all seven judges of the court, had held, unanimously, that the Commonwealth Parliament’s power in s 122 of The Constitution to make laws for the government of any territory was not qualified by the requirement found in s 51(xxxi) that a law for the acquisition of property be on just terms. In the result, that conclusion was disapproved by Gaudron, Gummow and Kirby JJ in Newcrest Mining.

101    The observation made by Gummow J in Newcrest Mining in rejecting the submission against re-opening was this:

The Commonwealth and the Director contended that the application of s 51 (xxxi) to reduce the content of the legislative power conferred by s 122 "would potentially invalidate every grant of freehold or leasehold title granted by the Commonwealth in the [Territory] since 1911 to the extent to which any such grant may be inconsistent with the continued existence of native title as recognised at common law".

Such apprehensions are not well founded. The characteristics of native title as recognised at common law include an inherent susceptibility to extinguishment or defeasance by the grant of freehold or of some lesser estate which is inconsistent with native title rights; this is so whether the grant be supported by the prerogative or by legislation.

Secondly, legislation such as that considered in Mabo v Queensland and Western Australia v The Commonwealth (Native Title Act Case), which is otherwise within power but is directed to the extinguishment of what otherwise would continue as surviving native title (or which creates a "circuitous device" to acquire indirectly the substance of that title), may attract the operation of s 51 (xxxi). However, no legislation of that character, with an operation in the Territory, was pointed to in the submissions in this case.

[Footnote references omitted]

102    I agree with the Northern Territory’s submission that this observation by Gummow J reflects the characteristics of native title as recognised by the common law as stated by Mason CJ and McHugh J in Mabo No 2 (at 15):

The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown.

103    As the Northern Territory’s submission acknowledged, this statement was not made with reference to s 51(xxxi) but the understanding that a valid extinguishment by inconsistent grant is not compensable is underpinned by like policy considerations to those which underpin that constitutional guarantee.

104    The Northern Territory also drew attention to the position in the United States, where the “Takings Clause” at the conclusion of the Fifth Amendment to the United States Constitution (“nor shall private property be taken for public use, without just compensation”) has been held not to entitle Indians compensation for extinguishment of native title by the United States with entitlement to compensation being dependent upon Congressional authority for the making of a payment: The Tee-Hit-Ton Indians v United States 348 U.S. 272 (1955). The similarity of qualifying language – “just compensation” and “just terms” – as between the Takings Clause and s 51(xxxi) is hardly coincidental but an express power of acquisition is not to be found in the United States Constitution, a right of “eminent domain” instead in that country being regarded as an incident of the power of Congress to make all laws necessary and proper for the carrying into execution of its legislative powers (Art I, s 8, subs 18, United States Constitution). The reason for the express conferral of an acquisition power in the Australian Constitution is referable to an apprehension at the time of Federation that the newly established Commonwealth was not a fully sovereign state and thus so as to remove doubt as to whether s 51(xxxix) of The Constitution provided sufficient legislative authority for the making by the Commonwealth Parliament of a law providing for the acquisition of property by the Commonwealth: Quick J and Garran R, The Annotated Constitution of the Australian Commonwealth (Sydney Legal Books, 1976), p 641; see also Dalziel at 291 per Starke J and Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 289-291, 294 per Dixon J. That different constitutional heritage and a different history as between the United States dealings with its indigenous peoples and governments of the United Kingdom and the then Australian colonies in relations with indigenous peoples inclines me against placing any determinative weight on what the Northern Territory submitted to be and what I acknowledge is a consistent position between the Takings Clause in the United States and the position described by Mason CJ and McHugh J in the passage quoted from Mabo No 2.

105    In Newcrest Mining, the agreement expressed by Kirby J (at 651) with the reasons of Gummow J was not qualified in any presently material way. Of the other judges constituting the majority in Newcrest Mining, Gaudron J (at 561) expressed general agreement with the reasons for judgement of Gummow J, adding separate additional reasons why she considered that s 51(xxxi) of The Constitution operated in respect of laws made under s 122. That agreement might, with respect, be thought to be at odds with the statement made by Deane and Gaudron JJ in their joint judgement in Mabo No 2 (at 111) that “any legislative extinguishment of those rights would constitute an expropriation of property, to the benefit of the underlying estate, for the purposes of s 51 (xxxi)”. But the legislation and subordinate legislation grounding these military orders were neither directed to the extinguishment of native title nor a “circuitous device” to acquire indirectly the substance of native title. Any extinguishment was merely a consequence of wartime measures of a general nature and the inherent fragility of native title to extinguishment by inconsistent sovereign acts in the exercise of legislative or executive power. Any such extinguishment was, to use the parlance of modern conflict, a form of “collateral damage” - “unintended destruction or injury in a military operation” (Macquarie Dictionary, Online Edition).

106    Toohey J (at 560-561) expressed agreement with the agreement of Gaudron J with Gummow J, subject to a reservation that it was not necessary in the circumstances to over-rule Teori Tau, because the legislation in question could be characterised as made pursuant to a power for which the Parliament had power to make laws under s 51 of The Constitution – “It will only be if a law can be truly characterised as a law for the government of a Territory, not in any way answering the description in par (xxxi), that Teori Tau will constitute such an obstacle.”

107    The fragility of native title rights at common law and their vulnerability to extinguishment by inconsistent sovereign acts has been remarked upon in many cases apart from Newcrest Mining: Mabo No 2 at 63 per Brennan J; Wik Peoples v Queensland (1996) 187 CLR 1 at 84-85 per Brennan CJ; Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96 at [105] – [108] per Kirby J; Yanner v Eaton (1999) 201 CLR 351 at [35] per Gleeson CJ, Gaudron, Kirby and Hayne JJ; The Commonwealth v Yarmirr (2001) 208 CLR 1 at [47] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Ward at [665] per Callinan J. It is in the addressing of that very fragility and vulnerability that is found the purpose of s 11(1) of the Native Title Act, which provides that native title is not able to be extinguished contrary to that Act.

108    The authorisation given by the Minister’s delegate in the military orders to those occupying the land pursuant to the possession taken by the orders was “to do in relation to the said land anything which any person having an unencumbered interest in fee simple in the said land would be entitled to do by virtue of that interest”. That was in addition to the authority conferred by reg 54(2) itself upon the land coming into the possession of the Commonwealth, which was “notwithstanding any restriction imposed on the use thereof (whether by law or otherwise)” to use the land “for such purpose, and in such manner, as he thinks expedient in the interests of public safety or the defence of the Commonwealth, or for maintaining supplies and services essential to the life of the community”. Each of these rights enjoyed by the Commonwealth, either alone or in conjunction with the direction in those orders that, “While the said land remains in the possession of the Commonwealth, no person shall exercise any right of way over the land or any other right relating thereto, whether by way of an interest in land or otherwise” was inconsistent with each of the rights claimed by the Bar-Barrum People. In the face of a sovereign act having these features, there is nothing in any of the rights claimed by the Bar-Barrum People which survives after comparison with those conferred by reg 54(2) and the terms of the military orders.

109    The reference in the military orders to “an unencumbered interest in fee simple in the said land” is to be understood as a reference to such an estate under the general law of real property. When regard is had to the subject matter, scope and purpose of the National Security Act and reg 54(2) of the National Security Regulations, the ability to take possession of land, “where it appears necessary or expedient so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community” presages a range of uses of the land from the mundane to the dramatic, violent and dangerous, completely foreign to civilian experience and fundamentally at odds with the continuance of any of the rights claimed by the rights claimed by the Bar-Barrum People. In each of the military orders, the delegate recited just such necessity or expediency as to the occasion for the making of the orders. The incidents of the proprietary right taken by the Commonwealth pursuant to these orders were truly sweeping.

110    As Hayne, Kiefel and Bell JJ, referring to Ward at [78], recently reminded in Akiba v The Commonwealth (2013) 87 ALJR 916 at [62] (Akiba):

The relevant question is one of inconsistency, and that is an objective inquiry. The "subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant”.

Here, objectively, the comprehensive rights enjoyed by the Commonwealth in respect of the land by virtue of reg 54(2) and the terms of the military orders were inconsistent with any continued enjoyment of any of the rights claimed by the Bar-Barrum People. For example, I find it impossible to see how a right to protect places from physical harm can be regarded as consistent with a right, without let or hindrance from the world at large, freely to use that same land as an impact zone for high explosive shells or mortar bombs (or both) in the course of, for example, a regimental or divisional or corps artillery range shoot, a battalion mortar platoon range practice or a live fire exercise.

111    By way of more pervasive example, nothing could be more stark than the complete conflict between the Minister’s delegate’s direction that, “no person shall exercise any right of way over the land or any other right relating thereto” and each of the rights claimed by the Bar-Barrum People. That direction was destructive of the native title rights claimed, not regulatory. This case does not present difficulties of discernment as to whether regulation has “shaded into prohibition” in relation to native title: Akiba at [64]. These military orders and the authority conferred by reg 54(2) eclipsed native title rights and interests in respect of the land concerned. And after the eclipse had passed, none remained.

112    So far as extinguishment is concerned, there is no relevant distinction to be drawn between a grant, such as a grant of an estate in fee simple or a leasehold estate giving exclusive possession and the taking of possession by the Commonwealth of the land pursuant to the military orders. Each is a sovereign act. In this regard, it does not matter that these orders and the laws authorising their making were Federal rather than those of the State in which the land was situated (with the Crown in right of that State being the ultimate owner of the land). That does not detract from the character of the military orders as sovereign acts inconsistent with the continued existence of any of the native title rights claimed.

113    It was submitted though that these particular sovereign acts merely “suspended” for the duration of the military orders the interests which otherwise existed in or in relation to the land. In support of this submission reference was made to Dalziel and, in particular, to the statement by Williams J (at 301) that:

It is true that the entry into possession by the Commonwealth does not determine any estate or interest in the land, so that in the present case the Bank of New South Wales continues to be the owner of the land in fee simple and the respondent continues to be a tenant of the Bank of New South Wales from week to week, but the rights of the bank and of the respondent only continue to exist subject to the statutory right of the Commonwealth to take possession of the land and to use it for the purpose authorized by the regulation.

What this submission ignores is that neither the Bank’s estate in fee simple nor Mr Dalziel’s tenancy had about them the fragility, vulnerability and susceptibility to extinguishment which was an incident of the common law recognition of the native title rights claimed by the Bar-Barrum People: see Mabo No 2 at 64 per Brennan J.

114    It is nothing to the point that, at the time the military orders were made, s 19 of the National Security Act limited the operation of that Act (and thus the military orders) to “a date to be fixed by Proclamation, and no longer, but in any event not longer than six months after His Majesty ceased to be engaged in war”. When made, the military orders were each of indefinite duration, proprietary in character and, as already observed, comprehensive in the rights they conferred on the Commonwealth. Given these features, there is no material distinction to be drawn between these military orders and those leases for a term of years which by inconsistency extinguish native title: Ward at [80].

115    There is nothing on the face of the National Security Act, the National Security Regulations or the military orders which manifests any intention to preserve any native title right at all, let alone those claimed by the Bar-Barrum People. Nor could there be any such implication, given the then ignorance of its recognition in law and the purpose for which possession was authorised and taken and the time at which it was taken. The manifest purpose was that the Commonwealth have an unfettered and exclusive possession of the land for defence purposes of an indefinite duration.

116    In short then, there was no acquisition, just an extinguishment of each of the native title rights and interests claimed by the Bar-Barrum People.

117    Even if, contrary to this conclusion, the military orders did effect an acquisition for the purposes of s 51(xxxi), that acquisition was on “just terms”.

118    At the time when these military orders were made, the National Security Regulations had been amended so as to provide for a compensation regime which, allowing for the impact of Dalziel with respect to reg 60H, had, materially, the following features:

(a)    a right to apply, initially to the Minister, for compensation resulting from the taking of possession of land by the Commonwealth under reg 54 – reg 60D;

(b)    in the event of dissatisfaction with the amount, if any, of Ministerially determined compensation, a right to have compensation assessed by a Compensation Board – reg 60E;

(c)    in the event of dissatisfaction with the amount, if any, of compensation determined by a Compensation Board, a right to have compensation determined on review by a court of competent jurisdiction in the exercise of federal jurisdiction – reg 60G(1);

(d)    in the exercise of that review jurisdiction, the court’s remit was to “determine whether any compensation is payable and, if so, the compensation which it thinks just” (a true hearing de novo with a broad power to award just compensation in the circumstances of a particular case, taking in account the value to the person concerned of the property acquired) and to order payment accordingly – reg 60G(5) and Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 (Parbury Henty & Co);

(e)    an unfettered discretionary power to award costs was conferred on the court exercising the compensation determination jurisdiction – reg 60G(6);

(f)    insofar as the National Security Regulations did not themselves provide for matters of practice and procedure in respect of review by such a court, the court’s practice and procedure was to be the court’s usual practice and procedure in appeals – reg 60G(7);

(g)    an ability to appeal to a State Full Court, in the exercise of federal jurisdiction, against a judgement of a court reviewing a Compensation Board’s decision: Parbury Henty & Co.

119    By reg 60D(1), the right to seek compensation pursuant to this regime was granted to, materially, “any person who has suffered or suffers loss or damage by reason of anything done” in pursuance of reg 54 or any order made under that regulation in relation to “any property in which he has, or has had, any legal interest, or in respect of which he has, or has had, any legal right”. The right so granted was sufficiently broad to confer upon a representative of the Bar-Barrum People a right to claim on their behalf compensation in respect of any acquisition by the military orders of the native title rights claimed. The jurisdiction for a court to determine “the compensation which it thinks just” was sufficiently broad to permit the determination of just compensation in respect of any acquisition of any of the native title rights claimed by the Bar-Barrum People. The Bar-Barrum People were governed by the same scheme for acquisition and compensation as everyone else. In this regard, the following observation by Dixon J in Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290 with respect to the approach to determining whether or not a law is compliant with the grant of legislative power in s 51(xxxi) is applicable:

The legislative power given by s. 51 (xxxi.) is to make laws with respect to a compound conception, namely, "acquisition-on-just-terms." "Just terms" doubtless forms a part of the definition of the subject matter, and in that sense amounts to a condition which the law must satisfy. But the question for the Court when validity is in issue is whether the legislation answers the description of a law with respect to acquisition upon just terms. … Under that paragraph the validity of any general law cannot, I think, be tested by inquiring whether it will be certain to operate in every individual case to place the owner in a situation in which in all respects he will be as well off as if the acquisition had not taken place. The inquiry rather must be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property, fair and just as between him and the government of the country. I say "the individual" because what is just as between the Commonwealth and a State, two Governments, may depend on special considerations not applicable to an individual.

[Emphasis added]

What remained after Dalziel was a “true attempt to provide fair and just standards of compensating”.

120    It was submitted on behalf of the Bar-Barrum People that the time limits in the compensation regime were so short as not to make provision for compensation on just terms. A difficulty with this submission is that it is contrary to authority. A note of Noble and Bear v The Commonwealth (1943) 17 ALJ 184 at 185 (Noble and Bear) (a case decided prior to, not, as the Commonwealth submitted, after Dalziel) records that Starke J concluded that “the compensation provisions appeared to him to be just and fair”. The note does not reveal whether his Honour elaborated upon that conclusion but, the proceedings before his Honour being interlocutory, I infer that he did not. Further, it is to be recalled that Starke J was, with Latham CJ, in dissent in Dalziel as to the invalidity of reg 60H. I would therefore readily concede that the weight to be given to Noble and Bear is slight. The same cannot be said in respect of Schweppes Ltd v The Commonwealth (1944) 45 SR (NSW) 35 (Schweppes Ltd), which was decided after Dalziel. In Schweppes Ltd, each of the judges constituting the Full Court considered that, though in Dalziel the validity of regs 60D to 60G had not expressly been addressed by the High Court, because no challenge was made, the questions raised in the case could not have been decided and an order of remitter of the case could not have been made in the absence of a conclusion that the scheme for compensation was valid: at 40 per Jordan CJ, at 42 per Davidson J and at 43 per Halse Rogers J. I respectfully agree.

121    It is true that in Re Fish Steam Laundry Pty Ltd [1945] St R Qd 96 Philp J (Fish Steam Laundry) concluded (at 100) that the time limits in reg 60D were “manifestly unjust” and that he found it “difficult to see how they could be severed from the rest of the regulations” but he allowed that “they may be severable under federal law” and notwithstanding “qualms” about his jurisdiction, proceeded to assess compensation. It is not apparent from the report of this case, which includes a comprehensive summary of argument, that Philp J was referred either by the applicant or by the Commonwealth to Schweppes Ltd, nor is that case mentioned in his Honour’s reasons for judgement. Being a decision of an intermediate appellate court in a matter of federal jurisdiction, Schweppes Ltd ought to have been followed by his Honour, had he been aware of it, unless he was convinced that it was clearly wrong.

122    Later in time is Minister of State for Interior v Brisbane Amateur Club (1949) 80 CLR 123 at 161 in which there is an observation made by Dixon J which, as reported, is in these terms, “I am not prepared to say that a limitation of two months is just, so as to be inconsistent with s 51(xxxi) of the Constitution. It is a very brief time.” (emphasis added). There may, with great respect, be an omitted negative in this observation, as there apparently is from his Honour’s further statement (ibid), “I think that the Commonwealth is in a position to rely on the limitation as an objection to the claim.”, which is contrary to his later conclusion (ibid) that, “I think that the Commonwealth is precluded upon the facts from saying that further time was not allowed.” Be this as it may, the point is that Dixon J expressed no concluded view as to whether the time limits were so brief that the scheme of compensation did not, in contravention of s 51(xxxi), provide for acquisition of property on just terms. This apart, both his Honour (at 153-154) and Latham CJ at 147 construed reg 60D such that, where there was continuing interference, the two month time limit did not begin to run until the cessation of the interference with the land occasioned by the Commonwealth’s taking of possession of it. The construction adopted by Philp J in Fish Steam Laundry (at 100) as to from when the time limit might run is at odds with this construction. I prefer that adopted by Latham CJ and Dixon J, for the reasons which they give.

123    The time limits in reg 60D are not immutable but may be extended by Ministerial discretion. Any exercise of that discretion would necessarily have to be informed by the constitutional limits of the acquisitions power conferred by s 51(xxxi): Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 613-614; Wotton v Queensland (2012) 246 CLR 1 at [9]-[10] and [21]. The Minister would be obliged to exercise his discretion to extend time within the limits of a constitutional requirement that the scheme was valid only if it provided for an acquisition of property on just terms. The statement by Philp J in Fish Steam Laundry (at 100) that, after the expiry of the time limit the individual was “left to the mercy of the Minister” does not acknowledge that the Minister is not permitted constitutionally to strain the quality of his mercy.

124    This apart, there is a balance to be struck when determining whether the scheme for acquisition and compensation is “just” between the imperatives of national defence during a time of pervasive international conflict entailing, so it was thought at the time, a prospect of invasion and what will amount to an arbitrary acquisition of property without any fair right to compensation. Those imperatives in this case included unit and formation level pre-deployment training. The constitutional guarantee in s 51(xxxi) is applicable in both peace and war, but it does not follow that what might be regarded as unjust in peace should be so regarded in the course of a conflict such as the Second World War. Even if I were disposed to depart from Schweppes Ltd, and I am not, I do not consider that, the compensation scheme in regs 60D to 60G did not provide for compensation on just terms.

125    Even if that scheme were invalid, that would, as the State submitted, leave in place its predecessor in the National Security Regulations, that in the former reg 54(4), which provided:

Such compensation shall be payable for any damage or loss sustained by the owner or occupier of the land by reason of the taking of possession of the land, or of anything done in relation to the land in pursuance of this regulation, as is determined by agreement, or in the absence of agreement, by action by the claimant against the Minister in any court of competent jurisdiction.

This former regulation created a broad compensatory charter with compensation being finally determined, if desired by the person concerned, by an exercise of the judicial, not executive, power of the Commonwealth. Brief though its expression was, the terms of that earlier charter were just. I am not persuaded that the State’s further submission as to an absence of time limits for the bringing in a court of competent jurisdiction of an application for compensation under the former reg 54(4) is correct. No time limit is there specified but all that means is that one must look to s 64 or s 79 of the Judiciary Act 1903 (Cth), which would operate so as to pick up any applicable State limitation period. In Queensland, the applicable period would then have been that applicable to an action on the case namely, six years from the occurrence of the loss or damage (here the extinguishment of the native title rights in relation to land by the making of the initial military order in respect of that land): see s 16 of the Statute of Frauds and Limitations 1867 (Qld) (repealed) and the discussion by Real J in Cooper v Municipality of Brisbane (1900) 10 QLJ 120 at 122-123 of a comparable compensation jurisdiction conferred under local government legislation. Such a limitation period coupled with the broad compensatory charter given to a court of competent jurisdiction by the former reg 54(4) provided for “just terms” for the purposes of s 51(xxxi). It is nothing to the point that the limitation period has long since expired.

126    Given the conclusions which I have reached above, it is not necessary to answer Question 2. Nonetheless, the question was addressed in argument. I therefore propose to make some observations concerning the issues raised by the question.

127    By s 14 of the Native Title Act it is provided that, if a “past act” is attributable to the Commonwealth, that act, “is valid and is taken always to have been valid”. It is a requirement of the definition of “past act” in s 228(2)(b) of the Native Title Act that the act would have been valid if native title did not exist.

128    In Haskins v The Commonwealth (2011) 244 CLR 22 at [45] (Haskins) French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ drew attention to a dictum of Field J in Norton v Shelby County (1886) 118 US 425 at 442 (and to an extra-judicial statement to like effect by Sir Owen Dixon) in relation to the consequence of acts infringing the constitution:

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.

Their Honours left open (ibid), as unnecessary to decide in the circumstances of that case, whether any exception should be made to the principle described in that dictum. Section 18 of the Native Title Act, at least purportedly, seeks to address invalidity resulting from the operation of s 51(xxxi) by making provision for the payment of just terms compensation by the Commonwealth. It provides:

18 Where just terms invalidity

Section applies if acquisition of property other than on just terms

(1)    This section applies if the invalidity (disregarding section 14) of a past act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.

Entitlement to compensation

(2)    The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.

Having regard to s 14, s 228 and s 18 of the Native Title Act, the Commonwealth submitted that, as a matter of broad principle, invalidity arising from a contravention of s 51(xxxi) is not precluded from being a past act within the meaning of s 228. Reading these sections together, I agree but a difficulty in accepting the submission and the occasion for my use of the “at least purportedly” qualification arises from an observation made by Brennan CJ (who would not have reopened Teori Tau) in Newcrest Mining at 545:

No validation of such a transaction could be effected by a retrospective payment of compensation; the legal consequence of any invalidity would simply be that the grant or transfer must be taken never to have occurred.

The latter part of his Honour’s observation accords with the dictum of Field J cited in Haskins. If the former part of the observation is correct, and so far as applicable to past acts attributable to the Commonwealth, the efficacy of the validation regime in the Native Title Act would not be secured by the retrospective payment of compensation for which s 18 provides.

129    There are other difficulties about the language employed in the Native Title Act which may present themselves if s 51(xxxi) did render reg 54 and hence the military orders made under it invalid. These would depend on the basis for the s 51(xxxi) invalidity. They arise from the qualification in s 228(2)(b) of the Native Title Act, “but it would have been valid to that extent if the native title did not exist”. Were the reg 54 invalidity the result of unfair and not severable time limits in reg 60D, the military orders would be invalid, but they would not be past acts unless it was able to be concluded that they would have been valid if native title had not existed. It is difficult to see how in the posited circumstance the existence or otherwise of native title would have made any difference so far as s 51(xxxi) validity is concerned. The result would just be that reg 54 was invalid, not a past act and not validated by the Native Title Act. It is not necessary for the reasons given further to explore this subject.

130    In the result, I would answer the questions posed in the special case as follows:

Question 1:    No.

Question 2:    Unnecessary to answer.

Question 3:

(a)    Yes.

(b)    Unnecessary to answer.

Associate:

Dated:    20 February 2014