FEDERAL COURT OF AUSTRALIA

State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371

NATIVE TITLE – Native Title Act 1993 (Cth) – appeals to Full Court – appeals against declarations of invalidity made by primary Judge of determinations made by Commonwealth Minister under s 43 Native Title Act 1993 (Cth) – where Queensland legislation enacted but not yet in force – whether open to Commonwealth Minister to make determination where alternative provisions of State legislation not yet in force – whether pre-condition to making of determination under s 43 that State alternative provisions have commenced operation – whether Commonwealth Minister erred in law or fell into jurisdictional error in making determination where State provisions not yet in force – whether beyond power of Commonwealth Minister to make determination proleptically or with ambulatory operation.

NATIVE TITLE – Native Title Act 1993 (Cth) – cross-appeals from declarations by primary Judge that amendments to Mineral Resources Act 1989 (Qld) not invalid because of failure to satisfy s 24MA Native Title Act 1993 (Cth) or inconsistency with Racial Discrimination Act 1975 (Cth) – cross-appeals from declarations by primary Judge that determinations pursuant to s 26A(1) Native Title Act 1993 (Cth) made by Commonwealth Minister valid and effective in law – whether amendment to Mineral Resources Act 1989 (Qld) placed native title holders in more disadvantageous position than holders of ordinary title – whether amendments invalid as inconsistent with Racial Discrimination Act 1975 (Cth) – whether amendments “future acts” which did not comply with s 24MA Native Title Act 1993 (Cth) and therefore invalid – whether determinations pursuant to s 26A(1) Native Title Act 1993 (Cth) invalid because s 482(1)(e) Mineral Resources Act 1989 (Qld) permitted activities not limited by reference to “particular land or waters concerned” as required by s 26A(3) Native Title Act 1993 (Cth).

Native Title Act 1993 (Cth) ss 7, 4AA, 24AA, 24DA, 24LA, 24MA, 24MD, 24MO, 25, 26, 26A, 43, 227, 228, 233, 253, Part 2 Div 3

Acts Interpretation Act 1901 (Cth) ss 19A, 48(1)

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Federal Court of Australia Act 1976 (Cth) s 21(1)

Racial Discrimination Act 1975 (Cth) s 10

Mineral Resources Act 1989 (Qld) ss 48, 392, 393, 419, 421, 422

Acts Interpretation Act 1954 (Qld) ss 6, 7(1), 14B, 14H, 15, 15A, 17(1), 36

Queensland Constitution Act 1867 (Qld) ss 2, 2A

Land and Resources Tribunal Act 1999 (Qld)

Native Title (Queensland) State Provisions Amendment Act (No. 2) 1998 (Qld)

Native Title (Queensland) State Provisions Amendment Act 1998 (Qld)

Native Title (Queensland) State Provisions Amendment Act 1999 (Qld)

The Constitution (Cth)ss 90, 107, 109, 114, 115, 117

Allan v Transurban City Link Ltd (2001) 183 ALR 380 cited

Attorney-General (Vict.) v The Commonwealth (1945) 71 CLR 237 considered

Australian Securities and Investments Commission v Edensor (2001) 204 CLR 559 cited

Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 cited

Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453 cited

Bugg v DPP [1993] QB 473 cited

Butler v Attorney-General (Victoria) (1961) 106 CLR 268 cited

Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 cited

Commonwealth v District Court of the Metropolitan District (1954) 90 CLR 13 cited

Croxford v Universal Insurance Company Limited [1936] 2 KB 253 distinguished

Fejo v Northern Territory of Australia (1998) 195 CLR 96 cited

Gerhardy v Brown  (1985) 159 CLR 70 cited

John L. Pierce Pty Ltd v Kennedy (2000) 104 FCR 225 cited

Mabo v Queensland (No 2)(1992) 175 CLR 1 referred to

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 1 applied

Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351 cited

North Ganalanja Aboriginal Corporation and Bidanggn Aboriginal Corporation on behalf of the Waanyi People v State of Queensland (1996) 185 CLR 595 cited

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 applied

R v Credit Tribunal; Ex parte GMAC (1977) 137 CLR 545 cited

R v Hughes (2000) 202 CLR 535 cited

R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER433 cited

Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 cited

Reg. v Home Secretary, Ex parte Fire Brigades Union (1995) 2 AC 513 considered

Scurr v Brisbane City Council (1973) 133 CLR 242 cited

The State of New South Wales v The Commonwealth (1989-1990) 169 CLR 482 considered

University of Wollongong v Metwally (1984) 158 CLR 447 applied

Western Australia v The Commonwealth (1995) 183 CLR 373 applied

Wenn v Attorney-General (Vic) (1948) 77 CLR 84 cited

Western Australia v Ward (2002) 191 ALR 1 applied 

Young v Tockassie (1905) 2 CLR 470 cited

D. Pearce & R. Geddes, Statutory Interpretation in Australia,5^th ed.  Butterworths(2001)

D. Pearce & S. Argument, Delegated Legislation in Australia, 2^nd ed. Butterworths (1999)

F. A. R. Bennion, Statutory Interpretation, 3^rd ed. Butterworths (1997)

F. C. Hutley, “The Cult of Nullification in English Law” (1978) 52 ALJ 8

Queensland, Legislative Assembly, Parliamentary Debates (“Hansard”), 21 October 1998

STATE OF QUEENSLAND V CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION AND ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA

NO. N 159 OF 2002

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA V CENTRAL QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION AND ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND AND ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA

NO. N 162 OF 2002

BEAUMONT, LEE & KIEFEL JJ

27 NOVEMBER 2002

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeals be allowed.

2.                  The declarations of invalidity made at first instance be set aside;  and in lieu thereof, that the application for those declarations be dismissed, with costs.

3.                  The Central Queensland Land Council Aboriginal Corporation pay the costs of the Commonwealth Minister and of the State of Queensland on the appeal.

4.                  The cross-appeals be dismissed, with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1                     These are appeals, and cross-appeals, from respective parts of a judgment of a Judge of the Court on an application by Central Queensland Land Council Aboriginal Corporation (“CQLCAC”) (the first respondent in the appeals and the cross-appellant) for declarations that several determinations purportedly made by the Commonwealth Attorney-General under certain provisions of the Native Title Act 1993 (Cth) (“the NTA”) were invalid.  The Judge made declaratory orders that some determinations were valid, but that others were invalid (see Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) (2002) 188 ALR 200).  The Commonwealth Attorney-General and the State of Queensland, as an intervening party at first instance, have appealed from these declarations of invalidity; and, for its part, CQLCAC has cross-appealed from the declarations of validity.

2                     The appeals, and the cross-appeals, raise important questions of law, which are of particular significance in the context of the “future act” provisions of the NTA.

3                     Since the questions arising in the appeals are separate from those in the cross-appeals, it will be convenient to consider the appeals first.

THE APPEALS

4                      In order to understand the issues in the appeals, it will be necessary to explain the nature of the relevant legislative schemes, the claim made by CQLCAC at first instance in this connection, and his Honour’s reasons for upholding it.

The relevant Commonwealth legislative scheme

5                     Division 3 of Part 2 of the NTA (ss 24AA – 44G) deals with the relationship between “future acts” and native title.  The definition, in s 233, of a “future act” is complex, but, for immediate purposes, it will suffice to note that it includes the making, amendment or repeal of legislation which takes place on or after 1 July 1993, or it is any other act that takes place on or after 1 January 1994, which (inter alia) “affects” native title.

6                     Section 24AA, giving an overview of Division 3, states (inter alia):

·                    To the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not (s 24AA(2)).

·                    In the case of certain acts, for them to be valid, it is necessary to satisfy the “right to negotiate” requirements of Subdivision P (i.e. ss 25 – 44) (s 24AA(5)).

7                     Subdivision P applies to certain future acts (inter alia) done by a State, including certain conferrals of mining rights (s 25(1)).

8                     Section 25(5), which is significant for present purposes, provides that the States (and Territories) – “may make their own laws as alternatives to this Subdivision.  The Commonwealth Minister [the Attorney-General] must be satisfied as to certain matters before such laws can take effect”.

9                     There is a statutory note to s 25(5) in these terms:-

“Note:The fact that action is being taken to comply with this Subdivision does not imply that action under another law, such as processing requests or applications in respect of the act, cannot be taken at the same time.”

10                  Section 43, which is central to the questions arising in the appeal, provides, as follows, for the modification of Subdivision P if there are satisfactory State (or Territory) provisions:-

11                  First, s 43(1) provides for the making of a determination about alternative provisions, relevantly as follows:

“43(1)If:

(a)               a law of a State … provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable to the State …;  and

(b)               the Commonwealth Minister determines in writing that the alternative provisions comply with subsection (2);

then, while the determination is in force, the alternative provisions have effect instead of this Subdivision ... .”  (Emphasis added)

12                  Secondly, s 43(2) provides for the way the requirement is to be satisfied, by providing that the alternative provisions comply if, in the Commonwealth Minister’s opinion, they contain appropriate procedures in certain respects (etc.) (as specified in s 43(2)(a) to (k)).

13                  Thirdly, s 43(3) provides for the revocation of a determination:  if at any time, the alternative provisions are amended so that they no longer comply with s 43(2), the Commonwealth Minister must take certain steps; and, in certain circumstances, the Minister must revoke the determination.

The enactment of the “alternative provisions” in the Queensland legislation

14                  In 1998 and 1999, the Queensland Parliament enacted a number of “native title” amendments to the Mineral Resources Act 1989 (Qld) (“the MRA”).

15                  In his Second Reading Speech for the Native Title (Queensland) State Provisions Amendment Bill (No. 2) (A Bill for an Act to amend (inter alia) the MRA for native title purposes) the Premier said (Queensland, Legislative Assembly, Parliamentary Debates (“Hansard”), 21 October 1998, at 2633):

“This … historic piece of legislation …  is the culmination of three months of intense negotiation with all stakeholders – the only jurisdiction in Australia where all the stakeholders have been involved in this process.  This Bill provides certainty.  It provides a balanced, practical, workable approach that is fair and drives jobs. But more than any of that, this is an honourable and principled outcome. In summary, it is a fair and sensible solution that will drive jobs.

Australia as a nation needs to rise above politics and embrace the goodwill towards the issue of native title that has been demonstrated by all stakeholders and participants in this Queensland process.  This outcome today has been achieved while honouring Labor policy to maintain the rights of indigenous people to negotiate about resource developments.  That is the hub of our solution – a balanced system.

Every Parliament and every Government has its important milestones.  This is one of ours.”

16                  The Premier went on to say (at 2636):

“[W]hatever Queensland does must be consistent with the Commonwealth Native Title Act [the NTA] ... .  The NTA imposes restrictions on what we can do at the State level but also gives us some flexibility to mould the regime to suit Queensland’s circumstances.  Before this ... Bill becomes law in Queensland, it must first be approved by the appropriate Commonwealth Minister and the Senate.  While I am confident this Bill has been drafted to meet the Commonwealth criteria, there is a possibility we may be asked to consider technical amendments at a later time to ensure compliance.  I put Parliament on notice to that effect today.”  (Emphasis added)

17                  The Native Title (Queensland) State Provisions Amendment Act (No. 2) 1998 (Qld) was enacted.  This Act was assented to on 27 November 1998.  The formal Parts (ss 1 and 2) thereupon commenced;  the remaining provisions did not commence until 18 September 2000, the date (as will be seen) the Commonwealth determinations came into force.

18                  On resumption the next year of the Second Reading of the Bill (21 July 1999), the Premier said (at 2778 – 2779):

I have apologised to the House about the number of times I have had to bring this legislation back before the Parliament in order to ensure compliance with the Federal Minister’s requirements.  Let me make this absolutely clear – even so clear that those on the other side of the House can understand:  these are requirements of the Federal Government.  It is the Federal legislation that requires these changes.  Under the Act passed by the Federal Parliament these matters require the approval of the Federal Parliament and the Senate.  I have made it clear many times that this is the case. 

These amendments do not fundamentally change in any way the significance of the legislation or its clauses.  They are minor amendments required by the Commonwealth.”  (Emphasis added)

19                  The Premier went on to say (at 2781):

“Having now addressed all the issues raised by members, I think that it is important that I clarify the process that occurs after this legislation is passed by this House.  After Parliament passes this legislation and the Bill receives His Excellency’s assent, I will then request in writing that the Commonwealth Attorney-General make a number of determinations. These are determinations that are made under the Commonwealth Native Title Act, namely, that Queensland’s alternative State provisions legislation will apply instead of the Commonwealth’s right to negotiate process.  Subject to some continuing negotiation with the Commonwealth, I would anticipate that this request will formally be made by the end of this month.  The Commonwealth Attorney-General must then undertake, in line with the provisions of the Commonwealth Native Title Act, consultation with various bodies.  ... . 

The relevant native title provisions for which the section 26A determinations will be sought are contained in what will shortly become Part 13 and Part 19 of the Mineral Resources Act.  I will request that the Commonwealth Attorney-General determine in writing that the grant of a low-impact prospecting permit, in accordance with Parts 3, 13 and 19 of the Mineral Resources Act, is an approved exploration act.  A total of 13 determinations will be sought.

Following the procedure demanded by section 26A, the Attorney-General must initially satisfy himself that the Queensland legislation does, on its face, meet the requirements of the Commonwealth Native Title Act.  It is essential that the legislation, which is considered by the Commonwealth Attorney-General, meet the conditions of section 26A of the Commonwealth Native Title Act.  Otherwise, we do not even get to first base in the process.

Although that may seem a simple process, let me assure members that it is not.  It involves forensic scrutiny of each clause, each phrase and each word to ensure that it cannot be seen to be inconsistent with the Federal legislation.  If the Commonwealth Attorney-General is initially satisfied that the State provisions meet the conditions of the Commonwealth Native Title Act, he then must notify and invite submissions from any representative Aboriginal and Torres Strait Islander bodies and, in the case of section 26A, the general public as well.  The Attorney-General considers those submissions and decides whether to accept or reject the State legislation.

The Northern Territory, which has received a determination from the Attorney-General but which is now subject to a disallowance motion, adopted a fundamentally different approach to Queensland in the development of its alternative Sate provisions.  From the outset, my approach to develop this legislation has been to involve the key stakeholder groups.  In contrast, the Northern Territory approach to their native title legislation was to exclude indigenous participation and involvement.  They presented the end product on a take-it-or-leave-it basis to the indigenous parties.

Although this legislation before us today may be criticised by disaffected individuals, no-one can legitimately criticise the extensive consultation that has occurred in its development.  The final step in the process of the commencement of the alternative State provisions is for the Attorney-General’s determination to be put before both Houses of Federal Parliament as a disallowance instrument.  Federal Parliament cannot make amendments to the State’s legislation.  It is a simple issue of allowance or disallowance.  When I talk about amendments, I mean amendments as they go before the Parliament.  We have had enough amendments suggested from here during this process.

In the event of there being no [motion] after 15 sitting days from the determination’s publication or, if the motion is debated, it is unsuccessful, the determination stands and the alternative State provisions will substitute, [from] the making of the determination, for the Commonwealth’s right to negotiate process.”  (Emphasis added)

20                  (Reference to the Second Reading Speech is permitted as an aid to construction.  By s 14B of the Acts Interpretation Act 1954 (Qld), in the interpretation of a provision of an Act, consideration may, in certain circumstances, be given to extrinsic material (including a Second Reading Speech) –

(a)                if the provision is ambiguous or obscure – to provide an interpretation of it;  or

(b)               if its ordinary meaning leads to a result that is manifestly absurd or unreasonable – to provide an interpretation that avoids such a result; or

(c)                in any other case – to confirm the interpretation conveyed by the ordinary meaning of the provision.)

21                  The Native Title (Queensland) State Provisions Amendment Act 1999 (Act No. 35 of 1999) was assented to on 29 July 1999, as an Act to amend (inter alia) the MRA.

22                  The enactment opened with the words – “The Parliament of Queensland enacts – …”.  There follow the provisions of the legislation which, with exception of Part 1, need not be noticed here.  Part 1, entitled: “Preliminary”, provides for the Act’s short title (s 1) and for its commencement (s 2).  Section 2 provides:  “Parts 3 to 6 commence on a day to [be] fixed by proclamation.”

23                  (Part 4 amends the MRA.)

24                  Again, these Parts commenced on 18 September 2000, which, as noted, was the date upon which the Commonwealth determination came into force.

THE QUEENSLAND CONSTITUTIONAL AND LEGISLATIVE (INTERPRETATIVE) FRAMEWORK

25                  Section 2 of the Queensland Constitution Act 1867 (Qld) provides that the Queen shall have power, by and with the advice and consent of the Legislative Assembly, to make laws.  Section 2A(1) provides that the Parliament of Queensland consists of the Queen and the Legislative Assembly.  Section 2A(2) provides that every Bill, after passage through the Assembly, shall be presented to the Governor for assent in the name of the Queen, and shall be of no effect unless it has been assented to.

26                  Some of the general provisions of the Acts Interpretation Act 1954 (Qld) should be noticed:

·                    An “Act” means an Act of the Queensland Parliament (s 6).

·                    A reference in an Act to a law, or a provision of a law, includes a reference to the statutory instruments made or in force under the law or provision (s 7(1)).

·                    A reference in an Act to a law, or to a provision, includes a reference to a law, or provision, as originally made and as amended (“make” here includes enact) (s 14H).

27                  Commencement of Acts is dealt with in Part 5 of the Act, relevantly as follows:

·                    A reference in an Act to the enactment of an Act or the passing of an Act is a reference to the fact of the Act’s having received the royal assent (s 15).

·                    An Act commences on the date of assent except so far as the Act otherwise expressly provides (s 15A).

·                    If a provision of an Act (the “empowering provision”) that does not commence on its enactment would, had it commenced, confer a power –

(i)                  to make an appointment; or

(ii)                to make a statutory instrument; or

(iii)               to do any other thing;

then –

the power may be exercised; and anything may be done for the purpose of –

(i)         enabling the exercise of the power; or

(ii)        bringing the appointment, instrument or other thing into effect;

before the empowering provision commences (s 17(1)).

28                  Some of the Act’s dictionary provision (s 36) should also be noticed:

·                    “law” of a State includes –

(a)                a law of the State; and

(b)               a law in force in the State as part of the law of the State.

29                  In relation to an Act, “provision” means words or other matter that form part of the Act, including the long title and preamble.

THE section 43(1) DETERMINATIONS

30                  There were several s 43(1) determinations in suit, each bearing the date of 31 May 2000.  Each determination was in the same format and, relevantly, employed the same general terminology.  Accordingly, it will suffice, for present purposes, to refer to only one determination.

31                  The first of the determinations is entitled:

“Native Title (Right to Negotiate – Alternative Provisions) (Queensland Laws about Exploration Permits)

Determination 2000¹”

32                  Footnote 1 is in these terms:

“1.       This Determination commences on gazettal:  see Acts Interpretation Act 1901 (Cth) s 48 and Native Title Act 1993 (Cth), s 214.”

33                  (By s 48(1) of the Acts Interpretation Act 1901 (Cth) , it is relevantly provided that [a determination] shall be notified in the Gazette and: 

“shall, subject to [s 48], take effect from:

…

(iv)             … the date of notification…”)

34                  (Section 214 of the NTA provides, (inter alia), that a determination under s 43(1) is a “disallowable instrument”.)

35                  The Determination is in these terms:

“I, DARYL ROBERT WILLIAMS, Attorney-General, acting under paragraph 43(1)(b) of the Native Title Act 1993 (the Act), determine that the provisions of the laws of Queensland mentioned in Schedule 1, providing for alternative provisions to those contained in Subdivision P of Division 3 of Part 2 of the Act, comply with subsection 43(2) of the Act.”

36                  Schedule 1 is entitled: “Laws providing alternative provisions to Subdivision P of Division 3 of Part 2 of the Act”.

37                  Reference is then made to the provisions of three Queensland statutes as follows:

38                  First, a sub-heading appears – “Mineral Resources Act 1989²”.

39                  Footnote 2 is in these terms:

“2.       Provisions of the Mineral Resources Act 1989 mentioned in this Determination include provisions that are amended or inserted by as yet uncommenced provisions of the Native Title (Queensland) State Provisions Amendment Act (No. 2) 1998, the Land and Resources Tribunal Act 1999 and the Native Title (Queensland) State Provisions Amendment Act 1999.”

40                  There follows a specification of several of the provisions of the MRA.

41                  Likewise, a reference is made to another Queensland statute, the Land and Resources Tribunal Act 1999 (Qld), with a footnote 3 in similar terms.

42                  The making of the s 43(1) determinations in suit was notified in the Gazette dated 18 September 2000.

CQLCAC’s claim for declarations of invalidity of the s 43(1) determinations

43                  CQLCAC commenced these proceedings on 6 February 2001.  By its further amended application made, relevantly, under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), CQLCAC sought declaratory orders that each of the three s 43(1) determinations was “invalid”. 

44                  (Section 39B(1A)(c) confers jurisdiction on this Court in any matter arising under laws made by the Parliament; however, the Court’s power to make a declaration is located in s 21(1) of the Federal Court of Australia Act 1976 (Cth), empowering this Court, in relation to a matter in which it has original jurisdiction, to make binding declarations of right, whether or not consequential relief is or could be claimed.  By s 21(2), a suit is not open to objection on the ground that a declaratory order only is sought.)

45                  The basis for CQLCAC’s claim pleaded was:

“(i)      The [Attorney-General] was empowered to make the First, Second and Third Determinations if, and only if, there was in force at the date the determination was made a valid legislative scheme pursuant to which a future act which would otherwise be covered by Subdivision P of Part 2, Div. 3 of the [NTA] could be done.

(ii)               No such scheme was in force when the First, Second and Third Determinations were made because the amendments to the [MRA] which gave effect to the scheme in each case were not in force.”

The primary Judge’s reasoning

46                  In dealing with another, preliminary, aspect of the matter, the primary Judge held (at [60]) that determinations made under s 43 of the NTA were “decisions of a legislative nature, rather than administrative decisions.”  CQLCAC has not challenged this conclusion.  In my opinion, his Honour was, with respect, correct in this conclusion. 

47                  His Honour observed (at [87]) that that question was whether it “was open … as a matter of law, to make a determination that depended on State provisions that were not yet in force”.

48                  In accepting CQLCAC’s claim that the words “a law of a State or Territory” in s 43(1) refer to presently operative law, but not provisions contained in an Act that has yet to come into operation, the primary Judge said (at [89]):

“It may be possible to describe a Bill that has been passed by Parliament, and assented to on behalf of the Crown, as an “Act”; but, if so, it is an Act in escrow.  Until the Act commences operation, it cannot be regarded as having existence, for any purpose affecting the legal position of parties: see per Slesser LJ in Croxford v Universal Insurance Company Limited [1936] 2 KB 253 at 270;[1936] 1 All ER 151.  This is so even if the date of future commencement is known, as in Croxford.  A fortiori where commencement depends upon the making of a proclamation, and this has not occurred.  Where statutory provisions are not to commence until a date to be proclaimed (as was the position in relation to some of the provisions noted in the footnote to the s 43 determinations), there is always a possibility there will never be a relevant proclamation; in which case the new provisions will never come into force.”

49                  (In the Court of Appeal decision in Croxford cited by his Honour, a question arose as to the operation of s 10 of the Road Traffic Act, 1934 (U.K.), which made insurers liable in certain circumstances.  By s 10(1), insurers could protect themselves from liability under that subsection if they complied with the conditions specified in s 10(3) and obtained a declaration that the policy was obtained by non-disclosure (etc.), provided that such action for a declaration was brought within three months after the commencement of the proceedings in the running-down action in which judgment was given.  In Croxford, the running-down action was brought on 3 August 1934, so that the last day on which the insurer could commence any action for a declaration was 3 November 1934.  But s 10 did not come into operation until 1 January 1935, so that the insurer could not have taken proceedings under s 10(3) to obtain protection because, at that time, s 10 had not come into operation, and it did not have retrospective effect.  In this context, Slesser L.J. (with the agreement of Scott L.J. and Eve J) observed (at 270): 

“…[It] is impossible to say that for any purpose at all affecting the legal position between the parties s. 10 can be regarded as having any legal existence before the time that it is put into operation by the Minister under s 42, sub-s.3, of the Act.  Either s.10 of this Act is part of the law or it is not, and it is clear to my mind that before January 1, 1935, the Road Traffic Act, 1934, or at any rate such parts of it as the Minister had already brought into force by earlier Orders under s.42, must be read as if s.10 did not exist and, reading s.10 as having no existence before January 1, 1935, important consequences arise in the present case.”) 

50                  In the present case, the primary Judge went on to say (at [90]): 

“The question that arises, in relation to s 43(1) of the Native Title Act, is not the abstract question whether inoperative statutory provisions may appropriately be called a ‘law’.  Contrary to a submission by counsel for the Commonwealth Minister that it is an ‘inherent characteristic’ of the scheme established by s 43 that ‘an alternative State or Territory regime, replacing the Subdivision P right to negotiate, will not be operative until the s 43 determination is made’, the pre-condition in s 43(1) to ministerial action is that the ‘law … provides for alternative provisions’.  The subsection contemplates a situation where a State or Territory law is in operation, subject to any inconsistency with other provisions of the Native Title Act.  A statute, or statutory provision, that has not yet commenced cannot provide for anything.”

51                  His Honour then said (at [91] – [92]):

“The final clause of s 43(1) confirms that Parliament contemplated an operative state or territory law.  Once the Commonwealth determination comes into force, ‘the alternative provisions have effect instead of this Subdivision’.  The determination comes into force on gazettal, unless some other date is specified in the determination: see Acts Interpretation Act ss 46A and 48.  Section 43(1) of the Native Title Act assumes the state law will, at that time, be available to ‘have effect instead of [subdiv P]’.  There can only be certainty about that matter, especially given that procuring the commencement of state legislation is a matter for state functionaries rather than the Commonwealth minister, if the state legislation is already in operation when the s 43 determination is made.

Contrary to the submission of counsel for the Commonwealth minister, this view of the situation does not cause any constitutional difficulty.  Although s 109 of the Constitution speaks about a state law that is inconsistent with a Commonwealth law being ‘invalid’, it is well-established that s 109 does not invalidate the state law ab initio;  s 109 merely renders the State law inoperative during the period of inconsistency:  see Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 274, 278, 283.  If a state law has commenced, it may be rendered ineffective by s 109 until inconsistency with the Native Title Act is removed by commencement of a s 43 determination; but during the period of ineffectiveness it remains in existence.  Upon the making of the s 43 determination, it automatically takes full effect.”

52                  Accordingly, the Judge held (at [99]) that the Attorney-General had “erred in law, in this connection …”. 

53                  Turning to the question of the form of the relief to be granted, his Honour said (at [194]) that it was “sufficient … [to make] declarations of right.”  Accordingly, an order was made declaring that each of the determinations made pursuant to s 43(1) of the Act “is invalid and without legal effect.”

The Grounds of the Appeal

54                  By his notice of appeal, the Attorney-General contends: 

(a)                It is not a pre-condition to the making of a determination under s 43 that the alternative provisions have commenced operation. 

(b)               Section 43 authorises the Attorney-General (as the Commonwealth Minister) to determine that alternative provisions provided for in legislation enacted by the Parliament of a State comply with s 43(2), notwithstanding that the alternative provisions have not commenced operation at the time of:

(i)         the Attorney-General’s consideration of the requirements of s 43(2); and

            (ii)        the making of the determination.   

(c)        Section 43 requires only that the relevant alternative provisions provided for in a law of a State or Territory commence operation before those alternative provisions have effect instead of Subdivision P. 

(d)        The Attorney-General did not err in law or fall into jurisdictional error in making the determinations at a time when the relevant alternative provisions had been enacted by the Parliament of Queensland but were not yet operative. 

55                  For its part, the State’s grounds of appeal are similar, as follows: 

(1)               Section 43 should not be construed so as to require the “law of a State” to be a law which had commenced and was in operation at the time the Attorney-General (as the Commonwealth Minister) made his determination. 

(2)               It was not a condition precedent to the Attorney-General’s jurisdiction to make a determination that the “law of a State” had commenced operation and was in force. 

56                  The South Australian Attorney-General has intervened in support of the appeals. 

CONCLUSIONS ON THE APPEALS

57                  In the primary Judge’s reasons, reference is made to laws “having commenced”, “being in force”, “being in operation”, or “in existence”, in contradistinction to laws having been “enacted” or “made”.  I will proceed upon the footing that where used in these reasons, “enacted” will describe laws which, although they have received assent, are not yet in force; and that “in force” will describe laws enacted, and which have also commenced operation, whether or not the effect of s 109 of the Constitution is to render a State’s laws inoperative or ineffective because of inconsistency with a law of the Commonwealth.

58                  Accepting, as I do, the correctness of his Honour’s conclusion that the determinations were legislative, and not administrative, in character, I agree also with the learned Judge that the question here, one of law only, is whether it was open to the Attorney-General to make a determination where the Queensland legislation, although enacted, was not in force.  Another way of posing the question may be to ask:  was it beyond the power of the Commonwealth Minister to make a determination proleptically, that is, by way of anticipation, in the events which happened? 

Was the Queensland legislation “legally non-existent” or an “Act in escrow” before its commencement?

59                  Lord Steyn has observed: “[i]n law context is everything” (see R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER433 at 447).  Authorities on the effect of legislation enacted, but not yet in force, must be viewed in their particular context; and if the context is not truly analogous, the decision may be of no more than limited assistance, or distinguishable, for present purposes, particularly if (as here) the local legislative interpretative provision makes it clear that, upon enactment a law is “made”, although its operation has not then “commenced”.

60                  In any event, in my opinion, given its special context, Croxford is distinguishable.  When Slesser L.J. (in the passage cited) characterised s 10 as if it had no legal existence before it came into operation, so far as the legal position between the parties was affected, Slesser L.J. was not pronouncing that, for all purposes any legislation which is enacted, but not yet in force, cannot have any “legal existence” until it comes into operation.  Clearly, enacted, yet not in force, legislation can have legal relevance in a number of contexts.  Its status, in law, is entirely different from that of a mere Bill for an Act which, it may be accepted, could not suffice for the purposes of s 43.  There is an abundance of high authority in England, and in this country, to the effect that, upon enactment, a statute may have legal relevance for particular purposes, even if not yet in force. 

61                  For instance, in Reg. v Home Secretary, Ex parte Fire Brigades Union (1995) 2 AC 513, a statute relevantly provided (by s 171(1)) –

“… [T]his Act shall come into force on such day as the Secretary of State may … appoint…”

62                  In dismissing an appeal by the Secretary of State against the decision of the Court of Appeal, the House of Lords held that the Act imposed a continuing obligation on the Secretary of State to consider whether to bring the Act into force. 

63                  In the Court of Appeal, Sir Thomas Bingham M.R. (as he then was) held (at 520) that, in seeking to ascertain the will of Parliament, it is necessary to read the relevant sections of the Act and s 171(1) together.  On this basis, the following conclusions may be drawn:

(1)               Parliament intended the relevant sections “to become part of the law of the land”; 

(2)               Parliament did not intend these sections to take effect on the passing of the Act;

(3)               Parliament intended to confer power on the Secretary of State to determine when the sections should come into force. 

64                  The Master of the Rolls said (at 520):

“Did Parliament intend to give the Secretary of State complete freedom to decide whether these provisions should ever come into force?  I cannot think so.  The suggestion that it did in my view gives too little weight to the significance of the parliamentary process and to the different roles of legislature and executive.  Parliament makes the law. The executive may of course propose legislative measures but these depend for their legal validity on approval by both Houses of Parliament and receipt of the royal assent.  It is then for the executive to carry the law into effect.  I confess to surprise at the suggestion that Parliament, having formally enacted legislative provisions, should intend to entrust to a member of the executive a complete and unfettered discretion as to whether those provisions should ever take effect.  If this were so, the rule would apply not only to government measures such as the present but also to Acts originating as private members’ bills, in which the same formula is to be found.”

65                  His Lordship went on to hold (at 520) that the effect of s 171(1) was to impose a legal duty on the Secretary of State to bring the provisions into force as soon as the Secretary of State might properly judge it to be appropriate to do so, taking into account all relevant factors. 

66                  In the House of Lords, an appeal from the Court of Appeal was dismissed.  Lord Browne-Wilkinson held (at 551) that the plain intention of Parliament in conferring on the Secretary of State the power to bring certain sections into force, is that such power is to be exercised when it is appropriate and unless there is a subsequent change of circumstances which would render it inappropriate to do so.  It followed that the Secretary of State comes under a clear duty to keep under consideration from time to time the question whether or not to bring the sections (and therefore the statutory scheme) into force. 

67                  Lord Nicholls said (at 574):

“The commencement day provision

I must start with some general comments about commencement day provisions.  The first point to note is that section 171(1) is a common form provision. This form of words is widely used, in many Acts of Parliament.  There is nothing special about the wording of the provision in this Act.  Secondly, the purpose for which this common form provision exists is to facilitate bringing legislation into force.  Parliament enacts legislation in the expectation that it will come into operation.  This is so even when Parliament does not itself fix the date on which that shall happen.  Conferring power on the executive to fix the date will often be the most convenient way of coping with the practical difficulty that, when the legislation is passing through Parliament, it is not always possible to know for certain what will be a suitable date for the legislation to take effect.  Regulations may need drafting, staff and accommodation may have to be arranged, literature may have to be prepared and printed.  There may be a host of other practical considerations.  A wide measure of flexibility may be needed.  So the decision can best be left to the minister whose department will be giving effect to the legislation when it is in operation.  He is given a power to select the most suitable date, in the exercise of his discretion.”

68                  His Lordship went on to hold (at 575):

“..[A]lthough he is not under a legal duty to appoint a commencement day, the Secretary of State is under a legal duty to consider whether or not to exercise the power and appoint a day.  That is inherent in the power Parliament has entrusted to him.  He is under a duty to consider, in good faith, whether he should exercise the power.  Further, and this is the next step, if the Secretary of State considers the matter and decides not to exercise the power, that does not end his duty.  The statutory commencement day power continues to exist.  The minister cannot abrogate it.”

69                  In Attorney-General (Vict.) v The Commonwealth (1945) 71 CLR 237, a challenge to the constitutional validity of legislation enacted, but not in force, was upheld.  The fact that the Act was not in force did not mean that there was no “matter” within s 75 of the Constitution.  Williams J said (at 278): 

“The present action, in my opinion, raises more than abstract questions.  The Act has not yet been proclaimed, but we were informed by counsel for the defendants that it will be proclaimed at the beginning of next year, and that in the meantime the necessary preliminary steps are being taken so that it may then be brought into effective operation.  The question will therefore arise in the immediate future whether the public in each of the States are entitled to the benefits and subject to the obligations imposed by the Act.”

70                  Legislation enacted, but not in force, was also challenged, upon the assumption that it was a “law” of the Commonwealth in The State of New South Wales v The Commonwealth (1989-1990) 169 CLR 482 (at 495, 513).  Plainly, the legislation was not treated as, or as if, “legally non-existent”.

71                  It must follow, in my view, that I cannot, with respect, agree with His Honour’s characterisation of an enacted statute not yet in force as “legally non-existent” or as an “Act in escrow.”  It was no mere Bill for an Act.  This is not to say that Croxford was wrongly decided.  There, the question was whether the insurer could establish, in a private law context, that a statute not then in force could vest in the insurer a specific statutory cause of action.  Plainly, it could not then do so.  But the present question, one of public law, is different.  It is whether the formation by the Attorney-General of the requisite statutory opinion was, on the face of it, beyond the Attorney-General’s power. 

Was the Attorney-General acting beyond power in making a determination proleptically? 

72                  In my view, this is the real issue here.  Another way of stating the issue is to ask whether it was open to the Attorney-General to make a determination which, in terms of its temporal operation, had an ambulatory operation?  Both concepts (that is, a proleptic or an ambulatory operation) are familiar in the law (see e.g. Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351 at [179]; Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at [56]; Fejo v Northern Territory of Australia (1998) 195 CLR 96 at [29]; North Ganalanja Aboriginal Corporation and Bidanggn Aboriginal Corporation on behalf of the Waanyi People v State of Queensland (1996) 185 CLR 595 at [43]; Australian Securities and Investments Commission v Edensor (2001) 204 CLR 559 at [79]; Commonwealth v District Court of the Metropolitan District (1954) 90 CLR 13 at 20; Allan v Transurban City Link Ltd (2001) 183 ALR 380 at [17]; John L. Pierce Pty Ltd v Kennedy (2000) 104 FCR 225 at [42];and D. Pearce & R. Geddes Statutory Interpretation in Australia,5^th ed. Butterworths(2001) at [4.8]).  Whether, in a particular context, a proleptic or ambulatory operation is permissible, will always be a question of the construction of the particular delegated legislative authority. 

73                  As a matter of general principle, it has been said that delegated legislation may be held to be invalid for various reasons.  For instance, in explaining the position in England, F. A. R.  Bennion in Statutory Interpretation, 3^rd ed. Butterworths (1997) says (at 183):

“Any provision … is ineffective if [it] goes beyond the totality of the legislative power which (expressly or by implication) is conferred on the delegate by the enabling Act.  The provision is then said to be ultra vires (beyond the powers)…

…

A power to do something extends only to that thing.  Its purported exercise extending to a different thing is to that extent not an exercise of power at all. … Here implications extending or limiting the express words must be taken into account.”

74                  Bennion adds (at 184) that the fact that the delegate has failed to comply strictly with the conditions laid down in the enabling Act does not mean that the purported delegated legislation is necessarily void.  The Court may, if good reason exists, decline its discretion to revoke it, or to declare it void. 

75                  Bennion notes (at 188) the distinction between substantive, and procedural, invalidity of delegated legislation, citing the observations of Woolf L.J. in Bugg v DPP [1993] QB 473 (at494)that substantive invalidity (which theprimary Judge found here) (relevantly) arises “where the [delegated legislation] is on its face invalid because … it is outwith the power pursuant to which it was made because … it seeks to deal with matters outside the scope of the enabling legislation …”.

76                  The relevant position in this country is explained similarly by Dennis Pearce and Stephen Argument, in Delegated Legislation in Australia, 2^nd ed. Butterworths (1999) at 98, citing Griffith CJ in Young v Tockassie (1905) 2 CLR 470 at 477:

“[D]elegated legislation may deal with a subject not within the scope of the power provided in the empowering Act.  Alternatively, it may deal with such a subject but may exceed the prescribed limits within which the legislation must fall.”

77                  In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355,McHugh, Gummow, Kirby and Hayne JJ observed (at [94]):

“Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it ‘is to perform’ those functions ‘in a manner consistent with’ the four matters set out in the section.  In the present case, for example, s 158(j) as well as s 122 authorised the making of a standard relating to the Australian content of television programs.  Thus, the making of an Australian content standard was not outside the powers granted to the ABA even though, as we have concluded, cl 9 of the Standard was made in breach of the Act.  The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section.” (References omitted)

78                  Their Honours went on to say (at [99] – [100]):

“Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid. 

In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA.  Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful.  Failure to comply with a directory provision ‘may in particular cases be punishable’.  That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.” (References omitted)

79                  The High Court declared that, relevantly, the determination was “unlawfully made” and reserved liberty to apply; that is to say, the High Court refused to make a declaration of invalidity. 

80                  The vitiating factor in Project Blue Sky was the breach of an express statutory condition in the form of an “essential preliminary” to the exercise of the power to make a determination.  In the present case, the challenge takes a different form, being the circumstance that, although enacted, the Queensland legislation was not yet in force. 

81                  Turning from the earlier general consideration of the characteristics of legislation enacted, but not yet in force, to the specific context of s 43, in the Native Title Act Case, Western Australia v The Commonwealth (1995) 183 CLR 373, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said of s 43 as it then stood (that is, in substantially the same terms as at present) (at 473):

“Section 43 states the Parliament’s intention that acts covered by s 26(2) should not be governed exclusively by Commonwealth law when the Minister is of the opinion that State laws and executive action taken under them satisfy the requirements which the Parliament specifies.  When the Minister makes a determination under s 43(1)(b), the Commonwealth law (Subdiv B) is withdrawn pro tanto and the State law is left with a corresponding field of effective operation.  The Minister is not empowered to engage but to exercise a power to disengage the operation of s 109.  Section 43 of the Native Title Act is valid.”  (References omitted)  (Emphasis added)

82                  In my view, the process of disengagement in the constitutional context described by their Honours illuminates the intended meaning of s 43, and, in particular, what is meant by a “law” (of a State) in s 43(1)(a) for the purposes of ascertaining the meaning of the (alternative) “provisions” in s 43(1)(b).  Prima facie at least, a reference to a “law” of a State would extend to legislation enacted, even if not yet in force; and a reference to “provisions” of a law would extend to the sections of such an Act.  Moreover, in my view, the constitutional context confirms that this construction was intended, for the following reasons, (as was submitted for South Australia):

·        Section 109 of the Constitution provides for the effect of inconsistency between Commonwealth and State statutes.  

·        It is beyond the power of the Commonwealth Parliament to legislate so as to purport to vary s 109 for the purpose of controlling or preventing State legislative action.  (That is,  Commonwealth law must take the State law as it finds it.)

·        But the Commonwealth Parliament can, within its own field, prescribe what ground its own legislation covers. 

·        So far as they can be, words should be read as being within power, that is to say, that the Commonwealth law does not apply whilst the determination is in force and the alternative provisions then have effect.  In other words, s 43(1) does not dictate that the State Act must be in force at the date that the opinion in the form of the determination is formed. 

(See Wenn v Attorney-General (Vic) (1948) 77 CLR 84 at 120;  R v Credit Tribunal; Ex parte GMAC (1977) 137 CLR 545 at 563 – 564;  Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453 at 464 – 465;  University of Wollongong v Metwally (1984) 158 CLR 447 at 460;  Western Australia v The Commonwealth (1995) 183 CLR 373 at 464; 469; 487 – 488). 

83                  In my opinion, this constitutional framework only serves to reinforce both the natural and the purposive meaning of s 43(1), even if s 43 is considered as a free-standing provision.  It is plain enough that the Attorney-General’s duty and function under s 43 is to consider whether, in his opinion, the requirements of s 43(2)(a) to (k) are satisfied.  That is to say, the Attorney-General has no responsibility, or authority, on the question of the temporal operation of State laws.  His concern is with their substantive impact, in terms of their content.  In other words, the Attorney-General must take the State law as he finds it, in all its dimensions, substantive and temporal, and form an opinion as to its contents in the respects specified in pars (a) to (k) of s 43(2).  It is no part of his function to interfere with the timing of the State law – that, as mentioned, is accepted by the terms of s 43(1), in simply stating that the provisions of the State law will, in the event, “have effect”, that is to say, operate in accordance with their tenor in all respects, substantively and temporally. 

84                  When so viewed, it cannot, in my opinion, be said that for the Attorney-General to act proleptically, or in an ambulatory fashion, as he did here, was outside the scope of s 43.  There is no express prohibition of such a course to be found in the language of s 43; and there is no basis for making such an implication.  The Attorney-General was not dealing with only a Bill.  The Second Reading Speech made it plain that the Queensland law would be brought into formal force, subject, necessarily, to the making (and notification) of a determination.  In any event, it would not be open to the Queensland Government to leave the Act without force.  As Bennion says (at 208):

“Whenever Parliament passes an Act it intends, unless the contrary intention appears, that all its provisions shall be brought into force within a reasonable time, and there is no reason in principle why this matter of public law should be treated as withheld from the supervisory jurisdiction of the High Court.”

85                  In short, in my opinion, the temporal aspects of the State law are not, of themselves, an “essential preliminary”, with the potential to deprive the Attorney-General of his power to make a determination.  On the contrary, the determination dealt with a subject (here the expression of an opinion on the specific issues raised by s 43(2)) that was exactly within the scope of the Attorney-General’s statutory responsibility.  Once a determination was made, the temporal operations of the applicable Federal and State legislation was entirely a matter for that legislation respectively, viewed in the context of s 109 of the Constitution.  In other words, that temporal operation was not a matter within the Attorney-General’s province, and his determination has no more, and no less, force and effect than is given to it by the law pursuant to which it was made.  As Gaudron and Gummow JJ observed in an analogous context in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 at [46]:

“In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’.  To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision.  And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.”  (Emphasis added)

86                  (See also F.C. Hutley, “The Cult of Nullification in English Law” (1978) 52 ALJ 8.) 

Conclusions

87                  In summary then, I have reached these conclusions:

(1)        Upon enactment, each of the Native Title (Queensland) State Provisions Amendment Acts 1998 and 1999 (Qld), was “a law of a State” for the purposes of s 43(1)(a) of the NTA, notwithstanding that some Parts were not in force until 30 September 2000. 

(2)        Accordingly, upon such enactment, those Parts “provid[ed] for alternative provisions” within the meaning of s 43(1)(a). 

(3)        The subject determinations, which in any event did not come into force until 30 September 2000, were within power, being within the scope of the Commonwealth Minister’s authority and function to express the opinion mandated by s 43(2) on the question whether these alternative provisions comply with the specific requirements of s 43(2) (for instance whether (within the meaning of s 43(2)(a)) they “contain appropriate procedures for notifying [the persons there nominated]”.)

(4)        The determinations, being within power, will have such force and effect, including temporal operation, as s 43 and State law give them.  Any question in this connection (that is any temporal operation question) is not a matter arising in the appeals.  Here the question is whether the determinations were within the scope of the Commonwealth Minister’s authority; and, if not, what equitable relief, if any, the Court might, in the exercise of its discretion, grant (see Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 257).  Since I have concluded that the Attorney-General’s actions were not beyond his authority, I do not come to any questions concerned with the appropriate form of any discretionary relief. 

(5)        At the policy level, a joint Federal/State co-operative scheme in this area is contemplated by s 25(5) (including its footnote) and s 43.  And, as the Premier’s Second Reading Speech made clear, the enactment of the State legislation was designed to give effect to such a scheme.  Yet CQLCAC’s argument, if accepted, would undermine that scheme by resort to a mere technicality without addressing the merits of the matter.  Instead, in my view, the broader approach advocated by the Commonwealth, by Queensland and by South Australia, should be adopted, given especially the context, viz., an important area of Commonwealth-State relations where the Commonwealth and the State have co-operated in fixing a common date (18 September 2000) for their respective legislative acts to come into force.  As Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed in R v Hughes (2000) 202 CLR 535 (at 557-558, [46]):

“[A] number of decisions … recognise that co-operation on the part of the Commonwealth and States may well achieve objects that could be achieved by neither acting alone.”

ORDERS

88                  Accordingly, I propose these orders on the appeals: 

1.         Appeals allowed. 

2.                  Set aside the declarations of invalidity made at first instance; and in lieu thereof, order that the application for those declarations be dismissed, with costs.

3.                  The CQLCAC should pay the costs of the Commonwealth Minister and of the State of Queensland on the appeal. 

The Cross-Appeals

89                  I agree with Kiefel J that the cross-appeals should be dismissed, with costs.

Associate:

Dated:              27 November 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

lee J:

90                  The relevant facts and issues in these appeals and cross-appeals have been identified in the reasons of Beaumont and Kiefel JJ and it is unnecessary to repeat them.

91                  The principal issue involves the construction of s 43 of the Native Title Act 1993 (Cth) (“the Act”).  Section 43 is part of Division 3 (ss 24AA-44G) of Part 2 (ss 10‑60AA) of the Act.  Section 24AA(2) sets out the following as an “overview” of the provisions of Division 3:

“Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.”

92                  More particularly s 43 is in Subdivision P (ss 25-44) of Division 3.  The Subdivision is headed “Right to negotiate”.  In North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595, McHugh J (at 644) described that right as a valuable statutory right attached to a claim of native title.  Section 25(1) provides the following “overview” of the Subdivision:

“In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:

(aa)     certain acts covered by section 24IC (which deals with permissible lease etc. renewals);

(a)       certain conferrals of mining rights;

(b)       certain compulsory acquisitions of native title rights and interests;

(c)        other acts approved by the Commonwealth Minister.”

93                  That is to say the Subdivision applies to certain “future acts” done by the Crown in the name of the Commonwealth, a State or Territory.  Section 25(4) confirms that the Subdivision operates in the same manner as stated in s 24AA(2) for the operation of Division 3 as a whole:

“If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.”

94                  Further “overview” of the operation of the Subdivision is set out in s 25(5):

“States and Territories may make their own laws as alternatives to this Subdivision.  The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.”

95                  The relevant provision in the Subdivision, the effect of which is summarised in s 25(5), is s 43.  The salient part of s 43 reads as follows:

“43.    Modification of Subdivision if satisfactory alternative State or Territory provisions

Determination about alternative provisions

(1)       If:

(a)       a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable  to the State or Territory; and

(b)       the Commonwealth Minister determines in writing that the alternative provisions comply with subsection (2);

then, while the determination is in force, the alternative provisions have effect instead of this Subdivision.

Requirement to be satisfied

(2)       The alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:

(a)        contain appropriate procedures for notifying registered native title bodies corporate, representative bodies, registered native title claimants and potential native title claimants of the act; and

(b)        require negotiation in good faith among the persons concerned; and

(c)        provide for mediation by a person or body to assist in settling any dispute among the persons concerned regarding the act; and

(d)        give registered native title bodies corporate and registered native title claimants the right to object against the act; and

(e)        make provision on similar terms to section 30 and contain time limits similar to those applicable under this Subdivision; and

(f)        provide that the body determining the objection consists of, or includes, persons enrolled for at least 5 years as legal practitioners of:

(i)         the High Court; or

(ii)        another federal court; or

(iii)       the Supreme Court of a State or Territory; and

(g)        make provision to the same effect as section 39 in relation to matters that are required to be taken into account by the body determining the objection; and

(h)        if the alternative provisions involve the hearing and deter-mination of the objection by a person or body other than the NNTT or a recognised State/Territory body for the State or Territory¾provide for a member of the recognised State/ Territory body (if any) or of the NNTT to participate in the determination; and

(i)         provide that any decision of the body determining the objection may only be overruled on grounds of State or Territory interest or of national interest; and

(j)        make appropriate provision for compensation for the act, including provision for trusts on similar terms to those in subsections 36C(5), 41(3) and 42(5); and

(k)        if the alternative provisions allow a Minister to make a determination in relation to the act in circumstances other than those covered in paragraph (i)-provide for those circumstances to be similar to those set out in section 36A and for requirements similar to those in sections 36B and 36C to apply.

Revocation of determination

(3)        If at any time the alternative provisions are amended so that they no longer comply with subsection (2), the Commonwealth Minister must:

(a)        advise the State Minister or the Territory Minister concerned in writing of the fact; and

(b)        if, at the end of 180 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply-in writing, revoke the determination made under paragraph (1)(b); and

(c)        if:

(i)         at the end of 180 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and

(ii)        before the end of the 180 days, the Commonwealth Minister determined in writing that a further period should apply for the purposes of this paragraph; and

(iii)       at the end of the further period, the alternative provisions still do not comply;

in writing, revoke the determination made under paragraph (1)(b).

Note:      A determination mentioned in subparagraph (c)(ii) is a disallowable instrument:  see section 214.”

96                  It is necessary to have regard to several provisions of the Constitution of the Commonwealth of Australia (“Constitution”) to establish the context in which s 43 is to be construed.

97                  Unless the Constitution prescribes that a legislative power is an exclusive power of the Commonwealth, or provides that such a power is withdrawn from a State, the legislative competence of a State remains unaffected by the Constitution (Constitution s 107).  Few legislative powers have been vested in the Commonwealth exclusively (Constitution s 90) or withdrawn from the States (Constitution ss 114, 115 and 117).  If, as a result of the Commonwealth and a State exercising their legislative powers, a law of a State is inconsistent with a law of the Commonwealth, the latter prevails and the former is, to the extent of the inconsistency, invalid (Constitution s 109).  That is not to say that the State law is void but that it is rendered inoperative during such inconsistency.  (See:  Butler v Attorney-General (Victoria) (1961) 106 CLR 268 at 274, 278, 283.)  The State law remains in existence, but not operative.

98                  Of course, there will not be an inconsistency between those laws, upon which s 109 of the Constitution will operate, if one, or both, of the State and Commonwealth laws has not been brought into effect in respect of provisions that are potentially inconsistent.  An inconsistency may be foreshadowed in those enactments but it will not exist until both enactments are in effect in respect of the provisions that are said to be inconsistent.

99                  Therefore, it is not an enactment “made” by a State or Territory that is subject to s 109 of the Constitution but an enactment that purports to operate inconsistently with an operative law of the Commonwealth.

100               Therefore, it follows that in s 43(1) the Parliament intended to “disengage” the operation of s 109 of the Constitution upon an actual inconsistency between the Subdivision and a State law and, thereby, to allow that State or Territory enactment to have effect.  Where s 43(1)(a) refers to a State or Territory law that “provides” for “alternative provisions” it speaks of provisions that would have effect but for the operation of s 109 of the Constitution.  That is made clear in the concluding words of the subsection which state that as long as the determination made under s 43(1)(b) “is in force” the State or Territory provisions “have effect”.  The use of the present tense in s 43(1) makes the foregoing construction reasonably clear. 

101               There are other considerations that confirm the correctness of that construction.

102               Section 43(1) provides that whilst the determination is in force, in this case from the date of publication of the determination in the Gazette (see:  Acts Interpretation Act 1901 (Cth) s 48(1)), the “alternative provisions” of a State or Territory law “have effect” instead of the Subdivision.  If it is contended that s 43(1) contemplates that a determination may be “in force” in respect of “alternative provisions” in a State or Territory law that are not then in effect, then it would follow that Parliament contemplated that the Commonwealth provisions would cease to operate from the date of commencement of the determination and the parties affected thereby would have to await the coming into effect of the “alternative provisions”.  If that were so, Parliament would have introduced considerable uncertainty into the exercise of rights of importance to the parties concerned and have failed to satisfy the right of those parties to know what law they were required to observe.  (See:  University of Wollongong v Metwally (1984) 158 CLR 447 per Gibbs CJ at 458.)  That result would be contrary to the object of the Subdivision which was to reduce uncertainty and better define the operation of the “right to negotiate” possessed by a native title claimant.  Further, such a construction would involve the Commonwealth ceding control over when, or what part of, the “alternative provisions” would come into operation after the Subdivision had ceased to have effect.  That consequence is so unlikely that the construction on which it rests must be discarded.

103               Counsel for the Commonwealth submitted that words must be implied in s 43(1) to the effect that a determination, although in force, does not have effect until, “in substance”, the alternative provisions of a State or Territory law have been brought into effect.  The use of implied words as part of a process of statutory construction, is restricted to patent circumstances.  The implication contended for does not appear to be available on the words used by Parliament in this case.  If, by operation of a determination then “in force”, “alternative provisions” of a State or Territory law not then in operation are said to “have effect” instead of the Subdivision, then, ergo, such parts of the relevant law of a State or Territory as are brought into effect will “have effect” in place of the provisions of the Act.  It may be that a State or Territory may bring into effect only part of the “alternative provisions”.  On the construction contended for, such a result would be said to have been contemplated by Parliament.  It must be regarded as unlikely that Parliament intended that the Subdivision would cease to have effect where only part of the “alternative provisions” were brought into effect and, even more unlikely, that “disengagement” of the operation of s 109 was made to depend on a judgment to be made as to whether “in substance” the alternative provisions of a State or Territory law have been brought into effect.

104               Furthermore, so construed, s 43 would provide no means for the Commonwealth to restore the operation of the Subdivision if, contrary to the purpose or object of the determination, a State or Territory brought into effect only part of the “alternative provisions”.  No provision is set out in s 43 for revocation of the determination in such a circumstance and the restricted power of revocation set out in s 43(3) suggests that Parliament has circumscribed the power of revocation that may be implied.  The power to revoke the determination in s 43(3) would not apply because no amendment to the approved “alternative provisions” would have been effected after the “determination” came into force.  The construction contended for by counsel could only introduce a lacuna of significant proportion.

105               Applying the plain meaning of the words used in s 43(1) avoids the foregoing difficulties.  The Commonwealth Minister may form an opinion under s 43(2) that “alternative provisions” of a State or Territory, whether or not they are in effect, satisfy the requirements of that subsection.  Section 43(1)(b) may permit the Commonwealth Minister to make a determination that “alternative provisions” enacted by a State or Territory, although not then in effect, comply with the requirements of s 43(2), but it does not permit the Minister to bring such a determination into force until the State or Territory “provides” for the “alternative provisions” to be laws of that State or Territory that will have effect instead of the Subdivision of the Act upon the determination coming into force.

106               The Commonwealth Minister making the determination could provide in that determination that it is to take effect from the date on which the whole of the “alternative provisions” come into effect.  (See:  Acts Interpretation Act s 48(1)(b)(i).)  Pending the occurrence of that event, of course, the Subdivision would continue to have effect.

107               In the instant case the Commonwealth Minister did not so provide in the terms of the determination he made.  However, it was a fact that at the time the determination took effect upon notification in the Gazette on 18 September 2000 the whole of the “alternative provisions” the subject of the determination and identified in the Schedule thereto, had also commenced operation.  It followed, therefore, that the Commonwealth Minister was empowered by s 43(1) to have the determination he had made take effect on that day, there being a law of the State of Queensland that provided “alternative provisions” that would “have effect” when the determination came into force.

108               It follows that I am unable to agree, with respect, with the conclusion of the learned primary Judge that on the facts of this case the determinations made by the Commonwealth Minister were invalid.  Section 43(1) permitted the Commonwealth Minister to make a determination based on an opinion formed pursuant to s 43(2) in respect of a law of a State or Territory not yet in effect.  Although s 43(1) did not permit such a determination to take effect until the “alternative provisions”, the subject of the determination, were also in effect, in this case that circumstance did not arise.  The appeals therefore must be allowed.

Cross Appeals and Notices of Contention on Cross Appeals

109               I agree, for the reasons stated by Kiefel J, that his Honour did not err in declaring that the amendments to the Mineral Resources Act 1989 (Qld) enacted in 1998 and 1999 were not invalid by reason of failure to satisfy s 24MA of the Act or by reason of inconsistency with the Racial Discrimination Act 1975 (Cth). 

110               With regard to the cross-appeal from his Honour’s declaration that determinations made by the Commonwealth Minister pursuant to s 26A(1) of the Act on 31 May 2000 were valid, I also agree, for the reasons stated by Kiefel J, that the declarations made by his Honour involved no error.

111               I agree with the orders proposed.

Associate:

Dated:              27 November 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND:

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

KIEFEL J:

STATUTORY PROVISIONS

112               Division 3 of Part 2 of the Native Title Act 1993 (Cth) (“the NTA”) is concerned with “future acts” that affect native title.  At issue on the appeals are those provisions which might render valid future acts.  Future acts are defined in s 233(1) of the Act.  The definition includes the making or amendment of legislation on and after 1 July 1993.  It requires that the act in question not be a “past act” and that, apart from the Act, it validly affects native title in relation to the land or waters to any extent or, if it were valid, it would affect native title.  A “past act” is defined in s 228(1).  It refers to acts occurring prior to the dates nominated for future acts in s 233(1).  In relation to the requirement in s 233(1) that a future act affect native title, s 227 provides:

“An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.”

113               Section 24DA provides that, unless a provision of the Act provides otherwise, a future act is invalid to the extent that it affects native title (see also s 24AA(2)).  Section 24AA, which is the “Overview” provision of Division 3 advises, by subs (2), that it is provided that “to the extent that a future act affects native title” a future act will be valid if it is covered by certain provisions of the Division.  Subsection 24AA(4)(j) provides that s 24MD is one basis for validity.  Subsection (1) of s 24MD, which is entitled “Treatments of Acts that pass the freehold test” provides that if subdivision M applies to a future act, “then, subject to subdivision P (which deals with the right to negotiate), the act is valid”.  Section 24MD(6) provides that, in the case of a future act to which subdivision M applies, the consequences in subs (6A) and (6B) apply.  Subsection (6A) provides that native title holders and registered native title claimants have the same procedural rights in relation to the land or waters as ordinary title holders, and subs (6B) provides for rights of consultation and objection in certain circumstances.  Subsection (6) however excludes an act to which subdivision P applies and an act the subject of a determination under s 26A from the provisions of subs (6A) and (6B).

114               Section 24MA deals with legislative acts which are future acts.  It provides that subdivision M will apply to them if they operate in a certain way:

“24MA Legislative acts

This Subdivision applies to a future act if it is the making, amendment or repeal of legislation and:

(a)       the act applies in the same way to the native title holders concerned as it would if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters) affected; or

(b)       the effect of the act on the native title in relation to the land or the waters is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters).

Example 1: An example of a future act covered by paragraph (a) is the making of legislation that permits mining on land in respect of which there is either native title or ordinary title.

Example 2: An example of a future act covered by paragraph (b) is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land in relation to which native title exists.”

115               A future act may be a “low impact future act”.  Relevantly, s 24LA(1)(b) requires that to qualify as such an act, it does not authorise certain grants of interests in land.  The interests listed do not include permits of the type here in question.

116               Section 24AA(5) also provides that, in the case of acts covered by s 24MD, it is necessary that the requirements of subdivision P be satisfied in order for the acts to be valid.  Subdivision P provides for a right to negotiate.  Section 25(1) provides that subdivision P applies to certain future acts done by the Commonwealth, a State or Territory.  They include certain conferrals of mining rights:  subs (1)(a).  Subsections (2) and (3) provide that the parties must negotiate before a future act is done and if they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act.  If the procedures in the subdivision are not complied with the act will be invalid to the extent that it affects native title:  subs (4).  The section provides, by subs (5), for an alternative to these procedures.  The subsection is in these terms:

“(5)     States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.

Note: The fact that action is being taken to comply with this Subdivision does not imply that action under another law, such as processing requests or applications in respect of the act, cannot be taken at the same time.”  

117               The appeal concerns the validity of the Commonwealth Minister’s determinations about the alternative provisions.  The determinations are provided for by s 43(1) of the NTA, which is in these terms:

“43      Modification of Subdivision if satisfactory alternative State or Territory provisions

Determination about alternative provisions

(1) If:

(a)       a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable to the State or Territory; and

(b)       the Commonwealth Minister determines in writing that the alternative provisions comply with subsection (2);

then, while the determination is in force, the alternative provisions have effect instead of this Subdivision.”

118               Subsection (2) of s 43 lists matters about which the Minister must be satisfied in making a determination.  It may also be observed that subs (3) makes provision for revocation of a determination where the alternative state or territory provisions are amended such that they no longer comply with subs (2).  It is not necessary to set these provisions out.

119               Subdivision P, which gives a right to negotiate, also applies to a future act if subdivision M applies to the act and, relevantly, the act is done by the Commonwealth, or State or Territory and it is the creation of a right to mine or a variation of such a right, to extend the area to which it relates:  see s 26(1)(a), (b) and (c).  Section 26(2) excludes from subdivision P acts which are the subject of a determination by the Commonwealth Minister under s 26A.  Section 26A(1) provides that, if the conditions of the section are satisfied, the Minister may determine that an act, or each act included in a class of acts, is an “approved exploration etc. acts.”.  One of the conditions (the “second condition”) is that the Minister be satisfied that the act or acts are unlikely to have a significant impact on the particular land or waters concerned.  The “fourth condition” is that the Minister be satisfied that, if the determination is made, all registered native title bodies, registered native title claimants and representative Aboriginal and Torres Strait Islander bodies will have certain rights - to be notified, to be consulted and to be heard.  These determinations under s 26A(1) are the subject of a cross-appeal by the Central Queensland Land Council Aboriginal Corporation (“the CQLCAC”).

120               As his Honour the primary Judge narrated, in 1998 amendments were made to the Mineral Resources Act 1989 (Qld) (“the MRA”) following the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1.  The amending legislation, the Native Title (Queensland) State Provisions Amendment Act (No 2) 1998 (Qld), was assented to on 27 November 1998 but only the formal parts were commenced into operation.  The proposed new Parts, 12-18, were subject to further change by the Native Title (Queensland) State Provisions Amendment Act 1999 (Qld).  Further amendments to the MRA were effected by the Land and Resources Tribunal Act 1999 (Qld), assented to on 18 March 1999.  The 1999 provisions came into operation on 18 September 2000.  The obvious intent with respect to the new provisions was that they might serve as alternatives to the Commonwealth provisions.

121               In Part 12 of the MRA “Introduction to Native Title Provisions”, which provisions are defined by s 5 to be those in Parts 12 to 18, s 419(1) provides:

“419(1)The native title provisions state additional requirements that apply for certain grants, renewals and variations of, and certain other acts concerning, mining tenements, including requirements for compensation, if the grants, renewals, variations and other acts concern non-exclusive land.

122               Section 421 provides:

“421    An act to which the native title provisions apply is invalid to the extent that it affects native title unless -

(a)       the procedures of the native title provisions that are required to be complied with by the State before the act is done are complied with by the State, to the extent that the State is a party to any consultation or negotiation about the doing of the act;  and

(b)       the procedures of the native title provisions that are required to be complied with by the applicant for the doing of the act before the act is done are complied with by the applicant.”

123               In the native title provisions written notice of the application for the permits in question is required to be given to each “native title notification party”.  It is not necessary to set out those provisions.  The persons or bodies are the same as those listed in s 26A(6)(a);  see s 422 of the MRA.

124               The cross-appeal concerning the fourth condition of s 26A has regard to s 392 of the MRA and its potential effect upon the notification rights given by the MRA.  The section is in these terms:

Substantial compliance with Act may be accepted as compliance

392.     Where this Act provides that in respect of any matter, the Governor in Council, the Minister, the chief executive, the tribunal or a mining registrar may act if anything has been done in the prescribed way, but that thing has not been done in the prescribed way, the Governor in Council, the Minister, the chief executive, the Tribunal or, as the case may be, a mining registrar who is satisfied that there has been substantial compliance with the prescribed way in respect of that thing may record that fact in writing and may so act and the thing shall be deemed to have been done in the prescribed way.”

The determinations

125               On 31 May 2000 four determinations were made under s 43(1)(b) of the NTA by the responsible Commonwealth Minister, the Attorney-General (by reason of s 253 of the NTA;  s 19A Acts Interpretation Act (Cth) and the Administrative Arrangements Order made on 21 October 1998, as amended on 17 December 1998).  The Minister determined that particular provisions in the MRA,as amended by the provisions referred to above, complied with s 43(2).  In each case the legislation was described as “as yet uncommenced”.  On 18 September 2000 the determinations were gazetted.  An obvious inference from the timing of these events was that the Commonwealth  and State were co-operating.  The second reading speeches in the Queensland Parliament, to which Beaumont J has referred, confirm this.

126               The determinations made by the Commonwealth Minister on the same day, under s 26A of the NTA, were that each of the following classes of acts were an “approved exploration etc. acts”:  the grant of a prospecting permit under Part 3 of the MRA;  the grant and renewal of an exploration permit under Part 5 and the variation of conditions to an exploration permit;  to include or add non-exclusive land;  the grant of renewal of a mineral development licence under Part 6 and the variation of conditions to include or add non-exclusive land to it.  (In these reasons I shall refer to them collectively as “the permits”).

127               The permits were in each case described as a “low impact” permit or licence.  The effect of the determinations and the provisions of s 26(2)(b) were to remove the grant, renewal or variation of those rights under the MRA from the operation of subdivision P.  The effect of the s 43 determinations was to allow the State provisions to have effect instead of subdivision P. 

THE APPEAL

The Reasons of the primary Judge

128               The CQLCAC’s claim, that the determinations made under s 43(1) were invalid, was based upon it being a requirement of the subsection that there be a state legislative scheme in force at the time when the Commonwealth Minister made the determinations.  His Honour the primary Judge accepted that submission.  His Honour considered that s 43(1) prescribed a precondition to the making of a determination, namely that the State law “provides for alternative provisions”.  A statute, or a statutory provision not yet in force, could not, in his Honour’s view, “provide for anything” (at [90]).  So far as concerned the status of the Queensland legislation, his Honour accepted that it is possible to describe a Bill that has been passed by Parliament, and assented to on behalf of the Crown, as an “Act” but “if so, it is an Act in escrow”.  In his Honour’s view, until the Act commenced operation it could not be regarded as having existence for any purpose affecting the legal position of the parties, even if the date of commencement is known.

129               His Honour also considered the concluding words of the subsection to be of some importance in the construction of the subsection.  In his Honour’s view they appeared to assume that the State law will, at the time the Commonwealth Minister’s determination comes into force, be available “to have effect instead of (subdivision P)” (at [91]).  Since the commencement of the State legislation is not within the Commonwealth’s control, certainty could only be achieved if the State legislation is already in operation when the determination is made.

130               His Honour rejected an argument that a difficulty would arise, as between Commonwealth and State laws, because of the operation of s 109 of the Constitution.  The State law would be merely inoperative, not invalid, during the period of inconsistency.  If a State law had commenced, it would be ineffective until the s 43 determination commenced.  During the period of ineffectiveness it nevertheless remains in existence, his Honour reasoned.

131               His Honour concluded that the Minister erred in law in making the determinations under s 43(1)(b) and made a declaration that each of them was invalid and without legal effect.  The Commonwealth Minister and the State of  Queensland appeal from that order and the State of South Australia intervenes.

DETERMINATION OF THE APPEAL

132               “The context, the general purpose and policy of a provision … are surer guides to its meaning than the logic with which it is constructed”:  Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 Dixon CJ, referred to with approval in Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, 381.  In this case the evident purpose of the subsection provides considerable guidance to its intended operation and what is necessary to achieve it.

133               In Western Australia v The Commonwealth (1995) 183 CLR 373, 473 it was held that the Commonwealth Minister is given power to disengage the operation of s 109 of the Constitution:

“When the Minister makes a determination under s 43(1)(b), the Commonwealth law (Subdiv B) is withdrawn pro tanto and the State law is left with a corresponding field of effective operation (353).  The Minister is not empowered to engage but to exercise a power to disengage the operation of s 109.”

134               It is necessary to make two observations about this passage.  Whilst their Honours refer to the making of a determination, they clearly have in mind the point when it is effective to withdraw the Commonwealth laws, which is to say upon gazettal.  Their Honours were concerned with s 43(1) as it existed prior to its amendment, but this aspect of the judgment remains relevant to the operation of the subsection in its present form.

135               Their Honours’ description of the process undertaken informs the construction of s 43(1), the subject of this appeal.  Clearly it was the intention of the section to avoid an inconsistency arising between the Commonwealth and State provisions because of s 109 of the Constitution.  One may then infer that it is unlikely to have been intended that the two sets of provisions would be in effect at the same time without the determination also being in effect, so as to withdraw the Commonwealth provisions.

136               The CQLCAC did not contend that an inconsistency between the two sets of provisions was unlikely.  It was accepted that they would both address substantially the same subjects.  The solution suggested by it, that the commencement of State legislation itself be conditioned to the commencement of the determination, acknowledges the problem.  It would, however, seem to me to detract from a construction of the subsection which has the State provisions operative before the determination is made and prior to its gazettal.

137               If it was a requirement of the subsection that the State provisions be in force before the determination is made, the period in which there would likely be inconsistency between the provisions would be the period for disallowance of the determinations.  In this period there may be uncertainty and the need to have the extent of the inconsistency determined.  It is important that citizens know which of the laws apply: The University of Wollongong v Metwally & Ors (1984) 158 CLR 447, 458.  It should not be assumed, in my respectful view, as his Honour may have done, that subdivision P would simply operate in its terms.  An approach to the construction of the subsection which sees it operate in a way which avoids these difficulties is to be preferred.

138               In my view, the subsection says that while a determination is in force and alternative State provisions are effective, the Commonwealth withdraws its provisions.  It would not appear to be necessary to its operation that the State provisions be in force at an earlier time.  Until the Commonwealth Minister’s determination takes effect, subdivision P of the NTA remains in force and its procedures must be followed.  The determination is not effective to withdraw subdivision P unless there are in force the State provisions to which it refers.  So understood, the only point when it is envisaged the determination and the State laws would coincide is when the determination is made.

139               In the present case the State provisions were in force when the determinations took effect, as a result of co-operation between the Commonwealth and the State.  There was no hiatus and no inconsistency.  The construction for which the Commonwealth Minister and the States contend would permit of such an operation.  The certainty which his Honour the primary Judge considered necessary is achieved. 

140               The words of s 43(1) do not require the State or Territory provisions to have commenced at the point when the Commonwealth Minister makes a determination about them, although clearly he would need to be able to identify what was intended to come into effect.  It is not necessary to the Commonwealth Minister’s task that the provisions be in force.  The phrase “[If] a law of a State or Territory provides for alternative provisions”, does not, in my respectful view, convey such a requirement.  Viewed alone, the reference to a law which makes provision is equivocal.  The section does not, as it may have done, refer to an Act in force.  It is more likely, in my view, that it refers simply to what is contained within an Act of a State or Territory Parliament.  The Queensland Acts were “laws” of that State as that term is understood.  The alternative provisions were contained within an enactment (see s 15 Acts Interpretation Act 1954 (Qld)).  The provisions had not yet come into operation, but that does not prevent them from being provisions, nor the Act in which they are contained a law.  Moreover it may be inferred from what is necessary to be undertaken under the subsection that it was not intended that the provisions be in effect.  This is confirmed, at a practical level, when consideration is given to the extent of the consultations and consequential amendments likely to be involved.

141               In general terms it is doubtless correct that statutory provisions do not affect the legal position of persons until they become operative.  The statute in the case to which his Honour referred, Croxford v Universal Insurance Co Ltd [1936] 2 KB 252, 270, could be viewed in that way.  That is not to say, however, that an Act cannot make provision before it commences or that it is ineffective for all purposes.  It is not necessary to expand upon the latter proposition.  It seems to me that, in context, “provides for” merely requires the Act to contain the alternative provisions.  This is all that the Commonwealth Minister’s task of assessment of them requires for the purpose of s 43(2).  It could not be said that the provisions in an Act passed and assented to, but not yet proclaimed, are uncertain.  Provision is made for the possibility of changes being made to the alternative provisions by s 43(2).  In the event that they had the result that the provisions no longer complied with s 43(2), steps would be taken towards revocation of the determination under s 43(3).

142               His Honour the primary Judge considered that the words “while the determination is in force, the alternative provisions have effect instead of this subdivision” in the conclusion to the subsection, conveyed an intention that the State provisions be in place and be able to take effect in substitution at the point when the determination is made.  In my view the words simply mean that the alternative provisions have effect as and from (“while”) the determination coming into effect.  His Honour treated the words as commencing with “once (the determination is in force) …”.  This might reflect his Honour’s view that the alternative provisions need to be in place at the moment the determination is made.  The word “once” conveys this, to an extent, but it is not used in the subsection.

143               In my respectful view neither the language of s 43(1) nor its intended operation would require the alternative State provisions to be in force when the Commonwealth Minister made the determinations.  The process envisaged and the result sought to be achieved suggest strongly to the contrary.

the cross appeals

144               His Honour the primary Judge made two further declarations:  that the amendments made to the Mineral Resources Act 1989 (Qld) in 1998 and 1999 are not invalid because of failure to satisfy s 24MA of theNTA or inconsistency with the Racial Discrimination Act 1975 (Cth) (“the RDA”);  and that each of the determinations made pursuant to s 26A(1) of the NTA, on 31 May 2000, by the Commonwealth Minister, is valid and effective in law.  The Central Queensland Land Council Aboriginal Corporation appeals from those orders.  The cross-appeals concern the validity of the amendments to the MRA and the validity of the determinations made under s 26A of the NTA.  The latter contention has two aspects to it.

validity of the mineral resources act amendments

145               Before his Honour the primary Judge, the CQLCAC argued that the enactment of the Queensland legislation authorising the various acts to which the determinations refer was a “future act” for the purposes of the NTA.  Insofar as they authorise activities on land or waters subject to native title, the native title holders are put in a more disadvantageous position than ordinary titleholders.  Section 24MA of the NTA is therefore not satisfied and the amendments invalid according to s 24MO.  Alternatively, the provisions are inconsistent with the RDA, and s 7 of the NTA invalid to that extent by reason of s 109 of the Constitution of the Commonwealth of Australia.  This latter argument is not pursued on the cross-appeal.  Indeed the reference to the RDA is now employed in a different argument.

146               It was submitted by the Commonwealth Minister and the State of Queensland on the hearing of the application that, if native title holders were placed in a “more disadvantageous position” than the holders of ordinary title, it was as a consequence of the MRA as it stood, independent of the making of the amendments and not as a consequence of the amendments.  Further, native title holders are not in a “more disadvantageous position” under the current Act than freehold title owners.  His Honour rejected the last proposition, but accepted the first.  The State of Queensland contends that his Honour’s declaration should also be affirmed on the basis of the proposition which was rejected.

147               His Honour observed that the 1998 and 1999 amendments did not bring native title holders within the MRA’s definition of “owner” and thereby equate them for all purposes with freehold owners.  Separate and different provisions were made in respect of native title holders.  The entitlements conferred by the provisions were inferior to those conferred on “owners” by the Act.  However the difficulty in the CQLCAC’s argument was that it failed to distinguish between the consolidated MRA and the amendments, the making of which were said to constitute future acts.  The consolidated Act affected native title rights and interests within the meaning of s 227 of the NTA, but the amendments did not.  Only two of the identified provisions were affected by the 1998 and 1999 amendments, ss 183 and 190 of the MRA.  They were amended by substituting references to the “mining registrar” for references to the “Chief Executive”.  Those amendments could hardly be said to affect native title interests.  They were not future acts within the meaning of s 233 of the NTA.

148               It was submitted for the CQLCAC that his Honour must have reasoned from an initial proposition that native title holders had no rights under the MRA prior to the amendments in 1998 and 1999 and this was erroneous.  I do not consider his Honour to have approached the matter in that way.  The submission however, has led to an argument being advanced which is different from that put to his Honour although the essential point, that the making of the amendments constituted a “future act” which was subject to s 24MA of the NTA, remains.  I do not condone substantial shifts in argument on an appeal, but in the context of this appeal it was not expedient at the hearing to attempt to discern the changes and the extent of them and nor is it now. 

149               The CQLCAC submitted that the starting point, to a consideration of the 1998 and 1999 amendments to the MRA, was the combined operation of that Act and s 10 of the RDA.  The effect of s 10 would be that native title holders would enjoy the same rights under the MRA as the holders of ordinary title: Gerhardy v Brown  (1985) 159 CLR 70, 98;  Western Australia v Ward (2002) 191 ALR 1, 43 [106];  [2002] HCA 28.  If, as his Honour held, native title holders were placed in a more disadvantageous position after the 1998 and 1999 amendments, it must follow that their rights had been adversely affected.  The making of the amendments was then a “future act”.  They did not satisfy s 24MA because, impliedly, they restricted the rights of native title holders.  They are therefore invalid.  There was also reference to whether the MRA, in force prior to 1994, was a “past act” as his Honour held, but this does not seem to add much to the central argument. 

150               There are a number of difficulties in the way of the CQLCAC’s argument and the way in which it was developed.  In the first place it is necessary to take account of the NTA provisions with respect to the rights of native title holders prior to 1998.  In Western Australia v The Commonwealth (at 484) it was pointed out that the general provisions of the RDA must yield to the specific provisions of the NTA in order to allow them to operate.  Section 7(1) of the NTA, which was amended subsequent to that decision, now confirms that whilst the NTA is to be read as subject to the RDA, this means only that provisions of the RDA apply to the performance of functions and exercise of powers conferred under the Act and that the Act should, in its terms, be construed consistently with the RDA if there is ambiguity.  It does not provide that the RDA operate so as to alter the provisions of the NTA and the procedures it provides to protect native title.  The assumption in the CQLCAC’s argument is that, prior to the 1998 and 1999 amendments, the same procedural rights were enjoyed by native title and other landholders.  That premise is incorrect.  After the NTA came into effect in 1994 native title holders were provided with a right to negotiate (then subdivision B) with respect to “permissible future acts”, which acts included some aspects of mining.  After the 1998 amendments to the NTA, a grant of a mining tenement was a “future act” if it affected native title in the way described.  Subdivision P now gave a right to negotiate.  The freehold test had to be passed.  The NTA did not provide native title holders and registered native title claimants with the same procedural rights as ordinary title holders.  It provides to the contrary where subdivision P operates and where a s 26A determination is made:  see s 24MD(6)(a) and (b). 

151               It is also necessary, in considering the CQLCAC’s argument, to bear in mind what changes were effected by the Queensland Acts in 1998, 1999 and 2000 and by what means.  It is necessary first to identify just what was said to be altered by them.  The only change identified in argument as producing the necessary adverse affectation, to which s 227 refers, was the withdrawal of the right to negotiate which had been provided for in subdivision P of the NTA.

152               The 1999 amendments to the MRA, which replaced those of 1998, provided the basis for the later determinations made by the Commonwealth Minister by providing for alternative procedures to be observed in Queensland in connexion with some mining permits on land which might be subject to native title.  By the s 26A determinations the Commonwealth Ministerrecognised them as “approved exploration etc acts”.  Those determinations also had the consequence that s 24MD(6A), which provided for the same procedural rights, did not operate, as I have already observed.  By the determinations under s 43(1), the right to negotiate in subdivision P was withdrawn and the State provisions took effect.  It was not the Queensland amendments which took away the right to negotiate.

153               The amendments to the MRAdid not effect a grant of the permits.  They provided for such a right or interest to be created by administrative action.  The grant of that interest might itself be a future act under the NTA attracting the freehold test, but it is not necessary to consider that further.  The critical question on this part of the cross-appeal is whether the amendments can be said to affect native title in the way described in s 227, so as to amount to “future acts”.  Clearly they had none of the effects referred to in that section.  When the CQLCAC spoke of there being a partial inconsistency with their continued existence, enjoyment or exercise it could only have been referring to the removal of the right to negotiate.  There is a further difficulty in the contention that the means by which a right to negotiate is removed can be described as an act which “affects native title” in the way described in s 227, although it is not strictly necessary to deal with it.  It treats procedural rights under the NTA (defined in s 253) as if they were part of the bundle of rights which are native title rights.  Clearly that is not correct:  see s 223 of the NTA, which defines “native title” and “native title rights and interests” and Western Australia v Ward (at 16 and 17,  [17] and [18]).

154               In my view there is no substance to this aspect of the cross-appeal.  It is not then necessary to determine the contention of the State of Queensland.

Validity of the s 26A determinations:-  the second condition

155               The second condition to be satisfied under s 26A, prior to the making of a determination under it, is that the act or acts to be considered as “approved exploration etc acts” are “unlikely to have a significant impact on the particular land or waters concerned”:  s 26A(3).

156               The determinations made do not identify any particular land or waters.  Apart from the obvious limitation to land in Queensland, the determinations could apply to all land in the State.  It is plain from the statement of reasons given with respect to each of the three determinations that the Commonwealth Minister understood this.  The Commonwealth Minister referred to the Explanatory Memorandum to the Native Title Bill 1997 which provided that:

“where the  Minister’s determination is made for a class of acts, such as the granting of exploration titles under legislation, the second condition [ie the condition that it must be satisfied that the act or acts are unlikely to have a significant impact on the land or waters concerned] may be met, for instance, if exploration licences of the relevant kind impose sufficient limitations on the removal of earth.”

157               The Minister discerned from this that it was intended that a s 26A determination could be made in respect of all acts in a class of acts across a State.  It would follow, the Minister reasoned, that he must be able to assess the acts as a class.  The particular land or waters concerned could potentially include all types of land in the State where native title has not been extinguished.

158               With respect to activities conducted under low impact prospecting permits, the Commonwealth Minister took into account the provisions of the MRAand advices from Queensland officials as to what occurs in practice, conditions which might be imposed and restrictions upon the grant of permits in particular areas.  Hand mining was excluded under such a permit and this could be enforced.  “Prospect” was narrowly defined, and activities under such a permit were unlikely, in his view, to have a significant impact on the land or waters concerned. 

159               A similar approach was taken to each of the other classes of the permits - low impact exploration permits and low impact mineral development licences.   With respect to each of them the Minister referred to the list of activities permitted.  “Low impact activities” was defined in s 482 of the MRA as aerial surveys;  geological and surveying field work that does not involve clearing;  sampling by hand methods;  ground based geophysical surveys that do not involve clearing; drilling and activities associated with drilling that do no involve clearing or site excavation, other than clearing on site excavation that is the minimum necessary to establish a drill pad for a mobile rig, and do not include clearing for a road track;  and environmental field work that does not involve clearing.  The section was subsequently amended.  It was that section to which his Honour referred.  It included definitions of “clearing” and “excavation” which were not present in the section considered by the Minister.  It would not however appear to be central to his Honour’s reasons.  The Commonwealth Minister considered that the prohibitions upon clearing and excavation would result in minimal impact.  The fact that drilling is allowed did not mean that such a permit fails to satisfy the condition:  s 26A(4) NTA, he observes.  While land could be cleared around the drill site sufficient for the mobile drill pad, access to the site must be gained without clearing or excavation.  This effectively meant that drilling in timbered areas would be restricted to areas adjacent to existing roads.  In practice permit holders do not drill on more than a minute portion of the land and if any intensive drilling was intended a high impact exploration permit would be sought.  The Minister concluded that it was “highly unlikely” that the activities authorised by the permits would be so extensive as to have a significant impact on the land or waters concerned.

160               In his Honour’s view, whilst the Explanatory Memorandum should not be used so as to deny the existence of the word “particular” in s 26A(3), it could be used as an indication that it is not essential for the Minister to identify each parcel of land to which the determination might apply.  On that approach however the Minister ought to consider the effect of the approval exploration act on a “worst-case” basis, that is, by assuming the activities permitted might take place on land which is most sensitive to environmental degradation.  In his view, the Minister did that.  Further, whilst the Commonwealth Minister made specific reference to national parks and other protected areas, he was not to be taken necessarily as having excluded from his consideration areas outside them which might be environmentally sensitive.  His Honour, however, concluded that the Minister reasoned to his conclusion in each  case by dealing with the matter in general terms, as if all land was equally vulnerable to degradation for mining activities.  Having regard to the particular activities permitted, nothing could turn upon the nature of the land.  The conclusion reached by the Commonwealth Minister was open, having regard to the activities and regardless of the nature of land.

161               The CQLCAC submit that it was not possible for the Commonwealth Minister to have the opinion required by the second condition of s 26A because the acts in question were not limited to identified land.  They could be done in relation to any land or waters in Queensland, including environmentally sensitive areas.  There are two aspects to the submissions.  The first turns upon what is required by s 26A(2) and the second upon whether the conclusions reached by the Minister were unreasonable in the legal sense.

162               It was submitted that the word “particular” in subs (3) ought to be given its primary meaning.  That would require a focus upon some identifiable location or area.  A difficulty with that contention is that s 26A is clearly intended to have application to mining rights provided for in legislation.  It requires an assessment of the activities which may be permitted.  The land the subject of the permits could not be identified until a permit was sought.  Having regard to the nature of the “acts” referred to in the section and the assessment required of them, “the particular land or waters concerned”  in my view refers to land in Queensland which might be the subject of the type of permit in question, wherever it may be.

163               In the written submissions for the CQLCAC reference was made to various arguments which had been put to the Minister concerning whether some activities could be described as having a low impact.  They do not establish that the conclusion was one which could not reasonably have been reached.  In oral argument it was put that the Minister was obliged to undertake a “worst case scenario”.  As his Honour held, that may have been a useful course, but the approach taken by the Minister was open to him.  In my view it accords with the requirements of the subsection.

validity of the s 26A determinations:  the fourth condition

164               The fourth condition, in s 26A(6), requires the Minister to be satisfied that the persons or groups listed would have certain procedural rights if the determination under the subsection was made.  The submissions focussed upon the failure to provide for rights to notification about the permits.  This would come about because compliance with them might be taken to have occurred in some cases, by reason of s 392 of the MRA.  Section 43(2)(a) of the NTA also requires that the Minister be satisfied that appropriate procedures for notification be provided for, although reliance does not appear to have been placed upon its requirements in the argument before his Honour.

165               Under the MRA, as the Commonwealth Minister observed, an applicant for a permit or licence was to provide a copy of the notice to the mining registrar.  The registrar could only grant a permit if the applicant had fulfilled the obligation to notify the “native title notification parties”.  These parties are the same persons and bodies referred to in s 26A(6)(a) of the NTA.

166               In his statement of reasons the Commonwealth Minister considered the operation of ss 392 and 421 of the MRA, which are set out above.  In the Minister’s view, the effect of s 421 MRA is that if a permit is granted notwithstanding a failure to comply with notification requirements, the permit would be invalid to the extent that it affects native title.  Therefore there could be no question of “substantial compliance” for the purposes of s 392, he reasoned.

167               In his Honour’s view the Commonwealth Minister was in error in that opinion.  His Honour held that the statutory fiction created by s 392 applies for all purposes, including the application of s 421.  The Minister has given notice of his contention that his Honour was wrong in so concluding.  His Honour however accepted the submission for the Minister that s 26A(6)(a) and s 43(2) require the Minister’s consideration of the substance of the notification requirements in the MRA and not of the possible effect of a failure to follow those procedures.  The Minister was not required to address the latter question.  The declaration sought by the CQLCAC was refused.

168               The CQLCAC submit that the requirement of s 26A(6) is that the parties listed have a right to notification.  This requires that the right given by the MRA be one which must be complied with.  It was also sought to place reliance upon s 393 of the MRA, a provision not apparently argued before his Honour.  It provides that where the holder of, or an applicant for, the grant of one of the permits or licences in question is required to do anything to comply with a provision of the Act, and they satisfy the Minister that they had been unable to do it, by reason of the neglect or fault of the Minister or some official, or of circumstances beyond their control;  and they had done all that they could to comply with the provision, the Minister may deem them to have complied.  This provision would not seem to me to apply to the obligation to notify, which is to be carried out by the permit applicant themselves.  Accepting that there might however be a situation in which the section could have practical operation, it would not apply for substantially the same reasons that s 392 will not apply.  It does not appear to have been intended that these provisions apply to the particular procedural requirements where native title may be involved.

169               So far as concerns s 392, a finding of substantial compliance with the notification provisions of the MRA would not seem to me to be possible where there is a failure to notify each of the groups listed in s 26A(6).  It is difficult therefore to conceive that the right to notification could be affected by such a means.  The observations made in Scurr v Brisbane City Council (1973) 133 CLR 242, 256, with respect to town planning notification provisions are apposite.  It is difficult to discern any distinction between a strict observance of such a requirement and what substantial compliance would call for.  In any event it is necessary to consider the threshold question, the subject of the notice of contention, namely whether s 392 of the MRA has application to the notification provisions.

170               As the CQLCAC pointed out, what is required to be given by the MRA is a right to notification in each case.  The MRA does so.  The right, or rights, are contained within the “native title provisions” which are Parts 12 to 18 (see s 5).  It is not necessary to set them out.  Section 419 says that the native title provisions “state additional requirements…” that apply for certain grants and other acts concerning mining tenements in respect of non-exclusive land.  The notification provisions are some of those additional requirements.  They are, as earlier observed, requirements with respect to the grant, renewal or variation of the permits.  Section 421, which is also contained within the native title provisions, would therefore operate to render them invalid, to the extent that they affect native title.  Whilst s 392 might operate with respect to the basic requirements of the MRA, s 421 is clearly intended to apply to these additional procedural requirements.  It does not appear to me possible for s 392 to have operation in this context.  A waiver of these requirements could not have been intended.  His Honour’s refusal to grant the declaration sought is, in my respectful view, justified for these reasons.

ORDERS on appeal and cross-appeal

171               The appeal should be allowed and the cross-appeals should be dismissed.  The third declaration, that concerning the validity of the determinations pursuant to s 43(1)(b) of the NTA, should be set aside and the order proposed by Beaumont J made.  The CQLCAC should pay each of the Commonwealth Minister’s and the State of Queensland’s costs on the appeal and the cross-appeal.

Associate:

Dated:              27 November 2002