FEDERAL COURT OF AUSTRALIA

Doyle on behalf of the Iman People # 2 v State of Queensland [2016] FCAFC 189

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 22 January 2016, the primary Judge made orders which had the effect of declaring that the grants or conversions of perpetual leases over three parcels of land constituted, in each case, a “previous exclusive possession act” for the purposes of s 23B of the Native Title Act 1993 (Cth) (the NT Act): Doyle on behalf of the Iman People #2 v State of Queensland [2016] FCA 13; (2016) 335 ALR 41. In doing so, the Judge upheld the validity of s 8 of the Native Title (Queensland) Act 1993 (Qld) (the NTQA) and its application to the grants or conversions in question.

2    The Judge’s orders had the consequence that native title in each area was taken to have been completely extinguished and gave effect to his answers to two questions arising on an application for the determination of native title, which he had ordered be heard and determined separately. The Judge also answered a third question, but no issue concerning that answer was raised on the appeal.

3    The appellants contend that the Judge should have found that s 8 was invalid, or at least, inoperative. This was so, the appellants submitted, because the original grants and conversions had, to the extent that they extinguished native title, been invalid by reason of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth) (the RD Act) and because it had not been open to the Queensland Parliament, by the enactment of s 8, to validate with retrospective effect that which had previously been invalid by reason of s 109 of the Constitution. The Queensland Parliament’s inability in this respect was said to be a consequence of a principle concerning the operation of s 109 established by University of Wollongong v Metwally (1984) 158 CLR 447 (referred to by the parties and by the Judge as “the Metwally principle”).

4    Notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were served by the appellants on the Attorney-General for the Commonwealth and the Attorney-Generals for each of the States and Territories. Only the Attorney-General for the Commonwealth intervened at the hearing.

5    For the reasons which follow, we consider that the appellants’ submissions do not succeed. The Metwally principle means that it is not open to the Commonwealth or State Parliaments to avoid retrospectively the operation which s 109 of the Constitution has had on an inconsistent State law but says nothing about the ability of either Parliament to enact a law attaching new legal significance to events in the past which were invalid or ineffective at that time. Section 8 of the NTQA is valid and operative to attach new legal significance to the acts in the past which had been ineffective to extinguish native title.

Background

6    The land in question in the proceedings below concerned areas described by the Trial Judge as Areas 73, 224 and 226. All were located in the general vicinity of the town of Taroom in Western Queensland.

7    The relevant history of Areas 72, 224 and 226 can be summarised as follows:

Area 73

On 15 April 1982, Grazing Farm Lease 40/1824 was granted under the Land Acts 1962-1981 (Qld) and, when s 61 of the Land Act Amendment Act 1984 (Qld) (the 1984 Amendment) came into effect on 15 May 1984, was converted into a Grazing Homestead Lease Perpetual.

Area 224

On 19 September 1968, Grazing Homestead Lease 40/1789 was granted under the Land Acts 1962-1968 (Qld) and the Brigalow and Other Lands Development Acts 1962-1965 (Qld). On s 61 of the 1984 Amendment coming into effect on 15 May 1984, it was converted into a Grazing Homestead Lease Perpetual.

Area 226

During 1978, the following leases were granted under Div IV of the Land Act 1962-1975 (Qld), which together covered the whole of area 226:

(a)     Grazing Homestead Lease Perpetual 36/7570 on 2 March 1978;

(b)    Grazing Homestead Perpetual Lease 36/7569 on 4 May 1978; and

(c)    Grazing Homestead Perpetual Lease 36/7571 on 18 May 1978.

8    Section 61 of the 1984 Amendment, to which reference is made in this summary, provided:

(1)    (a)    Every grazing homestead, grazing farm and settlement farm lease held under the Principal Act and subsisting immediately prior to the commencement of this Act is on and from that commencement converted to and declared to be a grazing homestead perpetual lease under and subject to the Principal Act as amended by this Act, and the instrument of lease with respect to every lease so converted shall be construed accordingly.

9    Between 1986 and 1990, all of the leasehold interests were progressively surrendered and the land to which they related was incorporated into Queensland State Forests Nos 52 and 62.

10    The RD Act had come into operation on 31 October 1975. Accordingly, it was in force at the time of all the grants or conversions, as the case may be, of the leases affecting Areas 73, 224 and 226, other than the grant in 1968 of Grazing Homestead Lease 40/1789. It was common ground in the proceedings at first instance that s 10 of the RD Act had the effect of making inoperative the provisions in the legislation by which the grants and conversions of the leases had occurred (other than the original grant in the case of Grazing Homestead Lease 40/1789) to the extent that they had purported to extinguish native title.

Statutory provisions

11    The issues on the appeal arise out of the provisions in Divs 2 and 2B of Pt 2 of the NT Act concerning the past extinguishment of native title and the complementary provisions in the NTQA. Before detailing those provisions, it is appropriate to note the terms of ss 10 and 11 of the NT Act which provide for the recognition, protection and extinguishment of native title:

10 Recognition and protection of native title

Native title is recognised, and protected, in accordance with this Act.

11 Extinguishment of native title

(1)    Native title is not able to be extinguished contrary to this Act.

Effect of subsection (1)

(2)    An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

(a)    in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

(b)    by validating past acts, or intermediate period acts, in relation to the native title.

12    Divisions 2 and 2B of the NT Act provide for the validation of certain “past acts” attributable to the Commonwealth which would otherwise be invalid because of native title, and provide for legislation by the States and Territories to have a corresponding effect in respect of past acts attributable to them. The term “past act” is defined in an extensive way in s 228 of the NT Act. For present purposes it is sufficient to note that it refers to acts which would otherwise have been valid, but for the existence of native title.

13    Division 2 of Pt 2 provides that, if a past act is “attributable” to the Commonwealth, the act is valid and is taken always to have been valid (s 14(1)). Category A and Category B past acts (grants of freehold estates and of commercial, agricultural, pastoral or residential leases) extinguish native title altogether or, in relation to Category B past acts, to the extent of the inconsistency with the native title rights and interests concerned. The non-extinguishment principle applies to Category C past acts (grants of mining leases) and to Category D past acts (s 15). Section 16 contains a qualification to the operation of s 15 which, for present purposes, it is unnecessary to detail. Section 17 entitles native title holders to compensation in respect of Category A and Category B past acts.

14    Section 19 provides for State and Territory laws to include provisions to the same effect:

19 State/Territory acts may be validated

(1)    If a law of a State or Territory contains provisions to the same effect as sections 15 and 16, the law of the State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid.

Effect of validation of law

(2)    To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

(a)    the grant or issue of any lease, licence, permit or authority; or

(b)    the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the State or Territory.

As can be seen, s 19(1) is permissive in character, subject to the State or Territory law containing provisions to the same effect as ss 15 and 16.

15    Section 19 is to be read in conjunction with s 7 of the NT Act which, after providing that the NT Act is to be read and construed subject to the provisions of the RD Act, provides in subs (3), that that provision “does not affect the validation of past acts … in accordance with this Act”.

16    Division 2B of Pt 2 provides for the confirmation of the extinguishment of native title by acts attributable to the Commonwealth which were done on or before 23 December 1996 (ss 23A(1), 23B and 23C). Relevantly for the purposes of this appeal, an act which is a “previous exclusive possession act” (which includes the grant or vesting of leases conferring exclusive possession) has the effect of extinguishing native title completely (ss 23A(2) and 23C).

17    By s 23B(2), an “act” is a “previous exclusive possession act” if:

(a)    it is valid (including because of Division 2 or 2A of Part 2); and

…

(b)    it took place on or before 23 December 1996; and

(c)    it consists of the grant or vesting of any of the following:

(i)    a Scheduled interest (see section 249C);

…

It is pertinent to the resolution of this appeal to note that subpara (a) uses the present tense “is valid” and not the past tense “was valid”.

18    The term “act” is defined in s 226 of the NT Act. It includes the enactment and amendment of legislation and the grant or extinguishment of an interest in land. The term “Scheduled interest” is defined in s 249C and relevantly to this case, in cl 23(8), Pt III of Sch 1 in the NT Act. By s 5 of the NTQA, these terms and the term “past act”, when used in that Act, have the same meaning as in the NT Act.

19    Section 23C of the NT Act, referred to above, provides that a “previous exclusive possession act” under s23B(2) which is attributable to the Commonwealth extinguishes any native title in relation to the land or waters concerned. It provides:

Acts other than public works

(1)    If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth:

(a)    the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and

(b)    the extinguishment is taken to have happened when the act was done.

20    Section 20 of the NTQA is a counterpart provision. It provides:

20 Confirmation of extinguishment of native title by certain acts that are not public works

(1)    This section applies to an act that is a previous exclusive possession act under section 23B(2) (including because of section 23B(3)) of the Commonwealth Native Title Act.

(2)    The act extinguishes native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned.

…

(3)    The extinguishment is taken to have happened when the act was done.

21    In addition, s 8 of the NTQA provides:

Every past act attributable to the State is valid, and is taken always to have been valid.

22    It was common ground that each grant, and each grant and conversion, of the leasehold interests affecting Areas 73, 224 and 226 was an “act” within the meaning of s 226 of the NT Act, a “past act” within the meaning of s 228(2) of the NT Act and a “Scheduled interest” within the meaning of s 249C and cl 23(8), Pt III of Sch 1 of the NT Act. It was also common ground that the NTQA contained provisions to the same effect as ss 15 and 16 of the NT Act. That is to say, the parties were in agreement at the hearing at first instance that the only issue bearing on whether the elements of a “previous exclusive possession act” were satisfied was the requirement in s 23B(2)(a) of the NT Act that the act be valid.

The approach of the primary Judge

23    The Judge held that Div 2 of Pt 2 of the NT Act and s 8 of the NTQA operated to make valid the past acts affecting Areas 73, 224 and 226, despite the fact that they had occurred after 31 October 1975 when the RD Act came into operation and despite the fact that the leasehold interests had been surrendered some years before the NT Act and the NTQA had come into effect:

[76]    [T]he grant of the leases … and the conversion of leases … both comprised previous exclusive possession acts as defined in s 23B of the NTA because they are all past acts within the terms of the definition of that expression in s 23B(2). In particular, they are “valid” because of the provisions of Div 2 of Pt 2 of the NTA: see s 23B(2)(a).

24    In reaching that conclusion, the Judge rejected the appellant’s contentions concerning the Metwally principle and the elaboration of that principle in The State of Western Australia v Commonwealth (1995) 183 CLR 373 (the Native Title Act Case). His Honour held, at [71], that Divs 2 and 2B of the NT Act contained a scheme for the validation of past acts which was not prohibited by s 109 and was not inconsistent with the RD Act and that, provided the State or Territory law in question complied with the provisions in the scheme pertaining to the exercise of its power, its validation was effective, from the time of its enactment, to extinguish native title.

25    The primary Judge noted that the applicants had accepted that, upon s 8 coming into effect, it had had “the validating effect and the extinguishing consequences … from that time onwards”, at [72]. His Honour accepted, in accordance with the decision in Metwally, that the invalidity of the original grants and conversions of leases (insofar as they extinguished native title) was established as a historical fact. It was that very invalidity which brought the grants and conversions within the definition of “past act”. The invalidity had continued and had not “disappeared” when the leases were surrendered and the land incorporated into State Forests. However, on the enactment of s 8 and satisfaction of the s 19 conditions, the grants and conversions “were validated as acts of the State and, as such, they became effective as exceptions to the exclusive code in the [NT Act] to extinguish any native title rights and interests that existed over the land to which they related”, at [74].

26    The appellants submit that the Judge should have found that the Metwally principle meant that the grants and conversions could not be made valid with retrospective effect by later legislative act. They accepted, however, that if that submission was not accepted, native title over the area in question had been extinguished. That being so, it is appropriate to consider first the principle emerging from Metwally.

The Metwally Principle

27    Metwally concerned the validity of s 6A of the RD Act. That section had been enacted in 1983 following the decision of the High Court in Viskauskas v Niland (1983) 153 CLR 280 that provisions in Pt II of the Anti-Discrimination Act 1977 (NSW) were inconsistent with the RD Act and, to that extent, invalid. By the amendment, the Parliament sought to preserve the operation of State and Territory legislation which was directed to achieving the same objects as the RD Act. It did so by providing that the RD Act “is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory” furthering the objects of the International Convention on the Elimination of All Forms of Racial Discrimination and which was capable of operating concurrently with the RD Act (subs (1)); by providing that persons who, whether before or after the commencement of the 1983 Amendment, instituted proceedings concerning allegations of racial discrimination under a State or Territory Act were then precluded from pursuing such an action under the RD Act (subs (2)) and by permitting a prosecution of a person under either the RD Act or a State or Territory Act (subs (3)).

28    By a majority (Gibbs CJ, Murphy, Brennan and Deane JJ), the High Court in Metwally held that s 6A was invalid. The reasoning of the majority was similar. Gibbs CJ, at 457-8:

[T]he Parliament cannot exclude the operation of s. 109 by providing that the intention of the Parliament shall be deemed to have been different from what it actually was and that what was in truth an inconsistency shall be deemed to have not existed. … If there is an inconsistency between a law of a State and a law of the Commonwealth there is no other rule than that laid down by s. 109 by which the inconsistency may be resolved. In the present case, since an inconsistency in fact existed, the provisions of s. 109 were called into play and their effect cannot later be excluded by retrospectively declaring that the truth was other than it was.

29    Murphy J, at 469:

If an inconsistency occurs because of prospective or retrospective operation of federal or State law, s. 109 operates to render the State law invalid to the extent of the inconsistency. But retrospective operation of federal law cannot render valid what s. 109 made invalid. This would elevate legislation above the Constitution.

30    Brennan J, at 474:

[A] retrospective amendment of the Commonwealth law does [not] affect the past operation of s. 109 upon the State law. The period during which the State law was inconsistent with the Commonwealth law is a matter of history, not of legislative intention. If the retrospective amendment of the Commonwealth law were effective to satisfy retrospectively the condition governing the operation of s. 109, the operation of s. 109 would be contradictory; prior to the retrospective amendment, s. 109 would have deprived the State law of legal force and effect, yet after the amendment it would be necessary to deny that s. 109 had any operation on the State law during the same period. It is impossible to suppose that s. 109 could so operate as to attribute to a State law no legal force and effect in its application to acts, matters and things that occurred or existed prior to the amendment of the Commonwealth law and, after the amendment, to acknowledge that the State law had full force and effect in its application to the same acts, matters and things.

31    Finally, Deane J, at 478-9:

Section 109 of the Constitution is not concerned with legal fictions. It is concerned with the reality of contemporaneous inconsistency between a valid law of the Commonwealth and an otherwise valid law of a State. According to its terms, its operation is immediate. Its terms are unqualified and self-executing. If there is inconsistency between an otherwise valid law of a State and a valid law of the Commonwealth the State law shall be, to the extent of the inconsistency, invalid. It is not the Commonwealth law which operates to make the State law invalid, it is the Constitution itself … . The fact that the Commonwealth Parliament legislates retrospectively to introduce the fiction that, for the purposes of its law, its inconsistent law never existed or had a different operation to that which it in fact had cannot alter the objective fact that at the previous time when s. 109 operated that inconsistency did exist.

(Emphasis in the original)

32    Thus, Metwally stands for the proposition that it is not open to the Commonwealth Parliament to enact a law to avoid, retrospectively, the invalidity which the operation of s 109 of the Constitution has had on an inconsistent State or Territory law. In particular, the Parliament cannot declare, with retrospective effect, that its law had a different operation from that which it had when made, in order to avoid inconsistency.

33    The appellant contends that Metwally also means that State and Territory Parliaments are limited in the same way. Just as the Commonwealth Parliament cannot avoid the operation of s 109 by retrospective legislation, neither can the State and Territory Parliaments nor those Parliaments acting in concert with the Commonwealth Parliament.

34    However, at least two members of the Court in Metwally (Murphy and Deane JJ) considered that there were means by which the Commonwealth and State Parliaments, acting jointly, could overcome the effect of the past invalidity of a State law brought about by the operation of s 109. Murphy J, who considered that the Commonwealth and State Parliaments could each legislate with retrospective effect to achieve such a result, said at 469:

[A]lthough the federal Parliament itself cannot undo the previous invalidating effect of s. 109, it can clear the way for the State Parliament to make a fresh State Act to apply retrospectively in the same terms. Thus both Parliaments can legislate retrospectively so that a fresh State law would come into existence giving present legal force to the procedures which have been followed and the remedies which have been obtained by Mr Metwally.

(Emphasis added)

That is to say, a fresh law (ie, not the law which had given rise to the inconsistency) could operate retrospectively to give “present legal force” to the procedures previously followed.

35    Deane J said at 480:

[I]t should be clear that the foregoing does not involve a denial of the competence of the Parliaments of the Commonwealth and of a State, in combination, to legislate retrospectively for the purpose of remedying any unintended operation of the provisions of s. 109 of the Constitution. … If, for example, the New South Wales Parliament were now to pass legislation to the effect of the relevant provisions of the N.S.W. Act and to provide that those provisions would have retrospective operation, the question whether that new law was valid or operative would fall to be determined by reference to the time when it was in fact on the statute book as distinct from the time in which, under its provisions, it was, for the purposes of the law of the State, deemed to have been operative. That being so, the provisions of s. 109 would operate to render such a subsequent State law invalid only if, and to the extent that, there were some present inconsistency with subsisting Commonwealth law.

36    The parties also referred to a passage in the reasons of Mason J (in dissent) at 460-1, which contemplated that cooperative action between the Commonwealth and State may remove an inconsistency. Mason J said:

But there is no objection to the enactment of Commonwealth legislation whose effect is not to contradict s. 109 of the Constitution but to remove the inconsistency which attracts the operation of that section. So, where inconsistency between Commonwealth and State laws arises, … the Commonwealth Parliament may legislate to remove that inconsistency by providing that the Commonwealth law is not intended to regulate the subject-matter exhaustively or exclusively, thereby opening the way to the concurrent operation of a State law on the subject matter. It is, of course, well settled that “a Commonwealth statute may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals thereby enabling State laws, not in direct conflict with a Commonwealth law, to have an operation” …

As can be seen, Mason J did not address the question of whether inconsistency could be removed with retrospective effect. Nor did Brennan J in a brief passage at 474:

Where the condition governing s. 109 is in truth satisfied, it is not within the power of the Parliament to deem it not to be satisfied. The Parliament can remove an inconsistency, but it cannot deem an inconsistency to be removed.

37    Metwally was considered by the High Court in the Native Title Act Case. That case concerned a challenge to the validity of a number of provisions in the NT Act, including ss 11 and 19. It also concerned the validity of the Land (Titles and Traditional Usage) Act 1993 (WA) (the WA Act), which had been enacted prior to the enactment of the NT Act. It was accordingly necessary for the Court to consider the content and effect of a number of provisions in each Act.

38    Amongst other things, the WA Act, by s 5, confirmed the validity of titles granted in the period from 31 October 1975 (the day of commencement of the RD Act) to 2 December 1993 (when Pts 2 and 3 of the WA Act came into operation). Section 5(3)(b) provided that, if the effect of that confirmation had been to extinguish or impair native title, a claim for compensation could be made under s 28.

39    In relation to s 5, the plurality (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) said at 451:

If, consistently with s 10(1) of the Racial Discrimination Act, a State law could not have authorised the extinguishment or impairment of native title because there was no corresponding authority to extinguish or impair other forms of title, a State law which purports to confirm retrospectively the validity of the act which extinguished or impaired native title cannot restore effect to the act in question. Section 5(1) is concerned to confirm the validity of grants of title made after the Racial Discrimination Act came into operation where those grants purported to extinguish or impair native title. If native title was protected then by the Racial Discrimination Act, only a law of the Commonwealth could be effective to modify the operation of the Racial Discrimination Act and then only for the future: the effect of s 109 of the Constitution cannot be retrospectively undone.

(Citation omitted and emphasis added)

This was a confirmation of the operation of the Metwally principle. It is also evident in this passage that the plurality contemplated that any Commonwealth law modifying the operation of the RD Act so as to avoid inconsistency could be effective “only for the future”.

40    The plurality identified three aspects of the operation of the NT Act as being of central importance to its constitutional character, at 453: the recognition and protection of native title, the giving of full force and effect to past acts which might not otherwise have been effective to extinguish or impair native title, and the giving of full force and effect to future acts which might not otherwise be effective to extinguish or impair native title.

41    The plurality then reviewed the provisions in Pt 2 concerning the validation of certain past acts and, at 454, described the definition of “past act” as “the lynchpin for the provisions of [the NT Act] which permit State laws enacted in the future to give full force and effect to earlier acts which purported to extinguish or impair native title but which were ineffective at the time when the acts were done” (emphasis added). At 454-5, the plurality addressed the effect of s 19 of the NT Act in relation to the validation by the State of previous invalid acts:

An act which was wholly valid when it was done and which was effective then to extinguish or impair native title is unaffected by the Native Title Act. Such an act neither needs nor is given force and effect by the Act. But, as acts purported to extinguish or impair native title might be impugned as inconsistent with the Racial Discrimination Act if they were done after that Act came into operation, the Parliament has chosen to include certain legislative and executive acts of the Crown within the definition of “past acts”. Section 14 then confers … validity on the past acts of the Commonwealth. Section 19(1) permits State and Territory laws enacted in the future to confer … validity on the past acts of the State or Territory. …

The provision authorising the future validation of past acts attributable to a State is not affected by the principle that a law of the Commonwealth cannot retrospectively avoid the operation of s 109 of the Constitution on a State law that was inconsistent with a law of the Commonwealth. Section 19 of the Native Title Act does not purport to deny the overriding effect of the Racial Discrimination Act upon any inconsistent law of a State in the past. Section 19 removes any invalidating inconsistency between, on the one hand, a State law enacted in the future that purports to validate past acts attributable to a State and, on the other, the Racial Discrimination Act or any other law of the Commonwealth (including the Native Title Act itself). The validation of past acts attributable to a State is effected by a State law which, at the time of its enactment, is not subject to an overriding law of the Commonwealth. The force and effect of a past act consisting of a State law which was “invalid” by force of s 109 of the Constitution because of inconsistency with the Racial Discrimination Act is recognised only from and by reason of the enactment of the future State law but, from that time onwards, the force and effect of the past act is determined by the terms of the State law enacted in conformity with s 19.

(Emphasis added)

42    Later, the plurality emphasised the importance of the State law conforming with the requirements of s 19 (at 456):

The validating legislation must be an exercise of the legislative power of the State or Territory, but a State or Territory law which does not satisfy s 19(1) will be ineffective to give force and effect to a past act which had purported to extinguish native title, for such a State or Territory law does not fulfil the criteria of an exception to the general sterilisation of past acts by s 11 of the Act. …

43    As can be seen, the plurality in the Native Title Act Case regarded s 19 as indicating that a State law which is not otherwise inconsistent with the RD Act or the NT Act may “confer” validity on past invalid acts. Such a law does not infringe the Metwally principle. When a State or Territory does enact a validating law which conforms with s 19, the force and effect of the past act is, from the time of the enactment, determined by reference to that State or Territory law.

Consideration

44    The appellants accepted that it is open to the Commonwealth Parliament to enact legislation to remove the circumstance which had given rise to an inconsistency with a State or Territory law. So also may the State and Territory Parliaments. They submitted, however, that this could be done only with prospective effect.

45    The appellants emphasised that the observations in Metwally by Murphy and Deane JJ to the effect that the Commonwealth and State Parliaments could act in concert to avoid s 109 inconsistency were obiter dicta. Counsel also submitted that the passages in the reasons of the plurality in the Native Title Act Case quoted earlier in these reasons were obiter dicta, which should not be regarded by this Court as “seriously considered dicta”, in the sense discussed in Farah Constructions Pty Ltd v Say-dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [134]. This led to some submissions before this Court, as it had in the proceedings at first instance, as to whether the quoted passages from the Native Title Act Case constituted part of its ratio decidendi or were obiter dicta. In the view we take of the matter, this is a somewhat arid argument. Whether or not the quoted passages are part of the ratio or are dicta, it is plain that they were at the heart of the reasons of the plurality in the Native Title Act Case concerning the constitutional validity of provisions in the NT Act relating to the validation of past acts which would otherwise have been invalid. At the very least therefore, the quoted passages comprise seriously considered dicta. We also observe that, although counsel for the appellants contended that the passages in the Native Title Act Case were not “seriously considered” dicta, he did not seek to elaborate an argument to that effect.

46    In these circumstances, it is appropriate for this Court to apply the reasoning of the plurality in the Native Title Act Case concerning s 19.

47    The appellants’ submissions concerning the Metwally principle did not differentiate between the variety of ways in which legislation may operate in respect of events which have occurred before its enactment. The submissions tended to regard all such legislation as retrospective and therefore as infringing the Metwally principle.

48    However, it is not every alteration of past rights which makes a statute retrospective and the forms of retrospectivity are diverse. It is also an error to suppose that it is every form of legislative retrospectivity which infringes the Metwally principle. As already seen, the principle is concerned with attempts to alter, retrospectively, the meaning or operation of the law which brought about the inconsistency. It does not speak to a legislative alteration of rights and liabilities by reference to events which occurred in the past.

49    This makes it necessary to always identify precisely the respects in which the statute in question has retrospective effect: Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 at [94] (AEU v FWA).

50    In the present case, neither s 19 of the NT Act nor s 8 of the NTQA purport to alter the provisions in force in the period between the enactment of the RD Act in 1975 and the enactment of the NTQA in 1993. Nor do they purport to reverse the past operation of s 109. On the contrary, they (and s 23B of the NT Act) leave that operation intact. Instead, s 8 attaches a new legal significance to past acts and then provides that the new legal significance is to be taken to have attached to the acts at the time they occurred.

51    Section 8 has an effect which is similar to that described by Stephen J (with whom Menzies and Gibbs JJ agreed) in R v Humby; ex parte Rooney (1973) 129 CLR 231 at 243 in relation to legislation which gave legal effect to orders for maintenance made without jurisdiction by a Master of a Supreme Court:

[Subsection] (3) declares the rights, liabilities, obligations and status of individuals to be and always to have been the same as if purported decrees had in fact been made by a single judge of a Supreme Court. It does not deem those decrees to have been made by a judge nor does it confer validity upon them; it leaves them, so far as their inherent quality is concerned, as they were before the passing of this Act. They retain the character of having been made without jurisdiction …; as attempts at the exercise of judicial power they remain ineffective. Instead, the sub-section operates by attaching to them, as acts in the law, consequences which it declares them to have always had and it describes those consequences by reference to the consequences flowing from the making of decrees by a single judge of the Supreme Court of the relevant State.

Sub-section (4) deals similarly with all proceedings, matters, decrees, acts and things affecting a party to proceedings in which a purported decree was made. It does not validate them but instead attaches to them, retrospectively, the same force and effect as would have ensued had the purported decree been made by a judge of a Supreme Court.

52    There are numerous examples in the authorities of legislation of this kind. See, for example, Re Macks; ex parte Saint [2000] HCA 62, (2000) 204 CLR 158 at [15], [25] (Gleeson CJ), [81] (Gaudron J), [111] (McHugh J), [210]-[211] (Gummow J), [354]-[355] (Hayne and Callinan JJ); AEU v FWA at [36]-[37] (French CJ, Crennan and Kiefel JJ), [90], [96] (Gummow, Hayne and Bell JJ); and R v Frawley [2005] NSWCCA 66; (2005) 190 FLR 158.

53    Both the appellants and the respondent referred to passages in the judgment of Mansfield J in Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900. Griffiths concerned a claim for compensation under the NT Act in respect of the total or partial extinguishment of native title rights by acts attributable to the Northern Territory which had occurred after the commencement of the RD Act. Those acts had later been validated by provisions in the NT Act and in the Validation of Titles and Actions Amendment Act 1998 (NT) (the VNTA) which had come into operation on 10 March 1994. It is not necessary for present purposes to note the later amendments of the VNTA to provide for the validation of “intermediate period acts” and to confirm the extinguishment of native title by previous exclusive possession acts. One of the questions in Griffiths was whether the compensation was to be assessed as at the date of each of the acts effecting the extinguishment of the relevant native title rights and interests, or at the date of the validation of those acts of extinguishment. That question arose from the terms of s 4 of the VNTA which is expressed in the same terms as is s 8 of the NTQA.

54    Mansfield J held, at [121], that the date for assessment was the date upon which the extinguishing act had actually occurred, and not the later date on which it had been validated. In support for that conclusion, his Honour referred, amongst other things, to Metwally, saying:

[143]    The approach of Deane J, and supported by Murphy J, is that which seems to support the structure of the past act provisions of the NTA. That is, the provisions provide for the retrospective operation in respect of the Commonwealth acts, and for the enactment of complementary validating provisions of the relevant State or Territory if that State or Territory chose to adopt that course. The VNTA is such an enactment.

55    Mansfield J also referred to the decision of the primary Judge in the present case, noting at [157] that the Judge had accepted that a combination of State or Commonwealth legislation could be effective to validate past acts.

56    Griffiths did not concern directly the issues which arise on this appeal, but we consider that the approach adopted by Mansfield J supports the conclusion reached in these reasons.

57    It is true (as the appellants submitted) that Divs 2 and 2B of the NT Act and s 8 of the NTQA involve some alteration of the law which applied before their respective enactments. So much is evident from the words “and is taken always to have been valid” in s 8. But this is not a retrospective alteration of the operation of the RD Act so as to avoid the inconsistency which gave rise to the invalidity brought about by s 109 of the Constitution. As already indicated, these provisions instead attach a new legal significance to past acts together with an accompanying statement that the acts are to be “taken” always to have had that significance. This is not an infringement of the Metwally principle. Contrary to the submissions of the appellants, s 109 does not have the effect of immunising from later change altogether the situation brought about by its operation.

58    The effect, as the Solicitor-General for the State of Queensland submitted, is that for the purposes of determining, since the enactment of s 8 of the NTQA, whether native title exists, grants, or grants and conversions of leases under legislation of the Queensland Parliament such as the 1984 Amendment are to be treated as having always been valid and, therefore, as previous exclusive possession acts which have extinguished native title.

59    The circumstance that the leases in question on this appeal have since been surrendered is, in our opinion, immaterial. The surrenders do not alter the historical fact that the grants and conversions had occurred nor the historical “fact” that they were invalid at that time. The surrenders did not preclude the Queensland Parliament legislating in 1993 so as to attach a new legal significance to the grants and conversions at the time that they were made.

60    For these reasons, the appeal fails.

Notice of Contention

61    It remains to consider the Notice of Contention of the State of Queensland. That contention is as follows:

If the primary Judge, at [74] of his reasons, held that the [NT Act] and the [NTQA] operated to validate the acts relating to Areas 73, 224 and 226 (the relevant past acts) with prospective effect only, the primary Judge:

(a)    erred; and

(b)    should instead have held that, upon the commencement of the [NTQA], the [NTQA] operated to validate the relevant past acts with retrospective effect.

62    As the terms of this contention indicate, it is not clear whether the primary Judge was intending to convey that s 8 operated to validate the past acts with prospective effect only. There is one sentence in [74] which may be construed to that effect. However, given that we would dismiss the appeal in any event, it is not necessary to consider that question in any detail. As is apparent from the reasons given above, we accept that s 8 does involve a form of retrospectivity, but not a form which attracts the operation of the Metwally principle.

Conclusion

63    For the reasons given above, we dismiss the appeal. We will hear from the parties as to any further orders.

Associate:

Dated:    22 December 2016

SCHEDULE OF PARTIES