QUEENSLAND V CONGOO: THE CONFUSED RE- EMERGENCE OF A RATIONALE OF EQUALITY? ZOE BUSH* In State of Queensland v Congoo [2015] HCA 17 (13 May 2015), the High Court applied principles of extinguishment to determine the effect of military orders under reg 54 of the National Security (General) Regulations 1940 (Cth) on the native title rights and interests of the Bar- Barrum People. The Court’s split decision casts questions of extinguishment back to the ‘legal jungle’. Amongst the thicket, the re- emergence of a ‘rationale of equality’ can be glimpsed in the statutory majority’s emphasis on the standard of ‘clear and plain intention’. The requirement of a clear and plain legislative intention to expropriate existing property rights without compensation is well established. On the 800th anniversary of the Magna Carta, its extension to the extinguishment of native title would accord with the fundamental rule of law in c 29 that ‘[n]o Freeman shall… be desseised… but by… the law of the Land’. I INTRODUCTION Queensland v Congoo1 is the most recent High Court decision regarding the common law principles of extinguishment of native title. The case concerned the effect of military orders under reg 54 of the National Security (General) Regulations 1940 (Cth) (‘Regulations’) over land that was later subject to a native title claim by the Bar-Barrum People in 2001. Despite all purporting to apply the test of inconsistency of rights in Western Australia v Ward,2 the Court delivered a decision split three to three. Pursuant to s 23(2)(a) of the Judiciary Act 1903 (Cth), the appeal from the decision of the Full Federal Court in Congoo v Queensland3 was dismissed. Consequently, the Full Federal Court’s decision that the orders did not extinguish native title rights and interests was affirmed. The divide hinged on whether the Regulations and orders conferred ‘exclusive possession’ on the Commonwealth in the sense of an unqualified * Final year BA/LLB(Hons) student at the University of Western Australia, and recipient of the 2015 Ciara Glennon Memorial Law Scholarship. I wish to thank Marshall McKenna for his invaluable insights and feedback on this paper. 1 [2015] HCA 17 (13 May 2015) (‘Congoo’). 2 (2002) 213 CLR 1 (‘Ward’). 3 [2014] FCAFC 9 (21 February 2014). 451 452 University of Western Australia Law Review Volume 39(2) right to exclude others from access to the land ‘for any reason or no reason’. However, the divide was more fundamental than considerations of fact. The relevance of ‘statutory purpose’ or ‘legislative intention’ to questions of extinguishment is unclear in the judgment. The mostly superficial disagreement over the nomenclature of ‘exclusive possession’ is distracting, and its potential to obscure the critical question of extinguishment is exemplified by its erroneous application in the joint judgment of French CJ and Keane J. The utility of past authority regarding the Regulations and forms of common law tenure is questionable. Crucially, the priority afforded to the ‘standard’ of ‘clear and plain intention’ in the judgments of the statutory majority (French CJ, Keane and Gageler JJ) appears to facilitate the use of ‘statutory purpose’ in determining inconsistency. On their Honours’ own admission, this is impermissible on existing authority.4 The attempt to reconcile this approach with that required by Ward, results in judgments riddled with legal and logical flaws. Amongst the confusion, the potential re-emergence of a ‘rationale of equality’5 can be glimpsed in the statutory majority’s emphasis on ‘clear and plain intention’. As a test founded on the clear and plain legislative intention required to expropriate all property interests without compensation,6 Congoo holds the potential to afford native title rights and interests equal treatment to those sourced in the common law. On its 800th anniversary, it is poignant to recall the now fundamental rule of law in c 29 of the Magna Carta, and expressed in Australia’s constitutional and legal fabric,7 that ‘[n]o Freeman shall… be desseised… but by… the law of the Land’. However, the resulting logical inconsistencies of the judgments forebode the incoherence that a failure to engage in more fundamental principles of extinguishment will bring. 4 Congoo [2015] HCA 17 (13 May 2015), [27]. 5 Richard Bartlett, ‘The Wik Decision and Implication for Resource Development’ (1997) 16 Australian Mining and Petroleum Law Journal 27. 6 Mabo v Queensland (No 2) (1992) 175 CLR 1, 111 (Deane and Gaudron JJ), 195 (Toohey J) (‘Mabo (No 2)’); Wik Peoples v Queensland (1996) 187 CLR 1, 111 (Gaudron J), 222-223 (Kirby J) (‘Wik’). 7 Under s 51(xxxi) of the Commonwealth Constitution, Commonwealth Parliament only has power to make laws with respect to the acquisition of property on just terms. The payment of compensation for land resumed by the Crown, either in the right of the Commonwealth or a state, is required by legislation: Land Acquisition Act 1989 (Cth); Land Acquisition (Just Terms Compensation) Act 1991 (NSW); Land Acquisition and Compensation Act 1986 (Vic); Land Administration Act 1997 (WA). 2015 Queensland v Congoo 453 II PRELIMINARY ISSUES A Facts and Procedural History In 2001, the Bar-Barrum People made an application for a determination of native title over the Artherton Tableland in the State of Queensland. Between 1943 and 1945, the Commonwealth possessed part of the claimed land pursuant to military orders made under the National Security Act 1939 (Cth) and its Regulations. In August 2013, Logan J referred a Special Case to the Full Court of the Federal Court setting out questions about the effect of the military orders on the native title rights and interests of the Bar-Barrum People. The parties accepted that, subject to potential extinguishment, the Bar-Barrum People had native title rights and interests over the land. A two to one majority of the Full Court of the Federal Court (North and Jagot JJ, Logan J dissenting) held the military orders did not have the effect of extinguishing the Bar-Barrum People’s native title rights and interests. The State of Queensland (‘the Appellant’) then applied for special leave to appeal to the High Court. This was granted on 4 September 2014. B The Regulations and Orders Five military orders of substantially similar form and content were made pursuant to the Regulations over the claimed land between 1943 and 1945. These provided for: a) the Commonwealth to take possession of the land; b) the Commonwealth’s ability to do anything in relation to the land that a ‘person having an unencumbered interest in the fee simple in the land would be entitled to do by virtue of that interest’; and c) the prohibition on any person exercising a ‘right of way over the land or any other right relating’ to it. The potential problems for the Appellant were the purposes for which the powers in reg 54 of the Regulations had to be exercised, and its apparent contemplation of the continuance of underlying rights in land possessed by the Commonwealth. Relevantly, reg 54 provided for: 1) the Minister of State of the Army to, where it appeared ‘necessary or expedient’ to do so in the interests of public safety, defence, prosecution 454 University of Western Australia Law Review Volume 39(2) of the war, or the maintenance of supplies and service, take possession of any land; 2) the Minister, where it appeared ‘necessary or expedient’ in connection with the taking of possession or use of the land, to – a) do, or authorise persons so using the land to do, anything that a ‘person having an unencumbered interest in the fee simple in the land would be entitled to do by virtue of that interest’; and b) prohibit or restrict the exercise of ‘rights of way over the land, and of other rights relating thereto’. 3) the obligations of owners and occupiers of possessed land to provide any information they possessed in relation to the land upon the Minister’s request. Further, compensation was provided for persons who suffered loss or damage by reason of anything done in pursuance of reg 54 in relation to property that they had a legal interest or right in.8 Periodical payments were available in respect of a continuing interference with rights. Another potential problem was the temporary nature of possession. Section 19 of the National Security Act 1939 (Cth), the Act under which the Regulations were made, provided for the Act’s continued operation ‘during the present state of war and for a period of six months thereafter’. The Appellant submitted the orders nonetheless conferred ‘exclusive possession’ on the Commonwealth in the sense of an unqualified right to exclude others from access to the land ‘for any reason or no reason’. This right to exclusive possession was inconsistent with, and consequently extinguished, the native title rights and interests of the Bar-Barrum People.9 The High Court delivered a decision split three to three. The appeal from the decision of the Full Federal Court in Congoo v Queensland 10 was consequently dismissed pursuant to s 23(2)(a) of the Judiciary Act 1903 (Cth). The military orders did not have the effect of extinguishing the Bar-Barrum People’s native title rights and interests in the land. French CJ, Keane and Gageler JJ compromised the statutory majority. 8 Regulations reg 60D(1)(a). 9 Fejo v Northern Territory of Australia (1998) 195 CLR 96, 128 [47] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (‘Fejo’). 10 [2014] FCAFC 9 (21 February 2014). 2015 Queensland v Congoo 455 III LEGAL ISSUES A Bird’s Eye View of Extinguishment Before turning to the judgments in Congoo, it is useful to briefly outline the common law principles governing extinguishment of native title.