LOGAN J:
78 During the course of the Second World War (it is sufficient in this case to use that term compendiously to describe the several states of war in which Australia progressively became engaged on and from 3 September 1939), the need of the Commonwealth and its allies for land within Australia for the Defence of the Realm and for other activities associated with the prosecution of that war far exceeded the land already in the possession or control of the Commonwealth. That such a need would exist was recognised by the Commonwealth Parliament from the earliest days of that conflict by the provision in s 5(1)(b) of the National Security Act 1939 (Cth) (National Security Act) for the making of regulations under that Act authorising the taking of possession or control, on behalf of the Commonwealth, of any property or undertaking. Pursuant to that Act, the Governor-General in Council made the National Security (General) Regulations (the National Security Regulations). Regulation 54 of those regulations made provision for the taking possession of land on behalf of the Commonwealth. Pursuant to those regulations, the Commonwealth took possession of extensive areas of land throughout Australia.
79 A lifetime after the conclusion of the Second World War, a controversy has arisen as to whether the taking possession of land by the Commonwealth under reg 54 extinguished native title in respect of that land. The controversy is pervasive. It has come to intrude upon the resolution of many native title applications in Queensland and elsewhere in Australia. In light of this, I was persuaded that a case should be stated pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) for the consideration of the Full Court. As r 38.01 of the Federal Court Rules 2011 requires, the case so stated takes the form of a special case.
80 The particular application under the Native Title Act 1993 (Cth) (Native Title Act) which commended itself as a vehicle for the stating of a case was an application by Mr Tom Congo and others on behalf of the Bar-Barrum People (Bar-Barrum People #4 claim) for a determination of native title in respect of certain land on the Atherton Tableland in Far North Queensland. Extensive portions of the land the subject of the Bar Barrum #4 claim were, during the Second World War, the subject of five successive orders (military orders) made by a delegate of the Minister for the Army under reg 54 of the National Security Regulations. It is those portions of land and the claim to native title in respect of them with which this case is concerned.
81 The questions which arise for consideration in the special case are these:
Question 1
Did the Military Orders made under the National Security Regulations purport to effect an acquisition of the property of the Bar Barrum People otherwise than on just terms contrary to s 51(xxxi) of the Constitution?
Question 2
If the answer to question 1 is "yes":
a) were the National Security Regulations (insofar as they authorised or purported to authorise the making of the Military Orders) and the Military Orders, and/or being in physical occupation of the special case land pursuant to the Military Orders, "past acts" under the Native Title Act?
b) and, if so, were they validated under the Native Title Act?
Question 3
Did the act of the Commonwealth in:
a) making the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land, and if not,
b) being in physical occupation of at least some of the special case land pursuant to the Military Orders wholly extinguish all native title rights and interest that then subsisted on the special case land or that part of the special case land that had been physically occupied?
82 The first of the military orders was made on 20 December 1943, the last on 1 June 1945. Over the period when the orders were made, reg 54 of the National Security Regulations provided:
(1) If it appears to the Minister for State for the Army to be necessary or expedient so to do in the interests of the public safety, the defence of the commonwealth or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community, he may, on behalf of the Commonwealth, take possession of any land, and may give such directions as appear to him to be necessary or expedient in connexion with the taking of possession of the land.
(2) While any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation, the land may, notwithstanding any restriction imposed on the use thereof (whether by law or otherwise), be used by, or under the authority of, that Minister for such purpose, and in such manner, as he thinks expedient in the interests of the public safety or the defence of the Commonwealth, or for maintaining supplies and services essential to the life of the community; and that Minister, so far as appears to him to be necessary or expedient in connexion with the taking of possession or use of the land in pursuance of this sub-regulation -
(a) may do, or authorise persons so using the land to do, in relation to the land, anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest; and
(b) may by order provide for prohibiting or restricting the exercise of rights of way over the land, and of other rights relating thereto which are enjoyed by any person, whether by virtue of an interest in land or otherwise.
(3) The owner or occupier of any land shall, if requested by the Minister of State for the Army or a person thereto authorized by him so to do, furnish to that Minister or such person as is specified in the request such information in his possession relating to the land (being information which reasonably may be demanded in connexion with the execution of this regulation) as is so specified.
83 About half a century would elapse between when these orders were made and when the High Court, by majority, concluded in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2) that the common law of Australia recognised native title. Had the question of whether there was any such recognition arisen during the Second World War, it may well have been answered differently to Mabo No 2: Attorney-General v Brown (1847) 1 Legge 312 at 316; Cooper v Stuart (1889) 14 App Cas 286 at 291. That is as may be. The question did not then arise. As in Western Australia v The Commonwealth (1995) 183 CLR 373 (the Native Title Case), the "true inference" to draw, if not the certain fact, is that each of these military orders and the National Security Regulations and National Security Act which at least purportedly authorised them ignored native tile in general and the existence or otherwise of the native title rights and interests asserted in the Bar-Barrum People #4 claim in particular because then, too, "there was a common opinion (which Mabo No 2 holds to be erroneous) that the Aborigines had no legal interest in land": Native Title Case at 432. If the military orders were valid when made and were effective to extinguish the native title rights and interests asserted in the Bar-Barrum People #4 claim, those orders and their extinguishing effect will be unaffected by the Native Title Act.
84 The orders took a standard form. Materially, the delegate recited in each order that:
I, acting in pursuance of [reg 54 and the instrument of delegation], DO HEREBY on behalf of the Commonwealth, TAKE POSSESSION of the [land specified in the Schedule to the order] AND DO HEREBY ORDER AND DIRECT as follows:
1. I direct that the Deputy Assistant Quartermaster General Number 17 Lines of communication Sub Area or any person or persons authorised by him occupy the said land and in so doing and as far as is practicable use the existing means of access to the said land and if necessary cause to be removed therefrom all personal property not the property of the persons occupying the said land in pursuance of this order and not required for Commonwealth purposes.
2. I authorise the person or persons specified in Paragraph 1 hereof to do in relation to the said land anything which any person having an unencumbered interest in fee simple in the said land would be entitled to do by virtue of that interest.
3. While the said land remains in the possession of the Commonwealth, no person shall exercise any right of way over the land or any other right relating thereto, whether by way of an interest in land or otherwise.
4. Should the said land be the subject of any previous order such order is cancelled so far as it affects the land.
85 Notwithstanding the express terms of the military orders, which were in a standard form and, inferentially, one thought sufficient for the stated purpose by those advising the Commonwealth during the Second World War, the Commonwealth submitted that it did not by these orders take possession of the land concerned, possession only occurring as, when and to the extent it entered into physical occupancy of the land. It is neither necessary nor even appropriate to explore the occasion for this change of position, only to record that the present view should not be accepted. Indeed, there is, with all due respect, an inherent tension between this submission and the Commonwealth's submission that the orders were valid (albeit that they did not, so the Commonwealth was submitted, extinguish native title).
86 There is nothing in reg 54 which requires that the land concerned by occupied physically before possession can be said to have been taken be the Commonwealth. There is an indication in the regulation that possession may be effected by order alone: reg 54(2) commences, "While any land is in the possession of the Commonwealth in pursuance of a direction given under this regulation" (emphasis added). Sub-regulation 54(1) prescribes no special method or means for taking possession, which of itself admits of the taking of possession by order in writing. That this is permissible is confirmed by reg 54(2). When read in conjunction with the discretionary power at the conclusion of reg 54(1) which follows "take possession of any land", "and may give such directions as appear to him to be necessary or expedient in connection with the taking of possession of the land", what emerges is an ability to take possession of land by an order in writing (a "direction" of the kind referred to in reg 54(2)) and, at the time of taking possession by that order, give, if thought fit, ancillary directions "in connection with the taking of possession of the land" pursuant to the power conferred by reg 54(1). That is exactly what the Minister's delegate did in this case in the military orders.
87 Acceptance of the Commonwealth's presently preferred construction would lead to inconvenient, if not absurd, results. It is the Minister or his delegates who must by the regulation take possession of the land concerned. A delegation of the powers in reg 54 to all members of the 2nd AIF and of the Australian Military Forces seems unlikely. No less unlikely is a construction which would consign to the Minister for the Army, or such senior officers as one might apprehend, would be (and was in this case) delegates, the role of physically occupying for a moment each and every portion of land throughout the length and breadth of Australia needed by the Commonwealth for defence purposes so as to "take possession" of that land. Perhaps there would be scope for an application of the principle discussed in Carltona v Commissioner of Works [1943] 2 All ER 560 at 562-563, whereby authorised officers of a delegate undertook physical occupation but in a force as large, complex and organisationally fluctuating as the Australian Army during the Second World War, even keeping current positional authorisations would present formidable difficulties. This aside, of exactly what land the Commonwealth was or was not in possession as a result of physical occupation would ever fluctuate and also present formidable difficulties in accurate delineation.
88 Yet further, range safety templates for small arms can entail a need for prohibition of access to a large swath of land which might never be physically occupied by the Minister, a delegate or any other officer of the Commonwealth but which is nonetheless "used" by the Commonwealth ("used" in the sense discussed by Williams and Taylor JJ, Webb J agreeing with each, in their separate judgments in Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493); and a fortiori so with range safety templates for heavy weapons, artillery and the main armament of armoured vehicles.
89 The Commonwealth's submission as to the construction of reg 54 conflates, in a way which the National Security Regulations do not, two separate events, the taking of possession of land, which may be undertaken under that regulation by written order and the subsequent occupation of the land of which possession has been taken.
90 In authorising the doing in relation to the land concerned "anything which any person having an unencumbered interest in fee simple in the said land would be entitled to do by virtue of that interest" and, while the land remained in the possession of the Commonwealth, forbidding any person to exercise "any right of way over the land or any other right relating thereto, whether by way of an interest in land or otherwise" the form of the military orders in question was identical to the order, also made under reg 54 of the National Security Regulations, which was the subject of consideration by the High Court in Minister of State for the Army v Dalziel (1944) 68 CLR 261 (Dalziel).
91 A number of propositions, each of which binds this Court, flow from Dalziel:
(a) Within s 5(1)(b) of the National Security Act and in relation to the application of s 51(xxxi) of The Constitution, a false dichotomy is posited as between the legislative authority in s 5(1)(b)(i) to make regulations in respect of the taking of possession or control of land by the Commonwealth and that in s 5(1)(b)(ii) in respect of the acquisition of property other than land. So far as the grant of legislative power to the Commonwealth Parliament in s 51(xxxi) of The Constitution to make laws with respect to, "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws" is concerned, a law authorising the taking of possession or control of land by the Commonwealth can be, and reg 54 of the National Security Regulations was, a law with respect to the acquisition of property.
(b) As with the word "acquisition", what amounts to "property" for the purposes of s 51(xxxi) is not, having regard to the "just terms" qualification, to be approached narrowly.
(c) Reg 60H of the National Security Regulations, which purported to make a Ministerially determined provision for what constituted compensation on just terms binding both on the Compensation Boards (Board) established by those regulations and on a court reviewing on the merits a compensation decision of a Board, contravenes s 51(xxxi) of The Constitution and is invalid. That regulation is severable and there remains in the National Security Regulations a scheme for the determination of compensation on just terms for an acquisition of property effected under those regulations such that the taking of possession or control by an order made under reg 54 is valid.
(d) The Commonwealth's rights created by a reg 54 order in the terms of the order made in Dalziel (and thus also in this case) were proprietary in nature: at 285-286 per Rich J; at 289-290 per Starke J and at 305 per Williams J.
(e) No question as to whether "physical occupation" was necessary in order for the Commonwealth to take possession of land under arose in Dalziel and none of the judges otherwise considered it.
92 The second of these propositions has been underscored by more recent authority. The requirement in s 51 (xxxi) that laws with respect to the acquisition of property provide for acquisition on just terms has the status of a constitutional guarantee and its construction is for this reason to be approached liberally: see, for example, Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201-202 and Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 509.
93 As was correctly highlighted by the State of Queensland (the State) in its submissions, question 1 in the case stated contains within it, on analysis, a number of separate issues - "Were the native title rights and interests claimed, 'property'?"; "Were they 'acquired'?"; and, "Was such acquisition of property 'on just terms'?".
94 The native title rights and interests claimed by the Bar-Barrum People are set out in paragraph 41 of the special case. They are rights and interests over the land concerned to:
a) access, be present on, move about on and travel over the area;
b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;
c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;
d) take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
e) take and use the Water of the area for personal, domestic and non-commercial communal purposes;
f) conduct ceremonies on the area;
g) be buried and bury native title holders within the area;
h) maintain places of importance and areas of significant to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;
i) teach on the area the physical and spiritual attributes of the area;
j) hold meetings on the area; and
k) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation.
95 It is common ground that, save for any extinguishing effect of the military orders, these rights are held by the Bar-Barrum People and are "at least" non-exclusive. One of the effects of the military orders was the subsequent use of the land by the Army, principally for pre-deployment training. We are not concerned to answer in this case whether, apart from the effect in law of the military orders with respect to native title, some particular, subsequent, consequential use in fact of the particular land extinguished native title, for example, by severing any connection of the Bar-Barrum People with the land.
96 Each of the native title rights and interests claimed is of a usufructory nature. One of them, the right to maintain places of importance and areas of significance (paragraph 41 (h) of the special case) is more than just a usufruct as it additionally includes a right to "protect those places from physical harm". The nature of the rights claimed in this case highlights a danger about the term "native title" which is, via the presence of the word, "title", to tempt one to classify rights claimed under the Native Title Act by reference to a "common lawyer's one dimensional view of property": Western Australia v Ward (2002) 213 CLR 1 at [95] (Ward). That is a temptation to be resisted: Ward (ibid). What is claimed by the Bar-Barrum People is a bundle of rights possessed under their traditional laws and customs but there are a number of particular rights which constitute that bundle. Those rights are recognised by the common law and, unless validly extinguished, are capable of being claimed under the Native Title Act but they are not creations of the common law.
97 Some of the asserted rights, for example, the right to teach on the claimed area the physical and spiritual attributes of that area (paragraph 41(i) of the special case) and the right to light fires on the land for domestic purposes (paragraph 41(k) of the special case), viewed individually, look to be personal rather than proprietary. The State submitted as much. Yet an absence of a proprietary content is less obvious in relation to other rights such as the right to camp (paragraph 41(b) of the special case), the right to take and use natural resources from the land and waters for personal, domestic and non-commercial purposes (paragraph 41(d) of the special case) and the right to take and use the water for such purposes (paragraph 41(e) of the special case). Further, the very nature of the rights described in paragraph 41 of the special case inferentially bespeaks an inter-relationship between some at least of them. For example, the right to light fires for cooking, said by the State to be personal, is inferentially related to the right to camp and at least a sequel to the right to hunt if not also related to other claimed rights. In turn, the right to camp and the right to hunt and to take water are inferentially inter-related.
98 Yet further, the rights concerned are stated to be "at least" non-exclusive. To the extent that there is any exclusivity, that feature would tend in favour of classifying a native title right as proprietary. Absence of exclusivity is relevant to but not in itself adversely determinative of whether the rights claimed are proprietary. The same applies in relation to an absence of ability to alienate, which might be thought to tend against the rights being proprietary but the risk in such thinking is, again, to import common law notions of property, to the exclusion of appreciating that these rights are communally held and pass in communal succession in accordance with the laws and customs of the Bar-Barrum People.
99 Bearing in mind the liberal construction to be given to the word "property" in s 51(xxxi), I am inclined to hold that the rights claimed by the Bar-Barrum People are "property" for the purposes of that provision in The Constitution. It is not necessary though finally to determine that issue in order to answer any of the questions in this case. That is because even if, as I do, I make the assumption, warranted for the reasons given, that the rights claimed are proprietary, they were, for the reasons which follow, just extinguished by the military orders, not acquired. Those reasons substantially accord with a submission made both by the State and, intervening, by the Northern Territory.
100 The starting point for my conclusion that the military orders extinguished native title is supplied by observations made by Gummow J in Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513 at 613 (Newcrest Mining) in rejecting a submission by the Commonwealth and the Director of Parks and Wildlife that Teori Tau v The Commonwealth (1969) 119 CLR 564 (Teori Tau) should not be reopened because so to do might have the consequence of invalidating all freehold and leasehold grants in the Northern Territory since 1911. Teori Tau was a case originating from Papua New Guinea, then an external territory of the Commonwealth. In it a Full Court of the High Court, constituted by all seven judges of the court, had held, unanimously, that the Commonwealth Parliament's power in s 122 of The Constitution to make laws for the government of any territory was not qualified by the requirement found in s 51(xxxi) that a law for the acquisition of property be on just terms. In the result, that conclusion was disapproved by Gaudron, Gummow and Kirby JJ in Newcrest Mining.
101 The observation made by Gummow J in Newcrest Mining in rejecting the submission against re-opening was this:
The Commonwealth and the Director contended that the application of s 51 (xxxi) to reduce the content of the legislative power conferred by s 122 "would potentially invalidate every grant of freehold or leasehold title granted by the Commonwealth in the [Territory] since 1911 to the extent to which any such grant may be inconsistent with the continued existence of native title as recognised at common law".
Such apprehensions are not well founded. The characteristics of native title as recognised at common law include an inherent susceptibility to extinguishment or defeasance by the grant of freehold or of some lesser estate which is inconsistent with native title rights; this is so whether the grant be supported by the prerogative or by legislation.
Secondly, legislation such as that considered in Mabo v Queensland and Western Australia v The Commonwealth (Native Title Act Case), which is otherwise within power but is directed to the extinguishment of what otherwise would continue as surviving native title (or which creates a "circuitous device" to acquire indirectly the substance of that title), may attract the operation of s 51 (xxxi). However, no legislation of that character, with an operation in the Territory, was pointed to in the submissions in this case.
[Footnote references omitted]
102 I agree with the Northern Territory's submission that this observation by Gummow J reflects the characteristics of native title as recognised by the common law as stated by Mason CJ and McHugh J in Mabo No 2 (at 15):
The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown.
103 As the Northern Territory's submission acknowledged, this statement was not made with reference to s 51(xxxi) but the understanding that a valid extinguishment by inconsistent grant is not compensable is underpinned by like policy considerations to those which underpin that constitutional guarantee.
104 The Northern Territory also drew attention to the position in the United States, where the "Takings Clause" at the conclusion of the Fifth Amendment to the United States Constitution ("nor shall private property be taken for public use, without just compensation") has been held not to entitle Indians compensation for extinguishment of native title by the United States with entitlement to compensation being dependent upon Congressional authority for the making of a payment: The Tee-Hit-Ton Indians v United States 348 U.S. 272 (1955). The similarity of qualifying language - "just compensation" and "just terms" - as between the Takings Clause and s 51(xxxi) is hardly coincidental but an express power of acquisition is not to be found in the United States Constitution, a right of "eminent domain" instead in that country being regarded as an incident of the power of Congress to make all laws necessary and proper for the carrying into execution of its legislative powers (Art I, s 8, subs 18, United States Constitution). The reason for the express conferral of an acquisition power in the Australian Constitution is referable to an apprehension at the time of Federation that the newly established Commonwealth was not a fully sovereign state and thus so as to remove doubt as to whether s 51(xxxix) of The Constitution provided sufficient legislative authority for the making by the Commonwealth Parliament of a law providing for the acquisition of property by the Commonwealth: Quick J and Garran R, The Annotated Constitution of the Australian Commonwealth (Sydney Legal Books, 1976), p 641; see also Dalziel at 291 per Starke J and Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 289-291, 294 per Dixon J. That different constitutional heritage and a different history as between the United States dealings with its indigenous peoples and governments of the United Kingdom and the then Australian colonies in relations with indigenous peoples inclines me against placing any determinative weight on what the Northern Territory submitted to be and what I acknowledge is a consistent position between the Takings Clause in the United States and the position described by Mason CJ and McHugh J in the passage quoted from Mabo No 2.
105 In Newcrest Mining, the agreement expressed by Kirby J (at 651) with the reasons of Gummow J was not qualified in any presently material way. Of the other judges constituting the majority in Newcrest Mining, Gaudron J (at 561) expressed general agreement with the reasons for judgement of Gummow J, adding separate additional reasons why she considered that s 51(xxxi) of The Constitution operated in respect of laws made under s 122. That agreement might, with respect, be thought to be at odds with the statement made by Deane and Gaudron JJ in their joint judgement in Mabo No 2 (at 111) that "any legislative extinguishment of those rights would constitute an expropriation of property, to the benefit of the underlying estate, for the purposes of s 51 (xxxi)". But the legislation and subordinate legislation grounding these military orders were neither directed to the extinguishment of native title nor a "circuitous device" to acquire indirectly the substance of native title. Any extinguishment was merely a consequence of wartime measures of a general nature and the inherent fragility of native title to extinguishment by inconsistent sovereign acts in the exercise of legislative or executive power. Any such extinguishment was, to use the parlance of modern conflict, a form of "collateral damage" - "unintended destruction or injury in a military operation" (Macquarie Dictionary, Online Edition).
106 Toohey J (at 560-561) expressed agreement with the agreement of Gaudron J with Gummow J, subject to a reservation that it was not necessary in the circumstances to over-rule Teori Tau, because the legislation in question could be characterised as made pursuant to a power for which the Parliament had power to make laws under s 51 of The Constitution - "It will only be if a law can be truly characterised as a law for the government of a Territory, not in any way answering the description in par (xxxi), that Teori Tau will constitute such an obstacle."
107 The fragility of native title rights at common law and their vulnerability to extinguishment by inconsistent sovereign acts has been remarked upon in many cases apart from Newcrest Mining: Mabo No 2 at 63 per Brennan J; Wik Peoples v Queensland (1996) 187 CLR 1 at 84-85 per Brennan CJ; Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96 at [105] - [108] per Kirby J; Yanner v Eaton (1999) 201 CLR 351 at [35] per Gleeson CJ, Gaudron, Kirby and Hayne JJ; The Commonwealth v Yarmirr (2001) 208 CLR 1 at [47] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Ward at [665] per Callinan J. It is in the addressing of that very fragility and vulnerability that is found the purpose of s 11(1) of the Native Title Act, which provides that native title is not able to be extinguished contrary to that Act.
108 The authorisation given by the Minister's delegate in the military orders to those occupying the land pursuant to the possession taken by the orders was "to do in relation to the said land anything which any person having an unencumbered interest in fee simple in the said land would be entitled to do by virtue of that interest". That was in addition to the authority conferred by reg 54(2) itself upon the land coming into the possession of the Commonwealth, which was "notwithstanding any restriction imposed on the use thereof (whether by law or otherwise)" to use the land "for such purpose, and in such manner, as he thinks expedient in the interests of public safety or the defence of the Commonwealth, or for maintaining supplies and services essential to the life of the community". Each of these rights enjoyed by the Commonwealth, either alone or in conjunction with the direction in those orders that, "While the said land remains in the possession of the Commonwealth, no person shall exercise any right of way over the land or any other right relating thereto, whether by way of an interest in land or otherwise" was inconsistent with each of the rights claimed by the Bar-Barrum People. In the face of a sovereign act having these features, there is nothing in any of the rights claimed by the Bar-Barrum People which survives after comparison with those conferred by reg 54(2) and the terms of the military orders.
109 The reference in the military orders to "an unencumbered interest in fee simple in the said land" is to be understood as a reference to such an estate under the general law of real property. When regard is had to the subject matter, scope and purpose of the National Security Act and reg 54(2) of the National Security Regulations, the ability to take possession of land, "where it appears necessary or expedient so to do in the interests of the public safety, the defence of the Commonwealth or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community" presages a range of uses of the land from the mundane to the dramatic, violent and dangerous, completely foreign to civilian experience and fundamentally at odds with the continuance of any of the rights claimed by the rights claimed by the Bar-Barrum People. In each of the military orders, the delegate recited just such necessity or expediency as to the occasion for the making of the orders. The incidents of the proprietary right taken by the Commonwealth pursuant to these orders were truly sweeping.
110 As Hayne, Kiefel and Bell JJ, referring to Ward at [78], recently reminded in Akiba v The Commonwealth (2013) 87 ALJR 916 at [62] (Akiba):
The relevant question is one of inconsistency, and that is an objective inquiry. The "subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant".
Here, objectively, the comprehensive rights enjoyed by the Commonwealth in respect of the land by virtue of reg 54(2) and the terms of the military orders were inconsistent with any continued enjoyment of any of the rights claimed by the Bar-Barrum People. For example, I find it impossible to see how a right to protect places from physical harm can be regarded as consistent with a right, without let or hindrance from the world at large, freely to use that same land as an impact zone for high explosive shells or mortar bombs (or both) in the course of, for example, a regimental or divisional or corps artillery range shoot, a battalion mortar platoon range practice or a live fire exercise.
111 By way of more pervasive example, nothing could be more stark than the complete conflict between the Minister's delegate's direction that, "no person shall exercise any right of way over the land or any other right relating thereto" and each of the rights claimed by the Bar-Barrum People. That direction was destructive of the native title rights claimed, not regulatory. This case does not present difficulties of discernment as to whether regulation has "shaded into prohibition" in relation to native title: Akiba at [64]. These military orders and the authority conferred by reg 54(2) eclipsed native title rights and interests in respect of the land concerned. And after the eclipse had passed, none remained.
112 So far as extinguishment is concerned, there is no relevant distinction to be drawn between a grant, such as a grant of an estate in fee simple or a leasehold estate giving exclusive possession and the taking of possession by the Commonwealth of the land pursuant to the military orders. Each is a sovereign act. In this regard, it does not matter that these orders and the laws authorising their making were Federal rather than those of the State in which the land was situated (with the Crown in right of that State being the ultimate owner of the land). That does not detract from the character of the military orders as sovereign acts inconsistent with the continued existence of any of the native title rights claimed.
113 It was submitted though that these particular sovereign acts merely "suspended" for the duration of the military orders the interests which otherwise existed in or in relation to the land. In support of this submission reference was made to Dalziel and, in particular, to the statement by Williams J (at 301) that:
It is true that the entry into possession by the Commonwealth does not determine any estate or interest in the land, so that in the present case the Bank of New South Wales continues to be the owner of the land in fee simple and the respondent continues to be a tenant of the Bank of New South Wales from week to week, but the rights of the bank and of the respondent only continue to exist subject to the statutory right of the Commonwealth to take possession of the land and to use it for the purpose authorized by the regulation.
What this submission ignores is that neither the Bank's estate in fee simple nor Mr Dalziel's tenancy had about them the fragility, vulnerability and susceptibility to extinguishment which was an incident of the common law recognition of the native title rights claimed by the Bar-Barrum People: see Mabo No 2 at 64 per Brennan J.
114 It is nothing to the point that, at the time the military orders were made, s 19 of the National Security Act limited the operation of that Act (and thus the military orders) to "a date to be fixed by Proclamation, and no longer, but in any event not longer than six months after His Majesty ceased to be engaged in war". When made, the military orders were each of indefinite duration, proprietary in character and, as already observed, comprehensive in the rights they conferred on the Commonwealth. Given these features, there is no material distinction to be drawn between these military orders and those leases for a term of years which by inconsistency extinguish native title: Ward at [80].
115 There is nothing on the face of the National Security Act, the National Security Regulations or the military orders which manifests any intention to preserve any native title right at all, let alone those claimed by the Bar-Barrum People. Nor could there be any such implication, given the then ignorance of its recognition in law and the purpose for which possession was authorised and taken and the time at which it was taken. The manifest purpose was that the Commonwealth have an unfettered and exclusive possession of the land for defence purposes of an indefinite duration.
116 In short then, there was no acquisition, just an extinguishment of each of the native title rights and interests claimed by the Bar-Barrum People.
117 Even if, contrary to this conclusion, the military orders did effect an acquisition for the purposes of s 51(xxxi), that acquisition was on "just terms".
118 At the time when these military orders were made, the National Security Regulations had been amended so as to provide for a compensation regime which, allowing for the impact of Dalziel with respect to reg 60H, had, materially, the following features:
(a) a right to apply, initially to the Minister, for compensation resulting from the taking of possession of land by the Commonwealth under reg 54 - reg 60D;
(b) in the event of dissatisfaction with the amount, if any, of Ministerially determined compensation, a right to have compensation assessed by a Compensation Board - reg 60E;
(c) in the event of dissatisfaction with the amount, if any, of compensation determined by a Compensation Board, a right to have compensation determined on review by a court of competent jurisdiction in the exercise of federal jurisdiction - reg 60G(1);
(d) in the exercise of that review jurisdiction, the court's remit was to "determine whether any compensation is payable and, if so, the compensation which it thinks just" (a true hearing de novo with a broad power to award just compensation in the circumstances of a particular case, taking in account the value to the person concerned of the property acquired) and to order payment accordingly - reg 60G(5) and Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 (Parbury Henty & Co);
(e) an unfettered discretionary power to award costs was conferred on the court exercising the compensation determination jurisdiction - reg 60G(6);
(f) insofar as the National Security Regulations did not themselves provide for matters of practice and procedure in respect of review by such a court, the court's practice and procedure was to be the court's usual practice and procedure in appeals - reg 60G(7);
(g) an ability to appeal to a State Full Court, in the exercise of federal jurisdiction, against a judgement of a court reviewing a Compensation Board's decision: Parbury Henty & Co.
119 By reg 60D(1), the right to seek compensation pursuant to this regime was granted to, materially, "any person who has suffered or suffers loss or damage by reason of anything done" in pursuance of reg 54 or any order made under that regulation in relation to "any property in which he has, or has had, any legal interest, or in respect of which he has, or has had, any legal right". The right so granted was sufficiently broad to confer upon a representative of the Bar-Barrum People a right to claim on their behalf compensation in respect of any acquisition by the military orders of the native title rights claimed. The jurisdiction for a court to determine "the compensation which it thinks just" was sufficiently broad to permit the determination of just compensation in respect of any acquisition of any of the native title rights claimed by the Bar-Barrum People. The Bar-Barrum People were governed by the same scheme for acquisition and compensation as everyone else. In this regard, the following observation by Dixon J in Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290 with respect to the approach to determining whether or not a law is compliant with the grant of legislative power in s 51(xxxi) is applicable:
The legislative power given by s. 51 (xxxi.) is to make laws with respect to a compound conception, namely, "acquisition-on-just-terms." "Just terms" doubtless forms a part of the definition of the subject matter, and in that sense amounts to a condition which the law must satisfy. But the question for the Court when validity is in issue is whether the legislation answers the description of a law with respect to acquisition upon just terms. … Under that paragraph the validity of any general law cannot, I think, be tested by inquiring whether it will be certain to operate in every individual case to place the owner in a situation in which in all respects he will be as well off as if the acquisition had not taken place. The inquiry rather must be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property, fair and just as between him and the government of the country. I say "the individual" because what is just as between the Commonwealth and a State, two Governments, may depend on special considerations not applicable to an individual.
[Emphasis added]
What remained after Dalziel was a "true attempt to provide fair and just standards of compensating".
120 It was submitted on behalf of the Bar-Barrum People that the time limits in the compensation regime were so short as not to make provision for compensation on just terms. A difficulty with this submission is that it is contrary to authority. A note of Noble and Bear v The Commonwealth (1943) 17 ALJ 184 at 185 (Noble and Bear) (a case decided prior to, not, as the Commonwealth submitted, after Dalziel) records that Starke J concluded that "the compensation provisions appeared to him to be just and fair". The note does not reveal whether his Honour elaborated upon that conclusion but, the proceedings before his Honour being interlocutory, I infer that he did not. Further, it is to be recalled that Starke J was, with Latham CJ, in dissent in Dalziel as to the invalidity of reg 60H. I would therefore readily concede that the weight to be given to Noble and Bear is slight. The same cannot be said in respect of Schweppes Ltd v The Commonwealth (1944) 45 SR (NSW) 35 (Schweppes Ltd), which was decided after Dalziel. In Schweppes Ltd, each of the judges constituting the Full Court considered that, though in Dalziel the validity of regs 60D to 60G had not expressly been addressed by the High Court, because no challenge was made, the questions raised in the case could not have been decided and an order of remitter of the case could not have been made in the absence of a conclusion that the scheme for compensation was valid: at 40 per Jordan CJ, at 42 per Davidson J and at 43 per Halse Rogers J. I respectfully agree.
121 It is true that in Re Fish Steam Laundry Pty Ltd [1945] St R Qd 96 Philp J (Fish Steam Laundry) concluded (at 100) that the time limits in reg 60D were "manifestly unjust" and that he found it "difficult to see how they could be severed from the rest of the regulations" but he allowed that "they may be severable under federal law" and notwithstanding "qualms" about his jurisdiction, proceeded to assess compensation. It is not apparent from the report of this case, which includes a comprehensive summary of argument, that Philp J was referred either by the applicant or by the Commonwealth to Schweppes Ltd, nor is that case mentioned in his Honour's reasons for judgement. Being a decision of an intermediate appellate court in a matter of federal jurisdiction, Schweppes Ltd ought to have been followed by his Honour, had he been aware of it, unless he was convinced that it was clearly wrong.
122 Later in time is Minister of State for Interior v Brisbane Amateur Club (1949) 80 CLR 123 at 161 in which there is an observation made by Dixon J which, as reported, is in these terms, "I am not prepared to say that a limitation of two months is just, so as to be inconsistent with s 51(xxxi) of the Constitution. It is a very brief time." (emphasis added). There may, with great respect, be an omitted negative in this observation, as there apparently is from his Honour's further statement (ibid), "I think that the Commonwealth is in a position to rely on the limitation as an objection to the claim.", which is contrary to his later conclusion (ibid) that, "I think that the Commonwealth is precluded upon the facts from saying that further time was not allowed." Be this as it may, the point is that Dixon J expressed no concluded view as to whether the time limits were so brief that the scheme of compensation did not, in contravention of s 51(xxxi), provide for acquisition of property on just terms. This apart, both his Honour (at 153-154) and Latham CJ at 147 construed reg 60D such that, where there was continuing interference, the two month time limit did not begin to run until the cessation of the interference with the land occasioned by the Commonwealth's taking of possession of it. The construction adopted by Philp J in Fish Steam Laundry (at 100) as to from when the time limit might run is at odds with this construction. I prefer that adopted by Latham CJ and Dixon J, for the reasons which they give.
123 The time limits in reg 60D are not immutable but may be extended by Ministerial discretion. Any exercise of that discretion would necessarily have to be informed by the constitutional limits of the acquisitions power conferred by s 51(xxxi): Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 613-614; Wotton v Queensland (2012) 246 CLR 1 at [9]-[10] and [21]. The Minister would be obliged to exercise his discretion to extend time within the limits of a constitutional requirement that the scheme was valid only if it provided for an acquisition of property on just terms. The statement by Philp J in Fish Steam Laundry (at 100) that, after the expiry of the time limit the individual was "left to the mercy of the Minister" does not acknowledge that the Minister is not permitted constitutionally to strain the quality of his mercy.
124 This apart, there is a balance to be struck when determining whether the scheme for acquisition and compensation is "just" between the imperatives of national defence during a time of pervasive international conflict entailing, so it was thought at the time, a prospect of invasion and what will amount to an arbitrary acquisition of property without any fair right to compensation. Those imperatives in this case included unit and formation level pre-deployment training. The constitutional guarantee in s 51(xxxi) is applicable in both peace and war, but it does not follow that what might be regarded as unjust in peace should be so regarded in the course of a conflict such as the Second World War. Even if I were disposed to depart from Schweppes Ltd, and I am not, I do not consider that, the compensation scheme in regs 60D to 60G did not provide for compensation on just terms.
125 Even if that scheme were invalid, that would, as the State submitted, leave in place its predecessor in the National Security Regulations, that in the former reg 54(4), which provided:
Such compensation shall be payable for any damage or loss sustained by the owner or occupier of the land by reason of the taking of possession of the land, or of anything done in relation to the land in pursuance of this regulation, as is determined by agreement, or in the absence of agreement, by action by the claimant against the Minister in any court of competent jurisdiction.
This former regulation created a broad compensatory charter with compensation being finally determined, if desired by the person concerned, by an exercise of the judicial, not executive, power of the Commonwealth. Brief though its expression was, the terms of that earlier charter were just. I am not persuaded that the State's further submission as to an absence of time limits for the bringing in a court of competent jurisdiction of an application for compensation under the former reg 54(4) is correct. No time limit is there specified but all that means is that one must look to s 64 or s 79 of the Judiciary Act 1903 (Cth), which would operate so as to pick up any applicable State limitation period. In Queensland, the applicable period would then have been that applicable to an action on the case namely, six years from the occurrence of the loss or damage (here the extinguishment of the native title rights in relation to land by the making of the initial military order in respect of that land): see s 16 of the Statute of Frauds and Limitations 1867 (Qld) (repealed) and the discussion by Real J in Cooper v Municipality of Brisbane (1900) 10 QLJ 120 at 122-123 of a comparable compensation jurisdiction conferred under local government legislation. Such a limitation period coupled with the broad compensatory charter given to a court of competent jurisdiction by the former reg 54(4) provided for "just terms" for the purposes of s 51(xxxi). It is nothing to the point that the limitation period has long since expired.
126 Given the conclusions which I have reached above, it is not necessary to answer Question 2. Nonetheless, the question was addressed in argument. I therefore propose to make some observations concerning the issues raised by the question.
127 By s 14 of the Native Title Act it is provided that, if a "past act" is attributable to the Commonwealth, that act, "is valid and is taken always to have been valid". It is a requirement of the definition of "past act" in s 228(2)(b) of the Native Title Act that the act would have been valid if native title did not exist.
128 In Haskins v The Commonwealth (2011) 244 CLR 22 at [45] (Haskins) French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ drew attention to a dictum of Field J in Norton v Shelby County (1886) 118 US 425 at 442 (and to an extra-judicial statement to like effect by Sir Owen Dixon) in relation to the consequence of acts infringing the constitution:
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
Their Honours left open (ibid), as unnecessary to decide in the circumstances of that case, whether any exception should be made to the principle described in that dictum. Section 18 of the Native Title Act, at least purportedly, seeks to address invalidity resulting from the operation of s 51(xxxi) by making provision for the payment of just terms compensation by the Commonwealth. It provides:
18 Where just terms invalidity
Section applies if acquisition of property other than on just terms
(1) This section applies if the invalidity (disregarding section 14) of a past act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.
Entitlement to compensation
(2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.
Having regard to s 14, s 228 and s 18 of the Native Title Act, the Commonwealth submitted that, as a matter of broad principle, invalidity arising from a contravention of s 51(xxxi) is not precluded from being a past act within the meaning of s 228. Reading these sections together, I agree but a difficulty in accepting the submission and the occasion for my use of the "at least purportedly" qualification arises from an observation made by Brennan CJ (who would not have reopened Teori Tau) in Newcrest Mining at 545:
No validation of such a transaction could be effected by a retrospective payment of compensation; the legal consequence of any invalidity would simply be that the grant or transfer must be taken never to have occurred.
The latter part of his Honour's observation accords with the dictum of Field J cited in Haskins. If the former part of the observation is correct, and so far as applicable to past acts attributable to the Commonwealth, the efficacy of the validation regime in the Native Title Act would not be secured by the retrospective payment of compensation for which s 18 provides.
129 There are other difficulties about the language employed in the Native Title Act which may present themselves if s 51(xxxi) did render reg 54 and hence the military orders made under it invalid. These would depend on the basis for the s 51(xxxi) invalidity. They arise from the qualification in s 228(2)(b) of the Native Title Act, "but it would have been valid to that extent if the native title did not exist". Were the reg 54 invalidity the result of unfair and not severable time limits in reg 60D, the military orders would be invalid, but they would not be past acts unless it was able to be concluded that they would have been valid if native title had not existed. It is difficult to see how in the posited circumstance the existence or otherwise of native title would have made any difference so far as s 51(xxxi) validity is concerned. The result would just be that reg 54 was invalid, not a past act and not validated by the Native Title Act. It is not necessary for the reasons given further to explore this subject.
130 In the result, I would answer the questions posed in the special case as follows:
Question 1: No.
Question 2: Unnecessary to answer.
Question 3:
(a) Yes.
(b) Unnecessary to answer.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.