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[2025] QCA 222
respondent. Leave to appeal was granted. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal [217].
The Court of Appeal majority held that the offence of clearing native vegetation could count as an offence relating to property, so the Criminal Code claim-of-right provision was potentially available. A claim of right must be a claim to a legal entitlement concerning the property and, if it were correct, must answer the particular offence. Here, the District Court judge found that Mr Burns honestly believed Quandamooka people had a right, based on historical practices, to clear land for building. The Court of Appeal majority considered that the evidence supported that finding and that the Council had not excluded the claim beyond reasonable doubt. It therefore dismissed the Council’s appeal. Bowskill CJ dissented, including on the view that Mr Burns’ asserted claim was not raised by the evidence and that, if it had been, the matter should have been sent back for retrial.
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8 cited instruments linked from this judgment.
Redland City Council charged Darren Burns under s 162 of the Planning Act 2016 (Qld) with carrying out prohibited development by clearing native vegetation without the required approval. Mr Burns is a Quandamooka man and a member of the group recognised as holding native title rights and interests in land on North Stradbroke Island. The land cleared was within a larger area of reserved State land. The 2011 Federal Court determination recognised non-exclusive native title rights in the relevant area [6]-[7], [119].
In 2020, Mr Burns engaged a contractor to clear about 2,400 square metres, leaving one tree. The vegetation was placed in piles and later burnt. Mr Burns told police that he had cleared the area for his family, intended to build a house for his daughter, and considered himself within his rights [8]-[9], [117]-[118]. The Magistrates Court convicted him after a five-day trial and imposed a $20,000 fine, without recording a conviction [18].
The Magistrate rejected arguments that the clearing was a traditional Aboriginal cultural activity or was protected by native title legislation. The Magistrate found that the clearing’s sole purpose was to create a site for a substantial, permanent house, and described claims about other purposes as disingenuous [21]-[23]. The Magistrate also rejected the Criminal Code claim-of-right argument because the offence was not considered an offence relating to property [23].
The District Court allowed Mr Burns’ appeal. It agreed that the clearing was unlawful and that the cultural activity exemption had not been made out as an actual exemption. But it concluded that the Council had not excluded beyond reasonable doubt that Mr Burns honestly believed he had a right to clear land for building, based on historical practices that he understood to be native title rights [102]-[104], [188]-[190].
The Council sought leave to appeal. The Court of Appeal granted leave but dismissed the appeal, with Bond JA agreeing with Doyle JA and Bowskill CJ dissenting [98], [216]-[217]. The orders left the District Court’s decision in place.
The majority’s reasoning turned on the language of s 22(2) of the Criminal Code. It provides that a person is not criminally responsible “as for an offence relating to property” for an act done “with respect to any property in the exercise of an honest claim of right and without intention to defraud” [114].
First, the majority held that the offence, as charged, related to property. “Property” under the Code includes a plant [125]. The charged act was clearing native vegetation, which involved removing or destroying plants. The statutory offence could not be understood only by looking at the general wording of s 162. It was necessary to follow the definitions and regulatory provisions specifying that the prohibited development in this case was clearing native vegetation on prescribed land [153]-[155]. The majority therefore adopted the broad approach to “relating to” reflected in Walden v Hensler and other authorities, rather than confining the phrase to offences protecting another person’s proprietary rights [131]-[145].
That conclusion did not itself establish a defence. The majority emphasised that s 22(2) is constrained by the rest of its language. The act must concern the property that is the subject of the charge, and the claimed right must, if it existed, provide an answer to that particular offence [155]-[177]. A person cannot rely on a bare belief that the law does not prohibit the conduct. That would amount to ignorance of criminal law, which s 22(1) generally does not excuse [159]-[161].
The Court treated a claim of right as a claim to a legal entitlement concerning property, not simply a “liberty” or belief that one may act without prohibition [159]-[165]. The claimed right need not actually exist, and it need not be reasonable. But it must be a claim of the relevant kind and, if well founded, must prevent the act from constituting the offence charged [163], [166]-[169]. The majority applied the reasoning in Walden v Hensler, Macleod v The Queen, R v Waine and Scriven v Sargent (No 2) to that issue [160]-[166].
The connection to the particular offence mattered here. The Planning Regulation treated certain traditional Aboriginal or Torres Strait Islander cultural activities, other than commercial activities, as exempt clearing work [112]-[113]. If the asserted right, if true, meant that the clearing formed part of such an activity, the clearing could fall outside the prohibited development offence. That meant the alleged belief was capable in principle of answering the charge [173]-[177].
The factual issue was whether Mr Burns had raised such a belief and, if so, whether the Council excluded it beyond reasonable doubt. Mr Burns gave evidence about observing land being cleared and houses or shacks being built, marking land by blazing trees, and understanding adaptation as part of cultural practice. He described an excavator as “just like a stronger stick for cleaning the land” [195]-[198]. The District Court judge found that the evidence raised a belief that Quandamooka people had a right to clear land for building based on historical practices [188]-[189].
The majority did not treat the District Court judge’s conclusion as a finding that the claimed right actually existed or that the clearing was in fact exempt. Those questions had been decided against Mr Burns below and were not challenged in the Court of Appeal [121]. Rather, the issue was whether an honest claim of right had been raised and whether the prosecution had excluded it. The Council accepted that Mr Burns had discharged the evidential burden [201]. The Court considered the District Court judge’s conclusion that the Council had not excluded the claim beyond reasonable doubt was supported by evidence and was not unreasonable [202]-[215].
The use of a contractor and excavator did not automatically foreclose the defence. Doyle JA considered that a belief in a traditional practice permitting work by modern means or by another person could potentially qualify. But the novelty of the asserted adaptation could make the belief harder to accept or make it easier for the prosecution to exclude [191]-[193].
Before this decision, Queensland authority had addressed the two distinct questions within s 22(2): whether an offence “relates to property”, and whether the accused’s asserted right could answer the particular charge.
On the first question, Walden v Hensler contained differing approaches. Brennan J favoured a narrower construction, limiting the provision to offences in which causing another to part with property or infringing another’s rights over property was an element. Deane J, Toohey J and Gaudron J expressed broader approaches. The majority in Redland City Council v Burns treated the broader approach as consistent with the Queensland and Western Australian authorities it reviewed [131]-[145]. It also explained that R v Young did not amount to an authoritative adoption of Brennan J’s narrower approach, because the relevant passage was obiter and addressed an argument that had changed during the case [147]-[150].
The decision confirms that an offence can relate to property even if the statutory purpose is not to protect ownership rights. Here, the regulatory offence focused on clearing vegetation, and the relevant plants were property under the Code [125], [153]-[154]. The Court did not decide the outer boundary of “relating to”. It expressly left open whether other offences, including some offences involving conduct concerning property, might qualify [151]-[152].
On the second question, the decision applies the principle that an honest but mistaken claim must be a claim to a legal entitlement, not merely a belief that conduct is not prohibited. The claim must be assessed against the elements and operation of the particular offence. If the claimed right, assumed to exist, would still not provide a defence, s 22(2) does not assist [159]-[169]. The majority considered that the regulatory cultural activity exemption made the difference in this case: a claim that could bring clearing within that exemption was capable of answering the charge [173]-[177].
After this decision, the analysis of a claim-of-right defence to a regulatory property-related offence requires attention to both the charged act and any relevant statutory exception or exemption. It is not enough to label the conduct “property-related”. The court must identify the particular property, the right asserted in relation to it, and whether that right, if well founded, could take the conduct outside the offence. The majority’s decision does not establish that Mr Burns had a native title right to clear land for a permanent house, nor that this clearing actually qualified as a traditional cultural activity. It holds that the asserted belief was capable of raising the statutory defence and had not been excluded on the appeal record.
At [125], the judgment sets out the Code’s definition of property, which includes “a plant”. In plain English, vegetation can count as property for the Criminal Code provision even though the planning offence is framed as carrying out prohibited development.
At [153]-[154], Doyle JA says the charged offence relates to property because the conduct was the destruction of vegetation on land. The practical point is that the Court looked at the substance of the charge, including the regulatory definitions, rather than only the broad wording of s 162.
At [161], Doyle JA says a claim of right must be “a right to arise under the civil law”. In plain English, a defendant must be claiming some legal entitlement concerning property, not simply saying they thought the criminal prohibition did not apply.
At [166], the judgment states that the claimed right must, if well founded, preclude the conduct from being an offence. The test is not whether the defendant’s belief is correct. It is whether the claimed entitlement, assumed to be true, could answer the particular charge.
At [177], Doyle JA explains that Mr Burns’ asserted belief was about a communal native title right that gave him a personal right to clear land. His Honour considered this capable of being a claim to a legal right, even if mistaken. The legal significance was that the alleged belief concerned the scope of private rights, rather than merely ignorance of the criminal law.
At [193], Doyle JA addresses the contractor and excavator. The judgment does not say that modern machinery or delegated work necessarily falls outside traditional cultural practice. Instead, it says that the more novel the asserted adaptation, the harder it may be to accept that the claim was honestly held or that the prosecution failed to exclude it.
At [216]-[217], Doyle JA concludes that no appeal ground was made out and sets out the orders: leave granted, appeal dismissed, Council to pay Mr Burns’ costs.
The decision is most directly relevant where a person is charged with a statutory offence involving conduct affecting property, and seeks to rely on s 22(2) by asserting an honest legal entitlement concerning that property. It is particularly relevant where the offence provisions contain an exemption that could apply if the asserted right or activity were established.
The analysis is fact-sensitive. A court would need to identify what property the charge concerns, what act the defendant did in relation to it, and the exact right claimed. Here, the majority treated the plants as the property that was the subject of the charge, rather than treating the land itself as the only relevant property [153]-[155]. It then considered whether the claimed entitlement could, if established, bring the clearing within the cultural activity exemption [173]-[177].
The case also matters where the claim is based on customary or native title-related practices, but it does not decide that all such beliefs qualify. The District Court had found the clearing was not actually authorised by the native title determination and did not establish the cultural activity exemption [121]. The Court of Appeal addressed the narrower question whether an honest belief in an entitlement had been raised and excluded.
Where a third party performs the physical act, this judgment indicates that the arrangement may be relevant to the factual assessment, rather than necessarily defeating s 22(2) as a matter of law [191]-[193]. The evidence about the accused’s own understanding of the practice, the purpose of the conduct, any asserted authority to use a contractor, and the means employed may all matter. The decision does not provide a general rule that contractors or machinery are permissible components of traditional cultural activity.
The judgment was delivered on 11 November 2025 and the supplied text contains no discussion of decisions delivered after it. It therefore does not provide evidence about subsequent treatment by later courts.
It does, however, explain how earlier authorities were treated in reaching the result. Walden v Hensler was applied as a central source on the scope of s 22(2), while the majority preferred the broader approach to “offence relating to property” [131]-[140]. Molina v Zaknich and Stevenson v Yasso were considered as supporting that broader construction [141]-[146].
The Court treated R v Young cautiously. It said the passage relied on by the Council was obiter and should not be treated as an authoritative or persuasive adoption of the narrower approach [147]-[150]. On the necessary connection between the claimed right and the offence, the judgment applied principles from Macleod v The Queen, R v Perrin, R v Waine and Scriven v Sargent (No 2) [160]-[166]. For appellate review of factual findings, it applied McDonald v Queensland Police Service and Commissioner of Police v Antoniolli [194].
The judgment expressly leaves unresolved the outer limits of the phrase “offence relating to property”. Doyle JA noted that a broad construction might raise difficult questions for offences not usually thought of as property offences, and declined to determine the limits because they were unnecessary to decide this case [151]-[152]. The decision therefore does not establish that every offence involving conduct that affects property falls within s 22(2).
The judgment also does not decide whether clearing land to build a permanent house is, as an objective matter, a traditional Aboriginal cultural activity. The District Court found it was not established on the evidence, and that finding was not challenged in the Court of Appeal [121]. Nor does the judgment decide whether the native title determination itself authorised the clearing. The District Court rejected that proposition [179], and the Court of Appeal did not disturb the finding.
A further open issue is how a claim involving an asserted adaptation of cultural practice should be assessed in other circumstances. Doyle JA accepted that use of a contractor and excavator could potentially fall within a claim of right, but identified novelty as potentially relevant to whether the belief was honestly held or excluded beyond reasonable doubt [191]-[193]. The judgment does not specify a general threshold for when a change in method becomes too significant to form part of a claimed traditional activity.
Finally, Bowskill CJ raised the question whether, if s 22(2) had been raised, the District Court should have ordered a retrial rather than acquitting Mr Burns [88]-[97]. That view was not the majority disposition, was not part of the Council’s appeal grounds, and did not determine the case. It remains a separate procedural observation in the dissenting reasons.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Redland City Council v Burns [2025] QCA 222
PARTIES: REDLAND CITY COUNCIL / (applicant) / v / BURNS, Darren / (respondent)
FILE NO/S: CA No 56 of 2025 / DC No 621 of 2024
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Brisbane – [2025] QDC 15 (Porter KC DCJ)
DELIVERED ON: 11 November 2025
DELIVERED AT: Brisbane
HEARING DATE: 25 September 2025
JUDGES: Bowskill CJ and Bond and Doyle JJA
ORDERS: Leave to appeal is granted. The appeal is dismissed. The appellant is to pay the respondent’s costs of the appeal.
CATCHWORDS: CRIMINAL LAW – PROPERTY OFFENCES – CLAIM OF RIGHT – where the respondent was charged with an offence of carrying out a prohibited development, namely the clearing of native title vegetation without the requisite development approval, in contravention of s 162 of the Planning Act 2016 (Qld) – where the respondent was convicted of that charge in the Magistrates Court – where the respondent successfully appealed that conviction in the District Court – where the District Court judge found that the clearing carried out on the respondent’s behalf was unlawful – where the District Court judge found that the applicant had not excluded beyond reasonable doubt that the clearing had been done in the exercise of an honest claim of right within the meaning of s 22(2) of the Criminal Code – where the honest claim of right was said to arise by the respondent’s honest but incorrect belief that all Quandamooka Aboriginal people, of which he was a member, had the right, as part of their native title rights, to clear Quandamooka land for building purposes as he had done – where the District Court judge found that the clearing work done in the exercise of that right would properly be regarded as “a traditional Quandamooka cultural activity” so as to render the work “exempt clearing” – where the applicant seeks leave to appeal that decision on the basis that the District Court judge erred in finding that s 22(2) of the Criminal Code was available to the respondent and that the evidence at trial was sufficient to engage that section – whether a contravention of s 162 of the Planning Act 2016 (Qld) is an “offence relating to property” within the meaning of s 22(2) of the Criminal Code – whether the respondent’s conduct was in the exercise of an honest claim of right – whether the District Court judge’s factual findings are unsupported by the evidence or unreasonable / Criminal Code (Qld), s 22(2), s 36 / District Court of Queensland Act 1967 (Qld), s 118 / Planning Act 2016 (Qld), s 162 / Planning Regulation 2017 (Qld), sch 10, sch 21, sch 24 / Commissioner of Police v Antoniolli [2021] QCA 237, applied / IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466, applied / Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24, applied / McDonald v Holeszko [2019] QCA 285, considered / McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, applied / Molina v Zaknich (2001) 24 WAR 562; [2001] WASCA 337, applied / O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; [1990] HCA 16, cited / Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580, considered / PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36, cited / R v Perrin [2018] 2 Qd R 174; [2017] QCA 194, applied / R v Waine [2006] 1 Qd R 458; [2005] QCA 312, considered / R v Walsh [1984] 2 Qd R 407, considered / R v Young [2020] QCA 3, not applied / Scriven v Sargent (No 2) [2018] 1 Qd R 282; [2017] QCA 95, considered / Stevenson v Yasso [2006] 2 Qd R 150; [2006] QCA 40, considered / Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54, applied / Wang v Hur [2024] QCA 126, considered
COUNSEL: J R Hunter KC, with K W Wylie, for the applicant / A D Scott KC, with A M Preston, for the respondent
SOLICITORS: Legal Services Division, Redland City Council for the applicant / Queensland South Native Title Services Ltd for the respondent
BOWSKILL CJ: Mr Burns is a Quandamooka man, a member of the group of people recognised as holding native title rights and interests in land on North Stradbroke Island, within the local government area of the Redland City Council. In 2020, he engaged a contractor to clear an area of about 2,400m2 of this land of all vegetation save for one tree to build a house for his daughter. The cleared land is part of a larger area of reserved State land, owned by the Queensland Bulk Water Supply Authority, as trustee of the reserve, for the purpose of water supply and recreation. The Council brought a complaint against Mr Burns, charging him with an offence of carrying out prohibited development (clearing native vegetation) under s 162 of the Planning Act 2016 (Qld). Mr Burns was convicted of that offence following a trial in the Magistrates Court. Following an appeal to the District Court, the conviction was set aside, and a verdict of not guilty was entered, on the basis that the Council had not excluded that the clearing of the land by Mr Burns was done in the exercise of an honest claim of right under s 22(2) of the Criminal Code. The Council applies for leave to appeal1 against that decision on the grounds that the learned District Court judge erred in finding that s 22(2) was available to Mr Burns and/or in finding that the evidence at trial was sufficient to engage s 22(2).
This application raises the following issues:Was the defence under s 22(2) of the Code available, as a matter of law, to answer the charge, which turns on whether an offence under s 162 of the Planning Act is an “offence relating to property”.If so, was the defence under s 22(2) of the Code raised on the evidence before the Magistrate, which turns on whether the primary judge was correct to conclude that Mr Burns had discharged the evidential burden of proving that he did an act “with respect to any property in the exercise of an honest claim of right”.
In my respectful view, whilst the primary judge was correct to conclude (contrary to the Magistrate’s view) that the offence under s 162 of the Planning Act is an offence relating to property, his Honour otherwise erred in finding that the defence was raised on the evidence. On this basis, I would consider it appropriate to give leave to appeal, allow the appeal, set aside the orders made by the District Court judge, and confirm the decision of the Magistrate.
On the basis, as has been found by the majority of this Court, that it was open to conclude the defence was raised by the evidence, another issue arises, concerning the exercise of the discretion under s 225(2) of the Justices Act 1886 (Qld). In my view, having reached the conclusion that the defence under s 22(2) of the was available to Mr Burns, the appropriate order for the District Court judge to have made was to set the conviction aside and send the proceeding back to the Magistrates Court for retrial, rather than to enter a verdict of acquittal. However, this did not form part of the Council’s proposed grounds of appeal, and does not in any event arise given the conclusion reached by the majority.
Factual context
On 4 July 2011, the Federal Court of Australia made an order, by consent, that there be a determination of native title, held communally by the Quandamooka People. Mr Burns is a member of the Quandamooka People, as defined in the determination, and therefore one of the native title holders. He was involved in negotiating the native title determination, and is a senior manager within the Quandamooka Yoolooburrabee Aboriginal Corporation, the prescribed body corporate which holds the native title as agent for the native title holders.
It is agreed that the cleared land falls within that part of the area the subject of the determination in which non-exclusive native title rights have been recognised. Among other things, the non-exclusive rights recognised include:by clause 3(b)(i), a right to live (defined to mean to reside and for that purpose to erect shelters and temporary structures but not to include a right to construct permanent structures) and be present on the area;by clause 3(b)(ii), a right to take, use, share and exchange “Traditional Natural Resources for personal, domestic and non-commercial communal purposes” – with “Traditional Natural Resources” defined to mean, among other things, animals and plants, each as defined in the Nature Conservation Act 1992 (Qld); andby clause 3(b)(viii), a right to “be accompanied into the area by non-Quandamooka people being:-
people required by traditional law and custom for the performance of ceremonies or cultural activities; and
people required by the Quandamooka people to assist in observing or recording traditional activities on the area.”
There is no dispute that, sometime after May 2020, Mr Burns engaged a contractor to clear an area of about 2,400m2 of land of all vegetation, save for one tree. The cleared vegetation was placed into piles and later burned.
When the local police officer, Parsons, became aware of the clearing, he contacted Mr Burns – not as a suspect, but because “he [Mr Burns] has his finger on the pulse when it comes to these types of matters: native title land, who’s where, who’s doing what”. When Mr Burns was first spoken to by officer Parsons about the land clearing, he told the officer he had cleared it for his family, that he had not finished yet, he was continuing to clear it, and his intention was to pour foundations and build a house; and that he was within his rights to do that. When the police officer asked him the name of the particular person who cleared the land, Mr Burns said “No, it was me”.
The offence charged
“162 Carrying out prohibited development
A person must not carry out prohibited development, unless—
the development is carried out under a development approval given for a superseded planning scheme application; or
the local government for the area in which the development is carried out has agreed, or is taken to have agreed, to a request under section 29(4)(b) for the development.
Maximum penalty—4,500 penalty units.”
The qualifiers in s 162(a) and (b) relate to superseded planning schemes, and are not relevant here. Under the current scheme, and as defined in s 44(2) of the Planning Act, “prohibited development” is development for which a development application may not be made. “Development” is defined in schedule 2 to the Planning Act to mean:carrying out –building work; orplumbing or drainage work; oroperational work; orreconfiguring a lot; ormaking a material change of use of premises.
“Operational work” is defined to mean “work”, other than building work or plumbing or drainage work “in, on, over or under premises that materially affects premises or the use of premises”. “Premises” means a building or other structure or land. So, relevantly, “operational work” means “work” in, on, over or under land.
One type of “operational work” is “clearing native vegetation”:to “clear”, for vegetation, means remove, cut down, ringbark, push over, poison or destroy in any way including by burning, flooding or draining, but does not include destroying by standing vegetation by stock, or lopping a tree;2“native vegetation” means vegetation under the Vegetation Management Act 1999 (Qld), namely, a native tree or plant other than those referred to in s 8 of that Act.3
The purpose of regulating the clearing of native vegetation is set out in s 3 of the Vegetation Management Act, and includes conserving vegetation of certain kinds and in certain areas, ensuring the clearing does not cause land degradation, preventing loss of biodiversity, maintaining ecological processes, managing the environmental effects of clearing, reducing greenhouse gas emissions and allowing for sustainable land use.
What constitutes “prohibited development” is set out in schedule 10 to the Planning Regulation 2017 (Qld).4 Relevantly, part 3 of schedule 10 deals with “clearing native vegetation”. Section 4(1) of part 3 provides:
“4 Prohibited development—clearing native vegetation other than for a relevant purpose
Operational work that is the clearing of native vegetation on prescribed land is prohibited development to the extent the work –
is not for a relevant purpose under the Vegetation Management Act, section 22A; and
is not exempt clearing work; and
is not accepted development under schedule 7, part 3, section 12.”5
“Exempt clearing work” is relevantly defined in schedule 24 to the Planning Regulation to mean operational work that is the clearing of native vegetation on prescribed land if the clearing falls within schedule 21, part 1 of the Regulation. One of the categories of exempt clearing work referred to in schedule 21, part 1 (para (5)) is clearing which is “a traditional Aboriginal or Torres Strait Islander cultural activity, other than a commercial activity”.
It is not controversial that the relevant land is “prescribed land”6 and the cleared vegetation was native vegetation.
The trial before the Magistrates Court
Following a five day trial in the Magistrates Court, and for reasons given on 5 February 2024, Mr Burns was found guilty of that offence. He was convicted, the conviction was not recorded, and he was ordered to pay a fine of $20,000 (the maximum penalty being $600,000).
The Magistrate’s reasons commenced by summarising the factual basis on which the complaint was to be determined:
“This is a decision in relation to the Redlands City Council and Darren Burns. Now, Mr Darren Burns is a Quandamooka man. He resides on North Stradbroke Island. He lives in his mother’s house in Dunwich. He says he is paying off that house for his mother and that he expects to inherit the house, which in turn will go to his eldest son. Mr Burns has a daughter who has started a family of her own. Mr Burns is concerned about his daughter’s future housing needs with a growing family.
Some time after 2015 and before 2020, Mr Burns decided that he should set aside some land so he could build a house for his daughter. He had – he had had his eye on the land for some time. It was an elevated block with views to the north. Some time after 2015, he cut a blaze on some trees in – on the block. He says that was to identify to other people that the land was taken and that they should look elsewhere if they wanted to claim land in the way that he had.
Some time after May 2020, he engaged a contractor to clear the land, and in accordance with that engagement, the land, the subject of the complaints, was cleared. Notwithstanding his misgivings regarding a large bloodwood tree in the centre of the clearing, that was the only tree of any size that remained unfelled. The trees were piled in three separate piles and that is where they stayed until at least February 2023. At the risk of stating the obvious, Mr Burns did not clear the land himself. He did give evidence that he burnt the piles of bush timber after February of 2023.
The fact that some land had been cleared was brought to the attention of Senior Constable Parsons, who contacted Mr Burns with a view of discovering who had cleared the land and why the land was cleared. Notwithstanding a defence application to exclude the evidence, Mr Burns confided in Senior Constable Parsons that he was the person responsible for the clearing. He advised Senior Constable Parsons that he had not finished with the land and that he was intending to pour some footings in preparation for the construction of a house. In later evidence, he disclosed his ambition to erect a three bedroom house with a verandah and perhaps a second storey. There needed to be sufficient land cleared to accommodate future construction to cater to his daughter’s growing family and the prospect of other family members looking to build on the land. That then is the factual basis upon which the complaints are to be determined.
With respect to the land, it is described as lot 1, 153 on survey plan 304073. That land is within the boundaries of the Redland Shire Council and is reserve land. The land itself was coastal land. It was essential habitat, and it was remnant vegetation.”
At the trial before the Magistrate, Mr Burns defended the charge on bases including:that he was engaging in a traditional Aboriginal cultural activity; andin reliance on s 211 of the Native Title Act 1993 (Cth), on the basis that by clearing the land he was carrying out a “class of activity” in the exercise or enjoyment of his native title rights and interests (and therefore the prohibition on clearing did not apply to him).
As to the first basis, the Magistrate found:
“It is crystal clear that the purpose of the clearing was to provide a building site for a house that Mr Burns intended to build. Later suggestions made by Mr Burns in his evidence that the activity also had the effect of fire hazard reduction and/or mitigation of danger by removing unhealthy and dangerous trees and was in keeping with traditional land use management or that he was taking note of resources for a traditional cultural purpose were disingenuous, and seem … to me, to be made with a view to somehow fit his activity into the scope of a traditional cultural activity.
I find as a matter of fact that the clearing of the land conducted on behalf of Mr Burns was conducted for the sole purpose of providing a cleared area upon which he proposed to erect a substantial and permanent house for his daughter. It was never the case that it was cleared with a view to mitigate any fire hazard, nor were the trees cleared as a result of any concern on the part of Mr Burns that they posed a danger to anyone as a consequence of limbs falling from them. The land was not cleared [indistinct] exercise in traditional land management practice. It was never Mr Burns’ intention to utilise the fallen timber as a resource. The timber was stacked into piles with a view to burning it. There is no credible evidence that it was going to be used for or by anyone for any purpose and the notion that the burnt timber would somehow be used to enrich the soil was disingenuous at best and is dismissed as a matter of fact.
Mr Burns gave evidence that he has burnt the piles and there is no evidence given as to what he did after the piles were burnt. The clearing work that Mr Burns had done on the relevant land does not fall within the definition provided by subsection (5) of section 1 of schedule 21 of the Planning Regulation.”7
“The notion that Mr Burns cleared the land for the purpose of satisfying his personal domestic or non-commercial communal needs in the exercise or enjoyment of his native title rights and interests is simply not supported by the evidence. At the risk of labouring the point, Mr Burns saw some land which he – or that he considered would be a good site for the construction of his daughter’s house, and he contracted a stranger to clear the land. The land was for his or his family’s exclusive use. The reality that there are any number of clearings on North Stradbroke Island where people live is of no consequence to the activity of Mr Burns. I’m not aware of the genesis of the clearings. I’m not aware of the small communities were a product of a communal decision to establish them, or if the site was chosen by an outside agency and community members moved to the site. There is no admissible evidence before the court that suggest that Mr Burns’ activity was in line with established or recognised cultural practice. I make that finding with all due respect to the witnesses, Dr [Coombs] and Mr Costello.”8
The appeal to the District Court
“The Magistrate erred in finding:
i) that Mr Burns was not exercising rights which were traditional Aboriginal cultural activities or native title rights (inherent rights), which finding was against the weight of [the] evidence;
ii) that Mr Burns was not exercising inherent rights by reason of his intention to build a house, such reason being irrelevant to the exercise of an existing recognised right to take natural resources.” (AB 1052).
The grounds were revised, it seems, in a “certificate of readiness” which was filed on 21 August 2024. The Council did not oppose leave being given to rely on those grounds. As identified in the judgment of the District Court (Judgment) at [31]-[33], the grounds for the appeal to the District Court were:First, that the Magistrate erred in failing to conclude that:Mr Burns’ clearing was within the scope of the rights he had as a Quandamooka person under the native title determination; andacts of vegetation clearing which were within the scope of the rights declared in the determination were not, as a matter of law, capable of comprising an offence against s 162 of the Planning Act.Second, that the Magistrate erred in failing to conclude that Mr Burns’ clearing was exempt clearing within the cultural activity exemption.Third, that the Magistrate erred in concluding that the offence under s 162 of the Planning Act was not an “offence relating to property” under s 22(2) of the Code. If the District Court were to find that s 22(2) did apply, it was submitted the District Court should find that Mr Burns’ clearing of the land was done in exercise of an honest claim of right to clear under the determination.
The primary judge made the following findings:At [160]: “The evidence relied upon by the appellant [Mr Burns] does not make out the clearing was for or part of a traditional Quandamooka cultural activity.”At [164]-[166]:
“The traditional cultural activity Mr Burns invokes is one which expressly involves the assertion of native title rights. That conclusion is particularly compelling here where the activity contended for is one of marking out land, thereby excluding others, and then clearing and building for the exclusive use of the person who staked (or blazed) the claim. That entails an activity which involves assertion of rights in land.
The problem for Mr Burns on that approach is that no such rights exist outside the Determination because the Determination conclusively articulated native title rights on the island in a manner which is binding on all persons, including the Quandamooka people and the Council: s. 225 Native Title Act….
Cultural activities which involve assertion of native title rights are in a special category where there has been a native title determination because those rights have already been conclusively determined by a Court in a binding manner. It is not open to Mr Burns to contend that the content of native title rights differs from those in the Determination.”
At [168]:
“… even if it could be established that clearing the land to build a modern house was a traditional Quandamooka cultural activity, no foundation was established in the evidence for persons other than Quandamooka people to carry out that activity.”
His Honour “passed over” the related question of “whether, if a right to clear existed, clear felling a large area using modern earth works machinery could be considered a modern evolution of that traditional activity or a change of such magnitude as to constitute a break with that tradition” (at [169]).
At [170], that the “exemption for clearing for a traditional Aboriginal cultural activity was not made out on the evidence and … was excluded beyond reasonable doubt”.
As to the operation of s 22(2), the primary judge found, contrary to the Magistrate’s decision, that the offence created by s 162 of the Planning Act is an “offence relating to property” within the meaning of s 22(2) of the Criminal Code.
In relation to whether Mr Burns’ clearing of the land was “an act done … with respect to any property in the exercise of an honest claim of right…”, the primary judge said, at [204]-[206]:
“[204] The Council maintained its submission on the appeal that honesty was excluded on the evidence. That was based on the proposition that Mr Burns conceded in cross examination that paragraphs 3(b)(i) and 8 of the Determination did not authorise his clearing for the purpose of construction of a house for the exclusive use of his daughter. Mr Burns, to his credit, made those concessions without prevarication: see paragraphs [135] and [136] above. Council submitted that given Mr Burns’ involvement in negotiation of the Determination, he must have realised the matters which he conceded in cross examination at the time of clearing the land. To be fair to the Council, that was a reasonable submission to make on the evidence.
[205] The question of Mr Burns’ honesty in belief regarding his claim of right is a question uniquely suited to determination by a trial judge who has seen and heard the whole of the evidence. It is the index case for the advantage of a trial judge over an appeal court. This Court does not have the benefit of a finding by the trial Judge on the issue because his Honour’s analysis stopped at the first stage: whether there was an offence relating to property. It is an interesting question as to whether, on a conviction appeal, this Court could refer the complaint back for a retrial where error is shown in the conviction but there are no findings on a central question of credit which must then be resolved to dispose of the appeal.
[206] However, having read the whole of Mr Burns’ evidence and reviewed much of the evidence adduced at trial, I have concluded that I am in a position to reach a conclusion on the issue, especially as the Council had to exclude honesty to the criminal standard. In my view, the evidence falls short of demonstrating a lack of honesty in Mr Burns’ claim of right.”9
It is correct to say there was no finding by the Magistrate that any belief held by Mr Burns was not honest. That is because the Magistrate formed the view that s 22(2) did not apply, as a matter of law, and so his Honour did not address it. However, in my view these paragraphs of the Judgment overlook the finding as to credit that was made by the Magistrate – that Mr Burns’ purported characterisation of his actions as being a traditional cultural activity was “disingenuous”.
Next, the primary judge dealt with the claim of right contended for by Mr Burns at the appeal – namely, a belief that what he was doing (clearing the land to build a house for his daughter) was in exercise of his native title rights arising under the native title determination. The primary judge found that the evidence “does not raise any such belief” – that is, the primary judge rejected the very basis on which it was contended, on behalf of Mr Burns, that he cleared the land “in the exercise of an honest claim of right”. The primary judge found, against Mr Burns, that Mr Burns did not believe, honestly or otherwise, at the time of clearing the land that his actions in that regard were authorised by the native title determination.
However, the primary judge went on to consider whether it might be said Mr Burns cleared the land “in the exercise of an honest claim of [some other kind of] right”. As to that, the primary judge found, at [223], that the evidence:
“… raises the proposition that at the time Mr Burns cleared the land for building, he believed he was entitled to clear land for building purposes on land (other than freehold land) in accordance with a right that all Quandamooka people had to do so, based on historical practices, which he considered to be native title rights.”10
“In my view, absent the cultural activity exemption, Mr Burns’ claim of right would not fall within the scope of s 22(2). A belief that he was entitled by native title rights to clear land would rise no higher than an ignorance of the law because even if he had such native title rights, they would not have provided any answer to the specific prohibition on clearing native vegetation. However, the existence of the cultural activity exemption changes the position. Mr Burns’ belief as to his claim of right was one which if correct, would have given rise to the cultural activity exemption. That is, if he was correct in his belief that he had a traditional right to blaze, clear and build, then that would have excluded the clearing for that activity from the scope of the offence because the clearing would have fallen within the scope of exempt clearing work.”
Section 22(2) of the Code
“22 Ignorance of the law – bona fide claim of right
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.”11
Section 22 falls within chapter 5 (criminal responsibility). Section 36(1), which is also within chapter 5, provides that “the provisions of this chapter apply to all persons charged with any criminal offence against the statute law of Queensland”.12
Section 22 was based on the common law defence of bona fide claim of right,13 but was reformulated for the purposes of the Criminal Code, and given a wider operation. As Brennan J explained, in Walden v Hensler (1987) 163 CLR 561 at 573:
“When the common law defence was reformulated for the purposes of the Code, it was given a different operation. Section 22 operates to preclude criminal responsibility for an act done or omitted to be done whether or not there is a mental element in the offence charged which would be negated by an honest claim of right, but only if the offence is ‘an offence relating to property’. Section 22 operates directly on the act or omission the doing or making of which would otherwise render a person liable to punishment: see the definition of ‘offence’ in s 2 of the Code. … Section 22 has a wider operation than the common law defence of honest claim of right in that it may apply to an offence whether or not the offence contains a mental element that is negated by an honest claim of right; it has a narrower operation than the common law defence in that it applies only to offences which are offences relating to property.”
Offence relating to property
“Offence” is defined in s 2 of the Code to mean “[a]n act or omission which renders the person doing the act or making the omission liable to punishment”.
“Property” is defined in s 1 of the Code to include:
“(a) every thing animate or inanimate that is capable of being the subject of ownership; and
money; and
electrical or other energy, gas and water; and
a plant; and
an animal that is –
a tame animal, whether or not naturally tame; or
an untamed animal of a type that, if kept, is usually kept confined; or
an untamed animal in a person’s possession or being pursued for return to possession after escape; and
a thing produced by an animal mentioned in paragraph (e); and
any other property real or personal, legal or equitable, including things in action and other intangible property.”
The phrase “relating to” has frequently been described as one of wide import: “It can refer to a direct or indirect connection between two subject matters, and one subject matter can ‘relate to’ another subject matter even though the first subject matter also relates to other things. The degree of connection required between two subject matters joined by the words ‘relating to’ is ordinarily to be determined by reference to the text, context, legislative purpose and history of the provision, and, of course, the facts of the case”.14
The High Court considered the meaning of s 22(2) of the Criminal Code in Walden v Hensler (1987) 163 CLR 561. The issue arose in the context of an appeal against a conviction of an Aboriginal man, Mr Walden, for an offence of keeping prescribed protected fauna (namely, two plain turkeys) contrary to s 54(1)(a) of the Fauna Conservation Act 1974 (Qld), which provided that “a person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence…”. It was accepted that Mr Walden honestly believed, in accordance with Aboriginal custom and his own practice of a lifetime, that he was entitled to take the turkeys for food for his family.
A majority of the High Court (Brennan, Deane and Dawson JJ) held that s 22(2) did not afford a defence – for differing reasons. Justices Toohey and Gaudron held that the defence under s 22(2) was available to Mr Walden. As between the judges forming the majority, one, Brennan J, adopted a narrow approach to the meaning of “offence relating to property” and the other two, Deane and Dawson JJ, adopted a broader approach, as did Toohey and Gaudron JJ. The broad approach has subsequently been adopted and applied in the Code states, Queensland and Western Australia.
Justice Brennan considered it necessary to give s 22 a narrower interpretation for policy reasons, holding that it applies only to offences in which the causing of another to part with property or the infringing of another’s rights over or in respect of property is an element (at 574-5). Those policy reasons were explained, at 574, as follows:
“If s 22 were to be understood as applying to any act or omission affecting property, it would have an operation far wider than has been attributed to it in Queensland thus far (see Olsen v Grain Sorghum Marketing Board; Ex parte Olsen ([1962] Qd R 580)) and far wider than the common law defence from which it was derived. The wider interpretation of s 22 would put a premium on ignorance of the general criminal law. Contrary to the law’s intent, it would furnish a disincentive to the dispelling of ignorance as to the provisions of the criminal law governing the destroying, damaging, using, disposing of or otherwise dealing with anything which answers the description of property. A common law right over or in respect of property, whether actually possessed or mistakenly claimed, would override any provision of the general criminal law relating to property of which the person claiming the right was ignorant, though the provision in question did not relate to the rights of any other person over or in respect of the property. The wider interpretation unduly subverts the capacity of the criminal law to serve the public interest, for it would go far towards frustrating its broad educative and deterrent function (especially in relation to statutes creating regulatory offences). On the other hand, it is understandable that s 22 should operate to suspend the sanctions which the criminal law imposes for conduct which causes another to part with property or which infringes another’s rights over or in respect of property when the offender honestly believes that he is entitled to engage in that conduct by reason of a right that he mistakenly believes himself to have. The narrower interpretation of s 22 acknowledges that, while a person’s ignorance of his private rights should not expose him to criminal punishment for what he does or omits to do under an honest mistake as to those rights, it is necessary in the public interest to leave the first paragraph of the section to operate generally over the criminal law…”
Justice Brennan concluded that s 54 did not create “an offence relating to property” because the gist of the offence created by s 54 was the physical destruction or control of fauna, irrespective of any rights over or in respect of fauna which might be vested in any person. That is, “it is a provision calculated not to protect the Crown’s or any other person’s rights over or in respect of fauna but to protect fauna from destruction or control”.
Justice Deane expressed the view that s 22 should not be so narrowly construed as to limit it to an offence involving an element of interference by the person charged with rights of another in relation to property. His Honour found the offence under s 54 is properly described as an “offence relating to property” (at 580). Justice Deane therefore focussed on whether what Mr Walden had done was an act with respect to any property in exercise of an honest claim of right. At 580-581, Deane J said:
“The phrase ‘honest claim of right’ has no defined meaning for the purposes of the Code. Its connotation in s 22 must be determined in the context of the opening provision of that section that ignorance of the law does not of itself afford any excuse for an action or omission which would otherwise constitute an offence and against the background of general common law principle to that effect. Plainly, the fact that a person can honestly say that he thought he was entitled to do the relevant act because he was unaware that it was proscribed by the criminal law does not suffice to provide him with a defence of honest claim of right under s 22. Nor does an honest belief of some special entitlement to do the particular act with respect to property necessarily constitute such a defence. An honest belief of a special entitlement to do the act with respect to the property, such as belief of ownership, will only constitute a defence under s 22 of the Code if that entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know … In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged. …”15
“… the answer to the question whether an honest belief of entitlement to act in a particular way with respect to property constitutes a defence of honest claim of right under s 22 of the Code can only be ascertained by reference to the elements of the alleged offence. If actual knowledge of criminality is an element of the offence, a defence of claim of right will be available to negate that element of the offence if the claim of right results in the absence of such knowledge. In the ordinary case where knowledge of the criminal law is assumed however, a defence of claim of right will not be well founded unless what was claimed or believed would, if it were the fact, have negatived an element of the actual offence or provided a good defence to it.”16
“It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner – to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs ((1867) LR 2 HL 149 at p 170), per Lord Westbury. As Hanger J pointed out in Olsen17 ([1962] Qd R at p 589): ‘Section 22, after stating that ignorance of the law is no excuse, does not proceed to say that ignorance of the law is an excuse in the case of an offence relating to property for an act done with respect to property. It refers to an act done in the exercise of an honest claim of right and without intention to defraud’.
In Reg v Pollard ([1962] QWN 13), a claim of right was raised in answer to a charge of unlawful use of a motor vehicle. Gibbs J observed that it was not to the point that the accused had no right to take the vehicle – a claim of right need only be honest and need not be reasonable – and observed that if he ‘honestly believed that he was entitled to take it, or if the jury had a reasonable doubt whether he had such a belief, he should have been acquitted, however wrong his belief may have been, and however tenuous and unconvincing the grounds for it may seem to a judge’ (at p 29). His Honour was not, however, referring to a belief on the part of the accused in an entitlement to behave as he did, that is to say, in the mere absence of a prohibition, but to a belief on his part that he was exercising a claim of right, that is to say, a legal entitlement to the vehicle arising under civil law which would negate the criminal intent involved in the offence with which he was charged, namely, unlawfully using a motor vehicle without the consent of the owner and without the consent of any person in unlawful possession thereof: see Olsen (at 584-585); Reg v Walsh ([1984] 2 Qd R 407 at pp 408-409).”18
Justice Toohey rejected the notion that any narrow meaning should be applied to s 22(2) and held that s 54 was an “offence relating to property” because it relates to the taking or keeping of something which answers the description of property (at 599). Justice Gaudron took a similar, but slightly different approach to that of Toohey J, although also proceeded on the basis of the wider interpretation of “offence relating to property”.
The wide meaning of “offence relating to property” has been adopted in subsequent decisions of this Court, including Stevenson v Yasso [2006] 2 Qd R 150. That case concerned an offence under s 84 of the Fisheries Act 1994 (Qld), which provides that “a person must not unlawfully … possess fishing apparatus”. Section 14(1) of that Act provided that “An Aborigine may take, use or keep fisheries resources … under Aboriginal tradition…”. A majority of the Court of Appeal (McMurdo P and McPherson JA, Fryberg J did not address this point) held that s 22(2) could apply to an offence against s 84. That was said to be consistent with the use or possession of fishing apparatus under s 84 of the Act being an offence relating to property (the net) for an act done with respect to property (the possession of the net) within the meaning of s 22(2).19
Section 22 also arose for consideration in R v Waine [2006] 1 Qd R 458, a case which concerned a charge of wilfully damaging a building. It was not in issue that was an offence relating to property. Justice Keane (with whom McMurdo P and Wilson J agreed) observed, however, that:
“[24] It is also clear that the defence afforded by s 22(2) is ‘not limited … to offences by which the offender obtains possession of property. The defence is available when the offence relates to the damaging or destroying of property …’20
[25] It has been said that the clearest example of the operation of s 22(2) of the Criminal Code is the case where a person does an act with respect to property in the honest but mistaken belief that he or she is the owner of the property. But it is also clearly established on the authorities that an honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property. What is important is the honest belief that one is legally entitled to do to the property that which one is doing. That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one’s own title.”21
On the other hand, in R v Young [2020] QCA 3 this Court said that an offence of fraud against s 408C of the Code was not an offence “relating to property”, citing the narrower view espoused by Brennan J in Walden v Hensler at 574-575. There was, however, no detailed discussion of this issue in Young, which is understandable given that the ground which raised s 22(2) was a weak point, seeking to raise an argument not mentioned at the trial. In the circumstances, this reference is not an unequivocal adoption of the narrower view.
In Western Australia, since the decision in Walden v Hensler, it has been accepted that the broader approach to s 22(2) should be adopted.22
The current state of authority therefore is that “offence relating to property” in s 22(2) is to be widely construed, consistent with the approach taken by a majority of the judges in Walden v Hensler. But, as next discussed, there are constraints imposed by the remaining parts of the provision.
Meaning of “act… done by him with respect to any property in the exercise of an honest claim of right…”
“The claim asserted by the appellants was not a claim that they were entitled to buy the particular property the subject of the claim by reason of any right in or to that property peculiar to themselves, but was in effect a claim that they could buy any sorghum from any person because they honestly but wrongly believed that the provisions of the [relevant Act] did not apply to the transaction. This amounts to a claim that because they were ignorant of the law they were not criminally responsible.”23
That point has been reinforced in subsequent decisions of the Full Court and Court of Appeal, in R v Walsh [1984] 2 Qd R 407 and R v Waine [2006] 1 Qd R 458.
R v Walsh [1984] 2 Qd R 407 involved an offence of wilfully and unlawfully killing an ox the property of other persons. The offender admitted he had wilfully killed the ox. He claimed that he did so because he feared the cattle might go onto his land and further damage his avocado trees, and so he killed them in order to protect his property. One of the defences relied on was that, in killing the ox, the offender was exercising an honest claim of right, namely, the right to protect his property. The Full Court (Kneipp J, Kelly and Carter JJ agreeing) held “that is not the sort of right to which the provision refers”, saying, at 408, that s 22(2) refers to:
“a right relating to the property to which the charge relates: a right which if it existed would be, to adopt language used by Mansfield CJ in Olsen and Another v The Grain Sorghum Marketing Board, ex parte Olsen and another [1962] Qd R 580, 585, a right in or to that property which would be peculiar to the person asserting the right. The most usual and simplest application of the provision is the case where a person does some act in relation to property in the honest but mistaken belief that he is the owner of it”.24
Similarly, in R v Waine [2006] 1 Qd R 458, the accused person sought to rely on s 22(2) in relation to a charge of wilfully damaging a building. The accused admitted spray painting a number of cabins at Dilli Village on Fraser Island with the letters AUA (Aboriginal University of Australia). As already noted, it was not in issue that the offence was an “offence relating to property”. The issue was whether the accused person had done the act of spray painting the cabins “in the exercise of an honest claim of right”. In that regard, she claimed that she was acting as the agent of Mr Sempf, who claimed native title in respect of Dilli Village on behalf of the local Aboriginal people. The accused was jointly charged, with Mr Sempf. The trial judge had allowed a defence under s 22(2) to be left to the jury in the case of Mr Sempf, but not in the case of Ms Waine. Justice Keane (with whom McMurdo P and Wilson J agreed) found that it should have been; reasoning that one who damages property in the mistaken belief that one is authorised to do so by the owner may honestly claim to be entitled to deal with the property in that way so as to have a defence under s 22(2) (at [26]).
Relevantly, for present purposes, Keane JA went on to say:
“[27] In the present case, the issue was whether the appellant, as a person dealing with property in a manner authorised by Aboriginal persons asserting ownership of the cabins, could raise a defence under s 22(2) of the Criminal Code by claiming to deal with the huts in accordance with the consent of those persons. In my respectful opinion, in such a case, the accused falls within the dictum of Gibbs J in R v Pollard: ([1962] QWN 13 at 29):
‘An accused person acts in the exercise of an honest claim of right (in respect of the property the subject of the charge) if he honestly believes himself to be entitled to do what he is doing [in relation to that property].’
[28] I have made the parenthetical insertions in the dictum of Gibbs J in deference to the observations of Mansfield CJ in Olsen v Grain Sorghum Marketing Board, Ex parte Olsen ([1962] Qd R 580 at 585) that the statement of Gibbs J must be read as speaking of conduct in respect of the property the subject of the charge.”25
The claimed right needs to be a right which, if it existed, would constitute a defence to the charge
It has been held that, to raise a claim of right to do a prohibited act, it is not necessary that the right claimed be one “recognised by law”.26 However, in order to provide a defence, the right claimed must be one which, if it existed, could in fact answer the charge.
As Keane JA said, in R v Waine at [30]:
“… In order to establish an honest claim of right it is necessary to show that the rights claimed ‘would, if well founded, preclude what was done from constituting a breach of the relevant criminal law which an accused is presumed to know’.” (referring to Walden v Hensler at 580-581, per Deane J).
The point is demonstrated in Scriven v Sargent (No 2) [2018] 1 Qd R 282, a case which concerned the offence of carrying out “assessable development” without a permit, contrary to s 4.3.1 of the Integrated Planning Act 1997. The applicant (in the appeal) was the holder of freehold title in a large rural property. The assessable development related to the clearing of native vegetation on about 1819 hectares of that land, without an effective permit. The applicant relied on a defence under s 22(2) – that he was exercising an honest claim of right, namely, that he had a right as the freehold owner to use the land unconditionally, including all fixed native vegetation.
At first instance, the Magistrate found that s 22 did not provide an answer to the charge. On appeal to the District Court, it was held that the Magistrate was correct – that s 22:
“… only operated if the right which a person must honestly believe to exist was a right which if it did exist would be a defence to the charge. A belief in a right to do something with respect to property cannot constitute a defence if that right does not exist. It is simply ignorance of the law.”
“… created an offence of general application that operated irrespective of any proprietary or lesser right in respect of that native vegetation. As the claimed right constituted no defence to the charge, s 22 of the Code had no operation in the instant case.”
The Court of Appeal did not expressly address the question whether the offence under s 4.3.1 of the IPA is “an offence relating to property”. The decision proceeds on the assumption that it is (or could be).
A similar offence was dealt with in McDonald v Holeszko [2019] QCA 285 – namely, carrying out assessable development without an effective development permit contrary to s 578(1) of the Sustainable Planning Act 2009. Mr McDonald was one of two owners of a rural property. He was convicted of unlawfully clearing native remnant vegetation on part of their land. He said he had done this for the purpose of feeding livestock, during prolonged periods of drought. He sought to rely on the defence under s 22(2), on the basis that he believed he had a right, as one of the registered owners of the property, to the effective use and economic benefits of all vegetation on or forming part of the property. That argument was rejected and he was convicted of the charge. The Court of Appeal (Flanagan J, Sofronoff P and Philippides JA agreeing) upheld the conviction. In relation to the s 22(2) defence, Flanagan J said, at [20]-[21]:
“[20] … This Court has, however, previously decided that a defence under s 22 is not available as a defence to the deliberate clearing of vegetation contrary to statute even if it were assumed that there was sufficient evidence to show that Mr McDonald honestly believed the state of the law permitted him to clear vegetation in the way that he did.
[21] In Scriven v Sargent (No 2) Boddice J, with whom Morrison JA and Dalton J agreed, stated:
“The belief claimed by the applicant amounted to no more than an assertion that he honestly believed he had an entitlement to act in relation to the native vegetation. That assertion amounts to no more than an allegation he was unaware of the effects of the relevant legislation. Such a claim, even if held honestly, is not protected by s 22 as it merely amounts to ignorance of the law.”
Mr McDonald has not demonstrated that this Court’s decision in Scriven v Sargent (No 2) is plainly wrong. To the contrary there is no reason to doubt the correctness of the decision.”
Again, there was no consideration in this case of the question whether the offence was an “offence relating to property”. The point is that it is an offence of general application, regardless of any proprietary or lesser interest in the vegetation concerned, and so the purported right claimed by Mr McDonald provided no defence.
In Stevenson v Yasso [2006] 2 Qd R 150, whilst McMurdo P would have found that Mr Yasso’s entitlement to possess the net in the exercise of an honest claim of right under s 22 was raised on the evidence, McPherson JA found that the defence was not available because the use of the prohibited fishing apparatus for traditional fishing was not an answer to the charge of unlawfully possessing it (at [102]).27
Is the offence an “offence relating to property”?
The rule embodied in s 22(1) of the Code, that ignorance of the law is no excuse, has been described as “the working hypothesis on which the rule of law rests”.28
The approach which has been taken to the interpretation of “offence relating to property” gives the exception to this rule, in s 22(2), a wide operation. However, that is rationally constrained by the requirements:first, that the “act done… by the person … with respect to any property” must be an act done with respect to the property the subject of the offence charged;29 andsecond, that in order for “an act done… in the exercise of an honest claim of right…” to come within s 22(2), the right claimed must be one which, if it existed, would provide an answer to the charge.30
The offence charged against Mr Burns was an offence under s 162 of the Planning Act of carrying out prohibited development.
Having regard to the various defined terms, the act which renders the person doing the act liable to punishment (that is, the offence) is carrying out work namely clearing (in the sense of removing or destroying) native vegetation.
Native vegetation would include “plants” (as defined in the schedule to the Nature Conservation Act 1992 (Qld)). A “plant” is included within the definition of “property” in the Code.
Unconstrained by the authorities discussed above, I would have been inclined to the view that notwithstanding a “plant” may be “property”, properly understood the offence under s 162 of the Planning Act is not an offence relating to property; but is rather an offence relating to an activity31 (carrying out work, namely clearing vegetation). But, as the offence does have, as its focus, the removal or destruction of plants, which are property, I accept that the offence is an “offence relating to property” within the meaning of s 22(2).
Importantly, though, the “property” the subject of the charge is the plants – the native vegetation – not the land on which the plants grow. For the purposes of the offence, it does not matter who owns the vegetation, or the land on which it grows. The focus is on protecting the vegetation, for the purposes outlined in s 3 of the Vegetation Management Act 1999.
That was the basis on which counsel for Mr Burns submitted, on the appeal to the District Court, that the offence should be so characterised (see the Judgment at [176]), which was accepted by the primary judge (Judgment at [196] and [197]).
Was the defence under s 22(2) of the Code available to Mr Burns?
Accepting that it was available in principle, what needed to be shown for s 22(2) to be engaged is that Mr Burns did an act “with respect to any property [the subject of the charge – namely, the vegetation] in the exercise of an honest claim of right [in relation to that property – namely, the vegetation]”.
Mr Burns bore the evidential burden of proving a claim of right. If that burden was discharged, the persuasive burden was on the prosecution to rebut (or exclude) it.32 As to that, in Macleod v The Queen at [41], Gleeson CJ, Gummow and Hayne JJ adopted Dawson J’s articulation33 of what is meant when it is said the accused raises a claim of right:
“It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner – to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law.”34
Their Honours went on, at [42], to adopt the proposition expressed by Callaway JA in R v Lawrence [1997] 1 VR 459 at 467, that although an honest claim “may be both unreasonable and unfounded”, if it is of that quality then the claim “is less likely to be believed or, more correctly, to engender a reasonable doubt”.
Mr Burns made no claim of any belief of an honest claim of right in relation to the vegetation which he caused to be cleared. The primary judge found that Mr Burns’ evidence raised the proposition that, at the time he caused the land to be cleared, Mr Burns believed he was entitled to “clear land for building purposes on land” (Judgment at [223]); more particularly, to use the land to build a house for his daughter, and to clear the land of all vegetation for that purpose. Whilst it may be said Mr Burns caused the contractor to do an act “with respect to any property” the subject of the charge – namely, the vegetation – it cannot be said that he did so in the exercise of an honest claim of right in relation to that property. He claimed no right in the vegetation. Mr Burns’ claimed right was to use and occupy the relevant land, for his own purposes, to build a house for his daughter and her family to exclusively occupy. Even accepting that, for s 22(2), a claim of right does not need to be reasonable, and may be unfounded, that claim of right does not provide any answer to the charge under s 162 of the Planning Act 2016.
In my respectful view, to say that the “property” the subject of the charge under s 162 of the Planning Act is the “land” gives too broad an operation to s 22(2). However, even if the “property” the subject of the offence is the “land”, not the vegetation, that does not assist Mr Burns’ argument. Once the argument that Mr Burns did the act [of causing the land to be cleared of all vegetation] in the exercise of an honest claim of right to do so as a native title holder was rejected, all that remained was an inferred belief on the part of Mr Burns that he was entitled to do the act, essentially, because he was unaware of the law which prohibited it. This provides no answer to the charge.
The only other potentially available answer to the charge in this case would be that the clearing was a “traditional Aboriginal … cultural activity”. As both the Magistrate35 and the primary judge (Judgment at [160]-[170]) found, on the evidence, what Mr Burns did – engaging a contractor to use an excavator to clear 2,400m2 of land within a reserve to build a house for his daughter – could not, on any basis, be described as a traditional Aboriginal cultural activity.
Despite finding that the Council had excluded the operation of this exemption beyond reasonable doubt,36 and rejecting the argument that Mr Burns believed the native title determination conferred on him a right to clear the land, the primary judge went on to find that Mr Burns believed he was acting in the exercise of an honest claim of some kind, namely, that “he was entitled to clear land for building purposes on land (other than freehold land) in accordance with a right that all Quandamooka people had to do so, based on historical practices, which he considered to be native title rights” (Judgment at [223]).
Error in the exercise of the discretion under s 225(2) of the Justices Act
If, contrary to my view, it was correct to conclude that s 22(2) was raised on the evidence in the circumstances of this case, in my view it is strongly arguable that the primary judge erred in the exercise of his discretion to not only set aside the conviction, but to enter a verdict of not guilty on the charge.
This was not a ground of appeal in respect of which the Council sought leave, was not a matter raised at the hearing and so no submissions were made by the parties about it. Given the view of the majority, as to the construction and application of s 22(2) of the Code, the point does not affect the outcome of this proceeding and it was therefore unnecessary to seek submissions in relation to it. Accordingly, the following is said by way of comment only.
Section 222(1) of the Justices Act 1886 gave Mr Burns the right to appeal against his conviction. By s 223(1), the appeal was by way of rehearing on the evidence given in the proceeding before the Magistrate. This required a rehearing in the technical sense of a review of the record of proceedings in the Magistrates Court, but was not a completely fresh hearing.42 The principles which apply to such a “rehearing”, including as to the appropriate appellate restraint, were recently summarised by this Court in Wang v Hur [2024] QCA 126 at [23]-[24].
In order to succeed on an appeal under s 222, the appellant must establish some legal, factual, or discretionary error.43 The relevant contended error in this case was a legal error.
The powers of a District Court on an appeal under s 222 are set out in s 225, as follows:
“225 Powers of judge on hearing appeal
On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”
Having found that the defence under s 22(2) was available, as a matter of law, the primary judge went on to find not only that Mr Burns had discharged the evidential burden to raise a claim of right, but also to conclude that the prosecutor had failed to rebut or exclude it – despite the matter not having been addressed at the trial, or (in the way it was ultimately dealt with, at Judgment [233]) by either party on the appeal.44
In my view, the primary judge was wrong to take that course (cf Judgment at [205] and [206]). In the circumstances of this case, the appropriate outcome of the conclusion that the s 22(2) defence was potentially available to Mr Burns and that the Magistrate had erred in law in concluding otherwise, was to set aside the conviction and “send the proceeding back” to the Magistrates Court for a retrial. That was especially so in circumstances where, because the Magistrate found s 22(2) could not apply, no findings of fact were made by the Magistrate about its application (either in terms of the evidential burden on Mr Burns, or the persuasive burden on the Council as prosecutor).
The relevant principle is that “[u]nless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge”.45
Other than the sufficiency of the evidence to support the charge,46 there are a range of factors which may, in the interests of justice, point against an order for a new trial.47 These may include: that a significant part of the sentence has already been served,48 the length of time that has passed since the alleged offending, the expense and length of a second trial, and the fact that a trial is an ordeal for an accused person (and may also be for witnesses and others affected by the prosecution).49 On the other hand, the public interest in the administration of justice, and respect for the separate roles of the prosecuting authority and the court, are also important considerations.50
Grounds of Appeal
There are two identified grounds of appeal:First, the District Court judge erred in finding that s 22(2) of the Code was available to Mr Burns;Second, the District Court judge erred in finding that the evidence at trial was sufficient to engage s 22(2) of the Code.
The issues to which these two grounds give rise are more extensive than the brevity of the statement of the grounds suggests. As to the first ground, it is contended that s 22(2) of the Code was not available to Mr Burns for three reasons, namely: Section 162 of the Planning Act does not provide for an “offence relating to property” within the meaning of s 22(2) of the Code;Mr Burns’ conduct was not in the exercise of an honest claim of right recognised by s 22(2) of the Code. This argument is concerned not with the honesty of Mr Burns but rather with the nature of the claim of right which was identified by the District Court judge and accordingly whether, even if honestly held, it could not fall within s 22(2) of the Code;In any event, it is said the defence of honest claim of right under s 22(2) of the Code was not available because Mr Burns did not clear the land himself, but rather had a contractor do so for him and this is not such as to fall within the scope of “exempt clearing work” as defined in the Planning Act and Regulations made under it.
The second ground of appeal is advanced on the basis that certain of the District Court judge’s factual findings (not including the honesty of Mr Burns’ beliefs) have no support in the evidence or alternatively are unreasonable.
It did not form part of the appellant’s case to contend that the District Court judge erred by proceeding himself to determine whether the Council had excluded the defence of honest claim of right to the criminal standard rather than sending the proceeding back to the Magistrate for rehearing or reconsideration.
Legislative Context
“162 Carrying out prohibited development
A person must not carry out prohibited development, unless—
the development is carried out under a development approval given for a superseded planning scheme application; or
the local government for the area in which the development is carried out has agreed, or is taken to have agreed, to a request under section 29(4)(b) for the development.
Maximum penalty—4,500 penalty units.”
The District Court judge carefully traced through the various legislative provisions in the Planning Act and in the Regulations made pursuant to that Act to conclude that ‘development’ would include operational work which in turn would be prohibited development if it was “operational work that is clearing of native vegetation… to the extent that the work… is not exempt clearing work”. The reasoning process was as follows:“Development” was defined to include “carrying out… operational work”52;“Operational work” was defined to mean work other than building or plumbing work on premises that materially affected premises or the use of premises. Premises includes land; 53It followed that the clearing of the vegetation on land was operational work and accordingly, development;The Planning Regulation 2017 (the Regulations) defined prohibited development as development stated to be such in schedule 10 of the Regulations. By that schedule operational work which consisted of clearing native vegetation on prescribed land was prohibited development to the extent that the work was not “exempt clearing work”. It was common ground that the subject land fell within the definition of prescribed land.
The Regulations defined “exempt clearing work” in schedules 21 and 24 as follows:
“Part 1 Clearing and other activities or matters—general
1 Clearing and other activities or matters for premises generally
Clearing vegetation under a development approval for a material change of use or reconfiguring a lot, if—
the approval is for a development application for which the chief executive is a referral agency in relation to vegetation clearing; or
the approval is for a development application—
that relates only to lots of less than 5ha; and
for which a local government is the prescribed assessment manager.
…
A traditional Aboriginal or Torres Strait Islander cultural activity, other than a commercial activity.”
The District Court judge correctly identified that the syntax used in subsection 5 in describing the relevant exempt clearing work is awkward but should be read as if to provide for “clearing of native vegetation as part of a traditional Aboriginal cultural activity” which is therefore exempt.
Of central importance is s 22 of the Code. It provides:
“22 Ignorance of the law—bona fide claim of right
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.
…”
Some other provisions of the Code will bear upon the construction of this section. The expression ‘property’ is expansively defined. The word ‘offence’ is a defined term. I shall return to these below. By s 36 of the Code, the provisions of s 22 (and other matters of defence) are stated to apply to all persons charged with any criminal offence against the statute law of Queensland.
Finally, the Code contains various Parts, Part 6 of which is titled “Offences Relating to Property and Contracts”.
The Charged Offence
Mr Burns was charged that on a date unknown between 9 May 2020 and 6 August 2020 in respect of land located at East Coast Road, Point Lookout within the City of Redland and constituted under the Local Government Act 2009 (Qld) he carried out prohibited development in contravention of s 162 of the Planning Act. The charge particulars referred to prohibited development comprising operational works being the clearing of native vegetation on prescribed land.
The material revealed that in that period Mr Burns had engaged a contractor using heavy machinery to clear of all vegetation on the land he had identified, including all canopy trees with the exception of a single large Bloodwood tree. The area cleared was 2,400 square metres. The cleared vegetation was placed in three piles which in early 2023 Mr Burns claims to have burnt. Those factual matters were established in the Magistrates Court and there was no challenge to those findings on the appeal to the District Court (or in this Court).
The Quandamooka Determination and Traditional Practices
In 2011, Justice Dowsett in the Federal Court of Australia made a Native Title Determination under the Native Title Act 1993 (Cth) in respect of the parcel of land which included the land Mr Burns caused to be cleared. The Determination was made consequent upon an application on behalf of the Quandamooka people. Mr Burns is a member of the Quandamooka People whose traditional lands include North Stradbroke Island where he resided at all relevant times.
The emphasis of Mr Burns’ case has shifted somewhat. As the District Court judge recorded:
“…Relevant to this appeal, Mr Burns defended the charge on three grounds:
First, that the clearing was lawful under the Native Title Determination made in Delany on behalf of the Quandamooka People v State of Queensland [2011] FCA 741 (the Determination) and that right provided an answer to the charge under s. 162;
Second, that the clearing was a traditional Aboriginal cultural activity and therefore fell within the scope of an express exemption for such activity from the scope of the offence arising under s. 162 Planning Act (the cultural activity exemption); and
Third, that if the clearing was not lawful under the Determination or the cultural activity exemption, the evidence raised the defence provided by s. 22(2) Criminal Code 1899 (the Code) in that Mr Burns honestly believed that he was entitled by the Determination or under the cultural activity exemption to clear the land and that defence was not excluded beyond reasonable doubt by the complainant Council.”54
First Ground of Appeal
Is it an Offence Relating to Property?
Section 22(2) of the Code would render a person not criminally responsible for an act done with respect to any property in the exercise of an honest claim of right and without intention to defraud, but limited to “an offence relating to property”. The Council has urged that a contravention of s 162 of the Planning Act is not an offence relating to property but rather an offence relating to the conduct of prohibited development without a development approval. It urges that the proper construction of s 22(2) of the Code is that the offence must be seen to be one which relates to property on the face of the provision itself creating the offence. It was also put in terms that the defence under s 22(2) is confined to those offences which serve to vindicate or defend property interests whereas s 162 is agnostic as to the ownership of the vegetation cleared and is directed to protecting the natural and built environment in particular respects in the community interest.
The District Court judge considered this question at some length but ultimately concluded that the offence with which Mr Burns was charged was one relating to property. Looked at without regard to the particular form of the offence charged, the offence was concerned with preventing the carrying out of certain forms of development, the nature of which involved actions impacting the use of land and structures on land. That was an offence relating to property: Reasons at [197]. However, his Honour thought that the correct point of analysis was the form of the offence actually charged, not merely the words of the offence creating provision. The offence charged was ultimately articulated as clearing native vegetation on prescribed land without one of the identified excuses. That too was an offence relating to property: Reasons [195] and [199]. In this respect, for the reasons which follow, in my view the District Court judge was correct.
The word “property” is defined in the Code, by s 1 of Schedule 1, to include:
“(a) every thing animate or inanimate that is capable of being the subject of ownership; and
money; and
electrical or other energy, gas and water; and
a plant; and
an animal that is—
a tame animal, whether or not naturally tame; or
an untamed animal of a type that, if kept, is usually kept confined; or
an untamed animal in a person’s possession or being pursued for return to possession after escape; and
a thing produced by an animal mentioned in paragraph (e); and
any other property real or personal, legal or equitable, including things in action and other intangible property.”
“An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence”.
The identification of something as an offence therefore requires that attention is given to the act of the person which makes the person liable to punishment.
Incorporating these descriptions into s 22(2), there is no reason textually to give the description “an offence relating to property” a meaning that is to be understood as if it referred only to a statutory provision drafted in a form which identified the offence as being one relating to the proprietary interests of someone.
Moreover, the expression “relating to” has been recognised as being a connecting factor of wide import: IBM Australia Ltd v National Distribution Services Ltd (1991) 22 NSWLR 466, at 483 and 487. This provides support for adopting, as the District Court judge did, the broader construction of the expression “an offence relating to property” rather than the narrow reading urged by the Council.
There is the further textual consideration, namely that on the Council’s construction there is a degree of redundancy in the language of s 22(2). Whatever the scope of the expression “an offence relating to property” (the first limb) it is also necessary that there be “an act done… by the person with respect to property” (the second limb). If, in order to satisfy the first limb the prohibition in the relevant statute must be expressed as acts or omissions impacting on the property rights of another, then the second limb, or at least the reference to the act “with respect to property” will have no work to do.
Walden v Hensler
The view urged by the Council draws support from the reasons of Brennan J in Walden v Hensler (1987) 163 CLR 561. That was a case in which an Aboriginal man was found in possession of two turkeys; indigenous wild birds. He had shot one for food and was in possession of the other to raise it from a chick with a view to returning it to the wild. The birds were fauna for the purposes of the Fauna Conservation Act 1974 (Qld). That same Act had vested the property to all fauna in the Crown and, it was said, eliminated any right which others might have had at common law to take and keep wild birds: per Brennan J at 567. Section 54 of the Fauna Conservation Act prohibited the taking or keeping of fauna by an unlicensed person. Mr Walden was unlicensed. However, he claimed an entitlement to take the turkeys in accordance with Aboriginal custom. He failed for various reasons in raising a defence relying on s 22(2) of the Code. It will be necessary to return to other aspects of the case later. For present purposes, what is relevant are the various explanations given by the members of the Court concerning the scope of the expression “an offence relating to property”.
Brennan J proceeded on the basis that Mr Walden had kept the birds in the exercise of an honest (but mistaken) claim of right. But that, his Honour stated, only availed him if on its true construction s 22 applies to offences created by s 54: at 569. As to that, commencing at 573, Brennan J stated:
“The offences that are defined in Pt VI of the Code which might be marshalled under the category of offences relating to property have in common the characteristic that an element of the offence is either the causing of another to part with property or the infringement of another's right over or in respect of property. But does s. 22 apply only to offences which exhibit that characteristic? Or is it sufficient to attract the operation of s. 22 that the relevant act or omission affects in some way a thing which answers the description of “property” in s. 1 – e.g., by destroying, damaging, using, disposing of or otherwise dealing with property or rights over or in respect of property? …The wider interpretation unduly subverts the capacity of the criminal law to serve the public interest, for it would go far towards frustrating its broad educative and deterrent function (especially in relation to statutes creating regulatory offences). On the other hand, it is understandable that s. 22 should operate to suspend the sanctions which the criminal law imposes for conduct which causes another to part with property or which infringes another’s rights over or in respect of property when the offender honestly believes that he is entitled to engage in that conduct by reason of a right he mistakenly believes himself to have. The narrower interpretation of s. 22 acknowledges that, while a person’s ignorance of his private rights should not expose him to criminal punishment for what he does or omits to do under an honest mistake as to those rights, it is necessary in the public interest to leave the first paragraph of the section to operate generally over the criminal law. It is therefore necessary to give to s. 22 the narrower interpretation, holding that it applies only to offences in which the causing of another to part with property or the infringing of another’s rights over or in respect of property is an element. So understood, does s. 22 apply to any offence created by s. 54 of the Act?”
Accordingly, Brennan J affirmed the conviction because on his Honour’s reasoning s 22(2) was not available to Mr Walden as a defence to the offence (it not being one relating to property). His Honour concluded that s 22(2) only applied to an offence where an element of the offence was infringing on someone else’s property interests.
No other member of the High Court expressed a similar approach to the meaning of the words “an offence relating to property”. Justice Deane rejected the construction adopted by Brennan J. His Honour stated at 580:
“… On balance however, it seems to me that the reference in s. 22 to ‘an offence relating to property’ should not be so narrowly construed and that the offence of which the appellant was convicted, namely the offence of keeping certain property without any relevant statutory licence or other authority, is properly to be described as such an offence for the purposes of that section.”
His Honour affirmed the conviction because the honest claim of right in that case was not one, even if well founded, which would afford a defence to the offence charged: at 583.
Justice Toohey expressed a similar view as to the meaning of the expression “an offence relating to property”. At 598 his Honour stated:
“Speaking generally, s. 22 of the Code is applicable to the Fauna Conservation Act. Section 36 of the Code is unequivocal in its language. It is not to the point that the Fauna Conservation Act is an Act having as its laudable aim ‘the conservation of fauna in its habitats and throughout its distribution in the State’ (the long title). Where a person is charged with an offence under a statute, he is entitled to rely upon s. 22 of the Code if, in the particular circumstances, he can bring himself within the language of the section.”
“Although s. 22 uses the words ‘as for an offence relating to property’, it is not confined to offences contained in Pt VI of the Code – ‘Offences Relating to Property and Contracts’. Section 36 of the Code is too wide in its terms to permit such a restricted operation.
…
With respect to [Virtue J in Pearce v Paskov], there is no warrant for reading down s. 22 in this way. Whenever an offence can be truly said to relate to property, s. 22 is capable of applying… An offence under s. 54 of the Fauna Protection Act is such an offence because it relates to the taking or keeping of something which answers the description of property.”
“Section 22 is not without difficulty: it is not clear what function is served by the adverbial phrase ‘as for an offence relating to property’. Nevertheless, the section clearly absolves from criminal activity any act or omission with respect to property done in the exercise of an honest claim of right and without intention to defraud. If the keeping of the two turkeys is an act with respect to property, then s. 22 of The Criminal Code enables a person charged with an offence constituted by the act of keeping the birds to raise a defence of claim of right.
Property is defined in s. 1 of The Criminal Code to include ‘every thing, animate or inanimate, capable of being the subject of ownership’… Section 7(1) of the Fauna Conservation Act provides that:
‘All fauna, save fauna taken or kept during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority.’
The statutory acknowledgment that ownership of fauna is vested in the Crown, except when taken or kept during an open season, necessarily also involves the acknowledgment that fauna is capable of being the subject of ownership. Accordingly, the keeping of the two birds by Mr. Walden was an act with respect to property within the meaning of The Criminal Code, and was thus an act to which no criminal responsibility attaches if the conditions of s. 22 of The Criminal Code are satisfied.”
The remaining member of the Court, Justice Dawson, did not expressly discuss the question of the meaning of “an offence relating to property”. However, his Honour’s discussion, at 592-593, of other issues concerning the scope of the right which was honestly claimed to exist (to which I shall return later) presupposes that the first limb of s 22(2) has been satisfied and accordingly is at least consistent with the adoption of the wider construction favoured by the members of the High Court aside from Brennan J.
Each of Justices Toohey and Gaudron dissented in the disposition of the proceedings. No binding authoritative statement therefore as to the meaning of the expression “an offence relating to property” emerges from their reasons and accordingly from the decision as a whole. There are, however, clear observations to which I have referred which point against the adoption of the narrow view which found favour with Justice Brennan.
The same issue has been considered in subsequent decisions which support the application of the broader approach: see Molina v Zackich [2001] WASCA 337; and Stevenson v Yasso [2006] 2 Qd R 150 (CA).
Molina v Zaknich
“At first sight it would appear that a person without lawful authority, remaining on any premises after being warned to leave those premises, is committing an offence relating to property.”
“In my opinion, it is at least consistent with three judgments in Walden v Hensler to say that s 22 should [be] given its literal and broad effect. It follows that it can have application to offences such as the Police Act, s 82B.”
Stevenson v Yasso
The Council placed reliance on Stevenson v Yasso [2006] 2 Qd R 150. The defendant was charged under s 84 of the Fisheries Act 1994 (Qld) with unlawfully possessing commercial fishing apparatus (a net) without holding a relevant authority. The same Act by s 14(1) at the time provided that “An Aborigine may take, use or keep fisheries resources…under Aboriginal tradition..”. Mr Yasso claimed that s 14 applied. The majority accepted that was the case (for reasons it is not necessary to now explore).
In obiter McMurdo P also considered the potential (alternative) operation of s 22(2) of the Code. Her Honour explicitly adopted the view of Deane, Toohey and Gaudron JJ in Walden v Hensler as to the scope of the expression “an offence relating to property”: at [64].
R v Young
The final authority relied on by the Council to which I should refer on this point is R v Young [2020] QCA 3.
There is, at [164], apparent unanimous approval by this Court of the construction of the expression “an offence relating to property” adopted by Brennan J in Walden v Hensler. The observations of the Court in Young need to be understood in context. The appellant had been charged with (and convicted of) one count of fraud. The fraud charge alleged that he dishonestly gained a benefit for a company (EDIS) namely a large loan facility from the Westpac Banking Corporation by misleading the bank as to the interdependence of EDIS and another which was in very parlous financial circumstances: at [33]. There was a challenge to his conviction on the basis that the trial judge ought to have directed the jury as to the potential application of s 22(2). The Court rightly rejected that challenge because the charge itself required proof of dishonesty which would necessarily exclude the requirements of s 22(2) of an honest belief and the absence of an intention to defraud.
But in discussing the various (and changing) ways the appellant had put his contentions, the Court at [164] stated:
“There is an ambiguity in the appellant’s case that this was an offence ‘relating to property’. In the appellant’s original written submissions, it was apparently contended that the ‘property’ was the financial information about Orchard KM which, according to the appellant, he was precluded from providing to Westpac by the direction of his brother Andrew. It was his brother’s ‘claim of right’ (or that of the company controlled by his brother) to that information which was said to be relevant to that argument. However, on that understanding of the appellant’s argument, count 1 was not an offence ‘relating to property’. In Walden v Hensler, Brennan J held that s 22(2) ‘applies only to offences in which the causing of another to part with property or the infringing of another’s rights over or in respect of property is an element.’ Further, if the property was constituted by the financial information of Orchard KM, the appellant could not be said to have been acting as a claimant of that right, or as the agent of the person having that right.” (citations omitted).
Self-Limiting Scope of s 22(2)
It might be thought that acceptance of the broader approach to the expression “an offence relating to property” in s 22(2) of the Code could lead to it having a scope which it is unlikely Parliament intended. Many offences which might generally not be thought of as offences relating to property could be charged in ways which include aspects involving acts concerning property. For example: going armed so as to cause fear (s 69); using the internet to procure children under 16 (s 218A); distributing intimate images (s 223); dangerous operation of a vehicle (s 328A) and many more. However, it is not necessary for the purposes of this appeal to determine the limits of the expression “an offence relating to property”. While the expression “relating to” is a broad connecting factor, there are some limits to be gleaned from the context and purpose of the provision: O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313, 331.
In any event s 22(2) is further limited by the requirement that there be “an act done or omitted to be done by the person with respect to any property” and that be done “in the exercise of an honest claim of right”. The instances to which I have referred by way of example, even if characterised in some way as offences relating to property, would not satisfy these limitations within s 22(2).
Is s 162 of the Planning Act an “Offence Relating to Property”?
The provision makes it an offence to carry out prohibited development. Whether circumstances might exist where a particular charge under this section would not be an offence relating to property, the nature of the charged offence in this case can only be understood by reading other defined or regulated terms, so as to give meaning, to s 162. By the cascading definitions to which the District Court judge referred, that ultimately leads to a prohibition upon operational works on prescribed land, being clearing of native vegetation. Accepting that the linguistic means employed in the section is to prohibit conduct (development work) it is nonetheless too narrow a view of the meaning of the expression “relating to” to conclude that the charged offence is not one relating to property. The very thing charged is the destruction of vegetation on land. It relates to “property” whether one regards the property concerned as the land or the vegetation.
That was the view expressed by the District Court judge in his Reasons at [202]. It is a view with which I agree.
No Claim of Right
It is accepted for the Council that what Mr Burns did was an act done with respect to property.55 In any event, he is charged with conducting prohibited development by clearing native vegetation, and that vegetation is property.
The deceptively simple language of s 22(2) however, requires that that act be done in exercise of “an honest claim of right”.
The Council contends that in order for there to be a claim of right (assuming for the moment it to be honest) the right claim has to be of a particular kind.
The expression ‘claim of right’ has been construed as having certain related features.
First, s 22(2) needs to be construed together with s 22(1). Ignorance of the law is not an excuse for an act which otherwise would constitute an offence (unless knowledge of the law is itself an element of the offence). Accordingly, it is not enough that a defendant merely had an honest belief that the act was not one which was an offence punishable by law. That would be an honest belief in innocence, not a claim of right. Similarly, it must be a claim of right not “a ‘liberty’ or ‘immunity’”: Walden v Hensler per Toohey J at 603.
Second, the expression claim of right was discussed by Dawson J in Walden v Hensler at 592–593 where his Honour said:
“It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner – to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law...”
This reasoning was adopted by the plurality in Macleod v The Queen (2003) 214 CLR 230 at [41] and in R v Perrin [2018] 2 Qd R 174 at [89]. The right claimed therefore must be a right to arise under the civil law. The applicant in McDonald v Holeszko [2019] QCA 285 at [20]–[21] failed in his resort to s 22(2) because his belief was (even if honest) a mistaken view as to the state of the law that it did not apply to prohibit him and accordingly was ignorance of the law, and not a claim of right.
Third, there is no necessity for a defendant, when doing the act, to make any declaration of their claim of right or its basis: Walden v Hensler per Brennan J at 568.
Fourth, the right claimed need not be one in fact recognised by law: Walden v Hensler per Brennan J at 568-9; Toohey J at 602–3; R v Waine [2006] 1 Qd R 458 at [23]. It is sufficient that the defendant holds the honest belief no matter how wrong that belief may be (even if tenuous and unconvincing): Macleod v The Queen (2003) 214 CLR 230 per Gleeson CJ, Gummow and Hayne JJ at [42]; R v Perrin [2018] 2 Qd R 174 at [89]; R v Pollard [1962] QWN 13 at 29; cited with approval in Walden v Hensler per by Brennan J at 569; Dawson J at 593.
The discussion by Gaudron J in Walden v Hensler at 608–609, perhaps suggests a different view as to the scope of s 22(2). Her Honour said:
“In the present case, the foundation of Mr. Walden's claim of right is based on his membership of an Aboriginal community and the customs of that community. That seems to me to lay a sufficient foundation for a claim of right, provided that the claim is made by reference to some supposed operation of the law, for within a legal context, rights do not exist in the abstract. A right must mean a right in law, and not merely one which owes its existence to a moral order, religious code or other non-legal regimen. A claim of right predicated on the customs of the Aboriginal community does not, without more, constitute a claim of right within the contemplation of s. 22 of the Code. However, should such a claim be asserted on the basis that the customs of the Aboriginal community in question are recognized by law, the claim will be brought within the purview of the section. It is not to the point to inquire whether or not the right claimed subsists at law: the nexus that is required to bring the right claimed within the scope of the section is its supposed recognition by the law. …On either view, the right he claimed was claimed by virtue of the supposed operation of law, and not merely by virtue of the custom of his community.”
I do not read this passage as requiring that the right claimed be in fact one recognised by law, but rather that what is claimed is a legal right and not merely one thrown up by some moral, religious or ethical code; or for that matter mere custom.
Fifth, the claim of right must be such as, if well founded, would preclude the act from being a contravention of the offence charged: Walden v Hensler per Deane J at 580–581; Dawson J at 591–592; R v Waine at [30]; Scriven v Sargent (No 2) [2018] 1 Qd R 282 at [26]. This requires, and indeed can only be answered by undertaking, careful consideration of the particular offence. As discussed in Walden v Hensler, a belief as to a right to take and keep wild birds by virtue of traditional Aboriginal rights even if established (that is if well founded) is no defence to an offence which properly construed is for the purpose of protecting and conserving native fauna, whatever might otherwise be the rights held over them: Walden v Hensler per Deane J at 583.
Similarly, in Walden v Hensler Dawson J upheld the conviction because the Fauna Conservation Act imposed a prohibition against keeping fauna which “… is of general application irrespective of any proprietary or lesser right in the fauna and so affords no scope for the exercise of any claim of right…There can be no mistaken belief in any legal entitlement going to intent. Ignorance of the prohibition itself is mere ignorance of the law and affords no excuse”: Walden v Hensler per Dawson J at 593–4.
In this respect there is a difference in the approach taken by Toohey J who dissented in Walden v Hensler. His Honour held that the honest belief by Mr Walden that he had the right to kill and take the birds was within the scope of s 22(2): at 603 (even if the claim was not well founded).
This same issue is touched upon in Stevenson v Yasso. Only McPherson JA decided that the potential defence under s 22(2) required that it be a claim of right which, if well founded, would amount to a defence to the charge: at [101]. Because the charge was of possession of a commercial net, and not the act of fishing, an honest belief of an entitlement to catch fish under Aboriginal tradition would not have negatived the offence: at [77], [102]. The contrary is implicit in the President’s obiter comments at [67] and this issue was not the subject of discussion by Fryberg J: at [156].
Council’s Submission
“31. Accordingly, in this appeal it falls to be determined whether the claim relied on by Mr Burns is a ‘claim to a private right arising under civil law’.
Unlike rights recognised by the Determination, such as a right to take, share and exchange traditional natural resources (which includes animals and plants), the ‘right’ found determinative by the judge, being the Cultural Activity exemption, is not a ‘private right arising under civil law’. To the contrary:
a) it is not a private right, and instead falls within the broader category of ‘exempt clearing work’ applicable to the world at large; and
b) it is not a right arising under the civil law, being the regulation of private rights between individuals and organisations, because the Cultural Activity exemption does not posit any positive civil law right to deal with property, but instead establishes a defence or exemption against what would otherwise be criminal conduct, contrary to the development offence provisions prescribed by PA ss. 162-165.”56
In my view, section 22(2) does not require that a defendant, seeking to make out an honest claim of right, must have had in mind the particular description of the right as something arising out of the civil law or otherwise. The required approach is to assess whether the thing which Mr Burns did (and I shall come back to the significance of it being done by a contractor on his behalf) was done in exercise of a claim of right which, if well founded, would be a private right arising under the civil law and an answer to the charged offence. It does not matter that the right claimed is not well founded so as to be one not known to the law and that his honest belief is not only wrong but unreasonable.
A right claimed which is said to arise under or out of traditional Aboriginal custom, would be a private right.57 It is a claimed legal right as such, and not one derived from some social, moral or ethical code.
However, as mentioned it must also be one which, if well founded, would be an answer to the charged offence. There was no contention on appeal that the existence of any claimed native title affected the validity or enforceability of the Planning Act and its Regulations. Accordingly, section 162 of the Planning Act is to be construed and given effect according to its terms. The statutory and regulatory provisions traced by the District Court judge mean that the clearing from prescribed land of native vegetation by anyone without a development approval, prima facie, would be unlawful. If the legislative provisions went no further, that would mean that a claim of right arising from traditional Aboriginal or Torres Strait Islander cultural activity would not, even if well founded, be an answer to the offence and accordingly s 22(2) of the Code could not operate as a defence. That is the effect of the decision in Walden v Hensler.
But the legislative provisions do go further. The offence has a carve out or qualification. Clearing of vegetation can be exempt clearing work and will be so if done as part of a traditional Aboriginal or Torres Strait Islander cultural activity. The construction of the provisions by which Mr Burns is charged is not so absolute as to apply to any and all clearing of vegetation.
Accordingly, if the right which Mr Burns claimed was of a character that, if well founded, it would be a claim to clear vegetation as part of a traditional Aboriginal or Torres Strait Islander cultural activity (even if he is wrong, including unreasonably wrong, about that) it falls within the potential application of s 22(2).
It is necessary deal with one related contention advanced by the Council. It is argued that the belief identified by the District Court judge is merely ignorance of the law and not a claim of right. It is submitted, that the only native title right Mr Burns might have had is pursuant to the Determination. Thus, it is said, if Mr Burns believed his native title rights (however described) justified his clearance of the land, this is a result of his ignorance of the law: viz the Determination defining his rights. The additional thing which he said was the right claimed is not (it is said) a right at all but rather an exception to or carve out of a prohibition.
District Court Judge’s Findings
Based on Determination
Traditional Cultural Activity Exemption
“On that approach, an activity will be a traditional Aboriginal cultural activity if it is an activity which is carried on by a specific group of Aboriginal people (here Quandamooka people) and:
It is an activity which is carried on according to some accepted system of rules, practices or conventions common to that group (a cultural activity);
That system of rules, practices and conventions has been handed down to current group members from earlier generations (a traditional activity); and
Is a cultural activity unique to the culture of that group, as opposed to being a cultural activity carried on by the community or parts of the community which are not Quandamooka people (an Aboriginal activity).”
“[161] First, even taking the evidence of the three defence witnesses at its highest, it only supports the conclusion that Quandamooka people mark out land they want, and then may clear it and build on it if they wish. There is no evidence of any shared values, practices, or conventions about this process…
[162] Second, even if the above was sufficient to amount to a cultural activity, no witness gave any evidence of being told by elders in their community of this activity, much less being told of it in a manner suggestive of an intergenerational practice of any antiquity. There was evidence of what the witnesses saw other Quandamooka people do, but those observations reached back at most to their grandparents’ time…
[163] Third, I have not overlooked the evidence from the witnesses, especially Mr Burns, that the activity he described has ‘always’ been done on the island (though he did not give evidence of any source of that belief which suggests communication as traditional knowledge from elders). These assertions were vague… However, taken with the invocation of native title rights, it might be argued that those assertions raised an inference that the alleged activity was of great antiquity, reaching back to pre-settlement times.
[164] However, even if that conclusion was reached, it would not avail the appellant. The traditional cultural activity Mr Burns invokes is one which expressly involves the assertion of native title rights. That conclusion is particularly compelling here where the activity contended for is one of marking out land, thereby excluding others, and then clearing and building for the exclusive use of the person who staked (or blazed) the claim. That entails an activity which involves assertion of rights in land.
[165] The problem for Mr Burns on that approach is that no such rights exist outside the Determination because the Determination conclusively articulated native title rights on the island in a manner which is binding on all persons, including the Quandamooka people and the Council: s. 225 Native Title Act…
[166] Cultural activities which involve assertion of native title rights are in a special category where there has been a native title determination because those rights have already been conclusively determined by a Court in a binding manner. It is not open to Mr Burns to contend that the content of native title rights differs from those in the Determination.
…
[168] Fourth, even if it could be established that clearing the land to build a modern house was a traditional Quandamooka cultural activity, no foundation was established in the evidence for persons other than Quandamooka people to carry out that activity… I do not discount the possibility that a traditional Aboriginal cultural activity might in theory be able to be carried out by a third party or delegated to a third party, as was considered in Yasso. However, if that is to be contended for, some evidence of authorisation as part of that tradition needs to be led. And that evidence would have to be led against the general proposition applicable in native title law that native title is not transferrable to non-Aboriginal people at all.
[169] Finally, I pass over the related question of whether, if a right to clear existed, clear felling a large area using modern earth works machinery could be considered a modern evolution of that traditional activity or a change of such magnitude as to constitute a break with that tradition. That is unnecessary to decide…” (underlining added; citations omitted)
The Claimed Right
His Honour then turned to consider the honest claim of right required for the application of s 22(2) of the Code. The District Court judge preferred the broader approach of the construction of the expression “an offence relating to property” consistent with the view taken by Deane J and others in Walden v Hensler. His Honour then addressed the question of Mr Burns’ honesty and on the evidence as he considered it, the Council had not excluded honesty to the criminal standard.
Both parties submitted that it is a feature of the way our law has developed that Mr Burns had to bear the burden of proving on the balance of probabilities that in fact what he did was lawful but having failed in that endeavour he can mount an honest claim of right under s 22(2) which, once he discharges an evidential burden, the Crown must exclude to the criminal standard.
The remaining issues, his Honour said, were the nature of Mr Burns’ claim of right and whether that fell within the scope of s 22(2): Reasons [221].
The Nature of Mr Burns’ Claims
As to the nature of Mr Burns’ claim of right, the District Court judge considered two such claims.
The first was a claim that Mr Burns believed he was entitled to clear the land because doing so was authorised by the terms of the Determination. His Honour rejected that on the basis that the evidence did not raise any such belief: Reasons [219].
The second was summarised by his Honour at [223] as follows:
“…that evidence at its highest, … raises the proposition that at the time Mr Burns cleared the land for building, he believed he was entitled to clear land for building purposes on land (other than freehold land) in accordance with a right that all Quandamooka people had to do so, based on historical practices, which he considered to be native title rights.”
Did it Fall Within s 22(2)?
“In my view, absent the cultural activity exemption, Mr Burns’ claim of right would not fall within the scope of s. 22(2). A belief that he was entitled by native title rights to clear land would rise no higher than an ignorance of the law because even if he had such native title rights, they would not have provided any answer to the specific prohibition on clearing native vegetation. However, the existence of the cultural activity exemption changes the position. Mr Burns’ belief as to his claim of right was one which if correct, would have given rise to the cultural activity exemption. That is, if he was correct in his belief that he had a traditional right to blaze, clear and build, then that would have excluded the clearing for that activity from the scope of the offence because the clearing would have fallen within the scope of exempt clearing work.”
The Use of Contractor
There is one further matter which the Council relied on to contend that s 22(2) was not available to Mr Burns. That is that the clearing was conducted by a contractor, not Mr Burns. It is submitted that even if all other aspects were decided in his favour the section only operates as a defence if he, as an Indigenous Quandamooka man, carried out the clearing: Council’s submissions at [38]. This, it is said, is because following the District Court judge’s reason at Reasons [62] the conduct falls outside any right or potential right recognised by the cultural activity exemption: Council’s submissions at [38].
The discussion by the District Court judge leading to Reasons [62] arose in the context of the consideration of the proper construction of the Determination. At Reasons [62] his Honour said:
“…While the Determination authoritatively recognises and identifies the content of the native title rights of the Quandamooka people, those rights are not themselves common law rights. They are rights arising outside the common law, but which are recognised by it and articulated by the Determination. I can see no principled basis for the automatic application of a common law principle of agency to native title rights generally, nor to the native title rights of the Quandamooka people specifically.” (citations omitted).
The Factual Findings and Nature of Appeal
The appeal to this Court has been described as an appeal in the strict sense (not a rehearing). No general review of factual findings is undertaken. However, this Court can draw inferences from facts where there is no evidence on which the finding may be made or when the finding is unreasonable: McDonald v Queensland Police Service [2018] 2 Qd R 612 at [20]. The content of this requirement was amplified in Commissioner of Police v Antoniolli [2021] QCA 237 per Bond JA at [117]–[118] (Flanagan J agreeing). An unreasonable finding is one against which there is such a preponderance of evidence as to make it unreasonable. It is not enough that the appellate court might think it a wrong, or an unsatisfactory, finding.
Mr Burns gave evidence which bears upon the issue of his honest claim of right. He claimed to be intimately aware of the practices of the Quandamooka Peoples on North Stradbroke, going back a number of decades. In addition, he took advantage of the opportunity to learn from the older Quandamooka People throughout his life.58 In that time, he had seen many people clear land, and build shacks or houses to live in.59
His own interest in the land which he subsequently cleared commenced prior to 2011. He “blazed” trees in order to identify his interest in that land. This is a form of marking of an entitlement which he contended was respected by other Quandamooka Peoples.60
He gave evidence in two passages as to his dealings with the contractor who cleared the land for him using an excavator.The first was as follows:
“There was a fellow on the island who I’d noticed getting around with a big grab on the front of his excavator. So when I say ‘grab,’ it’s a big thing like that. And I approached him and I said, ‘Hey, could you do some trees for me?’ And he said, ‘I’m not going to get in trouble.’ I said, ‘No, you won’t get in trouble.’ I said, ‘It’s me, it’s native title land.’ And he did - he agreed to do it for me.”61
The second relevant passage is as follows:
“Yeah. I told him I wanted that big scribbly gum gone because it was - well, I didn’t have to tell him, I said, ‘Take that one down, it’s dangerous. Look at it.’ I said, ‘Take them ones out, please. They’re bloody dangerous too, and we won’t be needing them because that’s the pad where the house is going to go.’ Yeah, that’s - that’s about it.”62
“… talk to his Honour about … whether … you understand the building of houses or the clearing of land … by Quandamooka People to be part of the traditional practice of culture of Quandamooka People?---Well, it’s - it’s an adaptive practice, your Honour. We have adapted. We have grown, you know, like, the - the - you know, we - we use monofilament nylon nets to catch fish, and we’re allowed to. Murrandoo Yanner used a gun. The - the - the excavator is just like a stronger stick for cleaning the land. It’s - it’s - what can I say. We’re - we’re allowed to adapt and grow.
Is there - is it your view that that adaption means that it’s not traditional any more?---No. Not at all, because I am, in a sense, managing the land.
…
[Senior Constable Parsons] says that you said your - that you’re within your rights to clear the land?---Yes.
…
And can you explain to his Honour what you meant by that?---Well, I have 40-to-60 thousand years connection to that country in my family, and in the marrow of my bones. We have Native Title on that country. It’s nobody’s land. We say we belong to that land, so I belong to that land, my family belongs to that land, and if we’re going to have business with that land, it’s our business. It’s no one else’s business. It’s our business. I concede if someone owns the freehold property, it’s theirs. I concede that.
But do you say that the law doesn’t apply to you?---No. I do not.
But you say that you have a right to clear that land?---Yes.”
After having reviewed these passages and others the District Court judge expressed the view at Reasons [223] which I have extracted above.
His Honour, of course, did not have the advantage which the Magistrate had of hearing the evidence directly. His Honour, however, had conducted an extensive review not only of the evidence of Mr Burns but of the other witnesses who were called. This included the expert evidence of Professor Trigger. He is a highly qualified anthropologist in Australia. He had not seen anything written supporting Indigenous cultural traditions as being consistent with the scale of clearing undertaken at the request of Mr Burns.64
There is something of a tension in the one court finding that in fact neither the Determination nor the traditional Aboriginal cultural practice has been established by the evidence given by Mr Burns, including, as to the latter, because of a want of features which would establish it as a traditional practice, passed down intergenerationally, and with established rules or custom, while at the same time accepting Mr Burns’ evidence that he honestly claimed such a right as sufficiently raising the issue. But this is consistent with s 22(2) extending to claims of right honestly held even if unreasonable and wrong. The District Court judge did not need to find Mr Burns held that belief, only that it was sufficiently raised on the evidence to require it to be disproved beyond reasonable doubt which it was held had not been achieved.65 On appeal it was accepted by Senior Counsel for the Council that Mr Burns had discharged the evidential burden on him in this respect, so the factual issue became whether the Council had discharged its burden.66
Had The Claim Been Excluded Beyond Reasonable Doubt?
There were findings made which are adverse to acceptance of Mr Burns’ evidence of the honesty of some beliefs.
First, as to the argument then advanced that the clearing work was exempt as falling within the traditional cultural activity carve out in schedule 21 to the Regulations, the Magistrate stated:
“I find as a matter of fact that the clearing of the land conducted on behalf of Mr Burns was conducted for the sole purpose of providing a cleared area upon which he proposed to erect a substantial and permanent house for his daughter. It was never the case that it was cleared with a view to mitigate any fire hazard, nor were the trees cleared as a result of any concern on the part of Mr Burns that they posed a danger to anyone as a consequence of limbs falling from them. The land was not cleared [indistinct] exercise in traditional land management practice. It was never Mr Burns’ intention to utilise the fallen timber as a resource. The timber was stacked into piles with a view to burning it. There is no credible evidence that it was going to be used for or by anyone for any purpose and the notion that the burnt timber would somehow be used to enrich the soil was disingenuous at best and is dismissed as a matter of fact.”67
As noted by the District Court judge this was not challenged on appeal: Reasons [219]. This finding amounts to a rejection of those parts of Mr Burns’ evidence which suggested his traditional practices often managed the land to ensure safety and control fires or to harvest the land for timber. None of this is directed to his belief as to an ability to clear it of vegetation to establish a place for his daughter to live. The Magistrate’s criticism of Mr Burns’ evidence as “disingenuous at best” was a passage of which the District Court judge was plainly aware. The District Court judge recited it at Reasons [25].
Second, a claimed defence based on s 211 of the Native Title Act was advanced on Mr Burns’ behalf. There are difficulties with the application of this section at all. It only applies in the cumulative circumstances nominated in s 211(1) and it has not been explored why the requirement of s 211(1)(ba) might be satisfied. But if the section applies, then s 211(2) provides that a State law does not prohibit or restrict the native title holders from carrying on an activity for the purposes of their personal domestic or non-commercial communal needs or in exercise or enjoyment of their native title rights and interests.
The Magistrate said of this defence:
“The notion that Mr Burns cleared the land for the purpose of satisfying his personal domestic or non-commercial communal needs in the exercise or enjoyment of his native title rights and interests is simply not supported by the evidence… The land was for his or his family’s exclusive use.
The reality that there are any number of clearings on North Stradbroke Island where people live is of no consequence to the activity of Mr Burns… There is no admissible evidence before the court that suggest that Mr Burns’ activity was in line with established or recognised cultural practice. I make that finding with all due respect to the witnesses, Dr Cooms and Mr Costello.”68
This is not a comment on Mr Burns’ veracity but rather on the argument being run on his behalf. But again, this is a passage of the Magistrate’s reasons of which the District Court judge was plainly aware, he having recited it at Reasons [27].
Third, in sentencing Mr Burns the Magistrate describes his conduct as a cynical land grab.69 This is critical of Mr Burns no doubt, but after convicting him and without reference to any particular factual issue other than perhaps those already addressed above.
Fourth, the District Court judge himself rejected the submission made on behalf of Mr Burns that he acted pursuant to an honest claim of right arising under the Determination: Reasons [217]. But this was not a finding adverse to Mr Burns’ veracity, indeed quite the reverse. The District Court judge noted that Mr Burns did not give evidence of such a belief derived from the Determination.
This is not a case where findings have been made by the Magistrate which can only be overturned on appeal by the District Court judge if they are contrary to incontrovertible facts or uncontested testimony, or where the District Court judge’s findings were glaringly improbable or contrary to compelling inferences: Fox v Percy (2003) 214 CLR 118 at [29]; Robinson Helicopters Co Inc v McDermott (2016) 90 ALJR 679 at [43]. As the District Court judge recorded, the Magistrate’s analysis on the possible application of s 22(2) “stopped at the first stage: whether there was an offence relating to property”: Reasons at [205]. Accordingly, there are no findings by the Magistrate directly addressing the very issues which the primary judge had to decide. The District Court judge noted that it was an interesting question whether he could “refer the complaint back for a retrial where error is shown in the conviction but there are no findings on a central question of credit which must then be resolved to dispose of the appeal” but concluded that he was in a position to reach a conclusion on the issue.
As previously mentioned, it does not form part of the Council’s case on appeal to this Court to contend that the District Court judge erred in so doing, rather than ordering a retrial.
In the balance, weighing against the Magistrate’s findings critical of Mr Burns and the factual foundations for them, are the passages of evidence at Reasons [97]–[98]. The District Court judge did not have to find if Mr Burns held those beliefs, rather he had to decide if, Mr Burns having adduced sufficient evidence, the honesty of his claimed belief had been disproved beyond reasonable doubt. There is a real difference between concluding that another person in fact holds a particular belief, and concluding that there is no reasonable doubt that the person does not hold that belief.
Conclusion
In my opinion none of the grounds of appeal has been made out.
The appropriate orders in my view are:
Leave to appeal is granted.
The appeal is dismissed.
The appellant is to pay the respondent’s costs of the appeal.
Required under s 118(3) of the District Court of Queensland Act 1967 (Qld). ↩
See the definition of “clear” in schedule 2 to the Planning Act and the definition of “clear” in the schedule to the Vegetation Management Act 1999. ↩
See the definition of “native vegetation” in schedule 24 to the Planning Regulation. ↩
See s 43 and 44(5) of the Planning Act; and s 19 of the Planning Regulation. ↩
Underlining added. ↩
See the definition of “prescribed land” in schedule 24 of the Planning Regulation 2017 (Qld), which includes “trust land”, and the definition of “trust land” also in that schedule, as including land comprising a reserve under the Land Act. ↩
Emphasis added. ↩
Emphasis added. ↩
Emphasis added. ↩
Emphasis added. ↩
Emphasis added. ↩
Section 36(2) excludes the application of, among others, s 22(2) from “regulatory offences”. The offence under s 162 of the is a simple offence, but not a regulatory offence.
Redland City Council
Burns [2025] QCA 222
(2003) 214 CLR 230
(2001) 24 WAR 562
(2003) 214 CLR 118
(1937) 59 CLR 279
(2020) 270 CLR 372
(2004) 218 CLR 493
(2019) 269 CLR 507
(1984) 154 CLR 627
(2002) 210 CLR 285
(1992) 173 CLR 572
(1991) 22 NSWLR 466
(1990) 169 CLR 356
(1995) 184 CLR 301
(1987) 163 CLR 561
(2016) 90 ALJR 679
(2005) 29 WAR 445
(2000) 203 CLR 172
(2000) 201 CLR 603
(2000) 206 CLR 161
(2001) 202 CLR 115
(2007) 228 CLR 232
Leave to appeal was granted. The appeal was dismissed. The appellant was ordered to pay the respondent’s costs of the appeal [217].
Before addressing the issues, it is helpful to understand the factual context and the course of the trial and appeal below.
It follows that the primary judge was correct to conclude that the offence under s 162 of the Planning Act was an “offence relating to property”.
The primary judge’s consequent conclusion (Judgment at [233]) that this claim of right fell within s 22(2), was in error in two respects:First, because it is logically inconsistent with the conclusion, also expressed in the Judgment at [233], that “a belief that he [Mr Burns] was entitled by native title rights to clear land would rise no higher than an ignorance of the law because even if he had such native title rights, they would not have provided any answer to the specific prohibition on clearing native vegetation”.38 It is logically inconsistent because the express basis, in Mr Burns’ evidence, and as found by the primary judge, at [223], for why he held the belief he claimed was as a native title holder (not on some other basis).Second, because the conclusion that Mr Burns’ belief as to this other claim of right was one which, if correct, would have given rise to the “cultural activity” exemption was not supported by the evidence.39 Mr Burns did not articulate such a belief (separate from the articulation of his belief in a right to act as he did as a native title holder) and, in particular, did not articulate any belief in an adaptative practice, involving the use of an excavator to clear land to build a house, having become accepted as a traditional cultural activity. The primary judge acknowledged this in [221] of the Judgment when he said that “[t]he evidence does not directly address what Mr Burns’ belief was regarding his entitlement to clear the land at the time he did so”. The extent of Mr Burns’ evidence about adaptation was concerned with using a different implement (“an excavator is just like a stronger stick for cleaning the land”) to manage the land.40 Mr Burns did not do what he did in order to care for or manage the land. He considered that he had a right to mark out the land for himself and his family and to build a house on the land for his, and his family’s exclusive use, because it was his “native title land”.41 Once that belief was rejected by the primary judge as giving rise to a (honest or otherwise) claim of right for the purposes of s 22(2), that was the end of the matter. There was no other right raised by the evidence.
It follows that, in my view, the primary judge was also in error in concluding that the Council had failed to negative something which was not raised or argued.
Mr Burns had available to him a potential defence to the charge, either on the basis of the exercise of native title rights or the “cultural activity” exemption, both of which were excluded beyond reasonable doubt. Accepting for present purposes that Mr Burns’ actions were honest, his claim of a right to act as he did was on the basis of his mistaken belief as to the content of his rights as a native title holder. That was properly characterised by the primary judge as rising no higher than ignorance of the law, and not a claim of right capable of engaging s 22(2). That belief provided no defence to the charge.
This conclusion sits comfortably with a rational and just application of the law, based on the proper construction of s 22(2). The opposite conclusion, in my respectful view, causes significant uncertainty in the application and enforcement of laws such as s 162 of the Planning Act, to the conduct of persons purporting to act in accordance with what their belief is as to their native title rights, even where there has been a determination of those native title rights, which is inconsistent with the principle in s 22(1) of the Code.
I would, therefore, grant leave to appeal, allow the appeal, set aside the orders made by the District Court on 28 February 2025, and substitute an order that the appeal to the District Court is dismissed.
In this case, there plainly is evidence to support the charge, and there does not appear to be any other factor pointing against an order for a retrial. The penalty imposed was a fine, and this is not a matter in which the time which has passed, or the ordeal of the trial, suggests it would not be in the interests of justice for the matter to be sent back.
BOND JA: I agree with the reasons for judgment of Doyle JA and with the orders proposed by his Honour.
DOYLE JA: This appeal raises a number of issues as to the proper construction and scope of operation of s 22(2) of the Criminal Code (Qld) (the Code).
The respondent to this appeal, Mr Burns, was charged with an offence of carrying out prohibited development in contravention of s 162 of the Planning Act 2016 (the Planning Act). The prohibited development concerned the clearing of native vegetation without the requisite development approval. The present applicant (the Council) was the complainant in bringing that charge.
After a trial lasting five days in the Magistrates Court, Mr Burns was convicted of that charge, fined and ordered to pay costs. No conviction was recorded.
Mr Burns appealed to the District Court. His appeal was successful. The District Court judge found that the clearing carried out on behalf of Mr Burns was unlawful, but that the Council had not excluded beyond reasonable doubt a matter raised by Mr Burns, namely that he was excused from criminal responsibility because the clearing had been done in the exercise of an honest claim of right within the meaning of s 22(2) of the Code.
Mr Burns was and remains a member of the Quandamooka Aboriginal people. The honest claim of right identified by the District Court judge was Mr Burns’ honestly (albeit incorrectly) held belief, which his Honour found to be sufficiently raised on the evidence, that:all Quandamooka people had the right to clear Quandamooka land for building purposes on that land (other than freehold land); that right was part of their native title rights in respect of Quandamooka land; andas a Quandamooka man, he had the right to clear the land for building purposes as he had done.51
The District Court judge found that the existence of such a claim of right would have operated to excuse Mr Burns from criminal responsibility for the clearing, because, if he had the right he claimed, the clearing work done in the exercise of that right would properly be regarded as “a traditional Quandamooka cultural activity” which would have meant that the clearing of the vegetation was “exempt clearing” (and not prohibited development).
The Council, as it is required to do, seeks the leave of this Court to appeal from that decision of the District Court: s 118 of the District Court of Queensland Act 1967 (Qld). In my view, the matters raised by it are such as to warrant the grant of leave to appeal on the grounds articulated in the Council’s application.
However, this submission cannot be reconciled with the principles outlined above and in particular the third and fourth features I have outlined. The way in which Mr Burns cast his claim was that there was a communal native title right to clear land which gave him, by virtue of his membership in the community, a personal right to clear land. This is to assert a private claim to a legal right. Mr Burns discharged the evidential burden of showing his belief that his right to carry out traditional cultural activities included clearing the land. His ignorance is not as to the criminal law but as to the scope of the private rights. His belief may be wrong (including wrong because it is not consistent with an objective reading of the terms of the Determination) but that does not preclude it being a possible claim of right under s 22(2).
Additionally, the Council accepted that no ground of appeal to this Court involved a challenge to the District Court judge’s findings as to Mr Burns’ honesty.70 It follows that no issue of the correctness or otherwise of the finding as to Mr Burns’ honesty arises for this Court.
But in any event, mindful of the limitations of the nature of the appeal to this Court, and notwithstanding reservations that I might hold as to the conclusions of fact reached by the District Court judge, there is in my view evidence to support them, and they cannot, on the totality of the evidence, be said to be unreasonable in the sense described above.
A challenge, if one had been mounted, to the finding of honesty of the belief not having been disproved, would in my view, fail.
Sir Samuel Griffith’s draft ‘Code of Criminal Law’, at p 12-13; and Thomas v The King (1937) 59 CLR 279 at 306 per Dixon J. See also R v Dayney (No 2) (2023) 13 QR 650 at [46] per Dalton JA for an explanation of Sir Samuel Griffith’s notes to the Draft Code. ↩
Minister for Home Affairs v DMA18 as Litigation Guardian for DLZ18 (2020) 270 CLR 372 at [43] per Kiefel CJ, Bell, Gageler, Keane and Gordon JJ; references omitted. ↩
Emphasis added. ↩
Emphasis added. ↩
Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580. ↩
Emphasis added. ↩
See at [64] per McMurdo P and at [99] per McPherson JA. ↩
Referring to Walden v Hensler at 571 (Brennan J). ↩
Emphasis in the original. References omitted. ↩
Molina v Zaknich (2001) 24 WAR 562 at [100]-[101] per McKechnie J (Templeman J agreeing); Basso-Brusa v City of Wanneroo [2003] WASCA 103 at [14]-[15]; Roberts v Western Australia (2005) 29 WAR 445 at [136] and Dodd & Dodd Pty Ltd v Shire of Mundaring (2011) 213 A Crim R 37 at [23]. ↩
Emphasis added. ↩
Emphasis added. ↩
Emphasis added. ↩
Walden v Hensler at 568 per Brennan J, referring to Mitchell v Norman; Ex parte Norman [1965] Qd R 587 at 594-595 per Gibbs J. ↩
Justice Fryberg did not consider it necessary to address s 22, reaching the same conclusion as McMurdo P, that the appeal should be allowed, resulting in the complaint being dismissed, on the basis of proof of the statutory defence under s 14 (taking fisheries resources under Aboriginal tradition) (at [156]). ↩
See Ostrowski v Palmer (2004) 218 CLR 493 at [2] per Gleeson CJ and Kirby J, referring to Blackpool Corporation v Locker [1943] 1 KB 349 at 361 per Scott LJ. ↩
See paragraphs [53] to [57] above. ↩
See paragraphs [58] to [66] above. ↩
Cf R v Cunliffe [2004] QCA 293 at [16] per McPherson JA. ↩
Macleod v The Queen (2003) 214 CLR 230 at 243 [39]-[41]. ↩
In Walden v Hensler at 592-593. ↩
References omitted. ↩
See paragraph [21] above. ↩
See Judgment at [159]. ↩
Underlining added. ↩
Underlining added. ↩
See McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39(f)]. ↩
Judgment at [125]. ↩
AB 266.9; AB 270.7 to .10; AB 272.40, referred to in part in Judgment [126]-[127]. ↩
Fox v Percy (2003) 214 CLR 118 at [22]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3]. ↩
Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23]; F**ox v Percy (2003) 214 CLR 118 at [27]. ↩
See the Council’s submissions at [12]. ↩
Spies v The Queen (2000) 201 CLR 603 at [104] per Gaudron, McHugh, Gummow and Hayne JJ; R v A2 (2019) 269 CLR 507 at [84] per Kiefel CJ and Keane J. See also Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630. ↩
Compare Crampton v The Queen (2000) 206 CLR 161 at 187 [64] and 188 [69]; and Stanoevski v The Queen (2001) 202 CLR 115 at 130 [61]. ↩
See, for example, Dyers v The Queen (2002) 210 CLR 285 at 314-315 [82]-[83] per Kirby J; see also Jiminez v The Queen (1992) 173 CLR 572 at 584-585 and 590-591 per McHugh J; R v Taufahema (2007) 228 CLR 232 at 256-257 [55]. ↩
For example, R v Chong [2012] QCA 265 at [24]-[27]. ↩
See also Rabey v R [1980] WAR 84 at 95. ↩
Dyers v The Queen (2002) 210 CLR 285 at 314-315 [81] per Kirby J. ↩
Burns v Redland City Council [2025] QDC 15 (Reasons) at [223]. ↩
Schedule 2 of the Planning Act. ↩
Schedule 2 of the Planning Act. ↩
Reasons at [1]. ↩
Council’s Outline of Argument at [19]. ↩
Council’s Outline of Argument. ↩
In the course of submissions on Appeal, Senior Counsel for the Council appeared to accept that what Mr Burns claimed was a private right: T 1-23 lines 13 to 23. ↩
T3-64 to T3-65. ↩
T3-66 and other references. ↩
T3-88. ↩
T3-90. ↩
T3-92. ↩
T3-96. ↩
T 1-35 lines 40 to 46. ↩
Reasons [233]. ↩
Appeal T1-4 lines 38 to 43. ↩
Magistrate’s Reasons 5 February 2024 at T1-4. ↩
Magistrate’s Reasons at T1-4 lines 30 to 42. ↩
Magistrate’s Sentencing remarks T1-6 lines 9 to 10. ↩
Appeal T 1-24 line 46 to T 1-25 line 4; T 1-25 lines 14 to 26. ↩