Jeremy Gans, ‘News: The High Court Splits Evenly Again’ (13 May 2015).

The High Court has dismissed an appeal from the decision of the Full Federal Court, in which the FCAFC held that military orders made during the Second World War did not extinguish native title rights.The Court split 3:3, which, due to s 23 of the Judiciary Act 1903 (Cth), means the FCAFC’s decision dismissing Queensland’s appeal stands.

Under s 5(1) of the National Security Act 1939 (Cth), the Governor-General was empowered to make defence regulations, including ‘authorising the taking of possession or control, on behalf of the Commonwealth, of any property or undertaking [or] the acquisition … of any property other than land in Australia’. Regulation 54 allowed the Minister of State for the Army to take possession of land where it appeared to be ‘necessary or expedient to do so’ in connection with public safety, defence, prosecution of the war, or maintaining supplies and services to the community, and also allowed the Minister to authorise people to ‘do, in relation to the land, anything which any person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest’ and may prohibit or restrict exercise of rights of way over the land and other rights relating to it. Several orders were made over land that was later part of land claimed in a native title determination commenced by the Bar Barrum People in 2001. The Full Court held that the orders did not effect an acquisition of property on otherwise than just terms contrary to s 51(xxxi) of the Constitution. A majority of the FCAFC also held that neither the making of the orders nor the physical occupation of the land pursuant to them wholly extinguished native title rights and interests on the land. The scheme only contemplated temporary exclusive possession and did not extinguish rights and interests (at [54]):

Neither the broad nature of the Commonwealth’s rights (as if it held fee simple title) nor the absolute prohibition on other right holders enjoying their rights for the duration of the Commonwealth’s power alters the fact that the legislation effected a scheme under which the rights of others would continue but would not be able to be exercised only for so long as required given the exigencies presented by the war.

That holding (but not the s 51(xxxi) holding) was under challenge in the appeal to the High Court.

As mentioned above, the High Court split 3:3. French CJ and Keane J (in a joint judgment) and Gageler J concluded that the occupation did not extinguish native title. Hayne, Kiefel and Bell JJ (in separate judgments) held that it had.

French CJ and Keane J held that of the possible natures of ‘possession’ in the context of the regulation — either ‘taking actual, physical possession’ or ‘taking a right of exclusive possession equivalent to a fee simple interest’ — the text and arrangement of the regulation as a whole suggested that it was concerned with actual physical possession and not exclusive possession: [11]–[12]. This was suggested by several aspects of the regulation: first, the explicit conferral of certain powers of fee simple owners in r 54(2) would have been unnecessary if r 54(1) did confer an exclusive right of possession, and secondly, that the powers in r 54(2) were statutory powers rather than property rights, granted for use in accordance with the purposes of the National Security Act 1939 (Cth): [12]. Consequently, there was no conflict between the rights and powers under the regulation and the continuing existence of pre-existing rights over the land, including native title rights. Applying the clear and plain intention requirement for extinguishment through inconsistency in Mabo v Queensland [No 2] [1992] HCA 23 (see at [31]–[37]) French CJ and Keane J concluded that the regulations were only a control regime that did not grant rights and powers inconsistent with continued native title (at [38]–[39]). Agreeing with French CJ and Keane J, Gageler J noted that while possession usually denotes a high degree of control over something, there is no reason to read ‘possession’ in the regulation to mean ‘exclusive possession’ (at [161]), and emphasised that the rights and powers granted to the Minister were limited to their objective and that the exclusion of people holding pre-existing rights required a restriction order under sub-r (2)(b) rather than just the exercise of the (2)(a) powers: see [164]ff.

Hayne J rejected the respondents’ argument that the regulations held any ‘objective intention’ or ‘statutory purpose’ of preserving existence rights ([45]–[47]). There was no requirement, as urged by the appellants, that the Commonwealth manifest some intention to take possession of the land, only the requirement that the order to take possession was issued in accordance with the regulations (which no party disputed): [54]–[56]. That possession was inconsistent with the continuation of any native title rights, and nothing in the order suggested the rights might be seen to be merely suspended: [62]ff. Hayne J also cautioned against the looking to ‘intention’ and ‘purpose’ in relation to extinguishment because the objectives or thoughts of those issuing the order, even if directed to the effect on property rights, are not relevant to the actual effect on those rights (see at [67]–[77]), and rejected any suggestion that older approaches to native title looking to temporary suspensions should be revived (at [78]–[82]). Kiefel J emphasised, contra the FCAFC majority, that the inconsistency test cannot be relegated to the status of an analytical ‘tool to determine objective legislative intention’ (in the FCAFC majority’s words): while legislative intention is not irrelevant to inconsistency, it is only useful for clarifying the nature of rights granted under legislation (see [112]–[116]). Kiefel J concluded that the limited nature or impermanent duration of the rights granted here were not relevant to the inconsistency test, which does not allow native title rights to be ‘suspended’: [126]. Bell J held that the form of possession in a legislative instrument rather than an estate in the land did not alter the nature of the possession taken by the Commonwealth, which was exclusive (see at [149]–[150]). Nor could the limited duration prevent inconsistency, but rather the inconsistency arose when the Commonwealth took possession after the first military order: [151].

As Jeremy Gans notes, the effect of the 3:3 split is that the central legal question in the case remains unresolved by the High Court, and the FCAFC decision stands as the highest authority on the point, which may be litigated again shortly.