Queensland v Congoo: The Confused Re-emergence of a Rationale of Equality?

• Author: Zoe Bush
• Position: Final year BA/LLB(Hons) student at the University of Western Australia, and recipient of the 2015 Ciara Glennon Memorial Law Scholarship
• Pages: 452-469

451

QUEENSLAND V CONGOO:THE CONFUSED RE-

EMERGENCE OF A RATIONALE OF EQUALITY?

ZOE BUSH*

In State of Queensland v Congoo [2015] HCA 17 (13 May 2015), the

High Court applied principles of extinguishment to determine the effect

of military orders under reg 54 of the National Security (General)

Regulations 1940 (Cth) on the native title rights and interests of the Bar-

Barrum People. The Court’s split decision casts questions of

extinguishment back to the ‘legal jungle’. Amongst the thicket, the re-

emergence of a ‘rationale of equality’ can be glimpsed in the statutory

majority’s emphasis on the standard of ‘clear and plain intention’. The

requirement of a clear and plain legislative intention to expropriate

existing property rights without compensation is well established. On the

800th anniversary of the Magna Carta, its extension to the

extinguishment of native title would accord with the fundamental rule of

law in c 29 that ‘[n]o Freeman shall… be desseised… but by… the law of

the Land’.

IINTRODUCTION

Queensland v Congoo1is the most recent High Court decision regarding the

common law principles of extinguishment of native title. The case concerned

the effect of military orders under reg 54 of the National Security (General)

Regulations 1940 (Cth) (‘Regulations’) over land that was later subject to a

native title claim by the Bar-Barrum People in 2001. Despite all purporting to

apply the test of inconsistency of rights in Western Australia v Ward,2 the Court

delivered a decision split three to three. Pursuant to s 23(2)(a) of the Judiciary

Act 1903 (Cth), the appeal from the decision of the Full Federal Court in

Congoo v Queensland3was dismissed. Consequently, the Full Federal Court’s

decision that the orders did not extinguish native title rights and interests was

affirmed. The divide hinged on whether the Regulations and orders conferred

‘exclusive possession’ on the Commonwealth in the sense of an unqualified

* Final year BA/LLB(Hons) student at the University of Western Australia, and recipient of the

2015 Ciara Glennon Memorial Law Scholarship.

I wish to thank Marshall McKenna for his invaluable insights and feedback on this paper.

1 [2015] HCA 17 (13 May 2015) (‘Congoo’).

2 (2002) 213 CLR 1 (‘Ward’).

3 [2014] FCAFC 9 (21 February 2014).

451

QUEENSLAND V CONGOO:THE CONFUSED RE-

EMERGENCE OF A RATIONALE OF EQUALITY?

ZOE BUSH*

In State of Queensland v Congoo [2015] HCA 17 (13 May 2015), the

High Court applied principles of extinguishment to determine the effect

of military orders under reg 54 of the National Security (General)

Regulations 1940 (Cth) on the native title rights and interests of the Bar-

Barrum People. The Court’s split decision casts questions of

extinguishment back to the ‘legal jungle’. Amongst the thicket, the re-

emergence of a ‘rationale of equality’ can be glimpsed in the statutory

majority’s emphasis on the standard of ‘clear and plain intention’. The

requirement of a clear and plain legislative intention to expropriate

existing property rights without compensation is well established. On the

800th anniversary of the Magna Carta, its extension to the

extinguishment of native title would accord with the fundamental rule of

law in c 29 that ‘[n]o Freeman shall… be desseised… but by… the law of

the Land’.

IINTRODUCTION

Queensland v Congoo1is the most recent High Court decision regarding the

common law principles of extinguishment of native title. The case concerned

the effect of military orders under reg 54 of the National Security (General)

Regulations 1940 (Cth) (‘Regulations’) over land that was later subject to a

native title claim by the Bar-Barrum People in 2001. Despite all purporting to

apply the test of inconsistency of rights in Western Australia v Ward,2 the Court

delivered a decision split three to three. Pursuant to s 23(2)(a) of the Judiciary

Act 1903 (Cth), the appeal from the decision of the Full Federal Court in

Congoo v Queensland3was dismissed. Consequently, the Full Federal Court’s

decision that the orders did not extinguish native title rights and interests was

affirmed. The divide hinged on whether the Regulations and orders conferred

‘exclusive possession’ on the Commonwealth in the sense of an unqualified

* Final year BA/LLB(Hons) student at the University of Western Australia, and recipient of the

2015 Ciara Glennon Memorial Law Scholarship.

I wish to thank Marshall McKenna for his invaluable insights and feedback on this paper.

1 [2015] HCA 17 (13 May 2015) (‘Congoo’).

2 (2002) 213 CLR 1 (‘Ward’).

3 [2014] FCAFC 9 (21 February 2014).