Queensland v Congoo [2015] HCA 17

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, KIEFEL, BELL, GAGELER AND KEANE JJ

STATE OF QUEENSLAND APPELLANT

AND

TOM CONGOO & ORS RESPONDENTS

Queensland v Congoo [2015] HCA 17 13 May 2015 B39/2014

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

S E Brown QC with G J D del Villar for the appellant (instructed by Crown Law Brisbane)

S A Glacken QC with P D Herzfeld for the first respondents (instructed by North Queensland Land Council)

J T Gleeson SC, Solicitor-General of the Commonwealth and S B Lloyd SC with C J Klease for the second respondent (instructed by Australian Government Solicitor)

No appearance for the third respondent

Submitting appearance for the fourth to twenty-first respondents

No appearance for the twenty-second and twenty-third respondents

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Queensland v Congoo

Native title – Native title rights in relation to land – National Security Act 1939 (Cth), s 5(1)(b)(i) provided for making of regulations for securing public safety and defence of Commonwealth and for authorising taking of possession or control, on behalf of Commonwealth, of any property – National Security (General) Regulations 1939 (Cth), reg 54(1) provided that if it appeared to Minister of State for Army to be necessary or expedient to do so in interests of public safety, defence of Commonwealth or efficient prosecution of war, or for maintaining supplies and services essential to life of Commonwealth, Minister could, on behalf of Commonwealth, take possession of any land and give such directions as appeared necessary or expedient in connection with taking possession – Where orders were made under reg 54(1) in relation to land authorising officer to do anything in relation to land that holder of estate in fee simple in land could do and prohibiting all other persons from exercising any right of way over land or any other right relating thereto – Whether orders inconsistent with claimed native title rights and interests – Whether clear and plain legislative intention to extinguish native title rights and interests.