21.10.2014

Approach to statutory construction of s 223

5.6 Ordinary principles of statutory interpretation dictate the consideration of the purpose of the legislation.^[1] The language of the Preamble and Objects of the Native Title Act—referring to, among other things, an intention to rectify the consequences of past injustices and that the law be a special measure for the advancement of Aboriginal and Torres Strait Islander peoples—suggests that its purpose is beneficial.^[2]

5.7 As noted in Chapter 2, where legislation is identified as being beneficial and remedial, the High Court has stated that such legislation should be given a ‘fair, large and liberal’ interpretation, rather than one which is ‘literal or technical’.^[3]

5.8 International law principles are also relevant to the approach taken to construing the Native Title Act. The High Court has accepted that ‘a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law’.^[4] Rights to equality and non-discrimination are central principles in human rights law, enunciated in a number of treaties to which Australia is a party.^[5]

5.9 Other principles of statutory interpretation are arguably relevant to the construction of the definition of native title rights and interests. For example, AIATSIS pointed to common law principles for interpreting legislation ‘root[ed] in the common law protection of the rights of citizens against arbitrary exercises of power by the state, especially in relation to property’.^[6]

5.10 As noted in Chapter 4, native title rights and interests can be determined not to exist when either:

they cannot be established as a matter of fact, because claimants cannot establish that they possess rights and interests under traditional laws and customs; and a connection, by those laws and customs, with the land or waters claimed;^[7] or
they cannot be established as a matter of law, because the rights and interests are not recognised by the common law of Australia, as they are inconsistent with them.^[8]

5.11 One of the guiding principles for this Inquiry is that reform should recognise the importance of recognition of native title to Aboriginal and Torres Strait Islander peoples and the Australian community.^[9] It is consistent with this principle, and the Preamble and Objects of the Act, to approach the task of recognition of native title rights and interests in a way that does not render them excessively vulnerable to a finding of factual loss. Accordingly, the proposals in this chapter are intended to promote an interpretation of the definition of native title consistent with the purpose of the Native Title Act.

5.12 However, the ALRC recognises that not all Aboriginal or Torres Strait Islander peoples will be able to establish that they hold native title under the Native Title Act. The Preamble to the Native Title Act acknowledges that ‘many Aboriginal peoples or Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests’.^[10]

Section 223(1)(a)

5.13 Section 223(1)(a) of the Native Title Act requires that native title rights and interests are rights and interests possessed under the traditional laws acknowledged and traditional customs observed by the relevant Aboriginal peoples Torres Strait Islanders. As explained in Chapter 4, the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’)has stated that the laws and customs that can be properly described as ‘traditional’ are those that find their origin in the laws and customs acknowledged and observed at sovereignty.^[11]

5.14 As a result, the meaning of ‘traditional’ has been interpreted as having a number of aspects:

the means of transmission of a law or custom: a ‘traditional’ law or custom is one which has been passed from generation to generation of a society;^[12]
the age of the laws and customs: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown;^[13]
continuity: the ‘normative system’—that is, the traditional laws and customs—under which rights and interests are possessed must have had a continuous existence and vitality since sovereignty.^[14]

[1]
Acts Interpretation Act 1901 (Cth) s 15AA. In 2014, the High Court commented that this provision reflected a ‘general systemic principle [of statutory construction]’: Thiess v Collector of Customs (2014) 306 ALR 594, [23].
[2]
Sean Brennan, ‘Statutory Interpretation and Indigenous Property Rights’ (2010) 21 Public Law Review 239, 252. In Alyawarr, the Full Court of the Federal Court described the Preamble as the Act’s ‘moral foundation’: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, [63]. See also Justice Robert French, ‘Lifting the Burden of Native Title—Some Modest Proposals for Improvement’ (Speech Delivered at the Federal Court Native Title User Group, Adelaide, 9 July 2008) [7]. A number of submissions also referred to the beneficial purpose of the Native Title Act: see, eg, Queensland Government Department of Natural Resources and Mines, Submission 28; Central Desert Native Title Services, Submission 26; Native Title Services Victoria, Submission 18; North Queensland Land Council, Submission 17; Law Society of Western Australia, Submission 9.
[3]
IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ, McHugh J); 39 (Gummow J). See also AB v Western Australia (2011) 244 CLR 390, [24].
[4]
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J).
[5]
See, eg, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 2, 26; International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) arts 1, 2, 5. See also Australian Human Rights Commission, Rights to Equality and Non-discrimination <www.humanrights.gov.au/rights-equality-and-non-discrimination>.
[6]
AIATSIS, Submission 36. See generally Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449.
[7]
Native Title Act 1993 (Cth) s 223(1)(a), (b).
[8]
Ibid s 223(1)(c).
[9]
Guiding Principle 1: see Ch 1.
[10]
A number of submissions to this Inquiry highlighted this aspect of the Preamble: see, eg, Queensland Government Department of Natural Resources and Mines, Submission 28; Western Australian Government, Submission 20; National Farmers’ Federation, Submission 14. See Ch 3 for further discussion.
[11]
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, [46] (Gleeson CJ, Gummow and Hayne JJ).
[12]
Ibid [46].
[13]
Ibid.
[14]
Ibid [47]. See also Melissa Perry and Stephen Lloyd, Australian Native Title Law (Lawbook Co, 2003) 22–23.