Posted 19/06/2015 by Kirsty Magarey
Queensland v Congoo  HCA 17, a recent High Court case, has implications for Native Title holders throughout the country. It may also have implications for the High Court’s management of cases with an even number of judges.
Recent changes in personnel within the High Court have led to a number of decisions being made with a bench of six, rather than the full seven, judges. This has in turn led to some decisions being made with a 3:3 split. In such cases, under section 23 of the Judiciary Act 1903, the decision being appealed from is left intact. The resulting judgments may be referred to as having a ‘statutory majority’, which offers less precedential value than a traditional, numerical majority.
While the existence of a statutory majority in the Congoo case makes the lessons we can learn from it more precarious, the judgments still offer illumination. Thus Congoo provides an understanding of Native Title as a more robust form of title that can survive particular forms of temporary occupation. Read more...