Bowie v Queensland Police Service and Ors [2022] QLC 8

LAND COURT OF QUEENSLAND CITATION: Bowie v Queensland Police Service and Ors [2022] QLC 8 PARTIES: Albert Bernard Bowie (applicant) v Queensland Police Service, Lucy Gela, Mura Badulgal Registered Native Title Body Corporate, and Torres Strait Island Regional Council (respondents) FILE NO: LCA077-22 PROCEEDING: Application for injunction DELIVERED ON: 11 August 2022 DELIVERED AT: Brisbane HEARD ON: Submissions closed 9 August 2022 HEARD AT: Heard on the papers MEMBER: JR McNamara ORDERS: The Originating Application filed 1 August 2022 is dismissed. CATCHWORDS: ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – HERITAGE PROTECTION – OTHER STATES AND TERRITORIES – where the applicant sought an injunction against the first respondent to prevent the execution of a warrant of possession against a house subleased to the applicant – where the applicant sought an injunction against the second and third respondents to prevent the process of an application for home ownership – where the applicant sought an injunction against the fourth respondent to stop the continuation of a social housing lease to the second respondent – where the applicant is a common law native title holder of Badu Island – whether execution of the warrant is a relevant act for the purposes of ss 24(1), 25(1) or 26(1) of the Torres Strait Islander Cultural Heritage Act 2003 – whether the Court has the jurisdiction to make the orders sought pursuant to s 32H of the Land Court Act 2000 -- 1 of 13 -- 2 – whether there was a serious question to be tried – whether the balance of convenience favoured an injunction – where the application was refused HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the applicant submitted their cultural rights pursuant to s 28 of the Human Rights Act 2019 would be infringed if the injunction against the warrant of possession was not granted – where Torres Strait Islander Cultural Heritage Act 2003 protects cultural heritage – where the matter was not referred to the Supreme Court for determination Aborigines and Torres Strait Islanders (Land Holding) Act 1985 Human Rights Act 2019 s 28, s 49, s 58 Land Act 1994 Land Court Act 2000 s 32H, s 27A Local Government Act 2009 Native Title Act 1993 (Cth) Torres Strait Islander Cultural Heritage Act 2003 s 24(1), s 25(1), s 26(1) Torres Strait Islander Land Act 1991 s 35(3) Anson Holdings Pty Ltd v Wallace & Anor (No 2) (2010) 31 QLCR 130, cited Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, cited Bowden v The Valuer-General (1980-1981) 7 QLCR 138, cited Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd [2019] QLC 14, cited Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No. 2) 35 QLCR 273, cited Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578, cited Watson v State of Queensland [2019] QLC 19, cited APPEARANCES: M Bowie (agent), for the applicant A Moynihan, officer-in-charge, Thursday Island Police, for the first respondent L Gela, the second respondent (self-represented) H Baira, Director, Mura Badulgal Registered Native Title Body Corporate, for the third respondent P Krebs, in house legal officer, Torres Strait Islands Regional Council, for the fourth respondent -- 2 of 13 -- 3 Background This matter was commenced by originating application which was received by the Land Court Registry on Friday 29 July 2022.1 The matter was listed for directions at 10am on Monday 1 August 2022, and the applicant, Mr Bowie, directed to serve the respondent parties with the application. Copies of the originating application and information concerning the directions hearing was emailed by the agent for the applicant, Ms Bowie, to each respondent party late Friday 29 July 2022. Ms Gela (the second respondent) attended the direction hearing on 1 August 2022 by telephone. None of the other respondents attended. At the 1 August 2022 directions hearing the Court took the opportunity to hear from Ms Bowie, agent for the applicant Mr Bowie, and Ms Gela concerning the application and certain detail concerning the facts and circumstances described in the application. The Court articulated some issues and concerns regarding the competence of the application. Due to the absence of three of the respondent parties, the Court adjourned the directions hearing to Thursday 4 August 2022 at 10am to ensure all respondent parties were aware of the matter and had the opportunity to participate. At the adjourned directions hearing on 4 August 2022 a representative for each respondent party was present. They were, in order of the listed respondents: Senior Sergeant Moynihan, Officer in Charge, Thursday Island Police (‘QPS’); Ms Lucy Gela herself; Mr Horace Baida, Director, Mura Badulgal Registered Native Title Body Corporate (‘MBRNTBC’); and Mr Peter Krebs, in house legal, Torres Strait Island Regional Council (‘TSIRC’). I accept that due to the short notice, apart from Ms Gela, those attending had not had sufficient time to consult their respective organisations and advisers, and any comments offered were received on that understanding. 1 The originating application was emailed to the Registry at 5:21pm on Friday 29 July 2022. Pursuant to the Land Court Rules 2022 s 54(2)(b), the application is taken to be formally filed on the next business day, being Monday 1 August 2022. -- 3 of 13 -- 4 Land on Badu Island (‘Badu’) There is a determination of native title over Badu2 and the native title rights and interests are held by the third respondent, the MBRNTBC. The function of the MBRNTBC is to hold, protect and manage determined native title in accordance with the objectives of the native title holding group and ensure certainty for governments and other parties interested in accessing or regulating native title land and waters by providing a legal entity to manage and conduct the affairs of the native title holders. The land on Badu is also subject to a Deed of Grant in Trust (‘DOGIT’). In submissions made by Mr Bowie I was reminded that trusteeship of the Badu Island DOGIT was transferred from TSIRC to the MBRNTBC in 2014. This means that TSIRC continues to perform its functions and responsibilities in respect of Badu under the Local Government Act 2009, while MBRNTBC carries the duties and responsibilities of trustee for the DOGIT under the Land Act 1994 and the Torres Strait Islander Land Act 1991 (‘TSILA’). Pursuant to s 35(3) of the TSILA, the MBRNTBC as trustee holds the land for the native title holders, the subject of the determination. The MBRNTBC’s responsibilities as trustee include ensuring compliance with the Native Title Act 1993 (Cth) (‘NTA’) when it comes to ‘dealings’ with land. For example, to consider the operation of, and comply with, the ‘future act’ provisions of the NTA when it comes to a land ‘dealing’ such as the leasing of land. The social housing on Badu has over time been managed by the local, and later the regional council, TSIRC. That management includes the allocation of social housing. More recently, ‘home ownership’ arrangements have been made available to Torres Strait Islanders or Aboriginal persons living in the Torres Strait Region, who can purchase land, and subject to the agreement of the housing provider, the house for a term of up to 99 years. These arrangements are governed by the TSILA, and policies and procedures guide all parties in the implementation of the home ownership scheme. 2 Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578. -- 4 of 13 -- 5 In determining native title in 2004, the Federal Court recognised that the native title co-exists with the DOGIT.3 The Court recognised that the native title rights and interests were both exclusive and non-exclusive, and that certain areas such as roads and identified public facilities had not been included in the claim and were and are therefore not subject to the determination. The determination also recognised other interests in relation to the determination area including any interests under an application under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (‘Land Holding Act’).4 Accordingly, the legal status of each parcel of land in a community such as Badu cannot be ascertained simply. The status of the subject property: 89 Ahmat Yabu (‘the property’) The submissions of the second, third and fourth respondents provide the following useful facts:5 • A 3-bedroom social house on 859 square metres was constructed on the property in 1978 which is managed by TSRIC as a social house; • MBRNTBC granted TSIRC a 30-year lease of the property on 1 February 2014 which expires on 31 January 2044; • a General Tenancy Agreement was entered into between TSIRC and Ms Gela on 15 November 2011; • Ms Gela, with TSIRC's consent, entered into a Subtenancy agreement with Mr Bowie on 21 March 2020;6 • Lucy Gela gave Mr Bowie a notice to vacate on 27 November 2020; • The Queensland Civil and Administrative Tribunal (‘QCAT’) made an order for Mr Bowie to vacate the property and issued a warrant of possession on 13 April 2022; • Mr Bowie appealed the decision on 12 May in the appellate jurisdiction of QCAT; 3 Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578 sch 4. 4 Ibid. 5 Submissions of the Second, Third and Fourth Respondent, 1. 6 The subtenancy lease was annexed to the joint submissions. -- 5 of 13 -- 6 • QCAT dismissed the appeal as it related to the injunction to stop the warrant of possession on 29 June 2022; and • QCAT reissued the warrant of possession on 14 July 2022. The Court was informed that there remains an application for leave to appeal and appeal, to be heard and determined by QCAT. The application In the originating application, four orders were sought by Mr Bowie, all pursuant to s 32H of the Land Court Act 2000 (‘LCA’). The more pressing (proposed order 1) is an injunction to prevent the execution of a Warrant of Possession ordered by QCAT over the property currently occupied by Mr Bowie; the other three proposed orders concern the progress of a home ownership application over the property made by Ms Gela, and the continuation of a social housing lease over the property to Ms Gela. The proposed orders 2, 3 and 4 are framed as ‘additionally or in the alternative’ to each of the other proposed orders. I will address these proposed orders first. Mr Bowie’s proposed orders 2 and 3 Proposed order 2 (directed at Ms Gela) and 3 (directed at the MBRNTBC) concern the ‘home ownership’ application process. Proposed order 2 is to injunct Ms Gela proceeding with her application as the application was not made in accordance with traditional customary law or following cultural protocols. Additionally, or in the alternative, proposed order 3 is to injunct MBRNTBC from approving the application as the MBRNTBC has not consulted the relevant native title holders or common law native title holders in accordance with traditional customary law or following cultural protocols. There is little evidence before me concerning the status of Ms Gela’s application. It is entirely a matter for Ms Gela whether she wishes to pursue an application for home ownership. Whether the application succeeds depends on a number of factors including the application of the relevant legislation and the proper administration of the policies and procedures of the relevant bodies who carry responsibility for advancing and considering such applications, including MBRNTBC. -- 6 of 13 -- 7 There is nothing in the material to explain how the Court’s jurisdiction is invoked for the purposes of proposed order 2, other than a broad statement that Ms Gela is not identified as a common law native title holder (which Ms Gela contests) and therefore the ‘act’ (being the application for a home ownership lease) is a relevant act for the purposes of s 32H(4)(b) of the LCA as it would contravene s 24(1) of the Torres Strait Islander Cultural Heritage Act 2003 (‘TSICHA’). Section 24(1) provides that a person must not harm Torres Strait Islander cultural heritage. There is no basis upon which to accept that an application for home ownership itself could offend s 24(1) of the TSICHA. There is nothing in the material to explain how the Court’s jurisdiction is invoked for the purposes of proposed order 3 other than the statement that MBRNTBC’s consideration of the application constitutes ‘another act’ as a result of s 35(3) of the TSILA. Section 35(3) provides: (3) If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a). Mr Bowie says that MBRNTBC has not consulted “relevant Badu native title holders in relation to home ownership applications made thus far … in accordance with the traditional customary law or following cultural protocols.” It has been stated many times by this Court that the Court cannot act on ‘possibilities’.7 On the facts before me, all we have are possibilities. There is no evidence. There are suspicions and there is, at its highest, a very tenuous link to the jurisdiction of this Court. I am not satisfied that the jurisdiction of the Court is invoked in relation to Mr Bowie’s proposed orders 2 and 3. Mr Bowie’s proposed order 4 Proposed order 4 (directed at TSIRC) is to stop TSIRC proceeding with Ms Gela’s social housing lease “because they will not apply their social housing policy correctly to provide alternative accommodation” for the second respondent, Ms Gela. Again, 7 Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd [2019] QLC 14 [26]; Watson v State of Queensland [2019] QLC 19 [17]. -- 7 of 13 -- 8 the Land Court has no jurisdiction to hear this application, nor make the orders proposed. For these reasons, at the directions hearing on 4 August 2022, having considered the material before the Court at that time and having heard from the parties, I dismissed the application in relation to the relief sought in proposed orders 2, 3 and 4. Accordingly, the parties were invited to provide submissions in relation to proposed order 1 only. Submissions were received from Mr Bowie, and joint submissions were filed by the second, third and fourth respondents. The first respondent did not file any submissions. Mr Bowie’s proposed order 1 The basis of the Land Court application It is asserted that the effect of the execution of the Warrant of Possession would be to evict Mr Bowie from the subject property, and that the consequence of eviction would mean that Mr Bowie would have no alternative accommodation available to him on Badu. In that event, Mr Bowie says his human rights would be breached because “he will not be able to exercise his cultural rights to maintain a connection to Badu Island as a native title holder.”8 That breach Mr Bowie argues would qualify as a ‘relevant act’9 which provides the jurisdictional basis for the Land Court to entertain an application for an injunction. The other key criteria in deciding an application for injunction under s 32H of the LCA concerns the standing of Mr Bowie, and the necessity of an injunction to stop the person doing the act. Is the act a s 32H(4)(b) ‘relevant act’? The ‘act’ is the execution of the Warrant of Possession by the QPS, however it has not been argued, and nor is there evidence of, any threatened contravention of a Torres Strait Islander cultural heritage protection provision,10 namely ss 24(1), 25(1) or 26(1) 8 Originating Application Form 01A, 5; Human Rights Act 2019 s 28(2)(c). 9 Land Court Act 2000 s 32H(4) and s 32H(2)(b). 10 Ibid s 32H(4). -- 8 of 13 -- 9 of the TSICHA as a result of the execution of the warrant. It is not therefore a s 32H(4)(b) ‘relevant act’. Is the act a s32H(4)(c) ‘relevant act’? Expressed another way, is s 28(2)(c) of the Human Rights Act 2019 (‘HRA’) a provision which provides for the protection or preservation or access to, items, places or areas of cultural significance to Torres Strait Islanders? Section 28(2)(c) of the HRA provides that Torres Strait Islander peoples must not be denied the right, “with other members of their community: to enjoy, maintain, control, protect and develop (their) kinship ties.” Mr Bowie argues that the execution of the Warrant of Possession can be subject to the grant of an injunction in the Land Court because its execution would deny Mr Bowie these cultural rights. The second, third and fourth respondents submit that the HRA is of no relevance to the actions of the QPS, as a public entity, is compelled to act according to law when a Warrant of Possession is lawfully granted.11 I agree. In any case, apart from the submission that Mr Bowie will be denied the right to enjoy, maintain, control, protect and develop kinship ties if evicted, it is not explained how eviction results in the denial of those rights. It is argued that he will have no place to live on Badu – and presumably will need to leave Badu. The material suggests, and Ms Bowie on his behalf confirmed, that despite long absences from Badu, and apparently without any arrangements in place to take up residency, Mr Bowie had successfully continued to enjoy these rights. Why that would change as a result of the execution of the Warrant of Possession is not clear. The interpretation Mr Bowie places on s 28(2)(c) of the HRA also overlooks the key terms “items, places or areas of cultural significance”12 and frames the question as one of cultural rights rather than cultural heritage. The TSICHA makes it clear that a ‘significant area’ has a physical dimension, and that an object and item is tangible. The HRA might expressly deal with cultural rights, but it does not modify the definition of cultural heritage nor create a new right of action. 11 Meaning the QPS does not make a decision for the purposes of the Human Rights Act 2019 s 58(1). 12 Ibid s 32H(4)(c). -- 9 of 13 -- 10 Standing The Court may grant an injunction only if it is satisfied that Mr Bowie has standing to make the application.13 A group or member of a group has standing to make an application if the group has a traditional, historic or custodial interest in the Torres Strait Islander cultural heritage to which the contravention relates.14 Mr Bowie asserts that he is a native title holder, being the descendent of an apical ancestor identified in the native title determination made 14 December 2004.15 As noted, the MBRNTBC hold the native title. While Mr Bowie is not a member of the MBRNTBC, it is asserted that he is a native title holder and would be eligible to be a member of the MBRNTBC. He would on that basis be a member of the group that is connected with the land. I do not believe that there is a dispute necessarily in relation to that. The second, third and fourth respondents submit that Mr Bowie does not have standing as there is no evidence that the property has any special significance to Mr Bowie apart from any other native title holder, including the second respondent, Ms Gela.16 I agree. A further difficulty with this application and Mr Bowie’s standing to bring it lies in the HRA. The human rights in Part 2 Division 2 ‘Civil and Political Rights’ of the HRA which the Act is said to protect and promote are expressed as the rights of a person, except those in s 28. The rights described in s 28 of the HRA are expressed as the collective right of Torres Strait Islanders with other members of their community. Conclusions The application is framed as one for final relief only. That is, to prevent the execution of the Warrant of Possession. However, if Mr Bowie in fact seeks an interim injunction pending a decision from QCAT concerning the application for leave to appeal or appeal then the key questions for consideration are whether Mr Bowie has 13 Ibid s 32H(2)(c). 14 Ibid s 32H(3). 15 Nona on behalf of the Badulgal v State of Queensland [2004] FCA 1578. 16 Submissions of the Second, Third and Fourth Respondent, 2. -- 10 of 13 -- 11 made out a prima facie case, and whether the balance of convenience favour the grant of an injunction. Has Mr Bowie made out a prima facie case? Adapting the words of Kingham P in Frasers Deebing Heights,17 this is not a question of whether the subject matter of the application is serious, but whether there is a sufficient likelihood that Mr Bowie will succeed on the application for final orders to justify preserving the status quo in the meantime. This Court is a court of statutory jurisdiction, and it can only grant an injunction pursuant to s 32H of the LCA if the respondents are, or are doing, or are likely to do an act that contravenes ss 24(1), 25(1) or 26(1) of the TSICHA, or a provision of another Act providing for the protection or preservation or access to, items, places or areas of cultural significance to Torres Strait Islanders. If that cannot be demonstrated, then the Court would not have the power to make the order Mr Bowie seeks. There is no evidence concerning a possible contravention of ss 24, 25 or 26 of the TSICHA. In my view the execution of the Warrant of Possession is not an act that is likely to contravene a provision of another Act providing for the protection or preservation or access to, items, places or areas of cultural significance to Torres Strait Islanders. If, however, the HRA was such an Act, I am not satisfied that Mr Bowie has individual standing to bring such an application. Balance of convenience In my view the balance of convenience does not favour the grant of an injunction. In reaching this conclusion I have considered whether the inconvenience or injury which Mr Bowie would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent parties would suffer if an injunction were granted.18 On the facts, the balance lies in favour of the respondents. Should the matter be referred to the Supreme Court? Finally, I note s 49 of the HRA. That section provides that if, in a proceeding before a court a question of law arises that relates to the application of the HRA, or a question 17 Carr on behalf of the Yuggera Ugarapul People v Frasers Deebing Heights Pty Ltd [2019] QLC 14 [26]. 18 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 623. -- 11 of 13 -- 12 arises in relation to the interpretation of a statutory provision in accordance with the HRA, the question may be referred to the Supreme Court if a party has made an application for referral and the court considers the question is appropriate to be decided by the Supreme Court. No application has been made by Mr Bowie for referral to the Supreme Court. However, even if an application was to be made, on the material before me and on the facts of this matter I do not consider the question is appropriate to be decided by the Supreme Court. Decision As noted previously, this is a court of statutory jurisdiction; it can only grant an injunction under 32H of the LCA if the respondents are, or are doing, or are likely to do a ‘relevant act’. I am not satisfied the matters raised by Mr Bowie qualify as a relevant act. Apart from other deficiencies with the application which have been identified in these reasons that is sufficient reason to dismiss the application. I accept the second, third and fourth respondents’ submissions that on the facts of this matter the HRA is of no relevance to the actions of the first respondent, the QPS, in executing the Warrant of Possession. Costs The second, third and fourth respondents submit that costs should be awarded against Mr Bowie.19 The Court has the power to order costs for a proceeding as it sees appropriate.20 There is a long line of authority that the discretion conferred on the Court to award costs is unfettered by any preconceived rules or standards, although it must be exercised judicially.21 Mr Bowie has been wholly unsuccessful in this application. However, in exercising the Court’s discretion under s 27A of the LCA, it is a relevant consideration to take 19 Submissions of the Second, Third and Fourth Respondent, 3. 20 Land Court 2000 s 34(1). 21 See for example Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No. 2) 35 QLCR 273; [2014] QLAC 5 [12]; Anson Holdings Pty Ltd v Wallace & Anor (No 2) (2010) 31 QLCR 130; [2010] QLAC 4 [5]. -- 12 of 13 -- 13 into account the ease of access to this Court.22 This matter has been resolved expeditiously, presumably with minimal costs to the parties. I decline to make any order with respect to costs. Orders The Originating Application filed 1 August 2022 is dismissed. 22 See for example Bowden v The Valuer-General (1980-1981) 7 QLCR 138, 147. -- 13 of 13 --