HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJREGGIE WURRIDJAL & ORS PLAINTIFFS
AND
THE COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Wurridjal v The Commonwealth of Australia [2009] HCA 2
2 February 2009
M122/2007ORDER
1. Demurrer allowed.
2.Plaintiffs to pay the costs of the first defendant.
3.Further conduct of the action to be a matter for direction by a Justice.
Representation
R Merkel QC with R M Niall, K L Walker and A M Dinelli for the plaintiffs (instructed by Holding Redlich)
H C Burmester QC and S B Lloyd SC with A M Mitchelmore for the first defendant (instructed by Australian Government Solicitor)
B W Walker SC with S A Glacken for the second defendant (instructed by Northern Land Council)
Intervener
M P Grant QC, Solicitor-General for the Northern Territory with S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wurridjal v The Commonwealth of Australia
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Whether power to make laws for government of Territory under s 122 of Constitution limited by s 51(xxxi) – Scope of application of s 51(xxxi) where law of dual character – Relevance of notion of "abstraction" of power of acquisition of property from other powers – Whether Teori Tau v The Commonwealth (1969) 119 CLR 564 should be overruled or departed from – Circumstances in which previous constitutional decision should be overruled.
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Northern Territory National Emergency Response Act 2007 (Cth) ("Emergency Response Act"), Pt 4 provided for grant of leases of land in Northern Territory to Commonwealth, including land at Maningrida ("Land") – Second defendant ("Land Trust") held estate in fee simple in Land for benefit of Aboriginals pursuant to Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") – Whether grant of Commonwealth lease an acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution – Nature of estate in fee simple under Land Rights Act – Circumstances where acquisition of property rights of statutory origin – Whether no acquisition of property because rights of Land Trust inherently susceptible to statutory modification.
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Land Rights Act, s 71 conferred entitlement on first and second plaintiffs to enter upon, use or occupy Land in accordance with Aboriginal tradition – Whether s 71 entitlements diminished by grant of Commonwealth lease or preserved by s 34 of Emergency Response Act so that no acquisition of any property constituted by those entitlements – Whether Commonwealth empowered by s 37 of Emergency Response Act to terminate s 71 entitlements – Relationship between Pt 4 of Emergency Response Act and offence of entry onto sacred sites in s 69 of Land Rights Act – Whether "property" includes traditional rights required by the general law – Use of international legal materials.
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Saving provision – Emergency Response Act, s 60 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied – Reasonable compensation determined, absent agreement, by court – Meaning of "just terms" – Whether Emergency Response Act, s 60 afforded "just terms" or mere "contingent rights" – Whether acquisition of non-compensable interests – Whether no just terms absent express provision for
interest – Whether "just terms" extend to consultation requirement – Relevance of requirement for court to consider Commonwealth-funded improvements.
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("FCSIA Act"), Sched 4, Items 12 and 15 amended Land Rights Act by inserting provisions conferring certain rights of access to Land – Whether FCSIA Act resulted in acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution.
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Saving provision – FCSIA Act, Sched 4, Item 18 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied – Reasonable compensation determined, absent agreement, by court – Whether FCSIA Act, Sched 4, Item 18 afforded "just terms".
Practice and procedure – Demurrer – Function and purpose of demurrer – Extent to which facts expressly or impliedly averred in statement of claim might be taken as admitted for purposes of demurrer.
Practice and procedure – High Court – Amicus curiae – Criteria for acceptance of submissions.
Words and phrases – "acquisition of property", "fee simple", "for the benefit of", "just terms", "property".
Constitution, ss 51(xxxi), 122.
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 4, 12, 69, 70, 71.
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth), Sched 4, Items 12, 15, 18.
Northern Territory National Emergency Response Act 2007 (Cth), ss 31, 32, 34-37, 50, 52, 60-62.FRENCH CJ.
Introduction
On Tuesday, 7 August 2007 the Minister for Families, Community Services and Indigenous Affairs introduced into the House of Representatives a package of legislation designed to support what he described in the Second Reading Speech as an emergency response by the Commonwealth Government to deal with sexual abuse of Aboriginal children in the Northern Territory and associated problems relating to alcohol and drug abuse, pornography and gambling.
The package comprised five Bills, which included:
1.the Northern Territory National Emergency Response Bill 2007 ("the NER Bill");
2.the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 ("the FaCSIA Bill"); and
3.the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 ("the Welfare Reform Bill")[1].
[1]The other two Bills were Appropriation Bills.
Concern about child sexual abuse of Aboriginal children in the Northern Territory had been generated in part by a report commissioned by the Northern Territory Government entitled Little Children are Sacred[2]. The Minister said that the Commonwealth Government had decided to intervene and declare an emergency situation and use the "territories power available under the Constitution" to make laws for the Northern Territory[3].
[2]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 10; Northern Territory, Ampe Akelyernemane Meke Mekarle "Little Children are Sacred": Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, (2007).
[3]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 10.
In addition to administrative measures already taken, further steps were necessary to improve living conditions and reduce overcrowding. There was a need for more houses to be built. In order that this could be done quickly the government had a need to "control the land in the townships for a short period"[4].
[4]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 11.
The measures in the NER Bill applied to Northern Territory Aboriginal communities on land scheduled under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") and other areas including community living areas and town camps[5]. Five-year leases would be created on such land in favour of the Commonwealth. The Minister described the "acquisition" of the leases as "crucial to removing barriers so that living conditions can be changed for the better in these communities in the shortest possible time frame"[6]. Underlying ownership by traditional owners was to be preserved and compensation, "when required by the Constitution"[7], would be paid.
[5]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 12.
[6]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 13.
[7]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 14.
The areas to be covered by the lease provisions of the NER Bill were "major communities or townships, generally of over 100 people, some of several thousand people"[8]. The leases would "give the government the unconditional access to land and assets required to facilitate the early repair of buildings and infrastructure"[9]. Native title in respect of the leased land would be suspended but not extinguished. The leases could be terminated early if the Northern Territory Emergency Response Taskforce reported that a community no longer required intensive Commonwealth oversight[10].
[8]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 14.
[9]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 14.
[10]Under the NER Bill such termination required ministerial consent.
The FaCSIA Bill complemented the NER Bill and the Welfare Reform Bill. Among other things it affected what the Minister called "the permit system". The "permit system" was a reference to the prohibition imposed by the Aboriginal Land Act (NT) against entry onto Aboriginal land held by an Aboriginal Land Trust under the Land Rights Act without a permit issued by the Aboriginal Land Council for the area. While the permit system would be left in place on "99.8 per cent … of Aboriginal land" permits would no longer be required in the main townships and the road corridors connecting them. "Closed towns" meant less public scrutiny and made it easier for abuse and dysfunction to stay hidden. Improving access to the towns would promote economic activity and allow government services to be provided more readily[11].
[11]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 20.
Proceedings were commenced in the original jurisdiction of this Court on 25 October 2007 to challenge the validity of certain provisions of the Northern Territory National Emergency Response Act 2007 (Cth) ("the NER Act") and the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("the FaCSIA Act"). The first and second plaintiffs are Aboriginal persons who say they are members of a local descent group who have spiritual affiliation to sites on affected land in the township of Maningrida. The land is held by the Arnhem Land Aboriginal Land Trust ("the Land Trust") under the Land Rights Act. The third plaintiff is an Aboriginal and Torres Strait Islander corporation and a community service entity within the meaning of s 3 of the NER Act. The Commonwealth and the Land Trust are the defendants.
The plaintiffs allege, and it is not in dispute, that a five-year lease on the Maningrida land was granted to the Commonwealth pursuant to the NER Act. They say that the grant of the lease constituted acquisition of the Land Trust property and that the acquisition was required to be but was not on just terms within the meaning of s 51(xxxi) of the Constitution.
The plaintiffs also say that by its abolition of the permit system the FaCSIA Act deprived the Land Trust of its entitlement to exclusive possession and enjoyment of common areas in the Maningrida land. That measure is also said to have been an acquisition of the first and second plaintiffs' property other than on just terms.
In addition, the first and second plaintiffs claim that they are persons who, as traditional Aboriginal owners, are entitled by s 71 of the Land Rights Act to enter upon and use or occupy the Maningrida land in accordance with Aboriginal tradition. They claim those rights are terminable at will by the Minister by reason of s 37 of the NER Act and, alternatively, are effectively suspended by the grant of the lease. They say that on that basis the Commonwealth has acquired property rights belonging to them and has done so other than on just terms.
On 19 March 2008 the Commonwealth demurred to the whole of the plaintiffs' second further amended statement of claim on the ground that the facts alleged in it do not show any cause of action to which effect can be given by the Court as against the Commonwealth. The grounds of the demurrer were, in summary:
(a)The NER and FaCSIA Acts are not relevantly subject to the just terms requirement contained in s 51(xxxi) of the Constitution.
(b)Even if the Acts are subject to the just terms requirement, they provide for compensation constituting just terms in relation to any acquisition of property effected under s 51(xxxi).
(c)The property relied upon by the plaintiffs as having been acquired is not property within the meaning of s 51(xxxi) and alternatively is not property capable of being acquired or which has been acquired by the challenged Acts within the meaning of s 51(xxxi) of the Constitution.
Defences were filed by the Commonwealth and the Land Trust.
On 11 June 2008 Hayne J ordered that the Commonwealth's demurrer be referred to the Full Court for hearing. The demurrer came on for hearing on 2 October 2008. In my opinion, the demurrer should succeed. I base that opinion on the following conclusions:
(i)The power of the Commonwealth Parliament to make laws for the government of any Territory pursuant to s 122 of the Constitution is subject to the limitation imposed by s 51(xxxi) of the Constitution that laws for the acquisition of property from any person for any purpose in respect of which the Parliament has power to make laws must be on just terms.
(ii)The decision of this Court to the contrary in Teori Tau v The Commonwealth[12] should be overruled.
(iii)The creation by s 31 of the NER Act of a statutory lease on the Maningrida land constituted an acquisition of property from the Land Trust.
(iv)The acquisition was on just terms by reason of the compensation provisions of the NER Act.
(v)The abolition of the permit system effected no additional acquisition but was in any event the subject of just terms provided for in the FaCSIA Act.
(vi)The effects of the NER Act on the claimed rights of the first and second plaintiffs under s 71 of the Land Rights Act did not constitute an acquisition of property within the meaning of s 51(xxxi).
The orders that should be made are as proposed by Gummow and Hayne JJ.
[12](1969) 119 CLR 564; [1969] HCA 62.
The conclusion at which I have arrived does not depend upon any opinion about the merits of the policy behind the challenged legislation. Nor, contrary to the gratuitous suggestion in the judgment of Kirby J[13], is the outcome of this case based on an approach less favourable to the plaintiffs because of their Aboriginality.
[13]At [214].
Before turning in detail to the issues raised by the demurrer it is convenient to outline the statutory basis of the property rights said to have been acquired by the Commonwealth and the provisions of the NER Act and the FaCSIA Act effecting that alleged acquisition.
The Land Rights Act[14] – fee simple estates, Land Trusts and Land Councils
[14]The history and general scheme of the Act were most recently described by Kiefel J in Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 82 ALJR 1099 at 1123-1128 [114]-[135]; 248 ALR 195 at 226-232; [2008] HCA 29. The Act as outlined is as it stood in 2007 including amendments effected by Act No 121 of 2007.
The principal property right in issue is the fee simple estate granted to the Land Trust under the Land Rights Act. Such grants may be made by the Governor-General upon the recommendation of the Minister[15].
[15]Sections 10 and 11.
Key definitions in the Act include the definition of "Aboriginal land" which means land held by a Land Trust in fee simple or land the subject of a deed of grant held in escrow by a Land Council pending the expiry of pre-existing interests held by persons other than the Crown[16]. "Traditional Aboriginal owners" means a local descent group of Aboriginals who[17]:
"(a)have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b)are entitled by Aboriginal tradition to forage as of right over that land."
[16]Sections 3(1) and 12(1).
[17]Section 3(1).
Land Trusts are bodies corporate, established by gazetted ministerial notice "to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned"[18]. They hold title to the land vested in them in accordance with the Act and exercise their powers as owners of the land for the benefit of the Aboriginals concerned[19]. They can only act, in relation to the land, in accordance with directions given by the Land Council for the area[20]. They are not empowered to accept moneys due and owing to them or to give a valid discharge for such moneys, but moneys may be paid to the Land Council for the area[21].
[18]Section 4(1). The boundaries are subject to ministerial variation to effect grants for additional land or transfers to another Land Trust: s 4(2B).
[19]Section 5.
[20]Section 5(2).
[21]Section 6.
Payments may be made in respect of occupation or use by the Crown of land granted under the Act[22]. If the occupation or use is not for a community purpose, the Crown is to pay to the Land Council "amounts in the nature of rent for that occupation or use at such rate as is fixed by the Minister having regard to the economic value of the land"[23].
[22]The Crown or Commonwealth or Northern Territory Authorities may continue pre-existing occupation or use of granted land: s 14(1).
[23]Section 15(1).
Land Trusts generally have only a conditional power to deal with or dispose of any estate or interest in land vested in them[24]. With the written consent of the Minister and the written direction of the relevant Land Council, a Land Trust may grant an estate or interest to an Aboriginal or an Aboriginal and Torres Strait Islander corporation for residential or community purposes or for the conduct of a business[25]. It may, on the same conditions, grant an estate or interest to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose[26]. Before giving the requisite written direction the Land Council must be satisfied that the traditional owners understand the nature and purpose of the proposed grant and, as a group, consent to it[27]. Any affected Aboriginal community or group must have been consulted and have had adequate opportunity to express its views to the Land Council. The terms and conditions of any grant must be reasonable[28]. The consent of the Minister is not required for the grant of an estate or interest, the term of which does not exceed 40 years[29].
[24]Save as provided by ss 19, 19A or 20 of the Act.
[25]Section 19(2).
[26]Section 19(3).
[27]Section 19(5).
[28]Section 19(5).
[29]Section 19(7).
The Land Trust may grant a lease of a township to an approved entity if ministerial consent and Land Council directions are given and the terms and conditions of the proposed lease are "reasonable"[30].
[30]Section 19A.
The Land Councils are bodies corporate[31] established by the Minister for areas in the Northern Territory (of which there shall be at least two) designated by ministerial notice[32]. Their functions include protection of the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the designated areas[33]. A Land Council is not to take any action in connection with Land Trust land unless it is satisfied that the traditional Aboriginal owners understand the nature and purpose of the action and consent to it as a group[34]. Any Aboriginal community or group affected by a proposed action is to have been consulted and to have had adequate opportunity to express its views to the Land Council[35]. The Land Council is required by the Act to give priority to the protection of the interests of traditional land owners and other Aboriginals interested in Aboriginal land in its area[36]. Within six months of receipt of a payment in respect of Aboriginal land the Land Council is to pay an equal amount to or for the benefit of the Aboriginal owners of the land[37]. Aboriginal land shall not be resumed, compulsorily acquired or forfeited under any law of the Northern Territory[38].
[31]Section 22.
[32]Section 21(1).
[33]Section 23(1)(b).
[34]Section 23(3)(a).
[35]Section 23(3)(b).
[36]Section 23AA(3).
[37]Section 35(4).
[38]Section 67.
The Land Rights Act – sacred site protection
There is a general prohibition against entering or remaining on land in the Northern Territory that is a sacred site. Breach of the prohibition is an offence[39]. It does not prevent Aboriginal groups from entering or remaining on the site in accordance with Aboriginal tradition[40]. It is a defence if the person entering or remaining on the land does so in performing functions under or in accordance with the Land Rights Act or another Act[41].
[39]Section 69(1).
[40]Section 69(2).
[41]Section 69(2A).
The Land Rights Act – s 71 "rights"
Section 70 prohibits persons from entering or remaining on Aboriginal land. The prohibition is subject to defences for persons performing functions under the Act or otherwise in accordance with the Act or a law of the Northern Territory[42] or entering the land in accordance with an authorisation in force under s 19(13) issued by the Land Trust[43]. Persons with estates or interests in Aboriginal land are entitled to enter and remain on the land for any purpose necessary for the use or enjoyment of their estate or interest[44]. The prohibition is qualified by s 71 which creates a statutory entitlement for any Aboriginal or group of Aboriginals to enter upon and use or occupy Aboriginal land in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land[45]. This does not authorise entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in land held by a person not being a Land Trust or an incorporated association of Aboriginals[46]. The first and second plaintiffs say that s 70, read with s 71, confers rights upon them which are affected by the NER Act.
[42]Section 70(2A).
[43]Section 79(2B).
[44]Section 70(2)(a).
[45]Section 71(1).
[46]Section 71(2).
The Aboriginal Land Act (NT) – the permit system
This Act is a Northern Territory statute. The term "Aboriginal land", used in the Act, has the same meaning as in the Land Rights Act[47]. The Aboriginal Land Act creates the "permit system" which is affected by the FaCSIA Act.The Northern Territory's power to make laws regulating or authorising the entry of persons onto Aboriginal land is conferred by s 73(1)(b) of the Land Rights Act.
[47]Aboriginal Land Act, s 3.
Subject to the relevant part of the Act and contrary provisions in Territory laws, s 4 prohibits persons from entering onto or remaining on Aboriginal land or a road unless issued with a permit to do so[48]. Aboriginals entitled by Aboriginal tradition to enter or remain on an area of Aboriginal land may do so[49]. The Land Council for the relevant area or its traditional Aboriginal owners may issue permits to persons to enter onto and remain on the Aboriginal land or use a road bounded by that land on such conditions as they think fit[50].
[48]Aboriginal Land Act, s 4(1).
[49]Aboriginal Land Act, ss 4(2) and 4(3).
[50]Aboriginal Land Act, ss 5(1) and 5(2).
The NER Act – the statutory leases
At the centre of the plaintiffs' challenge is s 31 of the NER Act, which provides, inter alia, in sub-s (1):
"A lease of the following land is, by force of this subsection, granted to the Commonwealth by the relevant owner of the land …"
The land referred to is that described in Sched 1 to the Act and land prescribed by regulation. The terms of leases granted under s 31(1) are set out in s 31(2) which is to be read with s 32[51].
[51]The leases granted under s 31 are hereafter referred to in these reasons as "s 31 leases".
The land described in the Schedule includes Maningrida which covers 10.456 square kilometres. It is part of 89,872 square kilometres of land held by the Land Trust in fee simple pursuant to a grant made under the Land Rights Act on 30 May 1980. The first and second plaintiffs say they are entitled by the traditions, observances, beliefs and customs of the traditional Aboriginal owners to use and occupy the land for traditional purposes, including living on it.
The lease over Maningrida created by the NER Act commenced on 17 February 2008[52]. It terminates five years after the commencement of s 31 and so will terminate on 18 August 2012[53].
[52]Section 32.
[53]Sections 2, 31.
Section 34 applies to any right, title or interest in land if it existed immediately before the time that a s 31 lease took effect[54] and preserves it from after that time[55]. The section does not apply to any native title rights and interests[56]. Section 34(4) provides:
"If the right, title or interest in the land was granted by the relevant owner of the land, the right, title or interest has effect, while the lease is in force, as if it were granted by the Commonwealth on the same terms and conditions as existed immediately before that time."
[54]Section 34(1).
[55]Section 34(3).
[56]Section 34(2).
It is convenient to deal at this point with a submission by the plaintiffs that s 34(4) conferred on the Commonwealth an entitlement to receive any moneys otherwise payable to the relevant owner, in this case the Land Trust, by reason of the prior grant of rights, titles or interests to the land. That submission was contested by both defendants. It should not be accepted. Section 34(4) continues in effect the rights, titles and interests in land granted by the relevant owner prior to the creation of the statutory lease. It has nothing to say about any income stream or other consideration flowing to the owner by reason of such grant. There is no reason to construe it as having that consequence which would have no bearing upon the purpose of the legislation. There is a similar sub-section in s 19A of the Land Rights Act which empowers a Land Trust to grant a head lease of a township to a Commonwealth or Northern Territory entity[57].
[57]Section 19A(11).
Section 35 sets out terms and conditions of the s 31 leases. The Commonwealth is given exclusive possession and quiet enjoyment of the land while the lease is in force. The grant of exclusive possession and quiet enjoyment is expressed to be subject, inter alia, to s 34 of the NER Act. The owner of the land covered by a s 31 lease may not vary or terminate it[58]. The Commonwealth may not transfer a s 31 lease but may sublease, license, part with possession of, or otherwise deal with, its interest in the lease[59]. The Commonwealth may also vary a s 31 lease by excluding land from the lease or including in it any land that was excluded under s 31(3)[60]. It may terminate the lease at any time[61]. Importantly, s 35(2) provides in relation to rent:
"The Commonwealth is not liable to pay to the relevant owner of land any rent in relation to a lease of that land granted under section 31, except in accordance with subsection 62(5)."
Section 36 empowers the Minister to determine other terms and conditions of a s 31 lease. It also empowers the Minister to vary the terms and conditions so determined[62].
[58]Section 35(4).
[59]Section 35(5).
[60]Section 35(6).
[61]Section 35(7).
[62]Section 36(2).
The Commonwealth is empowered by s 37 to terminate at any time a right, title or interest preserved under s 34 or an earlier lease of land which, under s 31(3), is excluded from land covered by the s 31 lease[63]. This does not apply to certain rights granted under various provisions of the Land Rights Act[64].
[63]Section 37(1).
[64]Section 37(2).
The power of a Land Trust to grant a township lease under s 19A of the Land Rights Act is preserved[65].
[65]Section 37(6)-(9).
The Act disapplies certain provisions of the Native Title Act 1993 (Cth). Various other provisions, including s 52, have effect despite any other law of the Commonwealth or the Northern Territory (whether written or unwritten)[66]. Section 52 preserves the power of the Land Trust to grant another lease over Aboriginal land the subject of a s 31 lease in accordance with s 19 of the Land Rights Act. However, the consent in writing of the Minister is required for the grant or variation of such a lease while the s 31 lease is in force[67]. And despite the grant of the s 31 lease the Land Trust may, in accordance with s 19 of the Land Rights Act, grant an interest (including a licence, but not including a lease) of a kind prescribed by regulations for the purposes of s 52[68]. A Land Trust is not, however, authorised to deal with an estate or interest in land covered by a s 31 lease other than by granting a lease or an interest as referred to in s 52(1) and (4A)[69].
[66]Division 3 of Pt 4.
[67]Section 52(2).
[68]Section 52(4A).
[69]Section 52(5).
The NER Act also provides for registration of dealings including the grant, variation or termination of a s 31 lease[70]. The Minister may lodge with the Registrar-General for the Northern Territory (or other appropriate officer) a notification, certified by writing signed by the Minister, of the dealing with the land[71]. The officer must deal with the notification as if it were "a grant, conveyance, memorandum or instrument of transfer of relevant rights, titles and interests done under the laws of the Northern Territory"[72].
[70]Section 55(1)(a) and (b).
[71]Section 55(2).
[72]Section 55(3).
The NER Act – compensation provisions
Section 60, which appears in Div 4 of Pt 4 headed "Miscellaneous", provides for compensation for acquisition of property by operation of the Act. In relation to specified classes of acquisition arising as a result of its operation, it disapplies the just terms provision contained in s 50(2) of the Northern Territory (Self-Government) Act 1978 (Cth). The acquisitions of property to which it applies include any acquisition that occurs as a result of any act done in relation to land covered by a s 31 lease[73]. However, if such an act would result in an acquisition of property to which s 51(xxxi) of the Constitution applies, from a person other than on just terms, the Commonwealth is liable to pay "a reasonable amount of compensation"[74]. Absent agreement, the person claiming compensation may institute proceedings to recover it in a court of competent jurisdiction[75]. The terms "acquisition of property" and "just terms" have the same meaning as in s 51(xxxi) of the Constitution[76]. The Commonwealth Minister[77] and the relevant owner may agree in writing to an amount to be paid by the Commonwealth to the owner[78]. This can be made as a one-off payment or periodically while the lease is in force[79]. Before any such agreement is made the Commonwealth Minister may request the Valuer-General of the Northern Territory to determine an indicative amount for the purposes of s 62(1A)[80].
[73]Section 60(1)(b)(i).
[74]Section 60(2).
[75]Section 60(3).
[76]Section 60(4).
[77]"Commonwealth Minister", in relation to a provision of the NER Act, means "the Minister administering the provision": s 3.
[78]Section 62(1A).
[79]Section 62(1B).
[80]Section 62(1C).
Section 62(1) deals with non-consensual determinations of rent under the subheading "Payment of rent". It provides:
"The Commonwealth Minister may, from time to time, request the Valuer-General (appointed under section 5 of the Valuation of Land Act of the Northern Territory) to determine a reasonable amount of rent to be paid by the Commonwealth to the relevant owner (not being the Northern Territory) of land that is covered by a lease granted under section 31."
The Valuer-General is required to comply with such a request[81]. In making a determination the Valuer-General must not take into account the value of any improvements on the land[82]. The Commonwealth is required to pay the amount so determined while the lease is in force[83].
[81]Section 62(2).
[82]Section 62(4).
[83]Section 62(5).
The FaCSIA Act
The provisions of the FaCSIA Act, like those of the NER Act, are designated, for the purposes of the Racial Discrimination Act 1975 (Cth), as special measures[84]. Section 6 of the FaCSIA Act provides:
"Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms."
[84]Section 4.
Schedule 4 to the Act, entitled "Access to Aboriginal land", sets out amendments to the Land Rights Act. It inserts into the Land Rights Act s 70A, which defines "vested Aboriginal land" as land covered by par (a) of the definition of Aboriginal land in s 3(1) of the Land Rights Act. That section also defines "community land" as land described in Sched 7 to the Land Rights Act or in regulations[85]. Section 70B provides a general authority for persons to enter or remain on roads on vested Aboriginal land and that are outside community land and provide access to community land and are specified in a determination under s 70B(2) or provide access to aerodromes or landing places for vessels that service the members of the community concerned. The section also authorises persons to enter or remain on an area within 50 metres either side of the centre line of such a road to the extent that the area is on vested Aboriginal land and is not a sacred site. A condition is that the entry or remaining on the road is for the purpose of travelling to or from community land and not for an unlawful purpose[86].
[85]Section 70A(1) and (2).
[86]Section 70B(1).
Persons can board or disembark from aircraft that are on vested Aboriginal land that is outside community land or that are on community land. Similar provision is made for entering or remaining on Aboriginal land at landing places for vessels and on roads within communities[87].
[87]Sections 70C, 70D and 70E.
A key provision, s 70F, provides for persons to enter or remain on common areas within community land provided it is not done for an unlawful purpose. Section 70H provides:
"Nothing in sections 70B to 70G limits the application of section 71."
For the purposes of the definition of community land, there is a new Sched 7 added to the Land Rights Act. Among the areas identified for the purposes of the definition of community land is Maningrida, described in cl 22 of Sched 7 in the same terms as the definition in cl 21 of Sched 1 to the NER Act.
The FaCSIA Act also provides for reasonable compensation to be paid in the event that action taken under or in accordance with ss 70B-70G of the Land Rights Act as inserted by the FaCSIA Act would result in an acquisition of property to which s 51(xxxi) of the Constitution applies from a person otherwise than on just terms[88].
[88]Schedule 4 Item 18.
Issues on the demurrer
The issues raised on the demurrer are:
(i)Whether the "just terms" requirement in s 51(xxxi) of the Constitution applies to laws made by the Commonwealth with respect to the acquisition of property from persons in the Northern Territory.
(ii)Whether the legislation under challenge effected an acquisition of property from any person within the meaning of s 51(xxxi).
(iii)Whether, if the legislation did effect an acquisition of property, it provided just terms for that acquisition.
The Territories power and the "just terms" requirement
The position of the Commonwealth Parliament with respect to its territories was regarded at and shortly after federation as that of "a quasi-sovereign government" which could "rule the territory as a dependency, providing for its local municipal government as well as for its national government"[89]. The power conferred upon the Parliament by s 122 of the Constitution, to make laws for the government of the Territories, was seen as unconstrained by limits defining the federal distribution of legislative power[90]. The Commonwealth could exercise "all the powers of an unitary government" over the Territories[91]. This view of s 122 reflected what has been called a "disparate power" theory of the Territories power[92]. Broadly speaking it found expression in the decisions of this Court on s 122 over the first 50 years of the federation, albeit not without some misgivings[93].
[89]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 972. This view may have been inspired by judicial interpretation of Art IV, s 3(2) of the United States Constitution cited by the authors in support of the "quasi-sovereign government" reference.
[90]Garran, "The Law of the Territories of the Commonwealth", (1935) 9 Australian Law Journal (Supplement) 28 at 31.
[91]Moore, The Constitution of The Commonwealth of Australia, 2nd ed (1910) at 589.
[92]Zines, "'Laws for the Government of any Territory': Section 122 of the Constitution", (1966) 2 Federal Law Review 72 at 73.
[93]Buchanan v The Commonwealth (1913) 16 CLR 315; [1913] HCA 29; R v Bernasconi (1915) 19 CLR 629; [1915] HCA 13; Mitchell v Barker (1918) 24 CLR 365; [1918] HCA 13; Porter v The King; Ex parte Yee (1926) 37 CLR 432; [1926] HCA 9; Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582; [1929] HCA 36. And see generally Zelling, "The Territories of the Commonwealth", in Else-Mitchell (ed), Essays on the Australian Constitution, 2nd ed (1961) 327 at 330ff; Finlay, "The Dual Nature of the Territories Power of the Commonwealth", (1969) 43 Australian Law Journal 256.
Dixon J foreshadowed a change of approach in Australian National Airways Pty Ltd v The Commonwealth[94] when he observed[95]:
"For my part, I have always found it hard to see why s 122 should be disjoined from the rest of the Constitution".
The question, relevant to this case, namely whether s 122 is subject to the just terms requirement in s 51(xxxi), had not been decided at that time although it had been left open by Latham CJ in Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v The Commonwealth[96]. The disparate theory continued to have life into the late 1950s as indicated by the Privy Council's description of the Territories power, in the Boilermakers' Case, as "a disparate and non-federal matter"[97]. It was also reflected in the judgments of Brennan CJ and Dawson J in Kruger v The Commonwealth[98] and by Brennan CJ, Dawson and McHugh JJ in Newcrest Mining (WA) Ltd v The Commonwealth[99].
[94](1945) 71 CLR 29; [1945] HCA 41.
[95](1945) 71 CLR 29 at 85.
[96](1943) 67 CLR 314 at 318; [1943] HCA 18.
[97]Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 545; [1957] AC 288 at 320.
[98](1997) 190 CLR 1 at 43 per Brennan CJ, 55 per Dawson J; [1997] HCA 27.
[99](1997) 190 CLR 513 at 538 per Brennan CJ, 550 per Dawson J, 583 per McHugh J; [1997] HCA 38.
The integrationist approach of Dixon CJ found its voice, in the year after Boilermakers, through a majority of the Court in Lamshed v Lake[100]. In that case the Court upheld the application to a State of a law made under s 122. Dixon CJ (Webb, Kitto and Taylor JJ agreeing) expressly rejected the proposition that s 122 operated to appoint the Commonwealth Parliament "a local legislature in and for the Territory with a power territorially restricted to the Territory"[101]. The laws made under s 122, he said, were "laws made by the Parliament of the Commonwealth and s 5 of the covering clauses makes them binding on the courts, judges and people of every State notwithstanding anything in the laws of any State"[102].
[100](1958) 99 CLR 132; [1958] HCA 14.
[101](1958) 99 CLR 132 at 141.
[102](1958) 99 CLR 132 at 142.
In his judgment in Lamshed Dixon CJ considered the possible application, to laws made under s 122, of other provisions of the Constitution generally affecting legislative power. He could see no reason why s 116 should not apply and it was "easy to find" in Ch I provisions which would appear on their face to link up with a territory. One example was the incidental power conferred by s 51(xxxix)[103]. He did not, however, apply any close analysis to that general question, no doubt because its resolution was not necessary for the disposition of the case.
[103](1958) 99 CLR 132 at 143.
In concurring with the Chief Justice, Kitto J asserted the necessity of "adopting an interpretation which will treat the Constitution as one coherent instrument for the government of the federation, and not as two constitutions, one for the federation and the other for its territories"[104]. The decision in Lamshed was followed, in the Western Australian Airlines Case[105], with respect to the extension, into the States, of laws made for the Territories.
[104](1958) 99 CLR 132 at 154.
[105]Attorney-General (WA)v Australian National Airlines Commission (1976) 138 CLR 492; [1976] HCA 66.
In Spratt v Hermes[106] support was expressed by some, but not all, members of the Court for a theory of s 122 as a provision of the Constitution integrated with other legislative powers. Barwick CJ said it was a mistake "to compartmentalize the Constitution, merely because for drafting convenience it has been divided into chapters"[107]. There was no warrant for segregating s 122 from the rest of the Constitution[108]. Windeyer J's judgment was to like effect[109]:
"The Constitution must be read as a whole, an instrument of government for a nation and its people, the Commonwealth of Australia."
Menzies J moved further in rejecting the proposition that s 122 conferred a legislative power somehow outside the federal system[110]:
"To me, it seems inescapable that territories of the Commonwealth are parts of the Commonwealth of Australia and I find myself unable to grasp how what is part of the Commonwealth is not part of 'the Federal System'."
[106](1965) 114 CLR 226; [1965] HCA 66.
[107](1965) 114 CLR 226 at 246.
[108](1965) 114 CLR 226 at 246.
[109](1965) 114 CLR 226 at 278.
[110](1965) 114 CLR 226 at 270.
The discounting by Barwick CJ of the significance of the particular place of s 122 in the Constitution had support from the Convention Debates. Deakin had raised a question about the location of the section in the New States chapter rather than cl 53, which became s 52, relating to the exclusive powers of the Commonwealth. In an exchange with Barton, Deakin conceded[111]:
"It is logical where it is, and it would also be logical if included in clause 53. However that is a question for the Drafting Committee."
[111]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 28 January 1898 at 257. See also Horan, "Section 122 of the Constitution: A 'Disparate and Non-federal' Power?", (1997) 25 Federal Law Review 97 at 109.
Barwick CJ accepted that the power conferred by s 122 was "non-federal in character" but said that this did not mean it was "not controlled in any respect by other parts of the Constitution"[112]. It was a question of construction whether any particular provision of the Constitution had a controlling operation upon it[113]. As Professor Zines has pointed out, the judgments of Barwick CJ, Menzies and Windeyer JJ were all "generally … in accordance with the spirit of Lamshed v Lake in opposing the 'separation' theory"[114]. The observations made by Barwick CJ, quoted above, were cited with evident approval by Brennan, Deane and Toohey JJ in Capital Duplicators Pty Ltd v Australian Capital Territory[115] and by the plurality in Bennett v The Commonwealth[116].
[112](1965) 114 CLR 226 at 242.
[113](1965) 114 CLR 226 at 242.
[114]Zines, "'Laws for the Government of any Territory': Section 122 of the Constitution", (1966) 2 Federal Law Review 72 at 86.
[115](1992) 177 CLR 248 at 272; [1992] HCA 51.
[116](2007) 231 CLR 91 at 111 [43] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; [2007] HCA 18.
In its application to s 51(xxxi) the question of construction of which Barwick CJ had spoken in Spratt v Hermes was answered in the negative in an ex tempore judgment delivered by a unanimous Court in Teori Tau[117]. The brief reasoning that led to that answer may be summarised as follows[118]:
1.Section 122 is general and unqualified. It confers a power to make laws for the compulsory acquisition of property.
2.Section 51 is concerned with federal legislative powers as part of the distribution of legislative power between the Commonwealth and the States.
3.Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power.
4.Section 122 is not limited or qualified by s 51(xxxi) or any other paragraph of s 51.
The Court said[119]:
"While the Constitution must be read as a whole and as a consequence, s 122 be subject to other appropriate provisions of it as, for example, s 116, we have no doubt whatever that the power to make laws providing for the acquisition of property in the territory of the Commonwealth is not limited to the making of laws which provide just terms of acquisition."
The Court is invited in this case to overrule that decision.
[117](1969) 119 CLR 564.
[118](1969) 119 CLR 564 at 570.
[119](1969) 119 CLR 564 at 570.
In Teori Tau the legislative power conferred by s 122 was described as "plenary in quality and unlimited and unqualified in point of subject matter"[120]. It has been cited on a number of occasions for that proposition. Nevertheless Barwick CJ's acceptance in Spratt that the section could be controlled by other provisions of the Constitution stood. The "plenary quality" of the power conferred by s 122 does not therefore inevitably lead to the conclusion that the section is unconstrained by the just terms requirement in s 51(xxxi). This is relevant when assessing the extent to which reliance upon Teori Tau in later authority involved an acceptance of its holding about the relationship between s 122 and s 51(xxxi). A number of later decisions of the Court were referred to by Brennan CJ, Dawson and McHugh JJ in Newcrest as applying or supportive of Teori Tau and therefore representing a stream of authority in which it had become accepted[121]. It is necessary briefly to refer to those cases.
[120](1969) 119 CLR 564 at 570.
[121](1997) 190 CLR 513 at 540-541 per Brennan CJ, 551 per Dawson J, 575-576 per McHugh J.
In Trade Practices Commission v Tooth & Co Ltd[122] the question before the Court was whether a statutory prohibition of exclusive dealing in relation to the grant, renewal or termination of leases or licences[123] was an acquisition of property other than on just terms. The Court held the provision valid. Aickin J, in dissent, found invalidity save as to the extent of application of the power to territories pursuant to s 122 of the Constitution. He relied upon Teori Tau in so holding[124]. The case was not relied upon in any of the other judgments. Barwick CJ, also in dissent in that case, did not carve out the area of validity found by Aickin J although it would have been consistent with Teori Tau to have done so.
[122](1979) 142 CLR 397; [1979] HCA 47.
[123]Trade Practices Act 1974 (Cth), s 47(9)(a).
[124](1979) 142 CLR 397 at 458.
Clunies-Ross v The Commonwealth[125] involved a challenge to the compulsory acquisition of land in the Cocos (Keeling) Islands Territory. It was concerned with the purposes for which such acquisitions could be made under the Lands Acquisition Act 1955 (Cth). The question was one of statutory construction. Passing reference was made to the range of purposes for which acquisition laws could be made under s 51(xxxi) and s 122. Their interaction was not in contention and was not considered. In Northern Land Council v The Commonwealth[126] the Court cited Teori Tau but only as authority for its general proposition about the wide character of the s 122 power[127]. The majority joint judgment in Capital Duplicators[128] also referred to the "plenary power" passage but their Honours were not constrained by it from holding that s 90 of the Constitution reserved to the Commonwealth Parliament the legislative power to impose duties of excise[129].
[125](1984) 155 CLR 193; [1984] HCA 65.
[126](1986) 161 CLR 1; [1986] HCA 18.
[127](1986) 161 CLR 1 at 6. See also a similar application in the Supreme Court of the Australian Capital Territory in R v O'Neill; Ex parte Moran (1985) 58 ACTR 26 at 31 per Kelly J.
[128](1992) 177 CLR 248.
[129](1992) 177 CLR 248 at 269, 271.
Importantly, the majority joint judgment in Capital Duplicators reaffirmed the necessity, to which Kitto J had adverted in Lamshed, of adopting an interpretation which would treat the Constitution as one constitutional instrument for the government of the federation[130]. Their Honours added[131]:
"It would therefore be erroneous to construe s 122 as though it stood isolated from other provisions of the Constitution which might qualify its scope."
[130](1992) 177 CLR 248 at 272.
[131](1992) 177 CLR 248 at 272.
Australian Capital Television Pty Ltd v The Commonwealth[132] held invalid provisions of the Broadcasting Act 1942 (Cth) prohibiting the broadcasting of election material during an election period on the ground that they infringed the implied freedom of political communication. McHugh J found the provisions valid in their application to the Territories on the basis that s 122 was not affected by the implied freedom. In a passage relied upon by Brennan CJ and Dawson J in Newcrest he added[133]:
"Moreover, the decision of this Court in Teori Tauv The Commonwealth establishes that the provisions of s 51(xxxi) do not control the operation of s 122 when it is used to acquire property in a territory." (citation omitted)
His Honour was in dissent on the validity of the provisions in the Territories. Teori Tau was not relied upon in the other judgments.
[132](1992) 177 CLR 106; [1992] HCA 45.
[133](1992) 177 CLR 106 at 246.
The law under challenge in Mutual Pools & Staff Pty Ltd v The Commonwealth[134] was found to have been made under s 51(ii) of the Constitution and not to be a law effecting an acquisition of property pursuant to s 51(xxxi). There was passing reference in footnotes to Teori Tau as setting s 122 apart from the acquisition power[135]. But s 122 was not in issue.
[134](1994) 179 CLR 155; [1994] HCA 9.
[135](1994) 179 CLR 155 at 169 fn 37 per Mason CJ, 177 fn 68 per Brennan J, 193 fn 10 per Dawson and Toohey JJ.
Berwick Ltd v Gray[136] was not relied on in Newcrest as supportive of Teori Tau.The Court in Berwick reiterated, without reference to Teori Tau, the plenary character of s 122 but rejected the proposition that the section is disjoined from the rest of the Constitution[137]. The Court also affirmed the views expressed by Barwick CJ and Menzies J in Spratt that external territories form part of the Commonwealth, subject to a qualification in respect of territories held under mandate or trusteeship arrangements[138]. On that basis the Court held that the Territories attract the exercise of the legislative power of the Parliament to impose taxes pursuant to s 51(ii)[139].
[136](1976) 133 CLR 603; [1976] HCA 12.
[137](1976) 133 CLR 603 at 608.
[138](1976) 133 CLR 603 at 605 per Barwick CJ, 608 per Mason J, McTiernan and Murphy JJ agreeing.
[139]In Bennett v The Commonwealth (2007) 231 CLR 91 at 108 [36], the plurality said that whether an external territory is regarded as "part of the Commonwealth" may depend upon the purpose for which the question is asked. They accepted that Norfolk Island was "a territory under the authority of the Commonwealth".
Kruger v The Commonwealth[140], which was decided shortly before Newcrest, raised the questions whether s 122 was confined by s 116 and by an implied freedom, based on Ch III of the Constitution, from removal or detention without legal process. Section 51(xxxi) did not arise. Teori Tau was referred to for the characterisation of s 122 as "unlimited and unqualified in point of subject matter"[141]. Gaudron J cited Teori Tau as one of a number of decisions of the Court that had held s 122 not limited by certain other provisions of the Constitution[142]. Gummow J cited it in connection with the proposition that s 122 is subject to s 116[143].
[140](1997) 190 CLR 1.
[141](1997) 190 CLR 1 at 41 per Brennan CJ, 53-54 per Dawson J.
[142](1997) 190 CLR 1 at 117 fn 463.
[143](1997) 190 CLR 1 at 166 fn 651. Teori Tau left open the possibility that s 122 was subject to s 116.
Teori Tau was held by three members of the Court, Gaudron, Gummow and Kirby JJ, in Newcrest, to have been wrongly decided. Gaudron J agreed with the reasoning of Gummow J in that respect[144]. Together with Toohey J they comprised a majority in favour of the alternative proposition that if a law for the acquisition of property within a territory is supported by a head of power other than s 122 and is not solely "for the government of [the] territory", then it will attract the just terms constraints imposed by s 51(xxxi)[145].
[144](1997) 190 CLR 513 at 561.
[145](1997) 190 CLR 513 at 560 per Toohey J, 568 per Gaudron J, 614 per Gummow J, 661 per Kirby J.
The treatment of Teori Tau in these cases does not indicate that the proposition, about the relationship between s 122 and s 51(xxxi), for which it is authority has become part of a stream of jurisprudence and accepted in subsequent decisions.
Overruling a previous decision of the Court
The Court accepted not long after its establishment that it could overrule its own decisions[146]. Isaacs J put it thus[147]:
"The oath of a Justice of this Court is 'to do right to all manner of people according to law'. Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right."
[146]Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261 at 278-279 per Isaacs J, 288 per Higgins J; [1913] HCA 41.
[147](1913) 17 CLR 261 at 278.
In The Tramways Case [No 1][148] the Court said it would generally only review a previous decision where it was manifestly wrong[149]. Barton J observed that the question was not whether the Court could review its previous decisions but whether it would, having due regard to the need for continuity and consistency. He said[150]:
"[T]he strongest reason for an overruling is that a decision is manifestly wrong, and its maintenance is injurious to the public interest."
Isaacs J spoke positively of "the duty of [the] Court to correct an erroneous interpretation of the fundamental law". The opposite view would make the Court "guardians, not of the Constitution, but of existing decisions"[151].
[148](1914) 18 CLR 54; [1914] HCA 15.
[149](1914) 18 CLR 54 at 58 per Griffith CJ, 69 per Barton J, 70 per Isaacs J, 83 per Gavan Duffy and Rich JJ, 86 per Powers J.
[150](1914) 18 CLR 54 at 69.
[151](1914) 18 CLR 54 at 70.
Barton J, in The Tramways Case [No 1], was quoted, with evident approval, by a unanimous Court in 1949 in Thomas' Case[152]. However in Attorney-General (NSW) v Perpetual Trustee Co Ltd[153] Dixon J observed that the Court had adopted "no very definite rule as to the circumstances in which it will reconsider an earlier decision"[154]. In The State of Victoria v The Commonwealth[155] he declined to follow the earlier decision of the Court in South Australia v The Commonwealth[156] having regard to the isolation of the decision and the fact that it formed no part of a stream of authority[157]. Kitto J agreed with the judgment of Dixon CJ. McTiernan J in that case thought the earlier decision "manifestly wrong"[158].
[152]Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1949) 77 CLR 493 at 496; [1949] HCA 4.
[153](1952) 85 CLR 237; [1952] HCA 2.
[154](1952) 85 CLR 237 at 243-244.
[155](1957) 99 CLR 575; [1957] HCA 54.
[156](1942) 65 CLR 373; [1942] HCA 14.
[157](1957) 99 CLR 575 at 615-616.
[158](1957) 99 CLR 575 at 626.
The operation of stare decisis in constitutional cases was considered in the Second Territory Senators Case[159]. Aickin J undertook a review of the authorities and set out some general considerations to assist in deciding whether a previous constitutional decision regarded as erroneous should be overruled. In summary, these considerations were[160]:
[159]Queensland v The Commonwealth (1977) 139 CLR 585; [1977] HCA 60.
[160](1977) 139 CLR 585 at 630.
1.Whether the error of the prior decision had been made manifest by later cases which had not directly overruled it.
2.Whether the prior decision went with "a definite stream of authority" and did not conflict with established principle.
3.Whether the prior decision could be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question.
4.Whether the prior decision was isolated as receiving no support from other decisions and forming no part of a stream of authority.
5.Whether the prior decision concerned a fundamental provision of the Constitution or involved a question of such vital constitutional importance that its consequences were likely to be far reaching, although not immediately foreseeable in detail.
Aickin J also pointed out that as a result of the progressive abolition of appeals to the Privy Council in 1968 and 1975 the Court had become "in all respects a court of ultimate appeal". He said[161]:
"The fact that error can no longer be corrected elsewhere must change our approach to the overruling of our own decisions, at least to some extent. It remains however a serious step, not lightly to be undertaken."
Another important factor distinguishing constitutional cases from others is that the effect of constitutional decisions cannot generally be remedied by legislative amendment[162].
[161](1977) 139 CLR 585 at 630.
[162]There may be legislative means to offset the effects of a particular constitutional decision: see the use of referral of powers by the States in support of the Corporations Act 2001 (Cth) and associated legislation following the decision of the Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27.
The observation by Dixon J that there was "no very definite rule as to the circumstances in which [the Court] will reconsider an earlier decision" was cited by the joint judgment in John v Federal Commissioner of Taxation[163]. Four relevant considerations were set out in that case:
1.Whether the earlier decision rested upon a principle carefully worked out in a significant succession of cases.
2.Whether there was a difference between the reasons of the Justices constituting the majority in the earlier decision.
3.Whether the earlier decision had achieved a useful result or caused considerable inconvenience.
4.Whether the earlier decision had been independently acted upon in a way which militated against reconsideration, as in the Second Territory Senators Case.
[163](1989) 166 CLR 417 at 438-439; [1989] HCA 5.
It is apparent from the authorities that the question whether the Court will overrule one of its earlier decisions is not to be answered by the application of a well-defined rule. Nor is it simply to be answered by the application of such visceral criteria as "manifestly" or "clearly" wrong. Rather it requires evaluation of factors which may weigh for and against overruling. That evaluation will be informed by a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law, that such a course should not lightly be taken. As Gibbs J said in the Second Territory Senators Case, no Justice of the Court is entitled to ignore the previous decisions and reasoning of the Court and arrive at his or her own judgment as though the pages of the law reports were blank[164]:
"A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court."
[164](1977) 139 CLR 585 at 599.
Although decisions of this Court about overruling its own prior decisions have referred to the identification of "error" in the previous decision, it does not follow that it is always necessary to make a finding that a prior decision was erroneous in order to justify overruling it. In many cases of interpretation of the Constitution, constructional choices are presented. To say that, upon a consideration of text, context, history and attributed purpose, one choice is to be preferred to another, is not necessarily to say that the choice rejected is wrong. Reasonable minds may differ on a point of constitutional interpretation. It may be that in some cases subsequent decisions have made clear that the decision which the Court is asked to overrule not only stands isolated but has proven to be incompatible with the ongoing development of constitutional jurisprudence. Dixon CJ once spoke of the possibility that an earlier decision had been "weakened" by subsequent decisions or in the light of experience[165]. This does not require the taxonomy of "truth" and "error". It may reflect an evolving understanding of the Constitution[166] albeit subject to the conservative cautionary principle referred to earlier.
[165]Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 370; [1961] HCA 21.
[166]For a helpful discussion of various approaches to overruling see Harris, "Overruling Constitutional Interpretations", in Sampford and Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions, (1996) 231.
Against that background it is necessary to consider the proposition for which Teori Tau is authority.
The interaction between s 122 and s 51(xxxi)
The starting point for consideration of the interaction between s 122 and s 51(xxxi) is the text of the Constitution. Covering cl 5 in the Commonwealth of Australia Constitution Act 1900 (Imp) renders "all laws made by the Parliament of the Commonwealth under the Constitution … binding on the courts, judges, and people of every State and of every part of the Commonwealth". The collocation "every part of the Commonwealth" indicates that the geographical extent of the Commonwealth, as that term is there used, is not limited to the States.
Section 51 of the Constitution confers powers upon the Parliament to make laws for the "peace, order, and good government of the Commonwealth" with respect to the various matters set out in that section. Consistently with covering cl 5 the Court held in Berwick Ltd v Gray that "the Commonwealth" for which the Parliament may make such laws extends to the external territories of Australia[167]. A fortiori, it covers the internal territories. Section 122 authorises laws which, while they must be for the government of a territory, may have application in the States[168]. The legislative powers of the Commonwealth Parliament are generally capable of application to the States and Territories[169]. These considerations indicate that an integrated approach to the availability of legislative powers and limits on them throughout the Commonwealth is to be preferred where the language of the Constitution so permits. That conclusion favours, although it is not determinative of, the proposition that s 122 is subject to limitations on legislative powers which are of general application. It therefore favours, although it is not determinative of, the proposition that laws made under s 122 which effect compulsory acquisition of property must do so on just terms within the meaning of s 51(xxxi).
[167](1976) 133 CLR 603 at 608 per Mason J; Barwick CJ, McTiernan, Jacobs and Murphy JJ agreeing.
[168]Lamshed v Lake (1958) 99 CLR 132; Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492.
[169]Albeit there are some which, because of their subject matter, appear to be inapposite to the Territories, eg s 51(xxxvii) and s 51(xxxviii).
Dixon CJ (with whom the other members of the Court agreed) discussed the interaction of s 51(xxxi) with other provisions of the Constitution in Attorney-General (Cth) v Schmidt[170]. Assets of a German business operating in Australia at the outbreak of World War II were seized under the Trading with the Enemy Act 1939 (Cth). They were realised and after the war the moneys paid to the Controller of Enemy Property. The question for the Court was whether the disposition of the moneys was acquisition other than on just terms under s 51(xxxi). Dixon CJ concluded that the subject matter of the legislation was "altogether outside the scope of s 51(xxxi)"[171]. It was supported by the defence power in s 51(vi). Dixon CJ said[172]:
"It is hardly necessary to say that when you have, as you do in par (xxxi), an express power, subject to a safeguard, restriction or qualification, to legislate on a particular subject or to a particular effect, it is in accordance with the soundest principles of interpretation to treat that as inconsistent with any construction of other powers conferred in the context which would mean that they included the same subject or produced the same effect and so authorized the same kind of legislation but without the safeguard, restriction or qualification."
In so saying the Chief Justice cautioned against a sweeping and undiscriminating application of that doctrine to the various powers contained in s 51[173]. He was, of course, focussing on the operation of s 51 and powers within it when he said[174]:
"It must be borne in mind that s 51(xxxi) confers a legislative power and it is that power only which is subject to the condition that the acquisitions provided for must be on just terms."
The larger question of the application of s 51(xxxi) to the legislative power of the Commonwealth in s 122 was not before the Court. Nevertheless the general constructional principle enunciated by Dixon CJ is relevant to the interaction between s 51(xxxi) and s 122. It was cited in Mutual Pools by Mason CJ as "a well-accepted principle of interpretation"[175]. Section 122, as noted earlier, was not in issue in that case. Mason CJ, after acknowledging its "separate position" on the strength of Teori Tau, said[176]:
"[I]n the absence of any indication of contrary intention, the other legislative powers reposed in the Parliament must be construed so that they do not authorize the making of a law which can properly be characterized as a law with respect to the acquisition of property for any relevant purpose otherwise than on just terms."
Absent the authority of Teori Tau the general principle so stated favours the application of s 51(xxxi) to s 122.
[170](1961) 105 CLR 361.
[171](1961) 105 CLR 361 at 373.
[172](1961) 105 CLR 361 at 371-372.
[173](1961) 105 CLR 361 at 372.
[174](1961) 105 CLR 361 at 372.
[175](1994) 179 CLR 155 at 169.
[176](1994) 179 CLR 155 at 169.
Another general consideration favours the application of the just terms limitation to the compulsory acquisition of property in the Territories. The Constitution of the Commonwealth began its life as a statute of the Imperial Parliament. While it is to be construed as a constitution and not as a mere Act of Parliament, its interpretation can be informed by common law principles in existence at the time of federation[177]. In this connection there is a principle long pre-dating federation that, absent clear language, statutes are not to be construed to effect acquisition of property without compensation. The principle was recognised by Blackstone[178]. It was put clearly by Bowen LJ in London and North Western Railway Co v Evans[179]:
"[T]he Legislature cannot fairly be supposed to intend, in the absence of clear words shewing such intention, that one man's property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him."
The common law principle was expressly linked to the guarantee in s 51(xxxi) by Quick and Garran who wrote[180]:
"This condition is consistent with the common law of England and the general law of European nations. It is intended to recognize the principle of the immunity of private and provincial property from interference by the Federal authority, except on fair and equitable terms, and this principle is thus constitutionally established and placed beyond legislative control."
They also noted that[181]:
"In each State, at the present time, such machinery and procedure already exist for provincial purposes, in the shape of Acts known as Lands Clauses Compensation Acts, or Lands for Public Purposes Acquisition Acts."
It seems improbable in the circumstances that the drafters of the Constitution regarded the State Parliaments, in the absence of an equivalent constitutional guarantee affecting the States, as likely to acquire private property without compensation. This reflects upon the proposition in the disparate theory of the Territories power that the Commonwealth was to be put on the same footing as a State legislature for the purposes of legislating for the Territories and thus not encumbered by the just terms limitation.
[177]This does not involve consideration of wider issues about the interaction between the common law and the Constitution: see Dixon, "The Common Law as an Ultimate Constitutional Foundation", (1957) 31 Australian Law Journal 240 and Gummow, "The Constitution: Ultimate Foundation of Australian Law?", (2005) 79 Australian Law Journal 167.
[178]Blackstone, Commentaries on the Laws of England, (1765), bk 1, c 1 at 134-135.
[179][1893] 1 Ch 16 at 28. See also Attorney-General v De Keyser's Royal Hotel [1920] AC 508.
[180]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 641.
[181]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 641.
The guarantee in s 51(xxxi) of just terms in favour of "any … person" whose property is acquired "for any purpose in respect of which the Parliament has power to make laws" accords with common law principle. Laws for the government of any Territory made under s 122 are also laws made for a "purpose in respect of which the Parliament has power to make laws". Once that connection is made, the common law interpretive principle protective of individual property rights supports a construction of s 122 that will apply to it the limitation found in s 51(xxxi).
It would be idle to pretend that the linkage of the limitation in s 51(xxxi) to s 122 is plain and unambiguous in the text of the Constitution. Indeed the drafting history of s 51(xxxi) suggests that it was intended to overcome the possible insufficiency of other Commonwealth powers to support acquisition of private property[182]. But given an integral approach to the place of the Territories power in the Constitution, the constructional principle enunciated by Dixon CJ in Schmidt and adopted in Mutual Pools by Mason CJ and the generality of the common law interpretive principle, the factors weighing in favour of the application of the just terms limitation to s 122 are powerful.
[182]Evans, "Property and the Drafting of the Australian Constitution", (2001) 29 Federal Law Review 121 at 128-132.
Importantly, the application of s 51(xxxi) to s 122 does not involve imposing on the Territories power a limitation relevant only to the federal distribution of powers. The just terms guarantee relates not only to States but also to persons. The result of its application to s 122 is that no person anywhere within the Commonwealth of Australia can be subjected to a law of the Commonwealth acquiring the property of that person other than on just terms. It will also protect States where laws made under s 122 effect or authorise the acquisition of State property.
There were other matters referred to by Gummow J in Newcrest which give rise to consequences weighing against the non-application of the just terms limitation in s 51(xxxi) to s 122:
1.The application of laws made under s 122 affecting property cannot always be confined to property located within a territory. There are many species of incorporeal property the situs of which may not be fixed or readily ascertainable[183].
2.The power conferred by s 122 on the Commonwealth Parliament to make laws for the Territories which also affect the States and which might include acquisition of property within a State, eg for the establishment of a tourist bureau for a territory[184]. Another example might be the establishment of a transport terminal.
3.The capriciousness of the non-application of the just terms requirement where a law made under s 51 and extending to a territory is also supported by s 122[185].
As his Honour also pointed out in Newcrest, a construction of the Constitution which treats s 122 as disjoined from s 51(xxxi) produces absurdities and incongruities particularly with respect to the people of the Northern Territory, which was formerly part of South Australia and was surrendered to the Commonwealth in 1910[186].
[183](1997) 190 CLR 513 at 602.
[184](1997) 190 CLR 513 at 602.
[185](1997) 190 CLR 513 at 601.
[186](1997) 190 CLR 513 at 600-601.
In my opinion, ordinary principles of construction, the weight of authority, other than Teori Tau, and the inconvenience of the contrary position, support a construction of s 122 that subjects it to the just terms guarantee in s 51(xxxi).
Whether Teori Tau should be overruled
Teori Tau has been referred to in a number of subsequent decisions of the Court. It has not been relied upon by any member of a majority of the Court for the proposition that s 51(xxxi) does not constrain the power under s 122 to make laws for the acquisition of property. The decision was relied upon in the Court of Appeal of New South Wales in Durham Holdings Pty Ltd v New South Wales[187] as support for the proposition that the legislative power of the State was not restrained by any deeply rooted common law principle against compulsory acquisition of property without compensation. But that case was not about the relationship between s 51(xxxi) and s 122 of the Constitution, as Spigelman CJ noted in distinguishing the views expressed by Gaudron, Gummow and Kirby JJ in Newcrest[188].
[187](1999) 47 NSWLR 340 at 364.
[188](1999) 47 NSWLR 340 at 364.
Teori Tau has been applied directly in cases concerning the cooperative corporations scheme established after the decision of this Court in The Incorporation Case[189]. The Commonwealth enacted the Corporations Act 1989 as a law for the government of the Australian Capital Territory and enacted as part of it a Corporations Law which was adopted by each of the States. The takeover provisions of the Law made provision for compulsory acquisition of minority shares in publicly listed companies by bidders who had obtained the requisite majority of acceptances. Challenges to the validity of this provision as a law of the Australian Capital Territory on the basis that it did not meet the just terms requirement of s 51(xxxi) were rejected by Gummow J, sitting as a single Justice of this Court, and by the Queensland Court of Appeal[190]. In each case Teori Tau was applied. However, corporations regulation is now effected nationally under laws of the Commonwealth made pursuant to referrals of power from the various States.
[189]New South Wales v The Commonwealth (1990) 169 CLR 482; [1990] HCA 2.
[190]Gambotto v Resolute Samantha Ltd (1995) 69 ALJR 752; 131 ALR 263; [1995] HCA 48; Pauls Ltd v Elkington (2001) 189 ALR 551.
In the 40 years that have passed since it was decided, the particular proposition for which Teori Tau is authority, namely that s 122 confers power to acquire property which is unconstrained by the just terms requirement of s 51(xxxi), has not entered the mainstream of constitutional jurisprudence nor formed the basis for subsequent decisions of this or any other court save for decisions relating to the former cooperative corporations scheme which has, in any event, long been overtaken by successive arrangements for corporate regulation not dependent upon the Territories power.
The decision in Teori Tau did not accord with a pre-existing "stream of authority". Its reasoning has been described as "totally at odds with that of Dixon CJ and Kitto J in Lamshed v Lake"[191]. It was a unanimous decision of this Court but the circumstances in which it was made, which are discussed in the joint judgment of Gummow and Hayne JJ, indicate that it was not informed by extended reflection upon the constructional issues thrown up by s 51(xxxi) and s 122. It concerned a question of considerable constitutional importance. It cannot be said that it has achieved a useful result. Indeed it has been little relied upon for the precise question which it decided. There are potential absurdities and inconveniences resulting from it. There is no evidence that it has been independently acted upon in a way which militates against reconsideration in this case. So far as acquisitions within the Northern Territory by the Northern Territory Government are concerned, the Northern Territory (Self-Government) Act 1978 (Cth) has made provision, from the time of its enactment, for acquisitions of property to be on just terms[192].
[191]Zines, "The Nature of the Commonwealth", (1998) 20 Adelaide Law Review 83 at 83.
[192]Section 50.
The constructional considerations referred to earlier militate powerfully against the interpretation adopted in Teori Tau. The contrary interpretation is, in my respectful opinion, to be preferred. Given the isolation of the decision from the stream of prior and subsequent jurisprudence, its overruling would not effect any significant disruption to the law as it stands. The cautionary principle in this case does not stand against overruling. For these reasons I consider that Teori Tau should be overruled and that the acquisition of property from any person, pursuant to laws made under s 122, must be on just terms as required by s 51(xxxi).
Acquisition of property under s 51(xxxi)
Amendments to the legislative scheme of control of the land have been made before the passage of the challenged provisions[583].
[583]See, eg, Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth), s 12; Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (Cth), Sched 1, items 43, 65.
The challenged provisions (and the limited impairment of the fee simple which they entail) are directed to tackling the present problems by achieving conditions in which the current generation of traditional Aboriginal owners of the land can live and thrive. They are not directed to benefiting the Commonwealth or to acquiring property for the Commonwealth, as those terms are usually understood, nor are they directed to depriving traditional Aboriginal owners of any prior rights or interests, which are expressly preserved[584]. The purposes of the challenged provisions are to support the current generation of traditional Aboriginal owners by improving living conditions quickly. They are the beneficiaries, in current times, of the fee simple held in perpetuity under the Land Rights Act. The linkage, between the purposes of the Land Rights Act and the purposes of the Emergency Response Act and the FCSIA Act (all of which rest on the same heads of constitutional power), sustains the Commonwealth's submission that the challenged provisions are outside the scope of s 51(xxxi) of the Constitution.
[584]Cf reasons of Kirby J at [214], [222], [270] and [301].
Assuming, without deciding, that s 51(xxxi) can apply to an exercise of legislative power under s 122 of the Constitution and accepting that it can apply to s 51(xxvi), for the reasons given, the challenged provisions cannot be characterised as effecting an acquisition of property within the meaning and scope of s 51(xxxi) of the Constitution.
Orders
For the reasons I have given the demurrer should be allowed, and the plaintiffs' action should be dismissed. As to costs, I agree with Gummow and Hayne JJ that the plaintiffs should pay the costs of the Commonwealth and that the Land Trust should bear its own costs.
KIEFEL J. The facts and the statutory provisions relevant to the plaintiffs' claim are set out in the reasons of Gummow and Hayne JJ. I agree that the Northern Territory National Emergency Response Act 2007 (Cth) ("the Emergency Response Act") effects an acquisition of property. It is sufficient for the application of s 51(xxxi) of the Constitution in this case that the acquisition is pursuant to legislation made under s 51(xxxi). The requirement that the acquisition be on just terms is satisfied by the provisions of the Emergency Response Act. The demurrer should be allowed.
The acquisition of property
The plaintiffs' statement of claim identifies two property interests as acquired by the Commonwealth otherwise than on just terms: the fee simple estate in the Maningrida land in the Northern Territory, the subject of a grant to the Arnhem Land Aboriginal Land Trust ("the Land Trust") under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"); and the rights held by the first and second plaintiffs pursuant to s 71 of that Act.
The Maningrida land is held by the Land Trust as trustee[585] for the benefit of persons entitled by Aboriginal tradition to use and occupy the land[586]. The Land Rights Act contains provisions which affect the rights normally associated with ownership and it creates offences with respect to entry upon and presence upon the land. Nevertheless, Northern Territory v Arnhem Land Aboriginal Land Trust[587] ("the Blue Mud Bay Case") holds that, whilst the interest granted under the Land Rights Act differs in some important respects from an interest in the nature of an estate in fee simple, that Act must be understood as granting rights that, for almost all practical purposes, are the equivalent of full ownership[588].
[585]Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 4(1), 5(1)(a) and (b).
[586]Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 4(1).
[587](2008) 82 ALJR 1099; 248 ALR 195; [2008] HCA 29.
[588]Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 82 ALJR 1099 at 1110‑1111 [50]; 248 ALR 195 at 208.
The Emergency Response Act does not effect a land acquisition in the usual sense. Its stated object does not directly concern land. It is said to be to improve the well‑being of certain communities in the Northern Territory[589]. The scheme of the Act is to place the Commonwealth in a position of control with respect to the lands identified by it in order that that object may be achieved. By force of s 31(1) of the Act a five‑year lease of certain lands, which include the Maningrida land, is granted to the Commonwealth[590]. The Commonwealth is given exclusive possession and quiet enjoyment of the lands while the lease remains in force[591]. Significantly for present purposes, any right, title or other interest in the lands, which was in existence prior to the grant of the lease, is preserved[592]. Where the right, title or interest had been granted by the Land Trust, it is to have effect as if granted by the Commonwealth on the same terms and conditions[593]. However the Minister can prevent this effect[594] and can terminate any right, title or interest[595], although there is nothing to suggest that this has occurred or is likely to occur. The Commonwealth is not obliged to pay rent to the Land Trust[596]. The Commonwealth may part with possession of the land and grant sub‑leases or licences with respect to it[597] but may not transfer the lease itself[598]. The Emergency Response Act is not expressed to alter the exercise of traditional Aboriginal rights of use and occupation of the lands, which are recognised and protected by s 71 of the Land Rights Act.
[589]Northern Territory National Emergency Response Act 2007 (Cth), s 5.
[590]Northern Territory National Emergency Response Act 2007 (Cth), Sched 1, Pt 1, cl 21.
[591]Northern Territory National Emergency Response Act 2007 (Cth), s 35(1).
[592]Northern Territory National Emergency Response Act 2007 (Cth), s 34(1) and (3).
[593]Northern Territory National Emergency Response Act 2007 (Cth), s 34(4).
[594]Northern Territory National Emergency Response Act 2007 (Cth), s 34(5).
[595]Northern Territory National Emergency Response Act 2007 (Cth), s 37(1).
[596]Northern Territory National Emergency Response Act 2007 (Cth), s 35(2). See also s 62(1).
[597]Northern Territory National Emergency Response Act 2007 (Cth), s 35(5).
[598]Northern Territory National Emergency Response Act 2007 (Cth), s 35(5).
Given the breadth of protection effected by s 51(xxxi), it may be accepted that the interest in the Maningrida land conferred upon the Commonwealth by the lease amounts to an acquisition of property within the meaning of the paragraph[599]. The plaintiffs further allege that the Land Trust's interests as owner of the land are so affected by the "abolition of the permit system" as to amount to another form of acquisition.
[599]Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 559; [1996] HCA 56; Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 232 [49]; [2008] HCA 7.
Permits to enter upon Aboriginal land, which is the subject of the Land Rights Act, are rendered necessary by s 70 of that Act[600] which prohibits entry, with some exceptions. Section 69 contains provisions similar to s 70 with respect to sacred sites. Section 71 recognises and permits the exercise of traditional Aboriginal rights with respect to such land as earlier mentioned. The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("the FCSIA Act"), which was passed at the same time as the Emergency Response Act, amended s 70 and added ss 70A‑70F[601], providing that persons could enter upon and remain upon certain parts of vested Aboriginal land, including common areas, for any purpose that was not unlawful[602]. The evident purpose of such amendment is to provide access to Commonwealth officers and others engaged in works or other activities upon the lands without an offence being committed. The Commonwealth's possession and control under the lease would not be sufficient for this purpose.
[600]Section 5 of the Aboriginal Land Act (NT) makes provision for the grant of such permits.
[601]By Sched 4, Items 9-12.
[602]Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 70, 70A‑70F.
The statutory prohibition of entry onto land has a different legal character from the right of a landowner to exclude, although the same result may be achieved. The plaintiffs may draw upon the majority judgment in the Blue Mud Bay Case to support the connection between s 70 and the Land Trust's rights as owner. It is not necessary to do so. By the grant of the lease the Land Trust has lost the right to possession of the lands and the Commonwealth has the right to quiet enjoyment of them, to the exclusion of others.
The first and second plaintiffs' own rights concerning the land, as referred to in the statement of claim, are not alleged to be of the nature of native title rights or interests. The statement of claim refers to the traditional rights of use and occupation of the land which are recognised by s 71 of the Land Rights Act. Such rights are not the subject of acquisitions by the Emergency Response Act; on the contrary, the Act preserves them[603].
[603]Northern Territory National Emergency Response Act 2007 (Cth), s 35(1).
Section 51(xxxi)
In Newcrest Mining (WA) Ltd v The Commonwealth[604] Gaudron J held that s 51(xxxi) applies where the purpose of the legislation in question is supported by a head of power in s 51[605]. Gummow J agreed[606]. Gaudron J pointed out that the power conferred by s 51(xxxi) is one to acquire property "for any purpose in respect of which the Parliament has power to make laws"[607]. Toohey J likewise considered that a law answering the description in s 51(xxxi) attracted its operation and that any acquisition of property by the Commonwealth would almost inevitably have that result, even if the acquisition took place within a Territory[608].
[604](1997) 190 CLR 513; [1997] HCA 38.
[605]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 564‑565, 568.
[606]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 614.
[607]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 564.
[608]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 560‑561.
On this approach, for which the plaintiffs contended[609], the application of s 51(xxxi) is not denied because the territory power of s 122 may also support the law. A law may, and often does, have more than one purpose. The question in cases such as this is whether a purpose falls within the terms of s 51(xxxi). In Newcrest Gummow J said that where it is engaged, for example by a law with respect to external affairs, it is not disengaged by the circumstance that the law in question is also a law for the government of a Territory[610]. It follows that s 51(xxxi) may apply regardless of whether it operates with respect to the exercise of the territory power in s 122.
[609]See the plaintiffs' argument, summarised at [147] and footnote 254 of the reasons of Gummow and Hayne JJ.
[610]Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 614.
A construction of other paragraphs of s 51 as depending, for the acquisition of property for the purpose there stated, upon the legislative power contained in par (xxxi), was discussed by Dixon CJ in Attorney‑General (Cth) v Schmidt[611]. Such an approach was followed by Mason CJ in Mutual Pools & Staff Pty Ltd v The Commonwealth[612], although his Honour put s 122 in a separate category, because of the decision in Teori Tau v The Commonwealth[613]. But as Gaudron J pointed out in Newcrest[614] there was no challenge to that decision in Mutual Pools.
[611](1961) 105 CLR 361 at 370‑371; [1961] HCA 21.
[612](1994) 179 CLR 155 at 169; [1994] HCA 9.
[613](1969) 119 CLR 564; [1969] HCA 62.
[614](1997) 190 CLR 513 at 565.
It is not possible to discern, from the short reasons given ex tempore in Teori Tau, whether the decision was influenced by other concerns referable to the governance of New Guinea, or about other territories, which might otherwise be acquired by the Commonwealth and to which s 122 might apply. In the course of the argument for the plaintiff Windeyer J raised questions as to the application of s 51(xxxi) to territories outside Australia; and to a polity to which the principle of eminent domain had no relevance.
The stated reasoning in Teori Tau proceeds upon the basis that s 122 was the source of the power to make the law there in question with respect to New Guinea[615]. The question whether s 51(xxxi) was attracted depended upon a view as to the breadth of the power in s 122 with respect to territories. It may be that the power given by s 122 to the Commonwealth is more properly to be seen as given to it as the national legislature of Australia, as discussed by Dixon CJ in Lamshed v Lake[616], where it is exercised with respect to territories in Australia such as the Northern Territory. But Teori Tau is premised upon s 122 being the only power in question and for that reason is not determinative of an outcome in this case.
[615](1969) 119 CLR 564 at 570; and see Newcrest (1997) 190 CLR 513 at 611 per Gummow J.
[616](1958) 99 CLR 132 at 141; [1958] HCA 14.
Just terms
The provisions relating to the grant of the five‑year lease and the other powers with respect to the land in question are contained in Pt 4 of the Emergency Response Act[617]. Section 60(2) provides that if the operation of that Part results in an acquisition of property otherwise than on just terms, to which s 51(xxxi) applies, the Commonwealth is liable to pay a reasonable amount of compensation to the person from whom it is acquired. In the event that the Commonwealth and that person do not agree on the amount of that compensation, proceedings may be instituted for its determination and recovery[618]. The terms "acquisition of property" and "just terms" are given the same meaning as in s 51(xxxi) of the Constitution[619].
[617]The FCSIA Act contains like provisions with respect to any property acquired: see Sched 4, Item 18.
[618]Northern Territory National Emergency Response Act 2007 (Cth), s 60(3).
[619]Northern Territory National Emergency Response Act 2007 (Cth), s 60(4).
A provision such as s 60(2) appeared in the Historic Shipwrecks Act 1976 (Cth)[620] and has been incorporated in legislation since then[621]. Such a provision was considered in Minister for Primary Industry and Energy v Davey[622] where it was held that it suffices to comply with s 51(xxxi)[623]. As Black CJ and Gummow J there said, "[i]t is possible for the Parliament legislatively to anticipate that a law might be held to constitute an acquisition of property otherwise than on just terms, and to provide in that event for compensation, in order to avoid a legislative vacuum"[624]. It is not necessary that "just terms" be dealt with explicitly, as a precondition to validity[625].
[620]Section 21.
[621]See, for example, Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230 [41].
[622](1993) 47 FCR 151.
[623]Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 167.
[624]Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 167.
[625]Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 166‑167, referring to The Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293 at 316 per Dixon J; [1945] HCA 5.
The provision of compensation, expressed as an amount that is fair and reasonable in all the circumstances, prima facie complies with the requirement of s 51(xxxi)[626]. Many of the matters upon which the plaintiffs rely, as evidencing want of just terms, would be included in any assessment of what, if anything, the Land Trust has lost by reason of the grant of the lease in the terms provided by the Emergency Response Act. Such an assessment would extend to any rental income lost by the Land Trust, if the Commonwealth receives it. The provision for the preservation of such interests on pre‑existing terms and conditions[627] may not have this result. It is not necessary to determine whether that is so.
[626]Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 216, 228 per Latham CJ, 300 per Starke J; [1948] HCA 7.
[627]Northern Territory National Emergency Response Act 2007 (Cth), s 34(1) and (3).
The plaintiffs argue that, although reasonable compensation is provided for, s 61 of the Emergency Response Act would prevent such an outcome. The submission proceeds upon a misconstruction of that section. Section 61 requires the court determining compensation to take into account any rent which has in fact been paid or is payable by the Commonwealth to the Land Trust; any compensation otherwise paid or payable by the Commonwealth with respect to the land under other legislation; and any improvements upon the land which were funded by the Commonwealth, not the Land Trust. These are matters which could be raised by the Commonwealth in connection with a determination of compensation regardless of the existence of s 61. The section does not require an outcome by reference to them and adverse to the plaintiffs.
It was further submitted by the plaintiffs that the right to compensation provided by the Emergency Response Act was contingent and not absolute. It depended upon the undertaking of litigation to establish that s 51(xxxi) was engaged. Moreover, they argued, the provision for compensation might not be effective to provide just terms because of the delays which would result. Deane J had described the system in question in The Commonwealth v Tasmania (The Tasmanian Dam Case)[628] in this way.
[628](1983) 158 CLR 1; [1983] HCA 21.
Neither consideration operates in the present case, in such a way that just terms could not be guaranteed. A statutory right to compensation is not qualified by the possibility of a question as to whether s 51(xxxi) applies. The provisions involved in the statutory scheme to which Deane J referred were such that an applicant for compensation would be forced to wait years before being able to address a court or other body for a determination of compensation[629]. It involved a frustration of the purpose of compensation. No such obstacles are provided by the Emergency Response Act.
[629]The Tasmanian Dam Case (1983) 158 CLR 1 at 291.
The remaining aspect of the plaintiffs' case concerning just terms which requires consideration focuses upon the special value which particular areas may have. Sacred sites were identified in this regard. It was said that it may not be possible to attribute a market value to such sites, implying that a loss of or interference with rights exercised in relation to these places is not compensable by money. Such a proposition should not be readily accepted.
It must also be borne in mind that the importance of sacred sites is a matter personal to those exercising traditional Aboriginal rights. It is not an incident of the Land Trust's property rights and could not be the subject of compensation to it. Rights associated with the use of the sites may be held by one or more Aboriginal persons by way of native title rights and interests, but no such rights are here claimed. So far as concerns the plaintiffs, what is spoken of is the potential for interference with the rights recognised by s 70 of the Land Rights Act so far as concerns areas such as sacred sites. But the prohibition upon persons entering into and remaining upon sacred sites under s 69 of the Land Rights Act continues. It would only be where a sacred site was situated in a common area that the right of entry, given to persons generally by the amendments to s 70 and the addition of ss 70A‑70F effected by the FCSIA Act, would operate. No such area was identified by the plaintiffs.
The plaintiffs' case in this respect did not depend only upon the notion that special value attaching to rights associated with sacred sites was incapable of assessment and therefore could not be the subject of compensation in money. It was claimed to be a consequence of this that the Minister was obliged to consider whether the acquisition of these lands was for the benefit of Aboriginal people having such rights. Such a consideration might oblige a conclusion to the contrary. So understood, the issue is not whether just terms can be provided, but whether the Minister should decide to acquire the land at all. That issue falls outside the ambit of the plaintiffs' claim.
Conclusion and order
The plaintiffs do not establish that the Emergency Response Act effects an acquisition which is not on just terms. I agree with the orders proposed by Gummow and Hayne JJ. In relation to costs I would add that the ultimate issue in the plaintiffs' case, to which questions concerning the application of s 51(xxxi) were directed, was whether any acquisition of property was on just terms. The most obvious property interest affected by the Emergency Response Act was that of the Land Trust. The plaintiffs' case was brought in the face of provision for fair and reasonable compensation. The Land Trust did not seek to assert that just terms were not thereby guaranteed. The plaintiffs' case was not useful to clarify any substantial issue.
The 2007 Federal Intervention in the Northern Territory", (2007)
14 James Cook University Law Review 81 at 84, citing Australian
Government, Press Release, "National emergency response to
protect Aboriginal children in the NT", 21 June 2007, available at http://www.facsia.gov.au/internet/Minister3.nsf/content/emergency_21june07.htm.