Wurridjal v The Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judge: French CJ.,Gummow,Hayne JJ.,Kirby J.,Heydon J.,Crennan J.,Kiefel J.
• Judgment Date: 02 February 2009
• Neutral Citation: 2009-0202 HCA D,[2009] HCA 2
• Docket Number: M122/2007
• Date: 02 February 2009
• Court: High Court

Reggie Wurridjal & Ors

Plaintiffs

and

The Commonwealth of Australia & Anor

Defendants

[2009] HCA 2

French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ

M122/2007

HIGH COURT OF AUSTRALIA

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 forinterest — 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.

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)

ORDER

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.

French CJ.

Introduction

1 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.

2 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.

3 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 Sacred2. 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.

4 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.

5 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.

6 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.

7 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.

8 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...