Wurridjal v Commonwealth: The Northern Territory intervention and just terms for the acquisition of property

Melbourne University Law Review

Volumn 33, Issue 3, 2009, Pages 957-983

  Brennan, Sean ^a  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84856814984     PISSN: 00258938     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (125)

1. (2009) 237 CLR 309.
2. Mal Brough, 'National Emergency Response to Protect Aboriginal Children in the NT' (Press Release, 21 June 2007) .
3. Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 13-14 (Mal Brough, Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs).
4. Section 51 (xxxi) provides that the Commonwealth Parliament has the power to make laws with respect to 'the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws'. The High Court has repeatedly recognised its dual character as a grant of power and as a constitutional restriction on power (or guarantee): see, eg, Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210, 232 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ)
5. (a unanimous Court), quoting Victoria v Commonwealth (1996) 187 CLR 416, 559 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ) ('Industrial Relations Act Case').
6. See ALRA s 3(1) (definition of 'Aboriginal land').
7. Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, 63-4 (Gleeson CJ, Gummow, Hayne and Crennan JJ) ('Blue Mud Bay')
8. quoting Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, 656 (Deane, Dawson and Gaudron JJ).
9. ALRA ss 71(1), (2).
10. They are defined in ALRA s 3(1) as: a local descent group of Aboriginals who: (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.
11. ALRA s 5(2) (a).
12. ALRA s 23(3).
13. ALRA s 19(7).
14. ALRA s 70(1).
15. ALRA s 70 (2A) (h).
16. ALRA s 73(1) (b).
17. Aboriginal Land Act 1978 (NT) s 5.
18. Aboriginal Land Act 1978 (NT) s 4.
19. ALRA s 69(1).
20. ALRA s 69 (2A).
21. ALRA ss 19(4) (b), (12).
22. ALRA ss 19 (4A) - (7).
23. ALRA s 19(5).
24. See Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (Cth) sch1 pt 1.
25. Commonwealth, Parliamentary Debates, Senate, 8 August 2006, 93 (Gary Humphries).
26. For a detailed examination of the 2006 amendments and the surrounding controversy, see Sean Brennan, 'Economic Development and Land Council Power: Modernising the Land Rights Act or Same Old Same Old?' (2006) 10(4) Australian Indigenous Law Reporter 1, 10-19.
27. For a more recent analysis of the 2006 changes, see Leon Terrill, 'The Days of the Failed Collective: Communal Ownership, Individual Ownership and Township Leasing in Aboriginal Communities in the Northern Territory' (2009) 32 University of New South Wales Law Journal 814.
28. Indigenous Affairs Legislation Amendment Act 2008 (Cth) sch 1 item 3
29. amending ALRA s 19A (4).
30. NTNERA s 31(2) (b).
31. NTNERA s 37(1) (a). Some exceptions apply: s 37(2).
32. NTNERA ss 36(1)-(2).
33. NTNERA ss 35(4)-(5).
34. NTNERA s 52(7).
35. Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 14 (Mal Brough, Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs).
36. For example, the government website on the Intervention at one point said that the 'leases will assist in establishing reformed tenancy arrangements for better housing': quoted in Central Land Council, Submission No 37 to Northern Territory Emergency Response Review, 25 August 2008, 'NTER Measures' ('5 Year Leases') .
37. NTNERA ss 37(6)-(9) permit a Land Trust to bring a five-year Intervention lease to an end by entering into an ALRA s 19A headlease:
38. see Sean Brennan, 'Submission to NTER Review', Submission No 183 to Northern Territory Emergency Response Review, August 2008, 22 .
39. See Wurridjal (2009) 237 CLR 309, 364 (French CJ), 400-2 (Kirby J), 466 (Kiefel J). The Commonwealth's current explanation blends a number of these rationales together:
40. see Department of Families, Housing, Community Services and Indigenous Affairs, Five-Year Leases on Aboriginal Townships (2009) .
41. ALRA s 70F (1).
42. This was introduced by another part of the Intervention package: Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) sch 4 item 12.
43. ALRA s 70F (20).
44. See, eg, Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 1096-185 (French CJ, Gummow, Hayne, Crennan JJ and R Merkel QC).
45. NTNERA s 62(1) says that the Commonwealth Minister 'may, from time to time', ask the Northern Territory Valuer-General to determine a reasonable amount of rent for a s 31 lease.
46. NTNERA s 62(5) says that the Commonwealth 'must' pay the amount determined by the Valuer-General.
47. See Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 13-14 (Mal Brough, Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs).
48. See, eg, Sean Brennan, Talia Epstein and Edwina MacDonald, 'Inquiry into NT National Emergency Response Package 2007 - Supplementary Submission', Submission No 40a to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Northern Territory National Emergency Response Bill 2007 and Related Bills, 11 August 2007, 2;
49. Law Council of Australia, 'Northern Territory National Emergency Response Legislation', Submission No 52 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Northern Territory National Emergency Response Bill 2007 and Related Bills, 9 August 2007, [69]-[70];
50. Jennifer Clarke, 'Who'd Be a Traditional Landowner?', Submission No 54 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Northern Territory National Emergency Response Bill 2007 and Related Bills, 10 August 2007, 1.
51. Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 6644-65 (H C Burmester QC).
52. Indigenous Affairs Legislation Amendment Act 2008 (Cth)
53. sch 2 item 10, amending NTNERA s 62.
54. Lands Acquisition Act 1989 (Cth) s 52.
55. NTNERA s 50(2).
56. NTNERA s 60(2).
57. Wurridjal (2009) 237 CLR 309, 371 (Gummow and Hayne JJ). The third plaintiff was the Bawinanga Aboriginal Corporation, an Aboriginal enterprise and outstation resource agency that does business on Maningrida land: at 397 (Kirby J).
58. Blue Mud Bay (2008) 236 CLR 24.
59. Wurridjal (2009) 237 CLR 309, 370 (Gummow and Hayne JJ).
60. (1969) 119 CLR 564.
61. (1997) 190 CLR 513.
62. Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2521-690 (French CJ, Kirby, Hayne, Crennan, Kiefel JJ and R Merkel QC).
63. See, eg, Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2769-76 (R Merkel QC), where counsel for the plaintiffs said it is not just the physical land and exclusive possession of it, but it is a physical possession that gives [the Commonwealth] the right to disregard the interests that exist under [the ALRA] in favour of the beneficial owners to have that land used, employed in their interest and in accordance with their wishes. We say that is something more than just the loss of the fee simple estate, but it is hard to precisely identify in terms of analysis of legal interests...
64. The plaintiffs in Blue Mud Bay (2008) 236 CLR 24 and associated litigation were the Land Trust, the Land Council and named individuals acting on behalf of traditional land-owning groups.
65. Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 4599-627 (Kirby J and B W Walker SC).
66. Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 4056-7 (B W Walker SC).
67. Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 4687-745 (Gummow, Hayne JJ and B W Walker SC).
68. Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 4090-3 (B W Walker SC); ibid 4856-61 (B W Walker SC).
69. Counsel for the Land Trust argued that the question of just terms was hypothetical (Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 4561-6 (B W Walker SC)), stating: 'You need facts, we do not have them' (at 4566). Several members of the Court also raised questions about the factual basis upon which the plaintiffs asserted that an unjust acquisition of their property had occurred. Gummow and Hayne JJ said that, although the question of the Commonwealth's obligations to pay rent was 'debated at some length during the oral hearing', '[n]o complaint is made of a wrongful refusal by the Commonwealth to do so, or of the inadequacy of any rent that has been fixed under s 62':
70. Wurridjal (2009) 237 CLR 309, 388-9. Kirby J (perhaps advocating from the bench a pleading based on native title rights) said repeatedly, in his dissent, that the plaintiffs' claims could be further refined or rendered legally arguable at trial and that this was a reason to dismiss the demurrer: at 391-5, 405. Crennan J observed that 'the plaintiffs' case was largely based on construing the challenged provisions' and the statement of claim did not plead material facts in relation to particular issues: at 454-5;
71. Counsel for the plaintiffs conceded that the rights of traditional owners had not been pleaded as the property of the two plaintiffs (as distinguished from the Land Trust): Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2586-9 (R Merkel QC).
72. See Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 6891-906 (H C Burmester QC), where the Commonwealth said that the legal creation of the five-year lease itself did not destroy s 71 rights. They were 'preserved' in that sense. But the s 71 rights could be overridden as soon as the Commonwealth chose to exercise any of its rights under the five-year lease. This was apart from the proposition that they were also terminable at the will of the Commonwealth Minister under s 37.
73. The Northern Territory government intervened in the case and argued that the High Court should overrule Teori Tau (1969) 119 CLR 564:
74. Wurridjal (2009) 237 CLR 309, 325-6 (M P Grant QC).
75. Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 5801-57 (French CJ, Gummow J and H C Burmester QC).
76. Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210.
77. See also A-G (NT) v Chaffey (2007) 231 CLR 651, where the appellant was the Northern Territory, not the Commonwealth.
78. See Wurridjal (2009) 237 CLR 309, 366-7 (French CJ), 379-80 (Gummow and Hayne JJ), 456-7 (Crennan J), 468 (Kiefel J).
79. Teori Tau (1969) 119 CLR 564, 569 (Barwick CJ for Barwick CJ, McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ).
80. This idea was expressed both prior to Teori Tau (see, eg, Spratt v Hermes (1965) 114 CLR 226, 246-7 (Barwick CJ), 270 (Menzies J)) as well as subsequently
81. (see, eg, Berwick Ltd v Gray (1976) 133 CLR 603, 608-9 (Mason J);
82. Newcrest (1997) 190 CLR 513.
83. Wurridjal v Commonwealth [2008] HCATrans 349 (3 October 2008) 5797-801 (French CJ and H C Burmester QC), 5984-6005 (H C Burmester QC).
84. (1994) 179 CLR 155, 169.
85. For example, powers over taxation and bankruptcy necessarily entail expropriations which will go uncompensated. Labels like 'tax' are not conclusive and there is room for reasonable judicial disagreement over the appropriate characterisation of an exaction at the margin - see Theophanous v Commonwealth (2006) 225 CLR 101, 126 (Gummow, Kirby, Hayne, Heydon and Crennan JJ) - but logically the legal category 'tax' has no content unless it can ultimately be divorced from the coverage of the just terms guarantee-
86. 'To preserve the authority of Teori Tau would be to maintain what was an error in basic constitutional principle and to preserve what subsequent events have rendered an anomaly. It should be overruled': Wurridjal (2009) 237 CLR 309, 388.
87. Ibid 348-50. This examination included those cases relied on by Brennan CJ, Dawson and McHugh JJ in Newcrest (1997) 190 CLR 513
88. namely, Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397
89. Clunies-Ross v Commonwealth (1984) 155 CLR 193
90. Northern Land Council v Commonwealth (1986) 161 CLR 1
91. Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248
92. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
93. and Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155.
94. Wurridjal (2009) 237 CLR 309, 359.
95. Minister of State for the Army v Dalziel (1944) 68 CLR 261. In another pertinent and muchquoted authority, Dixon J said that s 51 (xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but... extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property.
96. Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349.
97. NTNERA ss 35(1), (5).
98. The Commonwealth even pleaded the possibility that the fee simple held by the Land Trust was not 'property' for the purposes of s 51 (xxxi), despite the long, unbroken line of High Court authority giving the term a very wide interpretation: see Wurridjal (2009) 237 CLR 309, 362 (French CJ). For a recent discussion of the breadth of 'property' by a unanimous full bench
99. see Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210, 230-2 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).
100. Wurridjal (2009) 237 CLR 309, 364 (French CJ), 383 (Gummow and Hayne JJ), 467 (Kiefel J). Kirby J found that the s 31 lease effected an acquisition of the Land Trust's property (at 420) and said that the claim by the first and second plaintiffs that they too had suffered an acquisition of property was arguable (at 423);
101. citing A-G (NT) v Chaffey (2007) 231 CLR 651;
102. Commonwealth v WMC Resources Ltd (1998) 194 CLR 1.
103. Wurridjal (2009) 237 CLR 309, 382 (Gummow and Hayne JJ).
104. Wurridjal (2009) 237 CLR 309, 459.
105. see Sean Brennan, 'Native Title and the "Acquisition of Property" under the Australian Constitution' (2004) 28 Melbourne University Law Review 28, 53-9.
106. Wurridjal (2009) 237 CLR 309, 449.
107. For a discussion of incommensurability and inevitability in the judicial valuation of Indigenous property rights, see Paul Burke, 'How Can Judges Calculate Native Title Compensation?' (Discussion Paper, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002) .
108. Wurridjal v Commonwealth [2008] HCATrans 348 (2 October 2008) 2599-610 (R Merkel QC). The Commonwealth was not required to assume these obligations in gaining possession and discretionary control over the land subject to a five-year lease.
109. One suggestion made by counsel for the plaintiffs and noted in Heydon J's judgment is 'a provision guaranteeing a continuation of access by the traditional owners to the land for traditional purposes "side-by-side with the acquisition"': Wurridjal (2009) 237 CLR 309, 433-4.
110. The phrase 'historic shipwrecks formula' is commonly used to describe such 'insurance clauses' against s 51 (xxxi) invalidity as that contained in NTNERA ss 60(1) - (2).
111. The phrase harks back to the use of such a clause in Historic Shipwrecks Act 1976 (Cth) s 21.
112. For example, the phrase 'recovery from the Commonwealth of such reasonable amount of compensation as the court determines' (NTNERA ss 60(3), 134(3)) does not rule out a conclusion by that court that a non-monetary form of compensation is necessary in order to meet the underlying constitutional requirement of just terms.
113. See Leslie Zines, 'The Nature of the Commonwealth' (1998) 20 Adelaide Law Review 83, 83-8;
114. Leslie Zines, '"Laws for the Government of Any Territory": Section 122 of the Constitution' (1966) 2 Federal Law Review 72.
115. Cf Christopher Horan, 'Section 122 of the Constitution: A "Disparate and Non-Federal" Power?' (1997) 25 Federal Law Review 97.
116. Gummow J has described the just terms provision in s 51 (xxxi) as an individual right: Newcrest (1997) 190 CLR 513, 613.
117. Blue Mud Bay (2008) 236 CLR 24.
118. The decision is analysed in Sean Brennan, 'Wet or Dry, It's Aboriginal Land: The Blue Mud Bay Decision on the Intertidal Zone' (2008) 7(7) Indigenous Law Bulletin 6.
119. For example, four judges invoked the requirement for clear and plain language before a statute could be taken to diminish the property rights established under the ALRA, either generally or, at least, specifically in relation to s 71 rights: Wurridjal (2009) 237 CLR 309, 367 (French CJ), 379 (Gummow and Hayne JJ), 406-7 (Kirby J).
120. Gummow J's observation that s 51 (xxxi) contains an individual right (see above n 151) is surely significant for the question of how the elusive concept of just terms should be interpreted. The utilitarian interpretation of 'just terms' in cases decided around World War II, which is where much of the High Court's analysis of the term is to be found, would not survive the (appropriate) categorisation of s 51 (xxxi) as an 'individual right'. Compare, for example, the focus on the divestee in Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297, 310-11 (Brennan J)
121. with the preparedness to offset this against the 'interests of the community' in Grace Brothers Pty Ltd v Commonwealth (1946) 79 CLR 269, 280 (Latham CJ). The utilitarian considerations in favour of government power are already well catered for in the numerous doctrinal obstacles to establishing that an acquisition of property has occurred.
122. Wik Peoples v Queensland (1996) 187 CLR 1, 177 (Gummow J).
123. See also Yanner v Eaton (1999) 201 CLR 351, 383 (Gummow J).
124. See, eg, Western Australia v Ward (2002) 213 CLR 1, 64 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
125. 'There is little judicial elaboration of what the phrase means': Commonwealth v WMC Resources Ltd (1998) 194 CLR 1, 102-3 (Kirby J).