In February this year, the High Court of Australia delivered judgment in Wurridjal v Commonwealth of Australia (2009) 252 ALR 232 and, by a majority of 6-1, allowed the Commonwealth’s demurrer on a constitutional challenge to the validity of the Commonwealth’s Northern Territory intervention laws.

The proceedings

In August 2007, the Minister of the former department of Families, Community Services and Indigenous Affairs introduced a package of legislation designed to support, as described in the Second Reading Speech, an emergency response by the Commonwealth Government (using the Territories’ power in section 127 the Constitution) 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 of reforms (which came into effect on 18 August 2007) comprised 5 Bills and included the Northern Territory National Emergency Response Act 2007 (Cth) (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) (FaCSIA Act). It was targeted at improving living conditions and reducing overcrowding by building houses and providing other infrastructure.

In order to effect this emergency response, the NER Act provided for the grant of 5 year leases over certain Aboriginal land and townships to the Commonwealth on certain terms and conditions (Lease Provisions). These leases were seen by the Commonwealth to be “crucial to removing barriers so that living conditions can be changed for the better in these communities in the shortest possible time frame” (House of Representatives, Parliamentary Debates (Hansard), 7 August 2007 at 13). These leases were to give the government unconditional access to land and assets required to facilitate the early repair of buildings and infrastructure.

Additionally, the FaCSIA Act provided that the permits that had previously been required for entry onto Aboriginal land would now no longer be required for the main townships and road corridors connecting them.

In a challenge to the constitutional validity of the package of reforms, proceedings were commenced in the original jurisdiction of the High Court in October 2007.

The plaintiffs asserted that, by reason of the challenged provisions, two kinds of property had been acquired (or would be acquired) otherwise than on just terms and contrary to section 51(xxxi) of the Constitution:

  1. an estate in fee simple in the Maningrida land held by the Arnhem Land Aboriginal Land Trust (Land Trust) (by reason of the granting of leases and by the abolition of the permit system which allegedly deprived the plaintiffs of their right to exclusive possession and enjoyment of the land), and
  2. the rights of the first and second plaintiffs (being senior members of the Dhukurrdji clan and traditional Aboriginal owners of the land) under section 71 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) to use and occupy that land in accordance with Aboriginal tradition.

Section 71 of the Land Rights Act 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 group with respect to the land. Section 71 does not authorise entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land. In March 2008, the Commonwealth demurred to the plaintiff’s claim on the basis that it did not show any cause of action to which the Court could give effect. The Commonwealth relied on the Court’s decision in Teori Tau v The Commonwealth (1969) 119 CLR 564 and submitted that as the challenged legislation was supported by section 122 of the Constitution (the provision which grants the Federal Parliament the power to make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth), it was therefore not subject to the just terms requirement in section 51(xxxi).

Three questions arose on the demurrer, namely:

  1. whether section 51(xxxi) of the Constitution constrains the Parliament when making laws for the government of the Northern Territory in reliance on section 122 of the Constitution
  2. whether the challenged provisions effect an acquisition of an interest in the Maningrida land which can be characterised as an acquisition of property within section 51(xxxi) of the Constitution, and
  3. whether the challenged provisions provide just terms for any acquisition effected.

Judgment

The majority of the High Court overruled the decision in Teori Tau v The Commonwealth and found that the Lease Provisions did constitute an acquisition of the land held by the Land Trust and that the Commonwealth was constrained by section 51(xxxi). However, just terms were provided by the compensation and rent provisions of the NER Act and FaCSIA Act. The first and second plaintiffs argued, unsuccessfully, that these rights were affected by the granting of statutory leases over the land.

There was found to be no acquisition of those rights conferred by section 71 of the Land Rights Act. The High Court ultimately found that these rights were preserved under the intervention laws and could not be extinguished by the Commonwealth. The interests of the first and second plaintiff in their sacred sites also remained protected under section 69 of the Land Rights Act, which makes it a criminal offence to intrude on a sacred site.