Do Territorians have rights?
Ken Parish has written in with some comments on whether the requirement to acquire land on just terms applies in the Territories (short answer: probably not). It’s crossposted at Club Troppo.
In Teori Tau v The Commonwealth (1969) 119 CLR 564 the High Court held that Constitution s51(xxxi) (the acqusition of property on just terms guarantee) did not operate to restrict s122 (the territories power). The latter was a “full and plenary” power allowing the Commonwealth to legislate for a territory on any subject matter, unconstrained by any constitutional restriction* (including especially just terms on acquisition of property by the Commonwealth) applicable to the federation (from which the territories were seen to be excluded or “disjoined”).
In Newcrest Mining (WA) Ltd v The Commonwealth 190 CLR 513, Gaudron, Gummow and Kirby JJ disapproved Teori Tau and expressed the view that s51(xxxi) did burden s122. However, Brennan CJ, Dawson and McHugh JJ regarded Teori Tau as still binding and did not think that Newcrest was entitled to compensation. Â Toohey J, by a slightly different reasoning process,Â agreed with Gaudron, Gummow and Kirby JJÂ Â that s51(xxxi) fettered the legislative power of the Parliament where property was sought to be acquired “for any purpose in respect of which the Parliament has power to make laws”. As the legislation in question in Newcrest (effecting an acquisition of Newcrest’s mining tenements in Kakadu Stage 3) was expressed to be partly supported by the treaties aspect of the external affairs power (s51(xxix)) as well as by the territories power, that was sufficient to attract the just terms obligation in any event. However, although Toohey J accepted the general reasoning of Brennan CJ, Dawson and McHugh JJ just outlined, he also expressly declined to overrule Teori Tau. Hence it remains the applicable authority where a Commonwealth law is supported solely by the territories power s122 (as is the case with the new intervention legislation – the Commonwealth could have but elected not to rely on the race power s51(xxvi), because that would have opened up the distinct possibility of a decision like Newcrest, where the company was held by majority to be entitled to compensation). My own assessment is that Teori Tau is unlikely to be overruled by a majority of the current conservative High Court. Thus the Commonwealth is probably not under any constitutionalÂ obligation to pay just terms when it acquires property in a Commonwealth territory.
As forÂ ordinary legalÂ requirements otherwise imposed by Commonwealth lands acquisition legislation, the current Brough/Howard intervention was effected by fresh legislation. As such, it would almost certainly be held to impliedly repeal the Lands Acquisition Act 1989 (Cth) to the extent of any inconsistency (where it didn’t expressly do so). In fact the new legislation does expressly provide for assessment and payment of compensation for the compulsory 5 year leases, although the provisions certainly don’t coincide with the Lands Acquisition Act 1989 (Cth), and thus would be held to repeal it to that extent. There are no compensation provisions for cancellation of the permit system. On one view, this might represent an acquisition of property, because the right to exclusive posssession of land (i.e. to exclude others) is a central attribute of freehold tenure. On the other hand, it would only be an “acquisition” (as opposed to a bareÂ extinguishment of property rights) if someone (not necessarily the Commonwealth) acquired tangible benefits flowing directly from the cancellation of the permit system. It isn’t immediately obvious that anyone does, so it may not be an “acquisition”. Moreover, there are many cases which hold that it is possible for governments to alter some rights attaching to property without constituting an acquisition which attracts an obligation to pay compensation. Rezoning and heritage listing are examples.
The bottom line is that my best guess is that the Commonwealth is not constitutionally or legally obliged to pay compensation to traditional owners, but that question might well be tested in court by the land councils.Â Â
* A majority also suggested (albeit in obiter) in Kruger v Commonwealth (the first stolen generations case) that s116 freedom of religion applied to the territories power, and numerous cases have indicated that the implied constitutionalÂ freedom of political communication also applies to the territories power. Thus s122 is no longer regarded by High Court jurisprudence as completely “disjoined” from the rest of the Constitution. Nevertheless, it remains highly doubtful that the current bench would overrule Teori Tau.