Durham Holdings Pty Ltd v State of New South Wales

Durham Holdings Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales. The dispute concerned the validity of certain provisions of the *Aboriginal Land Rights Act 1983* (NSW) (the Act) and their application to land owned by the appellant. The appellant contended that the Act, in its application to their land, was invalid due to inconsistencies with Commonwealth legislation and the common law.

The primary legal issues before the Court of Appeal were whether the *Interpretation Act 1987* (NSW) applied to the *Aboriginal Land Rights Act 1983* (NSW) so as to require compensation for the acquisition of land; whether the *Racial Discrimination Act 1975* (Cth) rendered the Act invalid by reason of inconsistency under section 109 of the Commonwealth Constitution; and whether the Act was invalid for imposing an unreasonable burden on the appellant's property rights. Specifically, the court considered whether section 30 of the *Interpretation Act 1987* (NSW) indicated a legislative intention that the Act should not apply to the *Aboriginal Land Rights Act 1983* (NSW), and whether the common law presumption against expropriation without compensation was displaced by the *Aboriginal Land Rights Act 1983* (NSW). The court also examined whether the *Racial Discrimination Act 1975* (Cth) applied to the appellant, a corporation, and whether the *Aboriginal Land Rights Act 1983* (NSW) constituted a "special measure" under section 8 of the Commonwealth Act.

The Court of Appeal held that section 30 of the *Interpretation Act 1987* (NSW) did not apply to the *Aboriginal Land Rights Act 1983* (NSW) because the latter Act was a later statute and its provisions clearly indicated an intention to acquire land without compensation. The court further found that the *Racial Discrimination Act 1975* (Cth) did not render the *Aboriginal Land Rights Act 1983* (NSW) invalid under section 109 of the Commonwealth Constitution. This was because a corporation is not a "person" of a particular race, colour, national or ethnic origin for the purposes of section 10 of the *Racial Discrimination Act 1975* (Cth), and the *Aboriginal Land Rights Act 1983* (NSW) was not discriminatory in a manner prohibited by the Commonwealth Act. The court also affirmed that there is no constitutional limit on the legislative power of the New South Wales Parliament to expropriate property without compensation.

Consequently, the appeal was dismissed.