Constitutional Law (Cth)—Territories—Acquisition of property—Whether just terms required—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxxi.), 122.

Decision

The judgment of THE COURT was delivered by BARWICK C.J.:-
The plaintiff sues in this case both personally and in a representative capacity for declarations that three ordinances, one made under the New Guinea Act 1920 (Cth), another made under the New Guinea Act 1920-1926 (Cth), and the third made under the Papua and New Guinea Act 1949-1964 (Cth) are invalid on the ground that they are laws providing for the acquisition of property and do not secure just terms for such acquisition. (at p569)

2. These ordinances made some years ago provide generally for the vesting in the Crown or in the Administration of the Territory of Papua and New Guinea of minerals in that territory. (at p569)

3. In order to facilitate an early resolution of a fundamental question involved in the litigation, at the request of the parties a special case was stated for the opinion of a Full Court upon the question whether an ordinance made pursuant to the New Guinea Act 1920 or to the New Guinea Act 1920-1926 or to the Papua and New Guinea Act 1949-1964 which provides for compulsory acquisition of property is invalid if it fails to provide just terms for such acquisition. (at p569)

4. The whole Court has today heard the argument for the plaintiff presented by senior counsel who has recalled to our attention all the reported decisions which in his submission bear on the resolution of the question. Although this Court has not heretofore decided this question, the topic to which it relates is by no means unfamiliar to it. Accordingly, having the benefit of a full argument on behalf of the plaintiff and having heard again the passages from the decided cases which may be thought to bear upon the matter, we have been able to reach, without any doubt, a clear conclusion upon the question submitted without troubling the defendants for their assistance. (at p569)

5. The question we have to decide is whether the power to make laws for the government of a territory of the Commonwealth, whether it be the Australian Capital Territory, the Northern Territory or any other territory such as the territories beyond the mainland of Australia, as for example the Territory of Papua and New Guinea or Norfolk Island, includes a power akin to that possessed by the States of the Commonwealth to make laws for the compulsory acquisition of property without necessarily providing in those laws for terms of acquisition which can be seen in the circumstances to be just. This is a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more. We are not concerned, in dealing with this question, whether or not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Teori Tau v The Commonwealth

Details

AGLC: Teori Tau v The Commonwealth [1969] HCA 62
Case: [1969] HCA 62
Decision Date: 9 December 1969

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Teori Tau v The Commonwealth*. The appellant, Teori Tau, was a Torres Strait Islander who had been convicted of murder. The central dispute concerned the application of the *Criminal Code* (Cth) to the appellant, who argued that the Code did not apply to him due to his Torres Strait Islander status and the circumstances of his birth and upbringing.

The primary legal issue before the Court was whether the *Criminal Code* (Cth) applied to the appellant at the time of the alleged offence. This involved a determination of whether the appellant was a "native" within the meaning of the *Criminal Code* and, if so, whether the provisions of the Code were intended to apply to such persons in the circumstances of the case. The Court also considered the scope and effect of the *Criminal Code* in relation to Indigenous Australians.

The Court ultimately held that the *Criminal Code* (Cth) did apply to the appellant. The judges reasoned that the appellant, by virtue of his birth and upbringing, was a "native" within the meaning of the *Criminal Code*. Furthermore, the Court found that the *Criminal Code* was intended to apply to all persons within the territorial jurisdiction of the Commonwealth, including Torres Strait Islanders, unless specific exceptions were clearly established. The appeal was dismissed.

Orders