Waters v The Commonwealth - [1951] HCA 9

THE COMMONWEALTH AND OTHERS

RESPONDENTS. DEFENDANTS, Territories of the Commonwealth-Judiciary-High Court-Jurisdiction-The 1951.

Constitution (63 &64 Vict. c. 12), Chap. III., S. 122.

Chapter III. of the Constitution does not extend to the Territories which MELBOURNE,

are governed under the power conferred on the Commonwealth Parliament March 5, 13-

by S. 122 of the Constitution. Accordingly, S. 75 of the Constitution does 15, 19.

not confer on the High Court original jurisdiction in or in respect of those Territories.

R. v. Bernasconi, (1915) 19 C.L.R. 629, discussed and applied. Mainka v. Custodian of Expropriated Property, (1924) 34 C.L.R. 297; Porter v. The King Ex parte Chin Man Yee, (1926) 37 C.L.R. 432; Federal Capital Commission v. Laristan Building &Investment Co. Pty. Ltd., (1929) 42 C.L.R. 582, at p. 585; and Australian National Airways Ltd. v. The Commonwealth, (1945) 71 C.L.R. 1, at p. 84, referred to. MOTIONS.

The writ in an action in the High Court by Fred Waters against the Commonwealth, the Director of Native Affairs for the Northern Territory and other officers of the Commonwealth claimed (a) A declaration that the plaintiff was on 12th February 1951 wrongfully and illegally taken into custody by the Commonwealth of Australia and its officers servants and agents and by the other defendants and then and thereafter wrongfully and illegally detained, imprisoned and transported to Haast Bluff Settlement by the defendants; (b) Habeas corpus; (c) An injunction restraining the defendants from continuing to detain and imprison the plaintiff; and other relief.

82 CLR 189

Pursuant to leave granted by Fullagar J., the plaintiff served on the defendant Director of Native Affairs notice of motion for an interlocutory injunction restraining that defendant his servants officers and agents from detaining or further detaining the plaintiff or from further authorizing directing or procuring the detention of the plaintiff at Haast Bluff Settlement or elsewhere, and for other relief. A similar notice was served on other defendants.

The defendants gave notice of motion for an order that the action be struck out on the ground that the High Court had no jurisdiction to hear the action.

The motions were heard together before Fullagar J. Other material matters appear in the judgment hereunder.

T. G. Rapke, for the plaintiff. J. G. Norris K.C. and D. P. Derham, for the defendants.

Cur. adv. vult.

FULLAGAR J. delivered the following judgment

I have to deal with (1) a motion by the plaintiff for an interlocu- tory injunction, and (2) a motion by the defendant to strike out for want of jurisdiction, in an action in which the plaintiff, Fred Waters, otherwise known as Fred Nadpur, purports to sue the Common- wealth and the Director of Native Affairs. The latter defendant is appointed and holds office under Ordinances made by the Governor-General under the Northern Territory (Administration) Act 1910-1949. The plaintiff is an aboriginal within the meaning of Ordinances relating to aboriginal natives, and the cause of action is the alleged detention of the plaintiff against his will…

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 Waters v The Commonwealth

Details

AGLC: Waters v The Commonwealth [1951] HCA 9
Case: [1951] HCA 9
Decision Date: 19 March 1951

CaseChat Overview and Summary

The case of *Waters v The Commonwealth* involved an action commenced in the High Court of Australia by Fred Waters, an Aboriginal man, against the Commonwealth and officers of the Northern Territory Administration. Waters sought a declaration that his detention and transportation to Haast Bluff Settlement were unlawful, along with orders for habeas corpus and an injunction to restrain his continued detention. The defendants moved to strike out the action, arguing the High Court lacked jurisdiction.

The primary legal issue before the Court was whether the High Court possessed original jurisdiction in or in respect of the Territories of the Commonwealth. This question arose in the context of an action concerning the alleged unlawful detention of an Aboriginal person within the Northern Territory, governed by legislation enacted under section 122 of the Constitution. The Court was required to determine the scope of Chapter III of the Constitution, particularly its application to territories governed by the Commonwealth Parliament's power under section 122.

The Court, applying the principles established in *R. v. Bernasconi*, held that Chapter III of the Constitution, which outlines the judicial power of the Commonwealth, does not extend to the Territories. Consequently, section 75 of the Constitution, which confers original jurisdiction on the High Court, does not grant jurisdiction in matters concerning or arising within those Territories. The Court reasoned that laws made under section 122 for the government of territories are distinct from laws of the Commonwealth for the purposes of Chapter III. Therefore, the High Court lacked the jurisdiction to hear the action.

As a result of the determination that the Court lacked jurisdiction, the defendant's motion to strike out the action was granted. This also disposed of the plaintiff's motion for an interlocutory injunction. No order was made as to costs, given the exceptional circumstances, including the possibility that the action was commenced without the plaintiff's authority.

Orders