Waters v The Commonwealth

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.