FRENCH CJ, GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
REGGIE WURRIDJAL & ORS PLAINTIFFS
AND
THE COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Wurridjal v The Commonwealth of Australia [2009] HCA 2 2 February 2009 M122/2007
ORDER
1. Demurrer allowed.
2.Plaintiffs to pay the costs of the first defendant.
3.Further conduct of the action to be a matter for direction by a Justice.
Representation
R Merkel QC with R M Niall, K L Walker and A M Dinelli for the plaintiffs (instructed by Holding Redlich)
H C Burmester QC and S B Lloyd SC with A M Mitchelmore for the first defendant (instructed by Australian Government Solicitor)
B W Walker SC with S A Glacken for the second defendant (instructed by Northern Land Council)
Intervener
M P Grant QC, Solicitor-General for the Northern Territory with S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wurridjal v The Commonwealth of Australia
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Whether power to make laws for government of Territory under s 122 of Constitution limited by s 51(xxxi) – Scope of application of s 51(xxxi) where law of dual character – Relevance of notion of "abstraction" of power of acquisition of property from other powers – Whether Teori Tau v The Commonwealth (1969) 119 CLR 564 should be overruled or departed from – Circumstances in which previous constitutional decision should be overruled.
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Northern Territory National Emergency Response Act2007 (Cth) ("Emergency Response Act"), Pt 4 provided for grant of leases of land in Northern Territory to Commonwealth, including land at Maningrida ("Land") – Second defendant ("Land Trust") held estate in fee simple in Land for benefit of Aboriginals pursuant to Aboriginal Land Rights (Northern Territory) Act1976 (Cth) ("Land Rights Act") – Whether grant of Commonwealth lease an acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution – Nature of estate in fee simple under Land Rights Act – Circumstances where acquisition of property rights of statutory origin – Whether no acquisition of property because rights of Land Trust inherently susceptible to statutory modification.
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Land Rights Act, s 71 conferred entitlement on first and second plaintiffs to enter upon, use or occupy Land in accordance with Aboriginal tradition – Whether s 71 entitlements diminished by grant of Commonwealth lease or preserved by s 34 of Emergency Response Act so that no acquisition of any property constituted by those entitlements – Whether Commonwealth empowered by s 37 of Emergency Response Act to terminate s 71 entitlements – Relationship between Pt 4 of Emergency…
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.
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AGLC
Wurridjal v The Commonwealth [2009] HCA 2
Case
[2009] HCA 2
Decision Date
CaseChat Overview and Summary
The case of *Wurridjal v The Commonwealth* concerned a constitutional challenge brought by plaintiffs against the Commonwealth. The dispute centred on the validity of provisions within the *Northern Territory National Emergency Response Act 2007* (Cth) and related amending legislation, which provided for the grant of leases of land in the Northern Territory to the Commonwealth, including land held by a Land Trust for the benefit of Aboriginal people. The plaintiffs argued that these provisions constituted an acquisition of property on unjust terms, contrary to section 51(xxxi) of the Constitution. The matter came before the High Court of Australia.
The High Court was required to determine several key legal issues. These included whether the grant of a Commonwealth lease over land held by a Land Trust constituted an acquisition of property for the purposes of section 51(xxxi) of the Constitution, particularly given the statutory origin of the Land Trust's rights. The Court also had to consider whether traditional rights of occupation and use held by the plaintiffs under the *Aboriginal Land Rights (Northern Territory) Act 1976* (Cth) were diminished or preserved by the impugned legislation, and whether these traditional rights constituted "property" for the purposes of section 51(xxxi). Furthermore, the Court was asked to assess whether the compensation provisions within the legislation afforded "just terms" as required by the Constitution, and whether the decision in *Teori Tau v The Commonwealth* [1969] HCA 62; (1969) 119 CLR 564, which addressed the relationship between section 122 and section 51(xxxi) of the Constitution, should be overruled.
The Court's reasoning focused on the nature of the property rights in question and the application of section 51(xxxi). It was held that the demurrer raised by the Commonwealth should be allowed. The Court considered the principles for overruling previous constitutional decisions, noting that a decision would generally only be overruled if it was manifestly wrong and its maintenance was injurious to the public interest, or if it had not become part of a stream of jurisprudence. In this instance, the Court found that the proposition from *Teori Tau* had not been consistently applied or accepted in subsequent decisions. The Court's analysis of the legislation indicated that the grant of a lease did not amount to an acquisition of property in the constitutional sense, and that the statutory rights of the Land Trust were inherently susceptible to modification by Parliament.
The High Court ordered that the demurrer be allowed, that the plaintiffs pay the costs of the first defendant, and that the further conduct of the action be a matter for direction by a Justice.
Orders
Orders of the court
1. Demurrer allowed.
2. Plaintiffs to pay the costs of the first defendant.
3. Further conduct of the action to be a matter for direction by a Justice.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
KIEFEL J
The treatment of Teori Tau in these cases does not indicate that the proposition, about the relationship between s 122 and s 51(xxxi), for which it is authority has become part of a stream of jurisprudence and accepted in subsequent decisions.Overruling a previous decision of the Court The Court accepted not long after its establishment that it could overrule its own decisions[146]. Isaacs J put it thus[147]:"The oath of a Justice of this Court is 'to do right to all manner of people according to law'. Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right."[146]Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261 at 278-279 per Isaacs J, 288 per Higgins J; [1913] HCA 41. [147](1913) 17 CLR 261 at 278. In The Tramways Case [No 1][148] the Court said it would generally only review a previous decision where it was manifestly wrong[149]. Barton J observed that the question was not whether the Court could review its previous decisions but whether it would, having due regard to the need for continuity and consistency. He said[150]: "[T]he strongest reason for an overruling is that a decision is manifestly wrong, and its maintenance is injurious to the public interest."Isaacs J spoke positively of "the duty of [the] Court to correct an erroneous interpretation of the fundamental law". The opposite view would make the Court "guardians, not of the Constitution, but of existing decisions"[151].[148](1914) 18 CLR 54; [1914] HCA 15.[149](1914) 18 CLR 54 at 58 per Griffith CJ, 69 per Barton J, 70 per Isaacs J, 83 per Gavan Duffy and Rich JJ, 86 per Powers J.[150](1914) 18 CLR 54 at 69.[151](1914) 18 CLR 54 at 70. Barton J, in The Tramways Case [No 1], was quoted, with evident approval, by a unanimous Court in 1949 in Thomas' Case[152]. However in Attorney-General (NSW) v Perpetual Trustee Co Ltd[153] Dixon J observed that the Court had adopted "no very definite rule as to the circumstances in which it will reconsider an earlier decision"[154]. In The State of Victoria v The Commonwealth[155] he declined to follow the earlier decision of the Court in South Australia v The Commonwealth[156] having regard to the isolation of the decision and the fact that it formed no part of a stream of authority[157]. Kitto J agreed with the judgment of Dixon CJ. McTiernan J in that case thought the earlier decision "manifestly wrong"[158].[152]Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1949) 77 CLR 493 at 496; [1949] HCA 4. [153](1952) 85 CLR 237; [1952] HCA 2.[154](1952) 85 CLR 237 at 243-244.[155](1957) 99 CLR 575; [1957] HCA 54.[156](1942) 65 CLR 373; [1942] HCA 14.[157](1957) 99 CLR 575 at 615-616.[158](1957) 99 CLR 575 at 626.