• Tessa Meyrick
• Gilbert + Tobin Centre of Public Law

12 August 2009The High Court passed up the opportunity to clarify important issues in its judgement on the NT Intervention, writes Tessa Meyrick  in High Court Watch, the second in a series of reports on significant policy-related cases

IN FEBRUARY of this year, the High Court dismissed a constitutional challenge to the federal intervention into Northern Territory Aboriginal communities. The Intervention was launched by the Howard government in 2007 in a bid to tackle child sexual abuse within certain remote indigenous communities, along with alcohol and drug abuse, pornography and gambling. Relying on section 122 of the Constitution, which empowers the federal parliament to make laws for the Territories, the government introduced a package of legislation aimed at, among other things, improving living conditions and reducing overcrowding by taking control of a number of Aboriginal townships.

Two key bills were passed allowing for these changes to be made in the shortest possible time frame: the Northern Territory National Emergency Response Bill 2007 (NER), which creates five-year leases in favour of the Commonwealth over specific areas of Aboriginal land; and, the Families, Community Services and Indigenous Affairs and Other Legislation Amendment Bill 2007 (FaCSIA), which removes the prohibition against entry (without prior permission) onto Aboriginal land insofar as the main townships and the road corridors between them are concerned (referred to as the “permit system”). Both pieces of legislation provide for compensation only if the Act results in something that can be categorised in constitutional terms as an “acquisition of property.” If, according to this criterion, compensation is required, it will be determined either by agreement between the parties or, failing that, by court order.

Reggie Wurridjal and Joy Garlbin, traditional owners of the Maningrida land in Arnhem Land, joined with the Bawinanga Aboriginal Corporation to claim that the five-year lease created over their land as part of the emergency intervention constituted an “acquisition” under section 51(xxxi) of the Constitution. Compulsory acquisitions of property made by the Commonwealth are constitutionally required to be on “just terms.” According to the plaintiffs, this requirement was not satisfied by the compensation schemes laid out in the challenged legislation and the five-year lease was therefore invalid.

In response to this claim, the Commonwealth lodged a demurrer – a special pleading asking the Court to pre-emptively dismiss the case on the grounds that the facts alleged by the plaintiffs do not show any legal cause of action. In a 6-1 majority, the High Court accepted the demurrer – denying the plaintiffs a right to present their challenge in a trial – and ordered the plaintiffs to pay the Commonwealth’s court costs.

The Court overrules Teori Tau

The Commonwealth’s first argument was that because the challenged legislation was enacted as a function of its power to make laws for the Territories, which is expressed broadly and separately from all other federal powers in the Constitution, it was therefore unconstrained by the “just terms” requirement in s51(xxxi). All members of the High Court who directly addressed the issue rejected this submission and, in doing so, overturned the case of Teori Tau v Commonwealth (1969) 119 CLR 564, decided forty years ago, but rarely relied upon since.

In Teori Tau, the Court held that the Territories power is general and unqualified and not concerned (as section 51 is) with defining federal legislative powers as part of the distribution of legislative power between the Commonwealth and the States. According to the Court, this distinction meant that s122 was not limited or qualified by s51(xxxi), or any other provision in that paragraph. Such a view is commonly referred to as the “disparate power” theory of s122, since in practice it treats parliament’s power over the Territories as being unconnected to its role as a national law-making body and denies to Territorians some constitutional protections available to other Australians.

The disparate power theory has steadily fallen out of judicial favour over the last 40 years and, in Wurridjal, was dealt another blow. Forming the most constitutionally significant aspect of the decision, the High Court preferred to see the Territories power as but one of a range of federal powers given to the national legislature. Interpreting the Constitution as a single, coherent document mandates the view that, situated in a Territory or not, no person “can be subjected to a law of the Commonwealth acquiring the property of that person other than on just terms.”

Are the five-year leases actually “acquisitions of property”?

Answering the plaintiffs’ claim head-on, the Commonwealth submitted that either no acquisition of property had taken place or that what had been acquired was not “property” or “property capable of being acquired” within the meaning in s51(xxxi). And, even if there had been a relevant acquisition of property, the compensation schemes in the Acts amount to “just terms” in any case.

The plaintiffs identified two sets of property interests as having been acquired by the Commonwealth as part of the intervention: the fee simple estate in the Maningrida land, originally granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth); and the right they held thanks to s71 of the same Act, which entitled them, as traditional Aboriginal owners, to enter upon and use or occupy the Maningrida land in accordance with Aboriginal tradition.

In dealing with these issues, there were several points that most, if not all, members of the Court agreed upon. With the exception of Justice Crennan (and perhaps Justice Heydon), each accepted, at the very least, that the creation of the five-year lease under the NER Act constituted an “acquisition” to which the “just terms” requirement applied. The case failed, however, because the majority of the Court (with Justice Kirby in dissent) held that the compensation schemes were enough to satisfy this requirement.

In separate judgments, Chief Justice French, Justices Gummow and Hayne, and Justice Kirby agreed that the fact that the plaintiffs’ freehold interest was granted by statute – and that this statute specifically allows for adjustments to be made in the balance of control over land between the Commonwealth and the Land Trust – does not, by itself, preclude such adjustments from constituting an “acquisition.” The same Justices also stressed that the fact that an acquisition was made for a regulatory or public purpose was irrelevant to whether it was an “acquisition” of the type contemplated by s51(xxxi).

On both these points, Justice Crennan disagreed. According to Her Honour, the Land Rights Act was always susceptible to “adjustments” of the kind effected by the challenged legislation. These adjustments are entirely acceptable if they are necessary and directed to achieve the purpose of the Land Rights Act in the first place: namely, “supporting the traditional Aboriginal owners.” Since the NER Act and the FaCSIA Act are aimed at “achieving conditions in which the current generation of traditional Aboriginal owners of the land can live and thrive,” and are not directed to “benefiting the Commonwealth” as such, in Justice Crennan’s view they fall outside the scope of s51(xxxi).

Justice Crennan’s argument that s52(xxxi) will not protect property rights if the legislative change effecting the acquisition is one contemplated by the original statute is not, in itself, legally untenable. There are several steps in Her Honour’s subsequent reasoning, however, that may be on less safe footing. For example, construing the purpose of the Land Rights Act in these somewhat rudimentary terms risks underplaying an important distinction between it and the NER Act.  While both Acts are ostensibly aimed at “benefitting” Aboriginal peoples, each takes a very different approach to achieving this end. The Second Reading Speech for the Land Rights Act makes clear that that legislation is aimed at benefiting traditional owners in a way that allows for (and is predicated upon the importance of) the idea of self-determination:

"The Australia we, as a Government, look to is one in which there is diversity and choice, because it is in diversity that people can pursue the lives they want in ways that they determine. Securing land rights to Aborigines in the Northern Territory is a significant expression of this objective…"

Such an approach is vastly and importantly different from the approach of the NER Act, under which “benefit” is conferred by suspending some of the very rights the Land Rights Act put in place so that the Commonwealth can move swiftly to implement its policies.

Further problems are encountered when we consider the difficulties laden in the concept of “benefit” itself. At points, Her Honour seems to uncritically accept the Howard Government’s rationale for launching the Intervention, without considering that the nature of the “benefit” conferred by each Act might be qualitatively different. For the other Justices in the majority, such a distinction is likely to be of no legal significance; but, if we are invited to contemplate the policy behind the challenged legislation as a factor in determining whether s51(xxxi) applies to it, it seems prudent to at least acknowledge that the concept of “benefit” will mean different things to different people.

The plaintiffs also argued that the partial abolition of the “permit system” under the FaCSIA Act deprived the Land Trust of its entitlement to exclusive possession and enjoyment of the common areas of Maningrida land, and in this sense similarly offended s51(xxxi). A majority of the court agreed that if (as some of them affirmed) narrowing the prohibition against entry onto Aboriginal land did amount to an acquisition of property, no additional acquisition had taken place, since the plaintiffs’ had already been deprived of their right to exclusive possession by the creation of the 5-year lease.

Getting to the real issue: access to spiritual sites

Freehold titles over land (the type of title held by the plaintiffs in this case) have always been treated as the strongest form of property right and the High Court has confirmed elsewhere that, whatever their special characteristics, Aboriginal freeholds are no exception. On this basis, the fact that the Court (apart from Justice Crennan) found the challenged legislation to have effected an acquisition of property is perhaps unremarkable. Ultimately, it adds very little to our understanding of the meaning of the term “property” or of the full scope of protection offered by s 51(xxxi). But, what of proprietary interests that are less conventional?

Separate from their freehold interest in the land, the plaintiffs are entitled (under s71 of the Land Rights Act) to enter upon, use or occupy the Maningrida land in accordance with Aboriginal tradition, which includes the use and occupation of four sacred sites.  Arguing that these rights were “property” within the meaning of s51(xxxi), the plaintiffs raised the concern that they too had been compulsorily acquired because the Commonwealth (as lease-holder) now had a right to possession and quiet enjoyment to the exclusion of the traditional owners. There is a provision in the NER Act that preserves a range of rights, entitlements and interests existing immediately before the creation of the lease, but the plaintiffs worried about another provision in the Act that empowered the Minister to terminate these rights at will.

This concern could have led to an inquiry that helped clarify the proper ambit of s51(xxxi), but it was somewhat disappointingly side-stepped by the Court. All members of the majority determined that the s71 entitlements, having existed before the lease was created, would be preserved by s34 of the NER Act. A majority also found that the Minister’s power to terminate pre-existing interests was not expressed plainly enough to include a power to extinguish the right to enter, use and occupy land in accordance with Aboriginal tradition.

The Court’s findings with respect the s71 rights are not, on the whole, bad for the plaintiffs. Indeed, the plaintiffs themselves evinced a preference for the same interpretation, since arguing the contrary would be asking the Court to declare with finality that their right to access the sacred sites was vulnerable to the will of the Minister. Still, it is hard to escape the feeling that the plaintiffs’ openness to a reading of the legislation more favourable to their traditional rights was something of a of a double-edged sword. By interpreting the NER Act in this way, the Court was able to avoid answering the inevitable constitutional question of whether access to sacred sites constituted “property” within the meaning of s51(xxxi) and whether it would therefore be protected by the “just terms” requirement. In so doing, the Court was also able to avoid the related question of whether Aboriginal rights and interests in land could ever be replaced or readily compensated for by the payment of money.

It is by no means uncommon for the Court to refrain from answering legal questions when it is not necessary for the resolution of the case to do so; usually, expediency demands it. But expediency in this case arguably required the Court to look beyond the formal pleadings made by the plaintiffs to where the real issues and legal controversies lay. Justice cannot be served if the plaintiffs must argue a point that is fundamentally detrimental to their interests in order to have a serious and novel point of law explored. This is especially so given the Commonwealth’s use of the demurrer process, which provides very little space to properly ventilate the underlying legal issues.

Ultimately, it may be that the set of facts behind this case were simply not well suited to the critical task of testing the scope of the “just terms” protection as it applies to the full spectrum of Aboriginal property rights.  It may also be that the plaintiffs did a poor job of framing their submissions in a way that made it easy for the High Court to deal with this question. But these are problems that may have been remedied or at least given closer scrutiny at the trial stage. As Justice Kirby, in dissent, points out:

“[T]his is not an occasion to provide peremptory legal relief to the Commonwealth, by way of demurrer. Certainly it is not so where the claimants might establish arguable legal entitlements by refining and repleading their cause; by presenting their evidence to make their claims clearer and more concrete by testing governmental objections at trial; and by elaborating the applicable law when addressing novel aspects of their claim.”

The troubling point with this case, then, is not that the points of law actually dealt with were decided erroneously, but that in leaving certain points of law undecided the High Court missed an opportunity to conduct a meaningful exploration of the Aboriginal rights affected by the five-year lease and the just terms appropriate to meet such loss.

All members of the Court were at pains to point out that their judgments were not made on the merits of the policy underpinning the Intervention, but on its legality only. It may be unfair to suggest, therefore, that the view taken by the majority was unfavourably influenced by the plaintiffs’ Aboriginality in this instance. It is legitimate, however, to observe that the strictly positivist approach the current High Court takes to the law has a tendency to miss the spirit of the enquiry put to it and that, in some cases and for some plaintiffs, this can have serious implications for its capacity to serve the interests of justice. The question of whether the right to access sacred sites might afford the protection of s51(xxxi) – and the attendant issue of the general compensability of Aboriginal land interests – was clearly raised in this case, and it is not unreasonable to be frustrated by the Court’s refusal to deal with it. •

Tessa Meyrick is researcher with the Gilbert + Tobin Centre of Public Law at the University of New South Wales

Other articles in High Court Watch >

Photo: Linda & Colin McKie/ iStockphoto.com