Wurridjal v The Commonwealth of Australia [2009] HCA 2

HIGH COURT OF AUSTRALIA

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 Act 2007 (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) Act 1976 (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.