Tau v Commonwealth

The plaintiff sues in this case both personally and in a representative capacity for declarations that three ordinances, one made under the New Guinea Act 1920 Cth, another made under the New Guinea Act 1920-1926 Cth, and the third made under the Papua and New Guinea Act 1949-1964 Cth are invalid on the ground that they are laws providing for the acquisition of property and do not secure just terms for such acquisition.

These ordinances made some years ago provide generally for the vesting in the Crown or in the Administration of the Territory of Papua and New Guinea of minerals in that territory.

In order to facilitate an early resolution of a fundamental question involved in the litigation, at the request of the parties a special case was stated for the opinion of a Full Court upon the question whether an ordinance made pursuant to the New Guinea Act 1920 or to the New Guinea Act 1920-1926 or to the Papua and New Guinea Act 1949-1964 which provides for compulsory acquisition of property is invalid if it fails to provide just terms for such acquisition.

The whole Court has today heard the argument for the plaintiff presented by senior counsel who has recalled to our attention all the reported decisions which in his submission bear on the resolution of the question. Although this Court has not heretofore decided this question, the topic to which it relates is by no means unfamiliar to it. Accordingly, having the benefit of a full argument on behalf of the plaintiff and having heard again the passages from the decided cases which may be thought to bear upon the matter, we have been able to reach, without any doubt, a clear conclusion upon the question submitted without troubling the defendants for their assistance.

The question we have to decide is whether the power to make laws for the government of a territory of the Commonwealth, whether it be the Australian Capital Territory, the Northern Territory or any other territory such as the territories beyond the mainland of Australia, as for example the Territory of Papua and New Guinea or Norfolk Island, includes a power akin to that possessed by the States of the Commonwealth to make laws for the compulsory acquisition of property without necessarily providing in those laws for terms of acquisition which can be seen in the circumstances to be just. This is a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more. We are not concerned, in dealing with this question, whether or not any particular terms ought to have been provided for the acquisition of the property the subject of the ordinances. We are concerned only with the constitutional question, whether any ordinance which acquires or provides for the acquisition of property can be constitutionally valid if it does not provide just terms of acquisition.

Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified. It is apt to confer, amongst other things, a power to make laws for the compulsory acquisition of property.

It has been held with respect to the heads of legislative power granted by s. 51 of the Constitution that by reason of the presence in that section of par. (xxxi.) none of the other heads of power, either of itself or aided by the incidental power, embraces a power to make laws for the acquisition of property. It is submitted by counsel that because it has been so held and because the power given by s. 51 (xxxi.) is so ample as the decisions of this Court show, s. 122 should not be construed as conferring a power to make laws for the acquisition of property. That is to say, it is said, in substance, that s. 122 is subject to s. 51 (xxxi.) and that s. 51 (xxxi.) is the only source of power to make laws for the acquisition of property to operate in or in connexion with the government of any territory of the Commonwealth.

In our opinion, this submission is clearly insupportable. Section 51 is concerned with what may be called federal legislative powers as part of the distribution of legislative power between the Commonwealth and the constituent States. Section 122 is concerned with the legislative power for the government of Commonwealth territories in respect of which there is no such division of legislative power. The grant of legislative power by s. 122 is plenary in quality and unlimited and unqualified in point of subject matter. In particular, it is not limited or qualified by s. 51 (xxxi.) or, for that matter, by any other paragraph of that section.

While the Constitution must be read as a whole and as a consequence, s. 122 be subject to other appropriate provisions of it as, for example, s. 116, we have no doubt whatever that the power to make laws providing for the acquisition of property in the territory of the Commonwealth is not limited to the making of laws which provide just terms of acquisition.

What we decide in this respect is not, of course, limited to the Territory of Papua and New Guinea, although it happens that the question has first arisen expressly for decision in connexion with that territory. Our decision applies to all the territories, those on the mainland of Australia as well as those external to the continent of Australia.

We therefore answer the question asked of us in the special case, No. The costs of the case will be costs in the cause.