Wurridjal v The Commonwealth of Australia

Wurridjal v The Commonwealth of Australia - [2009] HCA 2 - HCA 2009 case summary — Zoe

[6]

Teori Tau has been referred to in a number of subsequent decisions of the Court. It has not been relied upon by any member of a majority of the Court for the proposition that s 51(xxxi) does not constrain the power under s 122 to make laws for the acquisition of property. The decision was relied upon in the Court of Appeal of New South Wales in Durham Holdings Pty Ltd v New South Wales[187] as support for the proposition that the legislative power of the State was not restrained by any deeply rooted common law principle against compulsory acquisition of property without compensation. But that case was not about the relationship between s 51(xxxi) and s 122 of the Constitution, as Spigelman CJ noted in distinguishing the views expressed by Gaudron, Gummow and Kirby JJ in Newcrest[188].
Teori Tau has been applied directly in cases concerning the cooperative corporations scheme established after the decision of this Court in The Incorporation Case[189]. The Commonwealth enacted the Corporations Act 1989 as a law for the government of the Australian Capital Territory and enacted as part of it a Corporations Law which was adopted by each of the States. The takeover provisions of the Law made provision for compulsory acquisition of minority shares in publicly listed companies by bidders who had obtained the requisite majority of acceptances. Challenges to the validity of this provision as a law of the Australian Capital Territory on the basis that it did not meet the just terms requirement of s 51(xxxi) were rejected by Gummow J, sitting as a single Justice of this Court, and by the Queensland Court of Appeal[190]. In each case Teori Tau was applied. However, corporations regulation is now effected nationally under laws of the Commonwealth made pursuant to referrals of power from the various States.
In the 40 years that have passed since it was decided, the particular proposition for which Teori Tau is authority, namely that s 122 confers power to acquire property which is unconstrained by the just terms requirement of s 51(xxxi), has not entered the mainstream of constitutional jurisprudence nor formed the basis for subsequent decisions of this or any other court save for decisions relating to the former cooperative corporations scheme which has, in any event, long been overtaken by successive arrangements for corporate regulation not dependent upon the Territories power.
The decision in Teori Tau did not accord with a pre-existing "stream of authority". Its reasoning has been described as "totally at odds with that of Dixon CJ and Kitto J in Lamshed v Lake"[191]. It was a unanimous decision of this Court but the circumstances in which it was made, which are discussed in the joint judgment of Gummow and Hayne JJ, indicate that it was not informed by extended reflection upon the constructional issues thrown up by s 51(xxxi) and s 122. It concerned a question of considerable constitutional importance. It cannot be said that it has achieved a useful result. Indeed it has been little relied upon for the precise question which it decided. There are potential absurdities and inconveniences resulting from it. There is no evidence that it has been independently acted upon in a way which militates against reconsideration in this case. So far as acquisitions within the Northern Territory by the Northern Territory Government are concerned, the Northern Territory (Self-Government) Act 1978 (Cth) has made provision, from the time of its enactment, for acquisitions of property to be on just terms[192].
The constructional considerations referred to earlier militate powerfully against the interpretation adopted in Teori Tau. The contrary interpretation is, in my respectful opinion, to be preferred. Given the isolation of the decision from the stream of prior and subsequent jurisprudence, its overruling would not effect any significant disruption to the law as it stands. The cautionary principle in this case does not stand against overruling. For these reasons I consider that Teori Tau should be overruled and that the acquisition of property from any person, pursuant to laws made under s 122, must be on just terms as required by s 51(xxxi).

[36]

The fee simple estate in the Maningrida land granted to the Land Trust lay well within the class of "property" to which s 51(xxxi) applies.
It may be accepted, as the provisions of the Land Rights Act referred to earlier amply demonstrate, that the administration of the fee simple estate is subject to close regulation. The Land Trust can only grant estates or interests in the land with the written consent of the Minister and the direction of the relevant Land Council. These and associated provisions relating to Aboriginal land under the Act are directed to the protection of the interests of the traditional Aboriginal owners. Legislative amendments to the provisions of the Act affecting the powers of Land Trusts and Land Councils in dealing with the fee simple estates granted under the Act, are unlikely to constitute acquisitions of property within the meaning of s 51(xxxi).
It may be accepted that the creation of the s 31 leases was intended to facilitate Commonwealth control of townships so that additional accommodation and other services could be provided to the relevant Aboriginal communities. In a broad sense the s 31 lease granted over the Maningrida land might be described as a legal device adopted for regulatory purposes. However, its legal effect was to diminish the ownership rights conferred by the grant of the fee simple estate so far as they related to the Maningrida township. By operation of s 35 of the NER Act the statutory lease conferred upon the Commonwealth the essential rights of a lessee abstracted from the fee simple estate. It also conferred the right to vary the area covered by the lease and to terminate the lease early. An acquisition of property is no less an acquisition of property because it also has a regulatory or other public purpose. The grant of the lease was an acquisition of property from the Land Trust. Assuming the correctness of the facts pleaded in the statement of claim it indirectly affected the rights of the first and second plaintiffs.
In my opinion, however, the compensation provisions of the NER Act, to which reference was made earlier, afforded just terms for the acquisition of the Land Trust property. Heydon J has provided detailed reasons in support of that conclusion and I agree with them.

[38]

The plaintiffs alleged that the abolition of the permit system by the FaCSIA Act caused the Land Trust to lose its entitlement to exclusive possession and enjoyment of common areas within the Maningrida land. Consequently its rights as owner of an estate in fee simple in that land would no longer include an entitlement to limit entry upon the common areas subject to the permits under the Aboriginal Land Act or other rights of entry under s 70 of the Land Rights Act. The written submissions in support of this point were brief, stating simply that the loss of the permit system resulted in a significant loss of control over the Maningrida land. The permit system was said to have formed the basis upon which traditional owners could enjoy exclusive possession.
The Commonwealth accepted that the conferral of rights to enter upon portions of the Maningrida land created by the new ss 70A-70G of the Land Rights Act had the effect of removing the possibility of an action for ejectment in relation to persons lawfully exercising such new rights of entry and that this thereby diminished the rights previously contained in the fee simple grants, albeit to a relatively minor degree. Nevertheless, it was said, the conferral of such rights of entry was an amendment of a kind expressly envisaged under ss 70(1) and 73(1) at the time of commencement of the Land Rights Act and prior to the fee simple grants. Grants having been made under a scheme that foreshadowed the possibility of variations of rights of entry, laws modifying those rights did not constitute an acquisition of property.
The Land Trust pointed out that s 70H provides that nothing in ss 70B-70G limits the application of s 71. Moreover, those provisions engage the proviso that in proceedings against a person for an offence against s 70(1) it is a defence if the person enters or remains on Aboriginal land in accordance with the Act (s 70(2A)(h)). The defence covers the entry onto roads and common areas within community land which is subject to the s 31 lease. The Commonwealth submitted that the right of the Land Trust to exclude others from the land having been ousted on the grant of the lease, the provisions imported by the FaCSIA Act have no further or additional effect on that right while the lease remains in force. That submission should be accepted. It does not mean that there is not an acquisition of property from the Land Trust within the meaning of s 51(xxxi). I hold, on the basis of the Commonwealth concession, which was correctly made, about the effect of the conferral of rights of entry, that there was such an acquisition.
Importantly however, as is pointed out in the judgment of Gummow and Hayne JJ, the FaCSIA Act contains provision for compensation for acquisition in terms following those of s 60 of the NER Act. At best there was no additional effect on the Land Trust property by reason of the abolition of the permit system. Whether or not there was any additional effect the compensation provisions of the FaCSIA Act meet the requirement of just terms imposed by s 51(xxxi) of the Constitution.

[42]

It may be accepted that each of the first and second plaintiffs has a statutory entitlement under s 71 to enter upon and use or occupy the Maningrida land in accordance with Aboriginal tradition. It may be accepted also that the statutory entitlement constitutes property for the purposes of s 51(xxxi). In my opinion, that right is preserved by s 34(3) of the NER Act. The question of suspension of the right does not arise.
The entitlement created by s 71(1) is qualified by s 71(2) so that it does not authorise entry, use or occupation that would interfere with the use or enjoyment of an estate or interest held by someone other than a Land Trust or an incorporated association of Aboriginals. The Commonwealth submitted that the estates or interests protected under s 71(2) would extend to that created by its s 31 lease. But as Gummow and Hayne JJ point out in their reasons, this does not give effect to the preservation by s 34, to which s 35(1) is subject, of any right, title or interest in the land that existed immediately before the coming into effect of the s 31 lease.
The question that next arises is whether s 37 of the NER Act effects an acquisition of the first and second plaintiffs' s 71 rights. Section 37 authorises the Commonwealth to "at any time … terminate … a right, title or interest that is preserved under section 34". The first and second plaintiffs submitted that by virtue of s 37 their s 71 rights were "now terminable at will and without notice". They no longer enjoy, it was submitted, the permanence and stability necessary to constitute an interest in land[219].
The Commonwealth terminates a right, title or interest preserved under s 34 "by the Minister giving notice in writing to the person who holds the right, title, interest or lease"[220]. This is the only way in which such a termination can be effected. The procedure and the language in which it is formulated are quite inapposite to terminate the rights of each of a group of traditional Aboriginal owners created by s 71(1) of the Land Rights Act and preserved by s 34(3) of the NER Act. Absent a mechanism adapted to the termination of that class of rights, the power to terminate does not extend to them. It may be that there is a certain incoherence in the statutory scheme relating to preserved rights as a result. But as Gummow and Hayne JJ point out, clear words would be expected if Parliament had intended to authorise the effective repeal or suspension of the operation of s 71 of the Land Rights Act.
There is, in my opinion, no acquisition by the Commonwealth of the rights of the first and second plaintiffs under s 71 of the Land Rights Act.

[47]

However, counsel for the plaintiffs may have sought to qualify the force of what had been said by Dixon CJ respecting the importance of attention to the material facts pleaded. Counsel referred to observations later made by Gibbs J in Kathleen Investments (Aust) Ltd v Australian Atomic Energy Commission[225]. His Honour spoke of facts which are "expressly or impliedly" averred in the statement of claim which is challenged on the demurrer. But in making that statement Gibbs J relied upon remarks of Isaacs J in an appeal from the Supreme Court of New South Wales, Lubrano v Gollin & Co Pty Ltd[226]. Isaacs J had drawn a critical distinction; the term "implication" is used to identify that which is "included in and part of that which is expressed", and is distinguished from "an inference [which is] additional to what is stated"[227]. The former, but not the latter, might be taken as admitted for the purposes of the demurrer.
The procedure by way of demurrer proceeds from the premise that a party whose pleading is challenged will have set out, in that pleading, the case which the party seeks to make. Thus the premise for the present hearing was that the plaintiffs advanced the case which they sought to make in this Court in the best way that they could. The parties had held extensive consultations[228], over many months, about whether the statement of claim was in a form to which the Commonwealth could demur. In the course of that process, the plaintiffs put forward several different versions of their statement of claim before seeking and obtaining leave to file their amended pleading in the form now under consideration. There is then no basis for doubting that the plaintiffs have put their case in the way in which they have been advised is to their best advantage.
No different or special principle is to be applied to the determination of the demurrer to the plaintiffs' pleading of invalidity of provisions of the Emergency Response Act and the FCSIA Act because the plaintiffs are Aboriginals. No party to this litigation sought to rely upon any such principle, whether the suggested principle be described as a rule of "heightened" or "strict" scrutiny or in some other way. There was therefore no examination of the content of any such principle. But we would agree that such a principle "seems artificial when describing a common interpretative function"[229]. In any event, to adopt such a principle would have departed from the fundamental principle of "the equality of all Australian citizens before the law", as Brennan J put it in Mabo v Queensland [No 2][230].
The demurrer is presented by the Commonwealth against the background provided by two decisions of this Court respecting the relationship between the legislative powers conferred by s 51(xxxi) and s 122 of the Constitution. In Teori Tau v The Commonwealth[231] the Court answered "no" to the question in a special case, namely whether certain ordinances of the Territory of New Guinea, made pursuant to the New Guinea Act 1920 (Cth) and the Papua and New Guinea Act 1949 (Cth) and providing for the acquisition of property, were invalid as failing to provide just terms. The Court said in reasons delivered by Barwick CJ[232]:

[57]

The Maningrida land is "Aboriginal land" for the purposes of the Land Rights Act because it is held by the Land Trust for an estate in fee simple (s 3(1)). Section 19 of the Land Rights Act permits the Land Trust, upon certain conditions, to grant a range of estates or interests in land such as the Maningrida land, including (s 19(2)) for use in the conduct of a business by, among other bodies, an Aboriginal and Torres Strait Islander corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ("the Aboriginal Corporations Act").
The first plaintiff and the second plaintiff are Aboriginal persons and senior members of the Dhukurrdji clan with common spiritual affiliations to what are identified in the Statement of Claim with some specificity as four sacred sites located on the Maningrida land[242]. Each of these plaintiffs is stated in the Statement of Claim to be entitled by the body of traditions, observances, customs and beliefs of the traditional Aboriginal owners to enter, use and occupy the Maningrida land to live there, and to pursue purposes including participation in ceremonies in relation to these sacred sites, foraging as of right, hunting, fishing and gathering. Section 71 of the Land Rights Act then is said to confer entitlement upon the first and second plaintiffs to enter upon the Maningrida land and use or occupy it to the extent that that activity is in accordance with Aboriginal tradition governing their rights with respect to that land. The text of s 71 is set out later in these reasons.
Further, the plaintiffs contend that this entitlement of the first and second plaintiffs under s 71 constitutes "property" of those plaintiffs within the meaning of s 51(xxxi) of the Constitution. They also contend that the estate in fee simple in the Maningrida land held by the Land Trust pursuant to the Land Rights Act is "property" of the Land Trust within the same provision of the Constitution. It is in their application to these two items of property that the plaintiffs plead that the contested laws are invalid. The issues of law presented on the hearing of the demurrer must be considered on that footing and not as part of some more fluid and hypothetical controversy.
The third plaintiff is an Aboriginal and Torres Strait Islander corporation within the meaning of the Aboriginal Corporations Act. It does not assert that its property has been acquired pursuant to the Emergency Response Act or the FCSIA Act, but it conducts business activities on the Maningrida land under agreements between it and the Land Trust. This may be accepted as affording standing along with that of the other plaintiffs to seek the relief sought in the action. The defendants did not dispute that standing at the hearing of the demurrer.

[74]

Among other allegations in the Statement of Claim, the plaintiffs contend that there is no automatic obligation imposed upon the Commonwealth to pay rent to the Land Trust in respect of the Maningrida Five Year Lease and that the Commonwealth is given, by force of the Emergency Response Act, exclusive possession of the Maningrida land, including sacred sites thereon.
Division 3 of Pt 4 (ss 50‑59) of the Emergency Response Act is headed "Effect of other laws in relation to land covered by this Part etc". Section 50 relevantly provides that Div 1 of Pt 4 (the five year lease provisions) and also s 52 have effect "despite any other law", written or unwritten, of the Commonwealth or the Territory. Section 52 makes special and further provision with respect to the exercise by the Land Trust of its powers under s 19 of the Land Rights Act with respect to land such as the Maningrida land. In particular, s 52(2) requires the written consent of the Minister administering the Emergency Response Act to any exercise by the Land Trust of its power under s 19 to grant or vary a lease while a five year lease under s 31 is in force.
Division 4 of Pt 4 (ss 60‑64) is headed "Miscellaneous". Sections 60 and 61 make particular provision with respect to compensation where the operation of Pt 4 would result in an acquisition from a person of property, to which s 51(xxxi) of the Constitution applies, otherwise than on just terms. Provision also is made by s 62 for payment of rent by the Commonwealth to the Land Trust.
Schedule 4 to the FCSIA Act makes various changes and additions to the Land Rights Act. Item 12 adds ss 70A‑70H to the Land Rights Act. These amendments commenced on 17 February 2008 and include elaborate provisions changing what the plaintiffs call "the permit system" and allowing certain persons to have access to, and to enter and remain on, what is Aboriginal land within the meaning of the Land Rights Act. However, s 70H provides that nothing in ss 70B‑70G limits the application of s 71 of the Land Rights Act. Section 71 is not amended by the express terms of any provision now under challenge.
Section 70(1) of the Land Rights Act makes it an offence for a person to "enter or remain on Aboriginal land". The importance of s 70(1) to the scheme of the Land Rights Act was considered in the Blue Mud Bay Case[246]. Item 4 in Sched 5 to the FCSIA Act should be noted. Its effect is to amend s 70 of the Land Rights Act so as to provide a defence to a charge of entering or remaining on Aboriginal land contrary to s 70(1). The new defence may be engaged where the defendant has entered or remained on Aboriginal land that is leased to the Commonwealth under s 31 of the Emergency Response Act. No challenge is made to the validity of Item 4 in Sched 5, but if s 31 be invalid as the plaintiffs contend then Item 4 is bereft of subject matter and in that sense inoperative.
Item 15 in Sched 4 to the FCSIA Act is challenged and adds a new Sched 7 to the Land Rights Act; this is headed "Community land" and identifies those 52 areas of land (including the Maningrida land)[247] which are "Aboriginal land" within the meaning of the Land Rights Act and which constitute "community land"[248] for the purposes of the new access provisions in ss 70B‑70F of the Land Rights Act.
Item 18 in Sched 4 is a free‑standing provision. It provides that s 50(2) of the Northern Territory (Self‑Government) Act 1978 (Cth)[249] does not apply to any acquisition of property that occurs as a result of the operation of Sched 4 or any action taken under, or in accordance with, the added provisions of ss 70B‑70G of the Land Rights Act. However, Item 18 goes on to provide its own system of compensation for such acquisition of property.
The plaintiffs claim a declaration that ss 31, 32, 34‑37, 50, 52 and 60‑62 of the Emergency Response Act and Items 12, 15 and 18 in Sched 4 to the FCSIA Act, result in an acquisition of the property of the Land Trust in the fee simple of the Maningrida land and property of the first and second plaintiffs constituted by their s 71 entitlements, to which s 51(xxxi) of the Constitution applies. They also seek a declaration that those provisions are invalid in their application to that Land Trust property and to the property of the first and second plaintiffs.

[75]

It became clear in the course of argument on the demurrer that the submissions respecting validity turn to a significant degree upon the resolution of contested questions of statutory construction. Accordingly, in these reasons it will be necessary in the first instance to attend to various issues of that character.
One submission by the Land Trust should be noted and accepted immediately. This is that the rights of the first and second plaintiffs which are in issue have their source in s 71 of the Land Rights Act, and that no issue arises respecting the compulsory acquisition of native title which is recognised by the Native Title Act 1993 (Cth) ("the Native Title Act"), and may be acquired under provisions thereof, such as those considered in Griffiths v Minister for Lands, Planning and Environment[250]. Section 210 of the Native Title Act provides that nothing in that statute affects the rights or interests of any person under the Land Rights Act. The passage of the Land Rights Act preceded that of the Native Title Act, but the latter does not attempt to displace the former, as s 210 emphasises. It may also be noted that the provisions of the Native Title Act with respect to the validity of "future acts" in Div 3 of Pt 2 of that statute do not apply to the grant of a lease under s 31 of the Emergency Response Act or to any other act done by, under or in accordance with Pt 4 of the Emergency Response Act. This is provided by s 51(1) of the Emergency Response Act. Section 51(2) provides for the non‑extinguishment principle, as understood in the Native Title Act[251], to apply to these acts. The validity of s 51 is not challenged by the plaintiffs.
The Attorney‑General for the Territory intervened in support of the plaintiffs' submission that the requirements of s 51(xxxi) of the Constitution apply to a law supported by s 122 of the Constitution, whether or not, as was the situation in Newcrest[252], that law be also supported by another head of federal legislative power. To the extent that, to make good this submission, leave is required to challenge the decision in Teori Tau[253], the Territory joins the plaintiffs and the Land Trust in seeking that leave.
The Commonwealth meets the plaintiffs' case on several fronts, raising grounds not all of which need be decided for its demurrer to be allowed. First, it is said that s 51(xxxi) of the Constitution does not constrain the power of the Parliament to enact the challenged provisions of the Emergency Response Act and the FCSIA Act; this is said to be so even if those provisions be supported not solely by s 122 of the Constitution, but also as "special laws" within the meaning of s 51(xxvi)[254].
At the threshold of that latter submission, the Commonwealth not only relies upon Teori Tau but also, as a counter‑attack, seeks leave to re‑open and dispute the correctness of the decision in Newcrest. In this regard, the Commonwealth disputed the submission by the plaintiffs that the challenged legislation is supported by one or more heads of power conferred by s 51 of the Constitution, as well as by s 122.
Secondly, the Commonwealth contends that, in any event, the challenged legislation does not effect an acquisition of property within the meaning of the terms used in s 51(xxxi) of the Constitution. The final submission by the Commonwealth is that, even if the challenged legislation does effect an acquisition of property to which s 51(xxxi) applies, then the challenged legislation does provide just terms.
The Land Trust submits, with the plaintiffs, that there has been an acquisition of the property of the Land Trust to which s 51(xxxi) applies, but makes no submission as to the absence of just terms. The Land Trust parts company with the plaintiffs with respect to the rights of the first and second plaintiffs to enter and use, or occupy, the Maningrida land in accordance with Aboriginal tradition. The Land Trust submits that upon the proper construction of s 71 of the Land Rights Act and the five year lease provision in the Emergency Response Act, there is no question of any acquisition of s 71 rights of the first and second plaintiffs. In their oral submissions in reply, the plaintiffs indicated that if these issues of statutory construction concerning the sacred sites on the Maningrida land were to produce that outcome then they would welcome that result.

[79]

The reference in s 71(2) to an estate or interest in Aboriginal land held by third parties includes a reference to interests of the kind described by s 66, including mining interests (s 66(a)). The reference also includes, by amendments to the Land Rights Act made by the FCSIA Act[255], various licences and rights conferred by or under other provisions of the Land Rights Act, including a licence granted under s 19 (s 71(3)(a)). However, these amendments are not challenged in the litigation.
Section 71(1) is expressed in terms of entitlement of Aboriginal persons to enter upon and use or occupy certain land to the extent that that entry, use or occupation meets a particular description; namely, entry, use or occupation in accordance with Aboriginal tradition. That entitlement is expressly subjected to s 71(2). The question then arises whether, as a matter of construction, the exercise of the entitlement of the first and second plaintiffs under s 71(1) could, within the operation of s 71(2), interfere with the use or enjoyment of the estate or interest in the Maningrida land held by the Commonwealth under the Maningrida Five Year Lease. If so, then the entitlement of the first and second plaintiffs under s 71(1) has been diminished and the constitutional questions would arise for decision. But, as explained below, that hypothesis respecting the operation of s 71(2) is not made good.
The provisions of the Emergency Response Act pertaining to the Maningrida Five Year Lease are declared by s 50(1) of that statute to "have effect despite any other law of the Commonwealth or the [Territory]". Section 35(1) states that a lease of land granted to the Commonwealth under s 31 "gives the Commonwealth exclusive possession and quiet enjoyment of the land while the lease is in force". But that provision in s 35(1) is then expressly stated to be subject to s 34. The chapeau to s 34 reads "Preserving any existing right, title or other interest". The section applies[256] "to any right, title or other interest in land if ... the land is covered by a lease granted under section 31" and this existed "immediately before the time that lease takes effect" (s 34(1)). The reference to "a right, title or interest" includes a reference to a licence (s 34(10)). This is an indication that the phrase in s 34(1) "interest in land" has a meaning wide enough to include interests pertaining to land, including statutory entitlements such as those conferred by s 71 of the Land Rights Act upon the first and second plaintiffs.
The critical sub‑section in s 34 is s 34(3). This states:

[87]

The entitlement conferred by s 71(1) is expressed as being in favour of "an Aboriginal or a group of Aboriginals" who have the traditional rights to enter, occupy or use the land in question. Section 37 is not drawn in terms apt to terminate that entitlement because it stipulates the giving of written notice to "the person who holds the right, title, interest or lease". Further, clearer words would be expected of the Parliament were it to authorise the Executive Branch to repeal, pro tanto, the operation of s 71 of the Land Rights Act.
Before parting with this aspect of the case, it is necessary further to consider the interaction between the s 31 lease provisions of the Emergency Response Act and s 71(2) of the Land Rights Act and the submissions made by the Commonwealth on that subject. The Commonwealth accepts the general proposition that s 34 of the Emergency Response Act permits the continued exercise of s 71 entitlements so that, for example, those of the first and second plaintiffs were not destroyed upon commencement of the Maningrida Five Year Lease. But the Commonwealth argues for a qualification to that general proposition. The Commonwealth (a) fixes upon the phrase in s 71(2) "would interfere with the use or enjoyment of an estate or interest in the land" (emphasis added) as applicable, for example, to the position of the Commonwealth under a s 31 five year lease, (b) distinguishes this from interference with an estate or interest per se, and (c) submits that there is an interference within the meaning of (a) when the Commonwealth takes some step to use or enjoy the estate or interest, such as putting a fence around a building site. The Commonwealth then contends that, while this interference would be a diminution in a relevant s 71 entitlement, that would be nothing more than what s 71(2) had always accepted as a possibility.
These submissions by the Commonwealth concerning the nature and extent of the continued operation of s 71(2) of the Land Rights Act should not be accepted. They fail to give to the exclusive possession and quiet enjoyment conferred by s 35(1) of the Emergency Response Act in respect of a s 31 lease, the force of the subjection of s 35(1) to s 34 and the preservation thereby of existing rights, titles and interests. The Commonwealth submissions deny full effect to that preservation by seeking to condition it upon physical use of the land by the Commonwealth in exercise of the s 35 rights of exclusive possession. But this would be to give to the s 35 rights a paramountcy which s 35 itself denies by the subjection of that provision to s 34.
If the provisions of the Emergency Response Act be read in this way and then be read with s 71(2) of the Land Rights Act, the composite legal meaning produced by this conflation[257] is that the exclusive possession and quiet enjoyment conferred upon the Commonwealth by the Maningrida Five Year Lease is no fetter upon the continued exercise of the entitlements of the first and second plaintiffs conferred by s 71 of the Land Rights Act.
It should be added that the interests of the first and second plaintiffs respecting the four sacred sites located on the Maningrida land remain further protected by s 69 of the Land Rights Act. Whilst s 71 confers entitlements, s 69 imposes responsibility in the criminal law by creating an offence. Section 69 states:

[99]

The Land Trust was established on 19 July 1978 to hold title to land including the Land Grant Area, which was later the subject of the deed of grant of an estate in fee simple dated 30 May 1980. The registered title shows the Land Trust as owner and there are a number of registered dealings by the Land Trust, including leases to Telstra Corporation Limited and Airservices Australia.
The deed of grant bears a date two days after the commencement on 28 May 1980 of many of the provisions in the Aboriginal Land Rights (Northern Territory) Amendment Act 1980 (Cth). As the Land Rights Act stood on 30 May 1980, s 67 forbad resumption, compulsory acquisition or forfeiture under a law of the Territory, and s 68 required the consent of the local Land Council to any road construction.
Part III (ss 21‑39) of the Land Rights Act as then in force provided for the establishment of Land Councils as bodies corporate, to ascertain, express and protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, the area of each Land Council (s 23(1)). The members of each Land Council were to be Aboriginals living in the area or registered as traditional Aboriginal owners of Aboriginal land in the area, chosen as provided in s 29. A Land Trust was not to exercise its functions in relation to land held by it save in accordance with the direction given by the relevant Land Council (s 5(2)). The members of each Land Trust were appointed by the Minister from among Aboriginals living in the area and registered traditional owners in accordance with the procedures laid down in s 7; appointments might be terminated by the Minister as provided in s 8.
With the consent in writing of the Minister, and at the written direction of the relevant Land Council, a Land Trust was empowered by s 19(4) to grant leases or licences in respect of land vested in it and to transfer land to another Land Trust. The giving of a written direction by the Land Council was subject to its satisfaction as to the matters set out in s 19(5).
With respect to the Maningrida land located in the Land Grant Area, these and other provisions of the Land Rights Act as it stood at the time of the grant in 1980 show that the uses to which the Maningrida land might be put by the Land Trust were circumscribed by the involvement of the Minister and the relevant Land Council. To that extent it is fair to say, as the Commonwealth put it, that what was granted to the Land Trust was not "a fee simple in its purest form". However, as emphasised in the submissions by the Land Trust, the same might be said throughout Australia where the exercise of the incidents of freehold titles is subjected to a range of statutory controls and, in addition, many registered proprietors hold the title as trustees. The Land Trust submits that the involvement by statutory provision of the Minister and the local Land Council, and the force to be given to the phrase "for the benefit of" in s 4 of the Land Rights Act, did not render the fee simple grant to the Land Trust so unstable or defeasible by the prospect of subsequent legislation, such as the impugned provisions of the Emergency Response Act, as to deny any operation of s 51(xxxi) of the Constitution. That submission should be accepted.
In Attorney‑General (NT) v Chaffey[262] Gleeson CJ, Gummow, Hayne and Crennan JJ referred to what was decided in Newcrest[263] as an authority rendering too broad any proposition that the contingency of subsequent legislative modification removes all statutory rights and interests from the scope of s 51(xxxi). Their Honours contrasted the statutory licensing scheme for off‑shore petroleum exploration, the validity of which was upheld in The Commonwealth v WMC Resources Ltd[264], and the workers' compensation scheme established by the Territory legislation considered in Chaffey itself. Those cases concerned express legislative stipulations in existence at the time of the creation of the relevant statutory "right", whereby its continued and fixed content depended upon the will from time to time of the legislature. The registered fee simple owned by the Land Trust is not of that character.
The result is that the submissions by which the Commonwealth sought to deflect the conclusion that there had been an acquisition of the fee simple of the Land Trust in the Maningrida land should be rejected.
There then arise for resolution the issues outlined earlier in these reasons respecting the operation of s 51(xxxi) of the Constitution with respect to that acquisition effected by the Emergency Response Act of the fee simple. For the reasons earlier given, there has been no acquisition of s 71 entitlements of the first and second plaintiffs and no issue of invalidity is presented on that branch of the demurrer.

[115]

Thus, whatever differences may be observed between the legislative power conferred on the Parliament by s 122 and other heads of legislative power, it is necessary to bear steadily in mind that s 122 is but one of several heads of legislative power given to the national legislature of Australia, and that a law which is made under s 122 is made in exercise of the legislative power of the Parliament and operates according to its tenor throughout the area of the Parliament's authority.
Next, for present purposes, the critical point to be derived from Schmidt is that the application of the principle of interpretation described there[286] - that conferral of an express legislative power subject to a limitation is inconsistent with construction of other legislative powers in a way that would authorise the same kind of legislation but without the safeguard or restriction - cannot be confined to construction of the heads of power enumerated in s 51. The principle, the soundness of which is not disputed, must be applied to all heads of the power of the Parliament.
The application of this principle of construction has been described as "abstracting"[287] the power of acquisition from other heads of power[288]. That description may readily be accepted if it is intended as no more than a shorthand description of the effect of applying the principle of construction identified by Dixon CJ in Schmidt. In the present case, however, the notion of "abstraction" was, at times during the argument for the Commonwealth, treated as leading to "incongruous" results in the construction of s 122. But when it is recognised that the task to be undertaken is the construction, as a whole, of the legislative powers of the Parliament, any supposed incongruity said to follow from reading s 122 as limited in relevant respects by s 51(xxxi) disappears.
It disappears essentially for two reasons. In considering the validity of a law passed by the Parliament, it is neither necessary nor appropriate to seek to characterise that law as a law with respect to a single head of legislative power. The law may, and commonly will, find support in several heads of power. The present case, and the situation considered in Newcrest, are examples where s 122 is one of several heads. So also is Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[289]. Secondly, if, in addition to whatever other characters it may have, the law has the character of a law with respect to the acquisition of property, the law in that aspect must satisfy the safeguard, restriction or qualification provided by s 51(xxxi), namely, the provision of just terms.
It has been well said of the reasoning in Teori Tau that it is "totally at odds" with that in Lamshed v Lake[290]. Further, as the Territory, in particular, illustrated by the many instances given in its written submissions, the tenor of decisions since Teori Tau indicates a retreat from the "disjunction" seen in that case between s 122 and the remainder of the structure of government established and maintained by the Constitution[291]. Further, s 128 of the Constitution since 1977[292] has engaged electors in the territories, and valid provision has been made by the Parliament for representation in both chambers of the Parliament of electors in the two populous territories[293].
To preserve the authority of Teori Tau would be to maintain what was an error in basic constitutional principle and to preserve what subsequent events have rendered an anomaly. It should be overruled.

[118]

A curiosity of the litigation is that the party immediately concerned to complain of any absence of "just terms", the Land Trust, does not do so. It is the plaintiffs alone who agitate the issue. Their interests in ensuring the observance by the Land Trust of its statutory obligations under the Land Rights Act in respect of the Maningrida land may give them sufficient standing to agitate the issue, and, as noted above[295], there is no challenge to that standing. But in the absence of a controversy between the Land Trust and the Commonwealth and the pleading by the Land Trust of material facts, the issue of alleged invalidity was presented in somewhat general and unspecific terms.
A striking instance is the reliance the plaintiffs sought to place upon s 34(4) of the Emergency Response Act. That sub‑section speaks to the situation presented by the grant of the Maningrida Five Year Lease to the Commonwealth for rights, titles and interests previously granted by the Land Trust as the relevant owner. While the lease to the Commonwealth is in force, these interests of third parties have effect "as if ... granted by the Commonwealth on the same terms and conditions as existed immediately before that time" (s 34(4)); the Minister may determine that s 34(4) does not apply in particular cases (s 34(5)). However, there is an absence of pleaded facts raising any controversy as to any actual operation of these provisions upon the land the subject of the Maningrida Five Year Lease.
The Emergency Response Act makes provision in s 62 for the determination of "a reasonable amount of rent" to be paid by the Commonwealth to a party such as the Land Trust[296]. No complaint is made of a wrongful refusal by the Commonwealth to do so, or of the inadequacy of any rent that has been fixed under s 62. What is immediately important, however, is that the amounts of rent paid or payable under s 62 must, by force of s 61(a), be taken into account in determining "a reasonable amount of compensation" for the purposes of s 60.
It is therefore not necessary to embark upon the question debated at some length during the oral hearing about the proper construction of s 62 or about the significance to be attached to the requirement in s 62(4) to not take account of the value of improvements on the land.
The operation of Pt 4 of the Emergency Response Act has resulted in an acquisition of the property of the Land Trust to which s 51(xxxi) of the Constitution applies. Section 60(2) thus renders the Commonwealth "liable to pay a reasonable amount of compensation" to the Land Trust. If the parties do not agree on the amount of compensation - and the pleaded facts are silent as to any such agreement or disagreement between the Land Trust and the Commonwealth - the Land Trust is empowered by s 60(3) to "institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines". An amount payable by the Commonwealth under s 60 is payable out of the Consolidated Revenue Fund, which is appropriated by s 63(2).
The plaintiffs stigmatise s 60 as creating what are but "contingent" rights. That is not so. The section is in the well‑recognised and preferable form[297] whereby if the necessary constitutional fact exists (the operation of s 51(xxxi)) a liability is imposed by s 60(2) and jurisdiction is conferred by s 60(3)[298]. Section 60 is an example of prudent anticipation by the Parliament that its law may be held to attract the operation of s 51(xxxi) and of the inclusion of provision for compensation in that event, thereby avoiding the pitfall of invalidity. Moreover, the right to compensation is absolute if it transpires that s 51(xxxi) is engaged[299].
The provision for payment of "reasonable compensation" determined, in the absence of agreement, by exercise of the judicial power of the Commonwealth, satisfies the requirement of "just terms" with respect to the Maningrida Five Year Lease. The phrase "reasonable compensation" is apt to include provision for interest to reflect delay occasioned by recourse to adjudication in the absence of agreement. The submissions to the contrary by the plaintiffs raise a false alarm. Another false alarm is the contention that, when s 61 requires in that adjudication the taking into account of amounts of rent and other matters specified in that section, no other matters may be taken into account even where failure to do so would deny "just terms".
The plaintiffs in their written submissions, and somewhat differently in the course of oral submissions, postulated cases where something less than a complete acquisition might be mandated by the Constitution so as to minimise the prejudice suffered by the holders of rights not readily compensable in money terms. If there be such instances the "acquisition" of the fee simple of the Land Trust is not one of them. Whether such cases may be found[300] and, if so, whether they occasion any special qualification to ordinary principle, are matters which do not arise here and may be left for another day. It is sufficient to add here that, contrary to the plaintiffs' submission, the passage to which they refer in Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v The Commonwealth[301] does not support the existence of a category of incompensable interests. The concern there was rather with the nature of the process by which the Minister determined the price which became the compensation. In particular, as Starke J emphasised[302], the regulations under successful challenge in that case required that the price paid by the Commonwealth not exceed the maximum price (if any) fixed for the goods by the Commonwealth Prices Commissioner, under the National Security (Prices) Regulations.
Something should be added concerning the FCSIA Act. The changes effected to the "permit system" by the addition to the Land Rights Act of ss 70B‑70G by provision made by the FCSIA Act are pleaded as effecting an acquisition of the fee simple in the Maningrida land owned by the Land Trust. Item 18 in Sched 4 to the FCSIA Act makes its own arrangements respecting compensation for acquisition of property as a result of action taken under, or in accordance with, ss 70B‑70G. Sub-items (2) and (3) of Item 18 are in terms which follow those of sub‑ss (2) and (3) of s 60 of the Emergency Response Act and the attack upon their validity also fails.
Both sets of provisions state that they use the expressions "acquisition of property" and "just terms" with "the same meaning" as in s 51(xxxi) of the Constitution (s 60(4) of the Emergency Response Act; sub‑item (4) of Item 18 in Sched 4 to the FCSIA Act). In R v Federal Court of Australia; Ex parte WA National Football League[303], Barwick CJ gave the constitutional expression "trading ... corporations"[304] as an example where rather than repeat the terms of the Constitution as the criterion of operation of a statute, it would be better to assay a definition of the content of the constitutional expression, so that the Parliament made a judgment of its ambit. The advantage Barwick CJ saw in such a course lay in avoiding the need to litigate what in each instance might be a constitutional question of some dimension. But his Honour was not suggesting that adoption by the Parliament of this practice produced invalidity for lack of sufficient specificity or clarity. Submissions by the plaintiffs which appeared to be relying for invalidity upon such a proposition should be rejected.
Nor is there substance in the plaintiffs' complaint that curial proceedings will be necessary in the absence of agreement with the Commonwealth to gain access to the appropriation from the Consolidated Revenue Fund to pay reasonable compensation. Even if payment were dependent purely upon determination not by exercise of judicial power but by an officer of the Commonwealth, the presence of s 75(v) of the Constitution provides the assurance that it will be for the judicial power of the Commonwealth to enforce the requirement of s 83 of the Constitution that no money be drawn from the Treasury of the Commonwealth "except under appropriation made by law". To complain, as going to invalidity of the relevant provisions of the challenged laws, that they engage the exercise of the judicial power, is to misunderstand the scheme of the Constitution.
The plaintiffs' submissions as to the absence of "just terms" with respect to the acquisition of property from the Land Trust fail.

[119]

The demurrer should be allowed. The plaintiffs should pay the costs of the Commonwealth. The Land Trust should bear its costs. The further conduct of the action itself will be a matter for further direction by a Justice.
KIRBY J. The claimants in these proceedings are, and represent, Aboriginal Australians. They live substantially according to their ancient traditions. This is not now a reason to diminish their legal rights. Given the history of the deprivation of such rights in Australia[305], their identity is now recognised as a ground for heightened vigilance and strict scrutiny of any alleged diminution. This 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 the governmental objections at trial; and by elaborating the applicable law when addressing novel aspects of their claim.
It is not contested that the claimants have the necessary interest and legal standing to represent themselves and other Aboriginal people from their community[306]. Before this Court they are represented by experienced counsel. They are in the position to advance their claim that recent federal legislation, the Northern Territory National Emergency Response Act 2007 (Cth) ("the Emergency Response Act") and the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("the FCSIA Act"), fails to accord "just terms" for the disturbance of their legal interests.
Apart from the property interests personal to the claimants, the second defendant, the Arnhem Land Aboriginal Land Trust ("the Land Trust"), has a fee simple interest in Aboriginal land in the Northern Territory. The claimants have the requisite interest and standing to argue that the Land Trust has suffered a diminution of its interests that constitutes an "acquisition of property" without "just terms", given the meaning of those expressions established by earlier decisions of this Court. At the very least, the claimants can therefore establish that the impugned legislation results in "acquisition" of "property" that they can challenge.
This Court has long taken an expansive view of each of the critical expressions in s 51(xxxi) of the Constitution, in issue in these proceedings: "acquisition", "property" and the requirement of "just terms". The promise of "just terms" arguably imports a notion wider than the provision of monetary compensation, which is the most that the challenged laws offer for the disturbance of the Aboriginal property, of the Land Trust and of the claimants. The notion that the National Emergency Response legislation does not warrant scrutiny by a court at trial is counter-intuitive. This is particularly so given the timing and conceivable purpose of its enactment; its deliberately intrusive character; its unique and controversial features; its imposition upon property owners of unconsensual five-year leases that are intended to (and will) significantly affect the enjoyment of their legal rights; and the coincidental authorisation of other federal intrusions into the lives and activities of the Aboriginal peoples concerned.
In its approach to the legal entitlements of the claimants in these proceedings, this Court must examine what has been done by the laws that they challenge. It must do so against the standards that it has previously applied, both in peace and in war[307], to non-Aboriginal Australians. Those standards appear to attract strong protections for property interests.
Further, the primary ground of objection in the Commonwealth's demurrer is based on a suggested meaning of s 51(xxxi)[308] which this Court now expressly rejects[309]. That ground was a legal submission which, if it had been upheld, would certainly have warranted the peremptory dismissal of the entire proceedings. With the rejection of that contention, only the minutiae of claim and counter claim, based on the analysis of common law and statutory entitlements, remain. Such arguments should proceed to trial if for no other reason than that the current pleadings (or as they might be amended) propound arguable propositions, serious issues arising under the Constitution, and a case that should be decided after a full and public hearing.
History, and not only ancient history, teaches that there are many dangers in enacting special laws that target people of a particular race and disadvantage their rights to liberty, property and other entitlements by reference to that criterion[310]. The history of Australian law, including earlier decisions of this Court[311], stands as a warning about how such matters should be decided. Even great judges of the past were not immune from error in such cases[312]. Wrongs to people of a particular race have also occurred in other courts and legal systems[313]. In his dissenting opinion in Falbo v United States, Murphy J observed, in famous words, that the "law knows no finer hour"[314] than when it protects individuals from selective discrimination and persecution. This Court should be specially hesitant before declining effective access to the courts to those who enlist assistance in the face of legislation that involves an alleged deprivation of their legal rights on the basis of race. All such cases are deserving of the most transparent and painstaking of legal scrutiny.
Vigilance of such a kind ultimately led this Court in Mabo v Queensland [No 2][315] to re-express the legal rights of the indigenous peoples of Australia to enjoy interests in their traditional lands that had been denied by previous understandings of the common law. Such understandings had been "founded on unjust discrimination in the enjoyment of civil and political rights … contrary both to international standards and to the fundamental values of our common law"[316]. Why should this Court be less vigilant today? Why should it reject the Aboriginal claimants' case unheard at trial if the claims are (or might be rendered) legally arguable by the claimants who wish to tender evidence and argument to sustain those claims?
My purpose in these reasons is to demonstrate that the claims for relief before this Court are far from unarguable. To the contrary, the major constitutional obstacle urged by the Commonwealth is expressly rejected by a majority, with whom on this point I concur. The proper response is to overrule the demurrer. We should commit the proceedings to trial to facilitate the normal curial process and to permit a transparent, public examination of the plaintiffs' evidence and legal argument. The law would then determine whether intuition was correct and a proper case can be presented that brings the claims within demonstrated legal entitlements that have not been respected in the legislation. The law of Australia owes the Aboriginal claimants nothing less.
The legislative provisions in question here are applied to Aboriginal Australians by specific reference to their race[317]. The Emergency Response Act expressly removes itself from the protections in the Racial Discrimination Act 1975 (Cth)[318] and hence, from the requirement that Australia, in its domestic law, adhere to the universal standards expressed in the International Convention on the Elimination of All Forms of Racial Discrimination, to which Australia is a party[319].
If any other Australians, selected by reference to their race, suffered the imposition on their pre-existing property interests of non-consensual five-year statutory leases, designed to authorise intensive intrusions into their lives and legal interests, it is difficult to believe that a challenge to such a law would fail as legally unarguable on the ground that no "property" had been "acquired"[320]. Or that "just terms" had been afforded, although those affected were not consulted about the process and although rights cherished by them might be adversely affected. The Aboriginal parties are entitled to have their trial and day in court. We should not slam the doors of the courts in their face. This is a case in which a transparent, public trial of the proceedings has its own justification.
The issue for decision is not whether the "approach" of the majority is made on a basis less favourable because of Aboriginality[321]. It is concerned with the objective fact that the majority rejects the claimants' challenge to the constitutional validity of the federal legislation that is incontestably less favourable to them upon the basis of their race and does so in a ruling on a demurrer. Far from being "gratuitous"[322], this reasoning is essential and, in truth, self-evident. The demurrer should be overruled.

[120]

The background facts: Many of the relevant facts are contained in the reasons of French CJ[323], Gummow and Hayne JJ[324] and Crennan J[325]. As others in the majority have done, I shall use the same descriptions and abbreviations as Gummow and Hayne JJ have used.
These proceedings started in the original jurisdiction of this Court to challenge the federal legislation enacted to authorise the Northern Territory National Emergency Response ("the National Emergency Response"). The challenge concerns interests in "Aboriginal land"[326] and other interests enjoyed in the "Maningrida land"[327]. That land is represented in a map reproduced in Sched 7 to the plaintiffs' second further amended statement of claim ("the statement of claim").
The map shows that the Maningrida land abuts the mouth of the Liverpool River in Arnhem Land in the Northern Territory of Australia. It includes a built-up area of many allotments that contains public and commercial buildings, dwellings, allocations for future dwellings, parks, ovals, a public swimming pool and other features typical of an Australian outback township. The Maningrida land also includes four areas beyond the township itself. The entirety of the subject land encompasses the township, several sacred sites, an outstation, a sand quarry pit, a billabong and a ceremonial site.
The parties: The reasons of Gummow and Hayne JJ explain the identity of the parties to the proceedings[328]. Mr Reggie Wurridjal and Ms Joy Garlbin ("the first and second plaintiffs") are senior members of the Dhukurrdji Aboriginal clan. Together with other members of that clan, they live on the Maningrida land. According to the statement of claim, which must be accepted as true for such purposes, the Dhukurrdji clan are the "traditional Aboriginal owners" of the Maningrida land, as defined by s 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). This means, in relation to land, a local descent group of Aboriginals who:

[123]

The traditional Aboriginal owners, including the first and second plaintiffs, thus enjoy legally protected rights and interests in the Maningrida land. According to Aboriginal law, such rights and interests relate to the land itself, to spiritual associations with that land and to the activities of the traditional owners on and in relation to that land. Until Mabo [No 2], the law of Australia held that such interests were wholly extinguished upon the acquisition of sovereignty over Australia by the British Crown. However, the decision in that case reversed that conclusion[329]. It held that, in identified respects and subject to contrary statutory provisions, rights derived from Aboriginal law and tradition are recognised by the common law of Australia. They must now be protected and enforced by Australian courts, according to law.
Pursuant to s 4(1) of the Land Rights Act, the first and second plaintiffs enjoy the right to have the Maningrida land held for their benefit by a body corporate established in accordance with the Land Rights Act. That body corporate has the power to hold the title to land in the Northern Territory for the benefit of those Aboriginals entitled by Aboriginal tradition to the use and occupation of that land. That body corporate is the Land Trust.
The statement of claim asserts that members of the Dhukurrdji clan are entitled by Aboriginal tradition to live, participate in ceremonies, forage as of right, hunt, fish and gather upon the Maningrida land. Pursuant to s 71 of the Land Rights Act, they are entitled to enter, use or occupy the Maningrida land to the extent that such entry, use or occupation accords with Aboriginal tradition. In these proceedings, the first and second plaintiffs assert their rights in accordance with that tradition. Before the legislation impugned in these proceedings was enacted, they could enjoy those rights without any relevant lawful interference by the Commonwealth, its officers, employees or agents.
The Bawinanga Aboriginal Corporation ("the third plaintiff") is an Aboriginal and Torres Strait Islander corporation within the meaning of s 16.5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). Consequently, it is a community services entity within the meaning of s 3 of the Emergency Response Act[330]. The third plaintiff was established to promote and maintain language, culture and traditional practices; promote community development; and foster economic development. At all material times, the third plaintiff has conducted several businesses and activities on the Maningrida land. These included financial and tourism services, bush deliveries, a supermarket, a nursery, a "Good Food Kitchen", and artistic and cultural activities.
The reasons of Gummow and Hayne JJ partly describe the respective property rights and interests of the plaintiffs and of the Land Trust[331]. It will be necessary to add to that description concerning the property and interests of Mr Wurridjal and Ms Garlbin. As stated by Gummow and Hayne JJ[332], no defendant disputed the interest and standing of any of the plaintiffs to bring these proceedings to seek relief of the kind set out in the statement of claim. In that sense, the Court has before it parties who, at trial, have an accepted interest and motivation to assert, and to defend, their claims to relief based upon their asserted legal interests. Potentially, the contest would be refined and sharpened at trial to ensure that all relevant evidence was presented and every arguable legal foundation propounded, for and against the provision of relief.
By reason of the past deprivation of legal and economic rights, some Aboriginal litigants have not previously been well represented (or represented at all) before Australian courts when those rights have been in contention. Here, however, the plaintiffs, like the defendants, are represented by highly experienced counsel. Their claims, and the defences propounded to them, would receive at trial expert and efficient presentation, including in the presentation of evidence and the provision of legal submissions. A concern expressed in the reasons of Gummow and Hayne JJ about ill-focussed testimony, unanalysed legislation and "fluid and hypothetical"[333] controversies is entirely misplaced. It is not a relevant consideration. It should be disregarded as unworthy.
The National Emergency Response: The Emergency Response Act and the FCSIA Act are central to the National Emergency Response. The very title and content of these two statutes indicate the context and background to the enactment of these laws. That context and background are within the public domain. They are explained, in general terms, in published official reports which are available for judicial notice. It would be a mistake to ignore the background circumstances that led to the enactment of the relevant legislation. So much is recognised in the reasons of other members of this Court, notably in the citations by Gummow and Hayne JJ from a speech of the Minister. This background helps to identify the purpose of the legislation, thereby assisting the Court to resolve the constitutional and legal questions.
In June 2007, a Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse published its report, Ampe Akelyernemane Meke Mekarle - "Little Children Are Sacred" ("the Board of Inquiry Report")[334]. The Report was addressed to the government of the Northern Territory of Australia. The Northern Territory had been granted self-government in 1978 pursuant to the Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act"). Its government performs the functions envisaged by the Self-Government Act. It was that government that had initiated the Board of Inquiry.
Whatever might be the position at common law where self-government was granted by the Crown to formerly dependent peoples, under the Australian Constitution and as recognised in the Self-Government Act, the Federal Parliament may at any time, by law, override laws made by the Northern Territory legislature. It may also withdraw the power of that legislature to make laws[335]. However, since self-government, such overriding powers have been used only in the rarest of circumstances[336]. In the events that transpired, the Board of Inquiry Report was delivered to the government of the Northern Territory whilst a federal election was pending in accordance with the Constitution[337].
In the Report, the Board of Inquiry envisaged, and intended, that the government and legislature of the Northern Territory would be responsible for the response to the Report[338]. In doing so, it was expressly contemplated that such bodies would consult the communities concerned (especially the Aboriginal communities)[339]. It was anticipated that the Territory authorities might receive appropriate federal aid. Instead, on 21 June 2007, the then Prime Minister (the Hon John Howard) and the then Minister for Families, Community Services and Indigenous Affairs (the Hon Mal Brough) announced a unilateral initiative of the federal government. The measures involved in that initiative envisaged the legislation presently challenged by the plaintiffs.
The authors of the Board of Inquiry Report publicly criticised the lack of consultation that took place and the actual measures proposed in the federal intervention. The federal intervention was expressed to be founded on a conclusion that there was a "National Emergency". Unlike many national constitutions, that phrase has no significance under the Australian Constitution. Section 119 is the provision in the Constitution that comes closest to affording emergency powers to the Commonwealth. However, that provision imposes on the Commonwealth a duty to "protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence". It has no suggested application to the subject matters of these proceedings. It affords no validity to the impugned federal laws.
To support its legislation, the Commonwealth relied on s 122 of the Constitution. That provision grants the Federal Parliament the power to "make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth". The Northern Territory of Australia is such a territory[340].
As announced, the National Emergency Response included a range of measures that have never before been addressed, at least in peacetime, to any particular group of the Australian community, let alone a group identified by reference to the race of its members. The specific measures included:

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The legislative measures to implement the National Emergency Response were introduced into the Federal Parliament on 7 August 2007. Most of the legislation came into effect on 18 August 2007[342], just over three months before the federal election. As could be expected, the political environment at the time was intense. Ultimately, the election on 24 November 2007 led to a change in the federal government of Australia.
This Court is not, of course, concerned with the merits, wisdom, prudence, politics or justice of the legislation, or even (as such) its discriminatory provisions. However, the foregoing background and contextual circumstances, well known and wholly in the public domain, require a vigilant approach to the plaintiffs' contention that the extraordinary features of the legislation involve a serious disturbance of their legal interests and a partial acquisition of their property interests. Of particular note was the failure of the federal government to heed the injunction of the Board of Inquiry Report to engage in "genuine consultation with Aboriginal people" in designing initiatives asserted to be for their benefit. As enacted by the Federal Parliament, the Aboriginal people affected, including the first and second plaintiffs, were not consulted at all. They were presented with a legislative fait accompli.
The ministerial statement: Other reasons contain extended extracts from the Minister's Second Reading Speech, delivered in support of the impugned legislation[343]. That statement needs to be examined with care. It asserts that the "acquisition of leases is crucial" to the Commonwealth's legislative purpose. Acquiring five-year leases from property owners ordinarily involves the "acquisition" of any "property" interest that may conflict with such acquisition. To that extent, the Minister's speech candidly acknowledged the centrality to the Commonwealth's legislative scheme of the federal statutory acquisition of such leases.
The declared motive for this action was "so that living conditions can be changed". Such a motive, however, does not alter or diminish the constitutional entitlements of those whose inconsistent property interests are thereby affected. Naturally, when acquiring the property of others, the Commonwealth normally expresses pure motives. Regardless of motive, if an "acquisition of property" occurs, by or under federal law, to be valid it must be effected upon "just terms".
The Minister also declared that "the underlying ownership by traditional owners will be preserved, and compensation when required by the Constitution will be paid"[344]. This declaration insufficiently addresses the intrusion into the inconsistent rights of others. Take, for example, a statutory lease that is superimposed by federal law upon the property interests of someone who can trace his or her ethnic lineage to European or other later settlers. If the reversion remains with that person, it does not render the governmental acquisition of the leasehold interest any less an "acquisition of property". Moreover, as will be explained, the Constitution does not require the provision of "compensation", limited to the terms employed by the Minister and used in the legislation. Instead it requires observance of the broader concept of "just terms"[345].
Similarly, the Minister's declaration that this "is not a normal land acquisition"[346] cannot be accepted at face value. Obviously, such an assertion does not determine the legal question now before this Court. That is a function reserved to the judiciary. In so far as the Minister was contrasting the temporary duration of the five-year leases contained in the legislation and the permanent acquisition of other property interests by the Commonwealth, his statement did not contradict the contention of the first and second plaintiffs in the statement of claim. Temporary acquisition of property interests, certainly where they extend for five years and potentially more, may indeed not be the "normal" form of acquisition of property by the Commonwealth. Yet it may still constitute an "acquisition of property" which, without "just terms", will render the "acquisition" beyond federal constitutional power. Likewise, the fact that "[p]eople will not be removed from their land"[347] is not determinative of the "acquisition" issue.
There is a clear potential for inconsistency between the property rights of the first and second plaintiffs and the five-year leases acquired by the Commonwealth. The Minister effectively admits this by acknowledging that the "five-year leases" under the legislation cover areas that contain "major communities or townships, generally of over 100 people, some of several thousand people"[348]. Thus, the Minister and the legislation envisaged that the statutory grant of property interests to the Commonwealth, by way of leaseholds, was expected to apply in areas where people (mostly Aboriginal Australians) were living. The five-year statutory leaseholds were liable to have an impact upon the pre-existing legal rights of those living within the leasehold area. It was not as if the leaseholds concerned only unoccupied land in the vast hinterland of the Northern Territory. Quite the contrary. It was built-up, occupied residential and traditional Aboriginal lands that were singled out for the operation of the impugned legislation.
The leases were necessary in law to permit the Commonwealth (and its officers, employees and agents) unhindered access to the relevant areas. Only this would afford them the legal right to implement the initiatives deemed necessary to fulfil the purposes of the National Emergency Response. So much is clear, by inference, from what the Minister told the Parliament. This is in direct contrast to the pastoral leases examined by this Court in Wik Peoples v Queensland[349]. In that case, the pastoral leases were, in part at least, a theoretical or legal construct which, because of the huge distances involved, might never actually impinge on the lives of the Aboriginal peoples concerned. Here, impingement on the lives of the Aboriginal inhabitants of the subject land was the very purpose of the National Emergency Response. The impact of the Emergency Response Act, as announced and as reflected in that Act, was intended to be intense, prolonged, intrusive, highly personal, comprehensive, and to involve criminal liability on the part of at least some of the Aboriginal peoples affected.
The Minister told the Parliament that the "communities are not thriving; some are in desperate circumstances"[350]. However, living in such conditions does not affect in the slightest the legal question before this Court. At least arguably, respecting and enlarging property rights is the best way to reverse such deprivation and to empower those affected. Certainly, the existence of such deprivation does not remove the constitutional entitlement of persons affected, relevantly Aboriginal property owners, to "just terms" for such a federal acquisition.
The Minister also stated that "[t]he area of land for the five-year leases is minuscule compared to the amount of Aboriginal land in the Northern Territory"[351]. This is likewise a consideration totally immaterial to the constitutional issue.
It follows that there is nothing in the Minister's Second Reading Speech that throws any light on the question for decision by this Court. To the contrary, many of the Minister's statements affirm an intuitive response to the provisions of the Emergency Response Act and the FCSIA Act, read according to their terms and so as to achieve their declared purposes. The Parliament authorised a remarkable governmental intrusion by the Commonwealth into the daily lives of Australian citizens in the Northern Territory, identified mostly by reference to their race. As was its intention, such intrusions impinged upon the property interests of at least some individuals and communities on the Maningrida land. The plaintiffs brought these proceedings to have their rights determined in light of this deliberate impingement upon their legal interests. On the face of things, they have a clearly arguable case on that issue warranting a trial.
The plaintiffs' claims: Understandably, much of the analysis in the majority reasons, as to the propounded legal rights of the first and second plaintiffs and the Land Trust, addresses those property rights and the effect of s 71 of the Land Rights Act. However, it is important to recognise that, to some extent, the legal interests, in the nature of property, asserted by the first and second plaintiffs in the statement of claim, are somewhat different from, and additional to, conventional property rights known to Australian law. Such interests are based on the recognition now accorded by Australian law to entitlements conforming to Aboriginal custom. They are hence arguably not limited to "any right, title or other interest in land if … the land is covered by a lease granted under section 31"[352].
To demonstrate this proposition, it is sufficient to repeat the pleadings of the interests of the first and second plaintiffs contained in the statement of claim which they claim to be affected[353]:

[151]

The Commonwealth relied on s 122 of the Constitution as presenting a true threshold barrier to the entirety of the plaintiffs' claim[357]. However, it is necessary also to mention s 51(xxvi) of the Constitution, as amended by the Constitution Alteration (Aboriginals) 1967 (Cth). The latter provision now empowers the Federal Parliament to make laws with respect to the "people of any race for whom it is deemed necessary to make special laws", including people of the Aboriginal race.
The amended provision of s 51(xxvi) was enacted following a referendum in 1967 held in accordance with s 128 of the Constitution. The proposed amendment received the requisite approval of the electors. It deleted from the original power the exclusion "other than the aboriginal race in any State". The first and second plaintiffs argued that, both in form and substance, the Emergency Response Act and the FCSIA Act were "special laws" enacted by the Federal Parliament with respect to "the people of any race", namely people of the Aboriginal race in the Northern Territory of Australia. As such, upon this ground, and quite apart from any operation of s 122 of the Constitution, any resulting acquisition of property was subject to the "just terms" requirement in s 51(xxxi) of the Constitution.
Construction of the legislation: In considering the Commonwealth's demurrer, what is the correct approach to the construction of the Emergency Response Act and the FCSIA Act where there is uncertainty or ambiguity about the ambit and effect of the legislation? This Court has generally insisted upon first analysing the impugned legislative language before determining a contested issue of constitutional validity[358].
The first ground of the Commonwealth's demurrer in these proceedings was, however, one of principle. It asserted that the Emergency Response Act and the FCSIA Act were not "relevantly subject to the just terms requirement contained in s 51(xxxi) of the Constitution" or at all. No statutory construction question arises on that ground. Truly, it is a threshold contention. If upheld, it would mean that the entirety of the plaintiffs' claim was misconceived, doomed to fail and thus apt for the remedy invoked by the pleading device of demurrer. The proceedings would end. They would do so because, as a matter of constitutional law, they would be unsustainable on any footing.
If this barrier were ineffective, the remaining grounds of the demurrer would require the construction of the impugned legislation. The second ground asserts that the Emergency Response Act and the FCSIA Act "provide for compensation constituting just terms". The third ground asserts that the plaintiffs' "alleged species of property" are not capable of being "acquired" or have not in fact been "acquired" so as to give rise to an entitlement to "just terms".

[152]

Construing legislation affecting Aboriginals: In my opinion, an Australian legislature, purporting to extinguish or diminish any legal interest belonging to indigenous peoples (including native title), can only do so by "specific legislation" which clearly has that effect in law[359], which legislation expressly addresses the special character of such interests[360] and accepts accountability for any such provision[361]. This is the approach that applies when addressing the statutory construction issues of the second and third grounds of the demurrer.
My opinion, in this respect, reflects what has for some time been the law of Canada[362]. In Australia too, such an approach has firm foundations in earlier opinions of Justices of this Court[363]. Indeed, it is no more than a species of the commonly applied general principle that legislation that could be read as diminishing basic civil rights will ordinarily be read restrictively and protectively by the courts of this country. Legislation designed to protect such rights is ordinarily read beneficially[364]. This is especially so where the legislation might otherwise be construed to diminish, or extinguish, the legal interests of indigenous peoples which, in earlier times, our law failed to protect adequately or at all[365].
Such an approach has been adopted in several recent decisions of this Court affecting the property and other legal rights of indigenous peoples. This has been done without necessarily expressing the principle; explaining its consistency with general interpretative doctrine; or justifying its role by reference to the past failures of the law[366]. The present proceedings require consideration of unclear and ambiguous provisions in the impugned legislation. My approach to such legislation is one protective of the interests of the first and second plaintiffs. Specifically, it is protective of their right to have any doubts and uncertainties in the proceedings resolved at trial, on the basis of a full consideration of all of the admissible evidence that the plaintiffs tender, rather than by the pre-emptive procedure of demurrer based solely on the pleadings, now invoked by the Commonwealth.
Construing laws by reference to international law: The legal rights of indigenous peoples are a concern for Australian courts as they are for the courts of many other countries. They are of particular concern for those countries that were settled by migrants of the European Empires who sought a better life for themselves and their families. There is now a much greater awareness of how these historical events caused the dispossession of indigenous peoples; the damage done to indigenous communities and their members as a result; the impact on the language, culture and economic well-being of indigenes; and the need, as a consequence, to re-express the governing law. In part, such awareness is the consequence of the assertion of their rights by indigenous peoples themselves. But, in part, it has also occurred in national courts because of the increasing impact of the international law of human rights.
This Court's decision in Mabo [No 2] was itself a product of the determined assertions by Mr Eddie Mabo of his legal rights. His litigation led to the realisation by this Court that the previous approach to the recognition and protection of the legal rights of indigenous peoples could not be maintained as a matter of basic equality and justice upheld by the common law of Australia as understood in the light of the developing principles of international law[367].
Exclusion of the amici curiae: At the commencement of the oral hearing of these proceedings, counsel[368] sought leave to intervene as amici curiae. They sought to provide international legal materials to the Court, in order to illustrate the wider understanding of the "property" of indigenous peoples under international law. They wished to argue that such understanding was broader when compared to approaches taken in Australian municipal law towards the property rights of others. By inference, they suggested that municipal law should be adapted to conform to the developments of the international law. Whilst the Commonwealth suggested that such submissions were immaterial, neither it nor any party to the proceeding opposed the application.
In recent years, this Court has relaxed somewhat its earlier reluctance to permit amici curiae to intervene in proceedings[369]. This development partly reflects the greater recognition by the Court of its normative role as a final national court. This is especially so in constitutional adjudication, such as the present proceedings.
A clear illustration of the enlargement of the role of amici curiae before this Court may be found in Attorney-General (Cth) v Alinta Ltd[370]. In that case, this Court granted permission to amici, appointed and funded by the Commonwealth, so as to provide a contradictor. In recent years, even where, occasionally, this Court has rejected such applications, it has commonly permitted written submissions to be tendered by such amici. This occurred, for example, in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[371]. That case involved an important question affecting the interpretation of the Refugees Convention and Protocol[372]. This Court granted leave for the United Nations High Commissioner for Refugees to present written submissions, whilst refusing counsel leave to present oral submissions[373]. Out of respect for the office and special functions of the High Commissioner, I would have granted unrestricted leave for oral as well as written argument[374]. However, at the least, the written submissions were formally received and considered in that case.
Even that course was refused by this Court in the present case. This was so despite the fact that, in the event, the amici curiae only sought to tender written materials on international law. I favoured receiving the written materials. At the time of the ruling I noted that, in any case, the materials provided by the proposed amici comprised nothing beyond publicly available treaty provisions, judicial decisions and other material relevant to the developing international understanding of property and property interests in the context of the rights of indigenous peoples. The leave that the amici curiae sought was refused by a majority of this Court on its own unrequested initiative[375]. Respectfully, I maintain my disagreement with that decision[376].
International law and indigenous property: In recent years at least, this Court has not applied a wholly "originalist" approach in interpreting provisions of the Constitution[377]. On any alternative contemporary approach to such interpretation, "property" in s 51(xxxi) of the Constitution would arguably include an understanding of that notion as it applies to Aboriginal Australians.
Whatever exclusions were originally intended by the founders, following the amendments by the 1967 referendum[378] it is clear that the Constitution now speaks with equality to Aboriginal Australians as to those of other races; to descendants of indigenous Australians and of settlers; and to indigenous Australians observing traditional customs as well as those living in ways indistinguishable from the majority population. The Constitution speaks to all people. Its reference in s 51(xxxi) to "property" is arguably, therefore, not confined to the traditional notions of "property" as originally inherited in Australia from the common and statute law of England. The s 51(xxxi) reference to "property" appears to incorporate notions of "property" as understood by indigenous Aboriginals, at least so far as such notions are upheld by Australian law.
In expounding the contemporary meaning of a constitutional expression, this Court may pay regard, as a contextual matter, to understandings of relevant expressions of the Constitution as they have developed in contemporary international law. I have said this on a number of occasions[379]. I adhere to that opinion. I recognise that it is not accepted by some judges of this Court[380]. However, I observe that in deciding constitutional cases, a growing number of judges in this Court have lately referred to international legal materials[381]. That development is inevitable. It is also desirable, natural and legally correct.
International law and municipal notions: Quite separately, by orthodox doctrine the principles of international law are available to help resolve any ambiguities or uncertainties in the meaning of Australian municipal legislation.
The reasons of the majority of this Court in the present case conclude that the Emergency Response Act and the FCSIA Act should be read so that no "property" of the individual plaintiffs has been "acquired". In arriving at such a conclusion it is essential for Australian judges to at least be aware of international law developments when considering any suggested acquisition of the property of indigenous peoples. This legal issue arises in many parts of the world. International treaties and other sources of international law have recognised that such acquisitions constitute a significant factor contributing to the serious economic disadvantages suffered by indigenous peoples and their communities. As well, international law now affords remedial principles. By analogy, these principles may at least assist national judges in performing their functions, specifically in expressing the common law of Australia and in interpreting Australian statutory provisions that are ambiguous or unclear.
Relevant sources of international law recognise the general right to property[382]. Specifically, there is a growing body of international law that recognises the entitlement of indigenous peoples, living as a minority in hitherto hostile legal environments, to enjoy respect for, and protection of, their particular property rights[383]. There is also express recognition of the cultural, religious and linguistic rights of indigenous peoples, including in United Nations treaties of general application to which Australia is a party[384]. Commonly, such cultural, religious and linguistic rights are directly connected to the land of indigenous peoples, warranting protection of their property rights[385].
For an Australian court to accept the diminution or abolition of pre-existing legal interests of indigenous peoples with respect to land, communal and personal existence, culture, habits and traditions, as by treating them as "property" rights insusceptible to a constitutional guarantee of protection from "acquisition" without "just terms", would appear to contravene the foregoing expressions of international law. In my opinion, a position has been reached in Australian constitutional and common law where any such diminution or abolition could only be achieved by express provisions of municipal law that conform to the Australian constitutional norm of "just terms" as that provision reflects contemporary international principles. In particular, it would arguably appear to be contrary to the developing principles of international law for any pre-existing rights of indigenous peoples to be reduced or abolished without "positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them"[386].
International law in a dualist system: None of the foregoing statements of international law is automatically rendered part of Australian domestic law. Australian law remains "dualist", like the legal systems of many other countries[387]. Nevertheless, where a court such as this is required to interpret the national constitution, particular legislation or relevant common law principles, that court should inform itself about any applicable developments of international law. Obviously, any such investigation would preferably be performed with the assistance of the parties, interveners or amici curiae. A court should hesitate before rejecting such assistance or adopting meanings of constitutional or statutory texts that are inconsistent with the growing body of international law. Likewise when approaching a legal problem. To say this is to say nothing more than that today, in every country, municipal law will be understood by any light that is provided by contextual provisions of international law, particularly those expressing universal principles of human rights.
In the matter of the legal rights of its indigenous peoples, the Australian legal system can learn from the experience of other countries facing similar legal issues and from the insights of the international community more generally. It is not as if, in this area of the law, the previously expressed understandings of the legal rights of Australia's indigenous peoples were so developed, beneficial and protective that Australian courts have nothing to learn from comparative and international law in this field. Ultimately, international law may prove irrelevant or unhelpful to the resolution of the local legal problem. However, this will not be known until municipal judges analyse the relevant international materials and consider the propounded analogies.
In these proceedings a growing body of international law concerning indigenous peoples exists that confirms the rules that are already now emerging in Australian domestic law. Laws that appear to deprive or diminish the pre-existing property rights of indigenous peoples must be strictly interpreted. This is especially so where such laws were not made with the effective participation of indigenous peoples themselves. Moreover, where (as in Australia) there is a constitutional guarantee providing protection against "acquisition of property" unless "just terms" are accorded, development of international law will encourage the national judge to give that guarantee the fullest possible protective operation. These are the approaches I would adopt in addressing the issues presented by the Commonwealth's demurrer.

[166]

Special parties and issues: In the Second Reading Speech in support of the Emergency Response Act, cited in some of the other reasons of this Court[400] to provide background facts deemed relevant, the Minister stated that "[t]his is not a normal land acquisition. People will not be removed from their land."[401] To the demurrer, the first and second plaintiffs can likewise respond that these are not normal proceedings. Nor are the parties normal parties. The proceedings are constitutional. The first and second plaintiffs are Aboriginal Australians, traditional owners who claim particular and novel legal interests including in land. They have the requisite interest and standing in law to challenge the legality of the extraordinary measures that were introduced into federal legislation that arguably impinge upon their enjoyment of their traditional and unusual "property" rights. They are well represented to do so. Against the background of two centuries of deprivation of legal rights by Australian law, it would require the clearest possible legal principle to persuade me to uphold the grounds of the Commonwealth's demurrer.
Exceptional s 122 ground of demurrer: The only exception to the foregoing conclusion is presented by the first ground of the demurrer. That ground alone affords a comparatively short point of law for which evidence is substantially immaterial. If the Commonwealth is successful, it would be entitled to relief and judgment on the demurrer. Indeed, if the Commonwealth's primary submission were to succeed, judgment in the action would then appear necessarily to follow. It is therefore appropriate and just to deal immediately with the first ground of the demurrer. The remaining grounds should be decided on the evidence with full legal argument, not on the bare pleadings. Where the relevant law is unclear and in a state of development, as is the case here, a party seeking relief by way of demurrer faces special difficulties. In the present case, those difficulties prove fatal to the Commonwealth's reliance on all but the ground of demurrer based on s 122 of the Constitution.

[170]

Indeed, there are now several additional reasons to support the conclusion that Gaudron J, Gummow J and I expressed in Newcrest. First, as explained in other reasons of this Court in these proceedings[410], there is the consideration of the opinion of Dixon CJ (with whom Fullagar, Kitto, Taylor and Windeyer JJ agreed) in Attorney-General (Cth) v Schmidt[411].
Secondly, there is the apparent disparity noted in other reasons[412] between the reasoning of Barwick CJ, for the Court, in Teori Tau[413] and his Honour's later opinion in Trade Practices Commission v Tooth & Co Ltd[414] on the ambit of the constitutional "safeguard" in s 51(xxxi). (I note the contrasting deployment of Schmidt in these proceedings and the neglect of its instruction in New South Wales v The Commonwealth (Work Choices Case)[415]. However, this comment is not decisive for my purposes.)
Thirdly, there are the arguments, explained in the reasons of Gummow and Hayne JJ[416], concerning the 1977 amendment of s 128 of the Constitution. That amendment permitted electors in the Territories to participate in the formal alteration of the Constitution[417]. It would be to adopt an extremely artificial interpretation of the Constitution to accept that Australian nationals and electors of the Commonwealth who live in the Territories are, for constitutional purposes, somehow disjoined from the Commonwealth[418]. Likewise, it would be very artificial to regard the arrangements which the Constitution puts in place for the integrated Judicature of the nation as suggesting that Territory courts are linked to this Court by statute only and that Territory courts might be validly removed from the integrated Judicature provided for in Ch III[419]. I could never accept such erroneous constitutional notions.
One day this Court will correct the unsatisfactory state of its doctrines in relation to the Territories, their people and courts. We should begin that process in these proceedings. Teori Tau should be overruled. In this respect I agree in the conclusions stated in the reasons of Gummow and Hayne JJ[420]. Because a like conclusion is expressed by French CJ in his reasons[421], this will be the first holding of this Court in the present case. It is a holding that is essential to my reasoning that follows.
Conclusion: application of "just terms": It is therefore strictly unnecessary to consider whether, had the authority of Teori Tau been maintained, the plaintiffs might still have defeated the Commonwealth's first demurrer ground on the basis that an Act of the Parliament can bear a dual constitutional character[422]. Likewise, it is possible to disregard the argument that the impugned federal Acts were both laws for the government of a territory (under s 122) and laws with respect to people of any race for whom it is necessary to make special laws (under s 51(xxvi)). The earlier stated conclusion renders unnecessary any differentiated characterisation of the contested legislation. The "just terms" guarantee of s 51(xxxi) applies in any case. The first and second plaintiffs were correct to so argue. To that extent, the plaintiffs have been successful in these proceedings on the issue which was the primary, and arguably the most important, one propounded by the Commonwealth's demurrer.

[175]

"Property" clearly includes an estate in fee simple such as that granted to the Land Trust. The holder of such an estate enjoys rights akin to full ownership, including the right to exclude others from the subject land and to decline a leasehold interest in that land to a stranger. On this basis, the statutory imposition upon the Land Trust of a five-year lease in favour of the Commonwealth constitutes the "acquisition", although temporary, of defined "property".
"Property", however, is not limited to an interest in fee simple. It is a "bundle of rights"[435] or "a legally endorsed concentration of power over things and resources"[436]. Such broad understandings of "property", as used in s 51(xxxi), make it clear that the concept extends at least to include the traditional rights of Australian Aboriginals, particularly in relation to their land. Moreover, it does so whether such rights are enforceable by the common law or are granted by statute[437]. Such rights are "property" so long as they are permanent, stable and capable of ongoing enjoyment. It does not matter that they are personal to individuals or to members of a group or given community. The already broad doctrine of the Court as to "property" may be sufficient to obviate the need to postulate a particular constitutional elaboration to address the special interests of Aboriginal Australians guaranteed by s 51(xxxi). The judicial discourse on the meaning of the word seems ample and broad enough to ensure that the constitutional word embraces all such property interests.
Similarly, the word "acquired" is not to be given a restricted meaning. This Court has emphasised the compound nature of the "acquisition-on-just-terms" idea[438]. An "acquisition" will occur even where the interest acquired is "slight or insubstantial"[439]. Where an existing valuable right is modified or diminished, producing a corresponding benefit or advantage to the Commonwealth or some other party, it is an "acquisition of property" for the purposes of s 51(xxxi).
Acquisition connotes a transfer. Mere termination or extinguishment of rights will not attract the constitutional guarantee[440]. The propounded acquirer must obtain "a direct benefit or financial gain"[441]. The present case does not involve mere extinguishment. To the extent that the five-year statutory lease relieved the Commonwealth of any risk of interference or restriction by activities of the first and second plaintiffs and people like them, it did so by enlarging the Commonwealth's own rights and diminishing those of such people, including the first and second plaintiffs.
Some statutory rights are, by their nature, inherently susceptible to extinguishment. Abolition or modification of such rights has been held not to constitute an "acquisition" for the purposes of s 51(xxxi)[442], even if the abolition or modification produces a corresponding benefit in another party[443]. However, in these proceedings, the interests of the first and second plaintiffs are not extinguished. They remain. The Commonwealth's statutory lease is simply superimposed upon them. The interests of the first and second plaintiffs are not inherently susceptible to abolition or modification[444], particularly those which are derived from long-standing Aboriginal tradition, enforced on that account by the courts under the general law.
The arguable claim of acquisition: As pleaded in the statement of claim, the statutory lease in favour of the Commonwealth over the interests of the first and second plaintiffs arguably diminishes or restricts their enjoyment of their property rights. The impugned legislation arguably asserts that the first and second plaintiffs have an entitlement to continue to enjoy their traditional rights without interference or disturbance. Even if that conclusion is reached, it only addresses the intersection of interests provided in or under statute. Arguably, it would not affect the impact of the Commonwealth's new statutory leasehold interest upon the first and second plaintiffs' legal interests derived from Aboriginal tradition and law as recognised by the common law.
As indicated by the short title of the Emergency Response Act, the federal intervention in question in these proceedings involves an extensive series of initiatives that envisage intense personal and community or group intrusions into the lives of Aboriginal Australians. It would be extremely naïve of this Court to assume that the impact of the Commonwealth's statutory leases upon Aboriginal traditional rights on the Maningrida land would be trivial or inconsequential. The very purpose of securing the five-year statutory leasehold interests for the Commonwealth was to permit federal initiatives of an avowedly intrusive character to be undertaken on such land impinging on the property rights of the Aboriginal peoples affected.
This Court cannot properly resolve the issues presented in the statement of claim on the basis only of the pleading of the causes of action. That pleading includes the cause of action based upon what the first and second plaintiffs correctly contend is the "acquisition of property" of the Land Trust. Against the background of this Court's broad understandings of s 51(xxxi) of the Constitution, the first and second plaintiffs have adequately pleaded claims cognisable to the law. Subject to what follows, the ultimate proof as to their entitlement to relief would depend upon the evidence adduced at trial and the legal arguments addressed to that evidence. Demurrer is not, therefore, a remedy that is available to the Commonwealth in this case. It would be contrary to the purpose of demurrer and the emerging practice of this and other courts in applying that remedy to afford such relief to the Commonwealth in the circumstances of this case.

[176]

The final remaining issue: The final issue presented by the language of s 51(xxxi) is whether, notwithstanding the foregoing, any defect in the impugned legislation is overcome by other provisions of the Emergency Response Act. Section 62 of that Act requires the Commonwealth to pay "a reasonable amount of rent" to a party such as the Land Trust or the first and second plaintiffs. As well, s 60(2) renders the Commonwealth "liable to pay a reasonable amount of compensation". The Land Trust itself submits that these provisions amount to a statutory guarantee of the provision of "just terms", thereby validating the demonstrated "acquisition of property". The reasons of a majority of this Court accept that conclusion[445]. Is such a conclusion legally correct?
The enactment of "fail-safe" measures to ensure compliance with s 51(xxxi) of the Constitution is obviously a sensible legislative precaution. Legislation incorporating such provisions should be upheld as long as the applicable measures adequately satisfy the constitutional obligation of "just terms". In this I agree with the general approach of the majority. Monetary "compensation" will arguably be sufficient for most property interests of a commercial, financial or economic kind. The owners of shares in the Bank of New South Wales, when that bank and others were purportedly nationalised by federal legislation, rarely if ever loved the share scrip as such. A few might have had sentimental or employment attachments to the bank, dating as many of the affected banks did back to colonial days. However, the only real virtue of the shares for shareholders was the monetary equivalent of the value of the shares, freed from the blight of a forced governmental acquisition. For such value the promise in the legislation to pay a "reasonable amount" and monetary "compensation" might well satisfy the "just terms" requirement. There are now a number of such statutory provisions in federal legislation[446]. There is no reason to question their effectiveness in most cases. So far, I agree with the majority reasoning.
"Just terms" in the present context: However, the first and second plaintiffs dispute that a statutory entitlement to reasonable "rent", even if enforceable, and to monetary "compensation", even if paid, would satisfy the "just terms" guarantee in their case. They draw attention to what Dixon J said in Nelungaloo Pty Ltd v The Commonwealth that "[u]nlike 'compensation,' which connotes full money equivalence, 'just terms' are concerned with fairness"[447].
Section 51(xxxi) of the Australian Constitution was inspired by the Fifth Amendment to the Constitution of the United States of America. The final requirement in that amendment is that "nor shall private property be taken for public use, without just compensation". The drafters of the Australian Constitution considered the Fifth Amendment. In adopting what became par (xxxi) of s 51 of the Australian Constitution, it must be assumed that they intended to differentiate between "just compensation" and "just terms". This is the point of distinction mentioned by Dixon J in Nelungaloo.
At least arguably, "just terms" imports a wider inquiry into fairness than the provision of "just compensation" alone. The latter, measured in monetary value, is objectively ascertainable in most cases. Identifying the "terms" required for an acquisition of property to be "just" invites a broader inquiry. It is one that could cut both ways. Take, for example, acquisition of property during wartime. The acquisition of an interest in property might be essential, temporary and involve very limited federal interference. Such property interests might be controlled by the Commonwealth briefly, for the defence of the nation. So long as proper procedures were instituted and observed and the property owners duly informed and quickly restored to full rights once the danger had passed, "just terms" might require little or no monetary compensation.
By contrast, however, an acquisition of legal interests in property belonging to traditional Aboriginals, even if only temporary, is not of such a character. Such interests are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned. The evidence might ultimately show in this case that they do indeed love their traditional "property" interests in a way that conventional "property" is rarely if ever cherished in the general Australian community. This might oblige a much more careful consultation and participation procedure, far beyond what appears to have occurred here. As stated by Dixon J, the "terms" which s 51(xxxi) guarantees are "concerned with fairness"[448] and potentially the inquiry is a wide one. It is enlivened by the type of Aboriginal "property" affected in consequence of the impugned legislation. As such, the "just terms" requirement of the Constitution arises for consideration. Its application would depend upon evidence, including evidence as to the way the Commonwealth went about the process of "acquisition". Such evidence could only be considered at trial. It is not met by a statutory obligation to pay monetary compensation. Demurrer is not a procedure apt to resolving the resulting question.
Conclusion: insusceptibility to demurrer: Given the background of sustained governmental intrusion into the lives of Aboriginal people intended and envisaged by the National Emergency Response legislation, "just terms" in this context could well require consultation before action; special care in the execution of the laws; and active participation in performance in order to satisfy the constitutional obligation in these special factual circumstances. At the least, the Commonwealth has failed to demonstrate that this view of the constitutional obligation in s 51(xxxi) is not reasonably arguable. It follows that its demurrer should be overruled.

[178]

In a section of their written argument dealing with just terms, the plaintiffs submitted that "[t]raditional Aboriginal rights and interests in land cannot be readily replaced, nor readily compensated for by the payment of money". This submission would prima facie have considerable force where the relevant rights and interests were related to spiritual matters, for example use of sacred sites. It may also be thought prima facie to have some force in relation to matters which are not strictly spiritual. The submission appeared to constitute a platform for the contention that since the impugned legislation did not replace the rights and interests allegedly affected with comparable rights and interests, and since money did not adequately compensate their owners, the legislation was invalid without further analysis of the just terms question. However, for three reasons there is no point in examining that contention.
The first is that, in oral argument, the plaintiffs - perhaps inconsistently with other parts of their argument - disavowed any contention that there were some Aboriginal rights and interests in land the loss of which was non-compensable. Counsel for the plaintiffs did not go beyond submitting that, apart from difficulties with the money compensation provisions in the impugned legislation, the terms on which sacred sites could be acquired, if they were to be just, had to include legislation requiring their special nature to be taken into account before any discretionary decision to make an acquisition was arrived at.
The second reason is that while the allegations in the Second Further Amended Statement of Claim referred to land with which Aboriginals had common spiritual affiliations for which they had a primary spiritual responsibility and to sacred sites, they did not include a specific allegation that the terms of acquisition were unjust because what was acquired could not be readily replaced or readily compensated for by the payment of money.
The third reason is that, as the plurality judgment has demonstrated, the relevant legislation does not diminish the protections afforded by s 69 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)[449].

[189]

This argument must be rejected. First, it did not attempt to deal with the authorities which have held or said that legislation which provides for the payment of "reasonable compensation as determined by" a court is legislation which provides for just terms[453]. Those authorities are inconsistent with the proposition that the right to reasonable compensation is only contingent.
Secondly, the argument lacks practical reality. The fact is that in consequence of the approach of the plurality judgment in this case, there will in future be no doubt as to the relationship between s 51(xxxi) and s 122 of the Constitution. It is not clear why the supposedly sui generis nature of the property rights claimed by the plaintiffs prevents courts of competent jurisdiction rather than this Court from resolving disputes about compensation for their acquisition, particularly since on the plurality view the property rights acquired do not include rights to sacred land[454].
Further, it is a misuse of language to call the right to compensation "contingent" by reason of any delay involved, or by reason of the possible need to go to court. The need to vindicate rights in court does not make those rights "contingent", and the process of doing so is not unfair. It should not take long to establish that the Commonwealth will not agree with the amount of compensation claimed by the person seeking it. Thereafter the controversy is committed to the court of competent jurisdiction, and in modern conditions such a court will endeavour to give a speedy remedy to a claimant who is not tardy in using the court's procedures. A claimant of that kind does not fall within the category stated by Deane J in The Commonwealth v Tasmania of those who "will be forced to wait years before [they are] allowed even access to a court, tribunal or other body which can authoritatively determine the amount of the compensation which the Commonwealth must pay."[455] As Black CJ and Gummow J said of similarly worded legislation[456]:

[196]

First, the present case is in fact one in which there was doubt about whether there was an acquisition of property at all, even if the plurality judgment has now resolved that doubt. Secondly, the argument is a quibble: it does not explain in what way the rights conferred by s 50(2) have been cut down by s 60(1) in view of the existence of s 60(2).
Interest. The plaintiffs' next argument was that s 60 did not provide for just terms because it conferred no right to the payment of compensation referable to the period from the date of acquisition to the date when the court of competent jurisdiction made a decision. This was essentially a subset of a further argument that s 60 did not provide for just terms because, unlike the legislation in Grace Brothers Pty Ltd v The Commonwealth[458], it conferred no right to interest in the period from the date of acquisition to the date when compensation was paid. The absence of a right to interest was seen by Deane J in The Commonwealth v Tasmania as a factor pointing against validity[459].
Even assuming that the absence of a right to interest points against validity - and there is authority the other way[460] - these arguments have the following flaws. Either s 60, on its true construction, empowers the court of competent jurisdiction, in determining the reasonableness of the compensation it awards, to include interest in order to reflect delay in payment[461], or it does not. If it does, the plaintiffs' complaint is met. Even if it does not (on the basis that on one view interest is not part of compensation, but interest on compensation[462]), any court of competent jurisdiction is likely to have powers conferred by statute or by rule of court to order both pre-judgment interest and post-judgment interest. Thus by reason of s 39B(1A)(c) of the Judiciary Act 1903 (Cth), the Federal Court of Australia would be a "court of competent jurisdiction". So far as pre-judgment interest is concerned, s 51A(1) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to award simple interest on any money judgment for the whole or any part of the period between the date when the cause of action arose and the date of judgment. The section does not authorise the award of compound interest: s 51A(2)(a). But the section does not limit the operation of "any enactment or rule of law" which would otherwise allow for the award of interest: s 51A(2)(d). As to post-judgment interest, s 52 of the Federal Court of Australia Act provides that a judgment debt of the Court carries interest from the date of entry. Order 35 r 8 of the Federal Court Rules fixes the rate at 10.5% per annum unless the Court fixes a lower rate. A proposition underlying the plaintiffs' submissions - that a duty to pay interest be explicitly stated in the provisions - cannot be correct: it would suffice if that duty is implicit in the provisions or derivable from some other rule of law.
Section 61(c). Section 61(c) of the Northern Territory National Emergency Response Act 2007 (Cth) provides:

[200]

These submissions rest on an assumption of construction. The assumption is that on its true construction s 61 requires the matters listed in pars (a)-(c) to be considered to the exclusion of any other matter. That assumption is incorrect. The court is obliged to take account of the matters described in pars (a)-(c), but it is not limited to them.
Hence, even if s 61(c) is uncertain in its operation, that will not prevent the s 60 terms from being just: the court's duty will be to assess an overall amount of compensation which is reasonable, and this will prevent any uncertainties arising from s 61(c) from counting against the claimant. The same is true of any other criticism to be made of s 61(c) considered in isolation.
The plaintiffs advanced a separate criticism of what they called "the requirement that the value of any improvements funded by the Commonwealth after the grant of the Commonwealth lease be taken into account". They said that this was also "so uncertain, discretionary, unreasonable, arbitrary and capricious" that it was not a just term. This submission rests on the same false assumption of construction as that which underlies the plaintiffs' first group of criticisms of s 61(c).
Other uncertainties. In other respects the plaintiffs contended that for various reasons s 60 was so uncertain and discretionary that it was incapable of ensuring that an acquisition was on just terms. One reason assigned was the absence of any commercial market in relation to parts of the property acquired, in particular the sacred sites. A second reason was "the sole criterion of payment of a reasonable amount of compensation": this was said not to provide just terms because it did not take into account "the non-financial disadvantages and deprivations suffered by the traditional Aboriginal owners, and by [the first two plaintiffs], by reason of the acquisition of Land Trust property and [the first two plaintiffs'] property and the abolition of the permit system"[463]. A particular example was given of the non-financial disadvantages - "the suspension of the rights and interests of the traditional Aboriginal owners to use the Maningrida land for traditional purposes." A third reason was that the sole criterion of payment of a reasonable amount of compensation for the consequences flowing from abolition of the permit system was too uncertain and discretionary.
There are two difficulties with these contentions. The first is that the law can provide compensation for money losses even though there is no market for the thing lost and even though the attraction of the thing lost to the person who lost it rests on non-financial considerations. Secondly, a good example of things for which there is no market and which have non-financial aspects is native title rights. Yet in Griffiths v Minister for Lands, Planning and Environment[464] a majority of the Court assumed that it was possible to extinguish native title on just terms. Given the abandonment by the plaintiffs of the possible argument hinted at in their written submissions and outlined at the start of this judgment[465], there is no reason to hold in this case that that assumption was incorrect. That outcome invalidates the plaintiffs' contentions.
Non-monetary terms. The plaintiffs submitted that "just terms" could require more than the provision of monetary compensation. An appeal was made to "the equitable maxim that one who suffers a wrong shall not be without a remedy, which applies where damages would be an inadequate remedy", and to cases recognising a right to the specific performance of contracts[466]. The plaintiffs submitted that a particular example of the extension of "just terms" beyond monetary compensation might arise where the acquisition of traditional Aboriginal rights and interests in land was under consideration, in view of their "sui generis nature". The plaintiffs relied on a proposition that "the determination of just terms must take into account the particular value of the property to the former owner in circumstances where it … cannot be readily replaced, nor readily compensated for by the payment of money". They attributed this proposition to Latham CJ in Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v The Commonwealth[467]. One legislative provision of a non-monetary character causing the terms of acquisition to be just might be a provision guaranteeing a continuation of access by the traditional owners to the land for traditional purposes "side-by-side with the acquisition". The plaintiffs submitted that the failure of the Northern Territory National Emergency Response Act 2007 (Cth) to do this meant that it had not provided just terms in two respects. One was that the traditional Aboriginal owners were not given concurrent rights to exercise their rights and interests for traditional purposes. The other was that the traditional Aboriginal owners or native title holders were not given a continuing legally enforceable entitlement to exercise native title rights and interests, or traditional dominion, custodianship and responsibility, over the sacred sites supposedly acquired by the Commonwealth. The plaintiffs also submitted that the acquisition of sacred sites by the Commonwealth was not on just terms because it had failed to consider the consequences of interfering in the rights of the Aboriginal peoples concerned with sacred sites in circumstances where the interference may have been unnecessary for the Commonwealth's purposes.
The present case does not afford an occasion on which it is appropriate to consider these issues raised by the plaintiffs. That is partly because the plaintiffs and the second defendant agree that the preferred view of the rights conferred by s 71 is that they were not affected by s 31 of the Northern Territory National Emergency Response Act 2007 (Cth), and the small degree of dissent from this by the Commonwealth is in respect of a point in relation to which no facts were pleaded[468]. In any event, the Commonwealth's proposition has been held to be incorrect by the plurality. That is, nothing prevents the first and second plaintiffs from obtaining access to sacred sites. A further reason why the present case does not afford an occasion on which it is appropriate to consider the plaintiffs' submissions is that no issue is raised on the pleadings about native title rights in relation to sacred sites. A further reason is that the protection afforded to sacred sites by s 69 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is not reduced by the Northern Territory National Emergency Response Act 2007 (Cth).
In any event, the appeal which the plaintiffs make to the authorities is defective in two respects. First, the cases applying the principles relating to specific performance do not suggest any relevant analogy with the present controversy. Secondly, the point of Latham CJ's reasoning in the Johnston Fear case was not that just terms for the acquisition of some interests could include matters other than money; rather it was that if monetary payments were not truly compensatory, the acquisition was invalid.
Further, it is novel to suggest that s 51(xxxi) can narrow the power to acquire particular items, as distinct from invalidating the legislation which acquires those items if just terms are not provided. The novelty of the suggestion would require a closeness of examination it did not receive in argument.

[201]

I agree with the orders proposed by the plurality.
CRENNAN J. The Maningrida land in the Northern Territory is included in the Northern Territory National Emergency Response Act 2007 (Cth) ("the Emergency Response Act")[469] which provides for the grant of leases to the Commonwealth, on certain terms and conditions, for up to five years ("the lease provisions").
Related legislation, the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("the FCSIA Act"), provides a defence to a person who enters and remains on common areas within the Maningrida land provided the purpose for entering and remaining was not unlawful ("the entry provisions"). This would otherwise be an offence pursuant to s 70(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act").
This case concerns the constitutional validity of the lease and entry provisions ("the challenged provisions"). The Commonwealth legislative powers on which the challenged provisions rest are those conferred under the Constitution by s 122, to make laws for the government of any territory, and by s 51(xxvi), to make laws with respect to the people of any race for whom it is deemed necessary to make special laws[470].
The challenged provisions are said to effect an acquisition of property governed by the Land Rights Act, without affording just terms, contrary to s 51(xxxi) of the Constitution.
The Dhukurrdji clan are the traditional Aboriginal owners[471] of land identified as the "Maningrida land", described in cl 21 in Pt 1 of Sched 1 to the Emergency Response Act. The Maningrida land includes a township area with residential and commercial buildings and infrastructure, sacred sites[472], an outstation, a sand quarry pit, a billabong and a ceremonial site. It is "Aboriginal land" within the meaning of par (a) of the definition of Aboriginal land in s 3(1) of the Land Rights Act, namely "land held by a Land Trust for an estate in fee simple".
Each of the first and second plaintiffs, Reggie Wurridjal and Joy Garlbin, is a senior member of the Dhukurrdji clan. The Maningrida land is held by the second defendant, the Arnhem Land Aboriginal Land Trust ("the Land Trust"), for the benefit of the traditional Aboriginal owners[473]. Each of the first and second plaintiffs is also an Aboriginal who has a right to use and occupation of the Maningrida land in accordance with Aboriginal tradition[474]. The third plaintiff, which is not claiming any property rights, is an Aboriginal and Torres Strait Islander corporation[475], and is a "community services entity"[476] which has business dealings with the Land Trust.

[210]

It was pointed out by Deane J in The Tasmanian Dam Case[494], that less obvious examples of permissible acquisitions of property under heads of power within s 51 of the Constitution make it necessary to ask whether what the impugned law effects can properly be characterised as an acquisition of property within the scope of s 51(xxxi). His Honour observed that when it comes to laws which are not directed to an acquisition of property but which are concerned with "no more than the adjustment of competing claims between citizens in a field which needs to be regulated in the common interest … no question of acquisition of property for a purpose of the Commonwealth is involved"[495].
It can be significant that rights which are diminished by subsequent legislation are statutory entitlements. Where a right which has no existence apart from statute is one that, of its nature, is susceptible to modification, legislation which effects a modification of that right is not necessarily legislation with respect to an acquisition of property within the meaning of s 51(xxxi)[496]. It does not follow, however, that all rights which owe their existence to statute are ones which, of their nature, are susceptible to modification[497], as the contingency of subsequent legislative modification or extinguishment does not automatically remove a statutory right from the scope of s 51(xxxi)[498].
Putting to one side statutory rights which replace existing general law rights[499], the extent to which a right created by statute may be modified by subsequent legislation without amounting to an acquisition of property under s 51(xxxi) must depend upon the nature of the right created by statute. It may be evident in the express terms of the statute that the right is subject to subsequent statutory variation[500]. It may be clear from the scope of the rights conferred by the statute that what appears to be a new impingement on the rights was in fact always a limitation inherent in those rights[501]. The statutory right may also be a part of a scheme of statutory entitlements which will inevitably require modification over time[502].
Although even a slight or insubstantial acquisition of an interest in property may be sufficient to bring the acquisition within s 51(xxxi)[503], rights of ownership may be impaired without there being an acquisition of property within s 51(xxxi) if the degree of impairment is insufficient to attract the operation of that provision[504].

[290]

The Blue Mud Bay Case considered the fee simple, and the right to regulate and prohibit entry to Aboriginal land, in the context of fishermen asserting a right to fish in the waters covered by the grant of the fee simple, without first obtaining permission under the "permit system" discussed below. These proceedings raise a very different question: whether an alteration of the Land Trust's rights of possession and control, and rights to regulate and prohibit entry, for the purpose of dealing with the present problems, is an acquisition of property by the Commonwealth, attracting the guarantee of just terms.
The rights of ownership referred to in the Blue Mud Bay Case are sui generis, reflecting the nature of Aboriginals' interests in the land[540]. As the Land Rights Act stood before the commencement of the challenged provisions, those rights were inalienable except in the limited circumstances permitted under ss 19, 19A and 20 of the Land Rights Act. They are held to ensure that the land is "preserved in perpetuity"[541] for the benefit of all generations of the traditional Aboriginal owners[542], here the Dhukurrdji clan, which is inevitably in a state of constant flux as deaths and births occur within the group[543]. Section 19 concerns dealings with interests in land by the Land Trust and s 19A covers township leases, both of which will be dealt with later in these reasons. Section 20 covers dealings which are not presently relevant.
The Land Trust's rights of ownership have always been held subject to arrangements in the Land Rights Act of some complexity which provide for dealings between traditional Aboriginal owners and any Aboriginal person or group[544], Aboriginal persons entitled by Aboriginal tradition to use and occupation of Aboriginal land, Aboriginal Land Trusts[545], Aboriginal Land Councils[546] and the Commonwealth[547]. Each person or entity has different rights, duties, powers and obligations but all are interrelated and all are directed ultimately to the benefit of "the traditional Aboriginal owners" of the land[548]. The Aboriginal Land Council for the area in which the Maningrida land is situated is the Northern Land Council ("the Land Council").
The Land Council holds the power to issue binding directions to the Land Trust and the Land Trust must then take action in accordance with those directions. The Land Trust must not exercise its functions in relation to land held by it except in accordance with such directions[549]. At the direction of the Land Council (and in some instances with the additional consent of the Minister) the Land Trust has the power under s 19 to grant leases and licences in respect of the land.
In Pt II[550], under the heading "Dealings etc with interests in land by Land Trusts", s 19 of the Land Rights Act relevantly provides:

[303]

It can be noted that the Land Council could only give a direction pursuant to s 19(2), (3) or (4A) in accordance with the provisions of s 19(5), ie with the consent of traditional Aboriginal owners as a group and after consultation with other affected Aboriginals[552]. Pursuant to s 77A, for the purposes of s 19(5)(a), consent is to be obtained in accordance with Aboriginal tradition or, in its absence, by a process agreed to and adopted by the relevant traditional Aboriginal owners.
The legislative scheme of control over the land embodied in s 19 of the Land Rights Act, as it operated prior to the commencement of the challenged provisions (and as it still operates), empowered the Land Council to issue a written direction to the Land Trust to grant an interest in the land to the Commonwealth, for a term, giving the Commonwealth temporary possession and control of the land (subject to the interests of all prior interest holders or holders of traditional rights) in order to improve living conditions, provided always that it had the requisite consent of the traditional Aboriginal owners referred to in s 19(5)(a) and the other conditions in s 19(5)(b) and (c) were met. The Land Council is neither a plaintiff in, nor a party to, these proceedings.
Whilst the Land Trust was the legal entity with statutory power to deal with the Maningrida land and to create interests in it, particularly under s 19, by reason of s 6 of the Land Rights Act it was not empowered to accept payments in respect of such use and occupation, but any payments to be made could be paid to the Land Council. The Land Council was required, by s 35(4), to "pay an amount equal to that payment to or for the benefit of the traditional Aboriginal owners of the land" within six months of receipt of such payments.
Ministerial approval was necessary for numerous matters associated with the operation of Land Councils[553]. By way of example, a Land Council could, with the approval of the Minister, perform any functions conferred on it by a law of the Northern Territory in relation to the protection of sacred sites and access to Aboriginal land (s 23(2)(a) and (b)). The Minister's consent or approval was required for a range of activities or dealings with Aboriginal land[554]. The Minister also had a range of powers in relation to the management of the finances of Land Councils and Land Trusts[555].
The fee simple and the Land Trust's rights of ownership were subject always to this legislative scheme of control over the land.
The other provisions of the Land Rights Act relevant to this matter, occurring in Pt VII[556], are ss 69, 70, 71 and 73.
Sections 69 to 71 relevantly provide:

[315]

Broadly speaking, the plaintiffs' case was largely based on construing the challenged provisions. There were no material facts pleaded in the Statement of Claim constituting acts done by the Commonwealth or the Minister pursuant to the lease granted under s 31(1) of the Emergency Response Act. The plaintiffs submitted that the challenged provisions resulted in the Land Trust losing possession and control, and income (including rent), to which the Land Trust was entitled in respect of the Maningrida land and that this significantly diminished the Land Trust's estate in fee simple.
The Land Trust agreed that the lease provisions effected an acquisition of the Land Trust's possession and control of the Maningrida land and that the acquisition attracted the guarantee of just terms but disagreed with the plaintiffs' assertions relating to loss of income. The Land Trust contended that, on the basis that the lease provisions resulted in an acquisition of the Land Trust's right to exclude others from the Maningrida land, the entry provisions did not amount to an acquisition of property from the Land Trust.
The Commonwealth did not dispute that the lease provisions have the effect of altering (or diminishing) the Land Trust's rights of possession and control for the period of the lease in respect of the area covered by the lease, and that the challenged provisions diminish the right to exclude or eject others. However, the Commonwealth contended that those alterations of the rights do not amount to the Commonwealth acquiring an interest in land which can be properly characterised as an acquisition of property within the scope of s 51(xxxi).
As to the rights of Reggie Wurridjal and Joy Garlbin under s 71 of the Land Rights Act, the plaintiffs submitted that despite the preservation of their rights under s 34(3) of the Emergency Response Act, the rights were acquired by the grant to the Commonwealth of a power to terminate them under s 37(1) of the Emergency Response Act, although there were no material facts pleaded showing that that power has been, or is likely to be, exercised. Both the Land Trust and the Commonwealth disagreed with those submissions. It is convenient to deal first with the rights of Reggie Wurridjal and Joy Garlbin to enter, use and occupy the Maningrida land.

[328]

For the reasons given by Gummow and Hayne JJ[558], I agree that constitutional issues do not arise for consideration in respect of rights granted under s 71 of the Land Rights Act and would make the following additional comments.
Persons entitled to enter upon, use or occupy the land constitute a wider group than the traditional Aboriginal owners on whose behalf the fee simple is held by the Land Trust. Whilst the Land Council may compile and maintain a register setting out the names of the traditional Aboriginal owners of the Maningrida land, there is no similar provision in relation to the Aboriginals or groups of Aboriginals entitled to enter upon, use and occupy the land as provided in s 71. This emphasises the impossibility of the Commonwealth terminating the s 71 rights under s 37(1) and (3) of the Emergency Response Act, at least to the extent of giving notice to all individuals holding s 71 rights under the Land Rights Act.
This accords with the acknowledgment in the Second Reading Speech to the Land Rights Bill "that affinity with the land is fundamental to Aborigines' sense of identity"[559]. As is clear from the extracted parts of that speech set out above, it was intended that the proposed land rights legislation would "give full expression to the affinity with land that characterised [Aborigines'] traditional society and gave a unique quality to their life"[560] and that land rights would secure conditions for achieving "goals in life" and for personal "fulfilment"[561].
The full force of the subjection of the Commonwealth's rights of "exclusive possession and quiet enjoyment" under s 35(1) of the Emergency Response Act, to the s 71 rights under the Land Rights Act (which are preserved under s 34(3) of the Emergency Response Act), is best understood in the context of the importance which the Land Rights Act accords to rights arising out of that affinity with the land. The statutory construction explained by Gummow and Hayne JJ, with which I agree, recognises the interaction between ss 34(3) and 35(1) of the Emergency Response Act and s 71 of the Land Rights Act. The result of that construction is that, in the absence of some contrary provision, whilst the challenged provisions subsist, all persons who presently hold s 71 rights under the Land Rights Act can continue to participate in ceremony on or in relation to the four sacred sites on the Maningrida land and continue to enter, use and occupy the Maningrida land for all the traditional purposes set out above, without any intrusion upon those rights[562].

[329]

The Commonwealth submitted that the challenged provisions could not legitimately be characterised as effecting an acquisition of property within the meaning and scope of s 51(xxxi) of the Constitution. This was primarily said to be because the Land Trust's ownership and control of the Maningrida land under the Land Rights Act was subject to the type of variation in control which is effected by the lease granted under s 31(1) of the Emergency Response Act, as the fee simple was inherently unstable and defeasible. The lease was described as a mechanism for achieving a temporary and limited adjustment of control over a very small portion of the fee simple in order to improve the well‑being of the community. During oral argument, a much narrower proposition emerged. It appeared to be this: accepting that the Land Trust's fee simple was not readily defeasible, it was nevertheless inherent in the legislative scheme of control over the land in the Land Rights Act, under which the Land Trust has always exercised its rights as owner of the fee simple, that that control might be temporarily adjusted, in the circumstances of this case, for the purpose of dealing with the present problems.
The plaintiffs preferred to meet the Commonwealth's submission that the challenged provisions could not be legitimately characterised as a law with respect to the acquisition of property for the purposes of s 51(xxxi), by relying on the width of the definition of "property" established in the relevant cases[563] and the description of the same fee simple in the Blue Mud Bay Case which has been set out above[564]. It can be accepted that, for example, a lease granted to the Commonwealth over the Maningrida land, for defence purposes, which was unencumbered by all prior interests, might fall within the scope of s 51(xxxi). From an assumption that the estate in fee simple is "property" for the purposes of s 51(xxxi) (with which I do not disagree) the plaintiffs went on to particularise various ways in which it was asserted that the acquisition was not on just terms. Those arguments are relevant to determining whether the challenged provisions fall within the scope of s 51(xxxi).
It is convenient to consider the practical and legal effect of the challenged provisions by reference to the detail of the plaintiffs' submissions and the interaction between the Land Rights Act and those provisions.

[330]

The plaintiffs submitted that the Land Trust lost possession and control of the Maningrida land as a result of the operation of s 31(1) and then submitted that, by reason of ss 34-37, the Commonwealth was empowered to exercise all the Land Trust's powers as owner of the estate in fee simple.
In particular, the plaintiffs contended that by reason of ss 34, 37 and 52 of the Emergency Response Act, the Land Trust lost its rights of exclusive possession and quiet enjoyment, especially as the Land Trust, during the term of the lease, required the consent of the Minister under s 52(2) of the Emergency Response Act in order to deal with the land under s 19 of the Land Rights Act. There was also a complaint that the Commonwealth was not obliged to pay rent in respect of the lease granted under s 31(1) of the Emergency Response Act. It was contended as well that by reason of ss 70A and 70F of the Land Rights Act, and Sched 7 to that Act, the Land Trust lost exclusive possession and enjoyment of the common areas of the Maningrida land and cannot, since the passing of the challenged provisions, limit entry to the common areas. It was also submitted that the Commonwealth was not obliged to exercise its powers under the lease for the benefit of traditional owners. This gave rise to an argument in oral submissions that the Commonwealth was not obliged to pass on payments made in respect of leases granted by the Land Trust under s 19 of the Land Rights Act.
It can be accepted that the Land Trust's fee simple, granted under, and subject to, the Land Rights Act, is a formidable property interest in the Maningrida land and that its sui generis nature does not diminish the fee simple's significance[565]. It can also be accepted that the lease operated to carve out from the Land Trust's fee simple certain of the Land Trust's rights of possession and control in respect of the Maningrida land, including the rights to deal with the land under s 19 of the Land Rights Act, without ministerial consent.
To evaluate the plaintiffs' submissions, it is necessary to understand the level of interference with the Land Trust's control of the land which is effected by the challenged provisions.

[331]

Public roads. The grant of an estate in fee simple, by reference to which the lease is granted under s 31(1) of the Emergency Response Act[566], was expressed to be subject to certain reserved and excluded interests. Relevantly, certain roads over which the public had a right of way at either of two specified times[567] were excluded from the grant and hence are excluded from the lease.
Registered leases. The Land Trust's Certificate of Title shows numerous registered leases were in existence at the time of creation of the lease under s 31(1) of the Emergency Response Act including leases to Airservices Australia and Telstra Corporation Ltd. All parts of the Maningrida land which are covered by such registered leases are excluded from the lease by the operation of s 31(3).
Township leases. Section 19A of the Land Rights Act came into operation on 1 October 2006[568]. It permits a Land Trust to grant a lease of a "township" to certain "approved entities" with the consent of the Minister and the Land Council. "Township" is defined as an area of land of a kind prescribed by regulation (s 3AB).
Whilst no township lease has been granted in respect of the Maningrida land, under s 37(6) of the Emergency Response Act the Land Trust may grant a lease of the land in which it holds the fee simple in accordance with s 19A of the Land Rights Act. If such a lease were granted, the Commonwealth's lease under s 31(1) would then be varied to exclude that land or that part of the Maningrida land which is the subject of the township lease (s 37(7) and (8)).
New leases. The Land Trust, with the consent of the Minister, has the power to grant new leases or licences in respect of part of the Maningrida land under s 19 of the Land Rights Act (s 52(1)). If the Land Trust exercises that power, the lease to the Commonwealth would be varied, by the operation of s 52(3), to exclude that part of the Maningrida land from the Commonwealth's lease.
The Commonwealth has a power to grant subleases and licences (s 35(5)), which diminishes the Land Trust's powers to deal with the land under s 19 of the Land Rights Act. The Statement of Claim did not plead any material facts in respect of any actual or threatened exercise of that power.

[332]

The lease to the Commonwealth under s 31(1) of the Emergency Response Act and the rights under it to "exclusive possession and quiet enjoyment"[569] are made "subject to" prior interests by reference to the combined operation of ss 34(3) and 35(1) of the Emergency Response Act. This includes the s 71 rights under the Land Rights Act as already discussed. Also included are any prior interests in land created by the Land Trust under s 19 of the Land Rights Act.
Improvements on the Maningrida land included approximately 160 houses for occupation by Aboriginal people, numerous commercial premises, land works, an airstrip, a school, a health clinic, a police station and other infrastructure supporting the community occupying the land. It is pleaded in the Statement of Claim that Commonwealth funding, through the Department of Territories and the Department of Aboriginal Affairs, and the Aboriginal and Torres Strait Islander Commission, has been provided for those purposes. Funding has also come from other sources. Improved land, the subject of an existing lease from the Land Trust under s 19 of the Land Rights Act (which is a preserved interest under s 34(3) and subject to s 34(4) of the Emergency Response Act), might well be occupied by a tenant with rights of possession to which the lease to the Commonwealth would be subject under the combined operation of ss 34(3) and 35(1) of the Emergency Response Act. No material details of such tenancies are pleaded in the Statement of Claim. If such a lease were terminated by the Commonwealth pursuant to s 37(1) of the Emergency Response Act, and that termination constituted an acquisition of property within the scope of s 51(xxxi), s 60 would operate to ensure provision of a reasonable amount of compensation to the tenant. Nothing in these reasons should be taken to suggest that such a termination would necessarily fall outside the scope of s 51(xxxi).
To summarise, these considerations show that the possession and control of the Land Trust under its fee simple has been adjusted temporarily by the Commonwealth's lease under s 31(1) in relation to certain areas and in respect of certain dealings with the land under the Land Rights Act, but that the Commonwealth's "exclusive possession" under its statutory lease is made subject to all prior interests, including prior interests in possession granted by the Land Trust, as well as being made subject to all traditional rights covered by s 71, as explained above.

[333]

Alleged "loss of income" was at the forefront of the plaintiffs' oral submissions that s 31(1) of the Emergency Response Act effected an acquisition of the Land Trust's fee simple. Mr Merkel reiterated many times that diversion of income from the Land Trust to the Commonwealth, as a result of the lease provisions, severed the "tie" between the traditional Aboriginal owners and the "benefits" of the Land Trust's estate in fee simple, which were in turn held for the benefit of the traditional Aboriginal owners.
It became clear during oral argument that "loss of income" was a loose description of both payments (including rent) to which the Land Trust may have been entitled as a result of its creation of prior interests under s 19 of the Land Rights Act, and rent obligations on the Commonwealth covered by ss 35(2) and 62(5) of the Emergency Response Act. Such references should not be confused with provisions for income management under the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth), which was not under consideration in these proceedings.
Payments. Sections 34(1), (3), (4) and (5) and 63(1)(d)(i) and (ii) of the Emergency Response Act, set out above, are relevant to the plaintiffs' contention that the lease granted to the Commonwealth deprived the Land Trust of payments (including rent) to which it was entitled pursuant to prior grants of interests by it under s 19 of the Land Rights Act.
This contention was not specifically pleaded but might be said to arise because the Statement of Claim listed the improvements on the Maningrida land and thereby included an implication[570] that the Land Trust had created prior interests under s 19 of the Land Rights Act which were preserved under s 34(3) and subject to s 34(4) of the Emergency Response Act.
The plaintiffs submitted that s 34(4) will operate to divert to the Commonwealth financial benefits to which the Land Trust was entitled as the grantor of the interests in the Maningrida land. The Land Trust did not agree with the plaintiffs on this issue and pointed out s 63, extracted above[571]. That provision applies to amounts received by the Commonwealth as a result of the operation of s 34(4) which are payable by the Commonwealth to the "relevant owner", namely the Land Trust, and makes them payable out of the Consolidated Revenue Fund, which is appropriated accordingly. The Land Trust urged a construction of these provisions to the effect that, if and to the extent that the Commonwealth stood in the shoes of the Land Trust as grantor, the provisions implied an obligation on the Commonwealth to pay any amounts received to the Land Council as a result of the combined operation of s 34(4) of the Emergency Response Act and s 6 of the Land Rights Act, although the Land Trust could point to no provision of the Emergency Response Act which expressly imposed such an obligation. It may be that it was thought there was no need for any express obligation to be included in the Emergency Response Act, because of s 16 of the Land Rights Act[572]. In any event, the Land Trust's construction of the relevant provisions is plainly to be preferred.
Further, s 34(5) of the Emergency Response Act empowers the Minister to exempt any right, title or interest from the operation of s 34(4) of the Emergency Response Act. Since all prior interests are preserved under s 34(3) of the Emergency Response Act, the practical effect of the Minister exercising the power under s 34(5) in respect of prior interests granted under s 19 of the Land Rights Act would be to leave those prior interests to continue as before the grant of the Commonwealth lease, as between the Land Trust as grantor and any grantee.
Rent. Sections 35(2) and 62 of the Emergency Response Act, relevant to this branch of the argument, are set out above. The plaintiffs contended that the terms and conditions of the lease did not oblige the Commonwealth to pay rent for the reason that s 62(1) of the Emergency Response Act relevantly states that the Commonwealth "may" request a valuation for the purposes of rent; alternatively, they contended that if the Commonwealth were obliged to pay rent, it was unfair for rent to be assessed by the Valuer‑General on an unimproved value of the land.
The Land Trust submitted that the Commonwealth has a legal obligation to pay rent to the Land Trust, in respect of the lease, as determined by the Valuer‑General. That obligation was said to be evidenced by the language of command in s 62(5) of the Emergency Response Act, and the usual obligation as between lessor and lessee which is the relationship established between the Land Trust and the Commonwealth under the lease. That construction is to be preferred to the Commonwealth's position that the payment of rent was entirely discretionary and, to the extent that it matters, that construction appears to conform with what was said in the secondary materials[573]. Further, when the exclusive possession given under the Commonwealth lease is understood to be qualified as to area and subject to prior interests in possession as is explained above, it is not necessarily anomalous for the rent to be assessed by reference to an unimproved value of land.
To summarise, to the extent that the plaintiffs' case depended on erroneous construction of key provisions of the Emergency Response Act, the plaintiffs have not made out their claim that the grant of a lease to the Commonwealth under s 31(1) of the Emergency Response Act, on the terms and conditions already explained, will effect a diminution in the Land Trust's fee simple, specifically an impairment of the Land Trust's receipt of benefits arising from its control of the land, by diverting the Land Trust's income to the Commonwealth.
In any event, any payment received by the Land Council from the Commonwealth must be applied in accordance with s 6 of the Land Rights Act, which requires that the Land Council "within 6 months after that payment is received, pay an amount equal to that payment to or for the benefit of the traditional Aboriginal owners"[574].

[335]

Despite the registrability[577] of the lease granted to the Commonwealth and the usual incidents of a term during which rent is payable, the lease is sui generis and does not give the Commonwealth unencumbered rights of possession and control over the Maningrida land[578] or any private rights for the benefit of the Commonwealth. The challenged provisions do not have as their purpose (nor do they operate) to extinguish the Land Trust's rights as an owner of the fee simple, to dispossess the Land Trust's tenants, or to stop or interfere with the exercise of s 71 traditional rights to use and occupy the land, including the sacred sites on it.
I agree with Gummow and Hayne JJ that the Commonwealth's broad submission that the fee simple is unstable and defeasible and therefore inherently vulnerable to any statutory change in the control of the land must be rejected[579]. However, I accept the much narrower proposition advanced by the Commonwealth, that the scheme of control of Aboriginal land in the Land Rights Act was always susceptible to an adjustment of the kind effected by the challenged provisions, in circumstances such as the existence of the present problems.
The present problems, which are not contested by Mr Merkel, have arisen under a scheme of control of the land which was set up without envisaging or predicting their possibility. The features and structure of that scheme of control, unamended by the challenged provisions, are not easily or necessarily adapted to tackling the present problems quickly. Thirty-five years ago, in his Second Report, of April 1974, Aboriginal Land Rights Commissioner Woodward recommended that grants of land under the Land Rights Act be of an estate in fee simple but he foresaw that the recognition of Aboriginal rights to land needed to be "sufficiently flexible to allow for changing ideas and changing needs amongst Aboriginal people over a period of years"[580]. He said that a (then) widely held expectation "about, for example, the ease of reaching a consensus on certain matters, may prove false"[581]. It is understandable that a consensus of all traditional Aboriginal owners, or a consensus of all traditional Aboriginal owners, the relevant Aboriginal Land Councils, the relevant Aboriginal Land Trusts and the Commonwealth, as to how best to deal with the present problems might not be easy to reach.
As already explained, the Land Trust's fee simple has always been subject to the legislative scheme of control of the land under the Land Rights Act. That legislative scheme of control, like the fee simple itself, is directed to supporting successive generations of traditional Aboriginal owners. It is inherent in the Land Rights Act that there can be a limited legislative adjustment of the control of the land if a need for such an adjustment arises and if that limited adjustment is directed to achieving the purposes of the Land Rights Act, namely supporting the traditional Aboriginal owners. The challenged provisions fall within that description. It is the sui generis nature of the fee simple, particularly the fact that it is held in perpetuity for the benefit of successive generations of beneficiaries, and the statutory scheme of control to which it has always been subject, not the identity or race of the beneficiaries of the fee simple, which are critical to that conclusion[582].
Amendments to the legislative scheme of control of the land have been made before the passage of the challenged provisions[583].
The challenged provisions (and the limited impairment of the fee simple which they entail) are directed to tackling the present problems by achieving conditions in which the current generation of traditional Aboriginal owners of the land can live and thrive. They are not directed to benefiting the Commonwealth or to acquiring property for the Commonwealth, as those terms are usually understood, nor are they directed to depriving traditional Aboriginal owners of any prior rights or interests, which are expressly preserved[584]. The purposes of the challenged provisions are to support the current generation of traditional Aboriginal owners by improving living conditions quickly. They are the beneficiaries, in current times, of the fee simple held in perpetuity under the Land Rights Act. The linkage, between the purposes of the Land Rights Act and the purposes of the Emergency Response Act and the FCSIA Act (all of which rest on the same heads of constitutional power), sustains the Commonwealth's submission that the challenged provisions are outside the scope of s 51(xxxi) of the Constitution.
Assuming, without deciding, that s 51(xxxi) can apply to an exercise of legislative power under s 122 of the Constitution and accepting that it can apply to s 51(xxvi), for the reasons given, the challenged provisions cannot be characterised as effecting an acquisition of property within the meaning and scope of s 51(xxxi) of the Constitution.

[337]

The plaintiffs' statement of claim identifies two property interests as acquired by the Commonwealth otherwise than on just terms: the fee simple estate in the Maningrida land in the Northern Territory, the subject of a grant to the Arnhem Land Aboriginal Land Trust ("the Land Trust") under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"); and the rights held by the first and second plaintiffs pursuant to s 71 of that Act.
The Maningrida land is held by the Land Trust as trustee[585] for the benefit of persons entitled by Aboriginal tradition to use and occupy the land[586]. The Land Rights Act contains provisions which affect the rights normally associated with ownership and it creates offences with respect to entry upon and presence upon the land. Nevertheless, Northern Territory v Arnhem Land Aboriginal Land Trust[587] ("the Blue Mud Bay Case") holds that, whilst the interest granted under the Land Rights Act differs in some important respects from an interest in the nature of an estate in fee simple, that Act must be understood as granting rights that, for almost all practical purposes, are the equivalent of full ownership[588].
The Emergency Response Act does not effect a land acquisition in the usual sense. Its stated object does not directly concern land. It is said to be to improve the well‑being of certain communities in the Northern Territory[589]. The scheme of the Act is to place the Commonwealth in a position of control with respect to the lands identified by it in order that that object may be achieved. By force of s 31(1) of the Act a five‑year lease of certain lands, which include the Maningrida land, is granted to the Commonwealth[590]. The Commonwealth is given exclusive possession and quiet enjoyment of the lands while the lease remains in force[591]. Significantly for present purposes, any right, title or other interest in the lands, which was in existence prior to the grant of the lease, is preserved[592]. Where the right, title or interest had been granted by the Land Trust, it is to have effect as if granted by the Commonwealth on the same terms and conditions[593]. However the Minister can prevent this effect[594] and can terminate any right, title or interest[595], although there is nothing to suggest that this has occurred or is likely to occur. The Commonwealth is not obliged to pay rent to the Land Trust[596]. The Commonwealth may part with possession of the land and grant sub‑leases or licences with respect to it[597] but may not transfer the lease itself[598]. The Emergency Response Act is not expressed to alter the exercise of traditional Aboriginal rights of use and occupation of the lands, which are recognised and protected by s 71 of the Land Rights Act.
Given the breadth of protection effected by s 51(xxxi), it may be accepted that the interest in the Maningrida land conferred upon the Commonwealth by the lease amounts to an acquisition of property within the meaning of the paragraph[599]. The plaintiffs further allege that the Land Trust's interests as owner of the land are so affected by the "abolition of the permit system" as to amount to another form of acquisition.
Permits to enter upon Aboriginal land, which is the subject of the Land Rights Act, are rendered necessary by s 70 of that Act[600] which prohibits entry, with some exceptions. Section 69 contains provisions similar to s 70 with respect to sacred sites. Section 71 recognises and permits the exercise of traditional Aboriginal rights with respect to such land as earlier mentioned. The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("the FCSIA Act"), which was passed at the same time as the Emergency Response Act, amended s 70 and added ss 70A‑70F[601], providing that persons could enter upon and remain upon certain parts of vested Aboriginal land, including common areas, for any purpose that was not unlawful[602]. The evident purpose of such amendment is to provide access to Commonwealth officers and others engaged in works or other activities upon the lands without an offence being committed. The Commonwealth's possession and control under the lease would not be sufficient for this purpose.
The statutory prohibition of entry onto land has a different legal character from the right of a landowner to exclude, although the same result may be achieved. The plaintiffs may draw upon the majority judgment in the Blue Mud Bay Case to support the connection between s 70 and the Land Trust's rights as owner. It is not necessary to do so. By the grant of the lease the Land Trust has lost the right to possession of the lands and the Commonwealth has the right to quiet enjoyment of them, to the exclusion of others.
The first and second plaintiffs' own rights concerning the land, as referred to in the statement of claim, are not alleged to be of the nature of native title rights or interests. The statement of claim refers to the traditional rights of use and occupation of the land which are recognised by s 71 of the Land Rights Act. Such rights are not the subject of acquisitions by the Emergency Response Act; on the contrary, the Act preserves them[603].

[338]

In Newcrest Mining (WA) Ltd v The Commonwealth[604] Gaudron J held that s 51(xxxi) applies where the purpose of the legislation in question is supported by a head of power in s 51[605]. Gummow J agreed[606]. Gaudron J pointed out that the power conferred by s 51(xxxi) is one to acquire property "for any purpose in respect of which the Parliament has power to make laws"[607]. Toohey J likewise considered that a law answering the description in s 51(xxxi) attracted its operation and that any acquisition of property by the Commonwealth would almost inevitably have that result, even if the acquisition took place within a Territory[608].
On this approach, for which the plaintiffs contended[609], the application of s 51(xxxi) is not denied because the territory power of s 122 may also support the law. A law may, and often does, have more than one purpose. The question in cases such as this is whether a purpose falls within the terms of s 51(xxxi). In Newcrest Gummow J said that where it is engaged, for example by a law with respect to external affairs, it is not disengaged by the circumstance that the law in question is also a law for the government of a Territory[610]. It follows that s 51(xxxi) may apply regardless of whether it operates with respect to the exercise of the territory power in s 122.
A construction of other paragraphs of s 51 as depending, for the acquisition of property for the purpose there stated, upon the legislative power contained in par (xxxi), was discussed by Dixon CJ in Attorney‑General (Cth) v Schmidt[611]. Such an approach was followed by Mason CJ in Mutual Pools & Staff Pty Ltd v The Commonwealth[612], although his Honour put s 122 in a separate category, because of the decision in Teori Tau v The Commonwealth[613]. But as Gaudron J pointed out in Newcrest[614] there was no challenge to that decision in Mutual Pools.
It is not possible to discern, from the short reasons given ex tempore in Teori Tau, whether the decision was influenced by other concerns referable to the governance of New Guinea, or about other territories, which might otherwise be acquired by the Commonwealth and to which s 122 might apply. In the course of the argument for the plaintiff Windeyer J raised questions as to the application of s 51(xxxi) to territories outside Australia; and to a polity to which the principle of eminent domain had no relevance.
The stated reasoning in Teori Tau proceeds upon the basis that s 122 was the source of the power to make the law there in question with respect to New Guinea[615]. The question whether s 51(xxxi) was attracted depended upon a view as to the breadth of the power in s 122 with respect to territories. It may be that the power given by s 122 to the Commonwealth is more properly to be seen as given to it as the national legislature of Australia, as discussed by Dixon CJ in Lamshed v Lake[616], where it is exercised with respect to territories in Australia such as the Northern Territory. But Teori Tau is premised upon s 122 being the only power in question and for that reason is not determinative of an outcome in this case.

[339]

The provisions relating to the grant of the five‑year lease and the other powers with respect to the land in question are contained in Pt 4 of the Emergency Response Act[617]. Section 60(2) provides that if the operation of that Part results in an acquisition of property otherwise than on just terms, to which s 51(xxxi) applies, the Commonwealth is liable to pay a reasonable amount of compensation to the person from whom it is acquired. In the event that the Commonwealth and that person do not agree on the amount of that compensation, proceedings may be instituted for its determination and recovery[618]. The terms "acquisition of property" and "just terms" are given the same meaning as in s 51(xxxi) of the Constitution[619].
A provision such as s 60(2) appeared in the Historic Shipwrecks Act 1976 (Cth)[620] and has been incorporated in legislation since then[621]. Such a provision was considered in Minister for Primary Industry and Energy v Davey[622] where it was held that it suffices to comply with s 51(xxxi)[623]. As Black CJ and Gummow J there said, "[i]t is possible for the Parliament legislatively to anticipate that a law might be held to constitute an acquisition of property otherwise than on just terms, and to provide in that event for compensation, in order to avoid a legislative vacuum"[624]. It is not necessary that "just terms" be dealt with explicitly, as a precondition to validity[625].
The provision of compensation, expressed as an amount that is fair and reasonable in all the circumstances, prima facie complies with the requirement of s 51(xxxi)[626]. Many of the matters upon which the plaintiffs rely, as evidencing want of just terms, would be included in any assessment of what, if anything, the Land Trust has lost by reason of the grant of the lease in the terms provided by the Emergency Response Act. Such an assessment would extend to any rental income lost by the Land Trust, if the Commonwealth receives it. The provision for the preservation of such interests on pre‑existing terms and conditions[627] may not have this result. It is not necessary to determine whether that is so.
The plaintiffs argue that, although reasonable compensation is provided for, s 61 of the Emergency Response Act would prevent such an outcome. The submission proceeds upon a misconstruction of that section. Section 61 requires the court determining compensation to take into account any rent which has in fact been paid or is payable by the Commonwealth to the Land Trust; any compensation otherwise paid or payable by the Commonwealth with respect to the land under other legislation; and any improvements upon the land which were funded by the Commonwealth, not the Land Trust. These are matters which could be raised by the Commonwealth in connection with a determination of compensation regardless of the existence of s 61. The section does not require an outcome by reference to them and adverse to the plaintiffs.
It was further submitted by the plaintiffs that the right to compensation provided by the Emergency Response Act was contingent and not absolute. It depended upon the undertaking of litigation to establish that s 51(xxxi) was engaged. Moreover, they argued, the provision for compensation might not be effective to provide just terms because of the delays which would result. Deane J had described the system in question in The Commonwealth v Tasmania (The Tasmanian Dam Case)[628] in this way.
Neither consideration operates in the present case, in such a way that just terms could not be guaranteed. A statutory right to compensation is not qualified by the possibility of a question as to whether s 51(xxxi) applies. The provisions involved in the statutory scheme to which Deane J referred were such that an applicant for compensation would be forced to wait years before being able to address a court or other body for a determination of compensation[629]. It involved a frustration of the purpose of compensation. No such obstacles are provided by the Emergency Response Act.
The remaining aspect of the plaintiffs' case concerning just terms which requires consideration focuses upon the special value which particular areas may have. Sacred sites were identified in this regard. It was said that it may not be possible to attribute a market value to such sites, implying that a loss of or interference with rights exercised in relation to these places is not compensable by money. Such a proposition should not be readily accepted.
It must also be borne in mind that the importance of sacred sites is a matter personal to those exercising traditional Aboriginal rights. It is not an incident of the Land Trust's property rights and could not be the subject of compensation to it. Rights associated with the use of the sites may be held by one or more Aboriginal persons by way of native title rights and interests, but no such rights are here claimed. So far as concerns the plaintiffs, what is spoken of is the potential for interference with the rights recognised by s 70 of the Land Rights Act so far as concerns areas such as sacred sites. But the prohibition upon persons entering into and remaining upon sacred sites under s 69 of the Land Rights Act continues. It would only be where a sacred site was situated in a common area that the right of entry, given to persons generally by the amendments to s 70 and the addition of ss 70A‑70F effected by the FCSIA Act, would operate. No such area was identified by the plaintiffs.
The plaintiffs' case in this respect did not depend only upon the notion that special value attaching to rights associated with sacred sites was incapable of assessment and therefore could not be the subject of compensation in money. It was claimed to be a consequence of this that the Minister was obliged to consider whether the acquisition of these lands was for the benefit of Aboriginal people having such rights. Such a consideration might oblige a conclusion to the contrary. So understood, the issue is not whether just terms can be provided, but whether the Minister should decide to acquire the land at all. That issue falls outside the ambit of the plaintiffs' claim.

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