Wurridjal v The Commonwealth of Australia

Constitutional law (Cth) – Legislative power - Acquisition of property on just terms - Whether power to make laws for government of Territory under s 122 of Constitution limited by s 51(xxxi) - Scope of application of s 51(xxxi) where law of dual character - Relevance of notion of "abstraction" of power of acquisition of property from other powers - Whether Teori Tau v The Commonwealth (1969) 119 CLR 564 should be overruled or departed from - Circumstances in which previous constitutional decision should be overruled.

Constitutional law (Cth) – Legislative power - Acquisition of property on just terms - Northern Territory National Emergency Response Act 2007 (Cth) ("Emergency Response Act"), Pt 4 provided for grant of leases of land in Northern Territory to Commonwealth, including land at Maningrida ("Land") - Second defendant ("Land Trust") held estate in fee simple in Land for benefit of Aboriginals pursuant to Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") - Whether grant of Commonwealth lease an acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution - Nature of estate in fee simple under Land Rights Act - Circumstances where acquisition of property rights of statutory origin - Whether no acquisition of property because rights of Land Trust inherently susceptible to statutory modification.

Constitutional law (Cth) – Legislative power - Acquisition of property on just terms - Land Rights Act, s 71 conferred entitlement on first and second plaintiffs to enter upon, use or occupy Land in accordance with Aboriginal tradition - Whether s 71 entitlements diminished by grant of Commonwealth lease or preserved by s 34 of Emergency Response Act so that no acquisition of any property constituted by those entitlements - Whether Commonwealth empowered by s 37 of Emergency Response Act to terminate s 71 entitlements - Relationship between Pt 4 of Emergency Response Act and offence of entry onto sacred sites in s 69 of Land Rights Act - Whether "property" includes traditional rights required by the general law - Use of international legal materials.

Constitutional law (Cth) – Legislative power - Acquisition of property on just terms - Saving provision - Emergency Response Act, s 60 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied - Reasonable compensation determined, absent agreement, by court - Meaning of "just terms" - Whether Emergency Response Act, s 60 afforded "just terms" or mere "contingent rights" - Whether acquisition of non- compensable interests - Whether no just terms absent express provision for interest - Whether "just terms" extend to consultation requirement - Relevance of requirement for court to consider Commonwealth-funded improvements.

Constitutional law (Cth) – Legislative power - Acquisition of property on just terms - Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("FCSIA Act"), Sched 4, Items 12 and 15 amended Land Rights Act by inserting provisions conferring certain rights of access to Land - Whether FCSIA Act resulted in acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution.

Constitutional law (Cth) – Legislative power - Acquisition of property on just terms - Saving provision - FCSIA Act, Sched 4, Item 18 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied - Reasonable compensation determined, absent agreement, by court - Whether FCSIA Act, Sched 4, Item 18 afforded "just terms".

Practice and procedure – Demurrer - Function and purpose of demurrer - Extent to which facts expressly or impliedly averred in statement of claim might be taken as admitted for purposes of demurrer.

Practice and procedure – High Court - Amicus curiae - Criteria for acceptance of submissions.

Words and phrases – "acquisition of property", "fee simple", "for the benefit of", "just terms", "property".

Constitution – ss 51(xxxi), 122.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – ss 4, 12, 69, 70, 71.

Families – Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth), Sched 4, Items 12, 15, 18.

Northern Territory National Emergency Response Act 2007 (Cth) – ss 31, 32, 34- 37, 50, 52, 60-62.