Canberrans’ property rights upheld

CANBERRANS, your property (and some other rights) are now safe from the hitherto all-powerful Commonwealth Government and Parliament.

The media noise over the Indigenous invasion of the High Court building and the retirement of Justice Michael Kirby last week meant that an important decision regarding the Territories, particularly the ACT and the Northern Territory, went virtually under the radar.

The case was the challenge to the Northern Territory intervention legislation, enacted during the Howard years and left in place by the Rudd Government.

Two Indigenous people from Maningrida challenged the legislation on the grounds that it was an acquisition of property without the constitutional requirement of “just terms”. They said that the intervention legislation gave the Commonwealth a five-year lease over land that was previously land granted to an Indigeous trust under the 1976 Northern Territory land-rights legislation.

They argued it was an acquisition of property without just terms.

The Constitution provides that the Commonwealth has power to make laws acquiring property on just terms. But, and this has always been a big but, that legislative power – like the rest in the list — was subject to the rest of the Constitution, particularly Section 122 which gives the Commonwealth power to makes laws for the peace, order and good government of the territories.

Until last week, the High Court held that that Section 122 meant the Commonwealth could do virtually whatever it liked in the Territories. On various occasions Justices of the court have held that the Commonwealth could acquire property in the Territories without providing for just terms.

There are cases where the court has struck down federal legislation for offending the “just-terms” requirement as it applies in the six states, but specifically held that the legislation was valid in the Territories.

In short, no Territorian’s property was safe from the Commonwealth’s clutches.

There had even been a line of reasoning that the Commonwealth’s power over the Territories was absolute. Other rights given in the Constitution to the citizens of the States did not apply in the Territories. And prohibitions imposed on the Commonwealth against legislating certain things again did not apply to the Territories.

It was as if the Commonwealth ran separate fiefdoms over the Territories and they were not even part of the Australian constitutional compact at all.

Much of that line of reasoning – which came from the Privy Council in London in the days when constitutional appeals to the Privy Council were permitted – has been rejected, but until last week it was still the case that “just-terms’ did not apply to Commonwealth property acquisitions in the territories.

That was held by all seven Justices in 1966 in a case from Papua New Guinea about mineral rights. That 1966 case was specifically overruled by four of the seven judges last week.

Last week’s case raises the more general question of the position of the internal territories, particularly the ACT because one day the Northern Territory will be a state. No matter what its wealth or population, the ACT will never be a state. Nonetheless, its citizens should enjoy, as far as possible in the national capital, similar rights to citizens in the states.

The High Court has at least recognised their property rights and maybe by inference any other constitutional rights or implied protections, such as that of freedom of political communication, previously not recognised. For example in the 1992 case that rendered invalid the Commonwealth law prohibiting political advertising on radio and television, one of the judges held that the law was valid in the territories, even though the point had not been argued.

So freedom of speech could be taken away in the territories, but not in the states, at least until last week’s case.

There have been a fair number of other cases where federal law has been struck down in its application to the states but held valid insofar as it applies to the territories. The reasoning in some of these cases may now be suspect. Usually, however, the Commonwealth does not bother to apply or enforce such laws in the territories.

But last week’s case does not affect the Commonwealth’s capacity to invalidate laws passed by Territory Parliaments, for example on gay marriages and euthanasia or anything else.

This makes Canberrans second-class Australian citizens. Our state and local government is inferior.

Of course, the Commonwealth must have a big say in the national capital, but it should be restricted to matters pertaining to Canberra’s function as a national capital. The Feds, as a matter of principle, should not meddle in the self-government of Canberrans or Northern Territorians The Feds should refrain from making Canberra a guinea pig, as the Whitlam Government did, and should refrain from imposing their moral values on Canberrans, as the Howard Government did.

If it does not have the power or courage to legislate nationwide on a particular matter it should not legislate just for the Territories.

It should treat the ACT in the same way as a state with the exception of matters relating to Canberra’s role as the national capital.

Last week’s High Court case went at least some way in that direction.

As it happened, the court held that the Northern Territory intervention legislation did not deny “just terms” to the Aboriginal people.

Incidentally, and this is a footnote, it was an occasion of some friction between Chief Justice Robert French and the departing Justice Michael Kirby.

French wrote: “The conclusion at which I have arrived does not depend upon any opinion about the merits of the policy behind the challenged legislation. Nor, contrary to the gratuitous suggestion in the judgment of Kirby J, is the outcome of this case based on an approach less favourable to the plaintiffs because of their Aboriginality.”

Kirby had written: “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”. 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.”