Indigenous intervention, doing good and racism

By Legal Eagle

The High Court has just handed down its decision on the constitutionality of the legislation enabling the Northern Territory intervention: Wurridjal v Commonwealth of Australia [2009] HCA 2. A majority of the Court ruled that the legislation was constitutional, with Kirby J delivering a last (and controversial) dissent. It is a fascinating decision, involving the question of whether the Commonwealth has acquired property by reason of the Northern Territory intervention, and, if so, whether it has done so under “just terms” as required by s 51(xxxi) of the Constitution. [The short answer, for those who can’t be bothered reading through the entire post, is that the majority of the Court concluded that property was acquired by the Commonwealth as a result of the intervention, but that the terms were just.]

Like the true law nerd I am, I’ve even put headings in this post so that you can skip to the sections you want to read. 🙂

History and facts

The history behind the case is that various Northern Territory indigenous communities were granted land pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘Land Rights Act‘). Title in fee simple was to be held by on trust for the benefit of indigenous people. The land is held by a statutory body corporate known as a Land Trust, but that body is limited in the ways in which it can deal with that land. Land Councils, on the other hand, can deal with the land held by Land Trusts more extensively, but must consult with the local indigenous people and obtain their consent before performing various actions.

During 2006 and 2007, it was reported in the press that many indigenous communities were in dire straits (as described by my post here). In response to this, in 2007, the Howard government instituted radical interventions in Northern Territory indigenous communities. As part of this intervention, pursuant to the Northern Territory National Emergency Response Act 2007 (‘NER Act‘), five-year leases in favour of the Commonwealth were created on the land held by Land Trusts. The purpose of this was said to be to allow the Commonwealth to take control of the land in order to improve the living conditions of indigenous people on those lands in as short a time as possible. The land was to revert back to the Land Trusts at the end of the leases (or earlier, if intervention was no longer needed). The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (‘FaCSIA Act‘) permitted certain people to access certain indigenous land, and thus qualified s 70 of the Land Rights Act which prevented people from entering onto Aboriginal land.

Both the NER Act and the FaCSIA Act provided for compensation in the event that property was acquired as a result of their provisions. For example, s 60(2) of the NER Act states that the Commonwealth is “liable to pay a reasonable amount of compensation” to the Land Trust. If the parties do not agree on the amount of compensation, pursuant to s 60(3) of the NER Act, the Land Trust  can institute proceedings seeking compensation.

The Northern Territory intervention has been very controversial from the beginning, and personally, although I could see some definite pros deriving from intervention, I was also concerned by the hasty way in which this particular intervention proceeded.

The first and second plaintiffs were indigenous people with a connection to lands around Maningrida. That land is held by the Arnhem Land Aboriginal Land Trust (the second defendant). The third plaintiff was the Bawinanga Aboriginal Corporation.

Did the Commonwealth need to pay compensation on “just terms” for land acquired in Australian territories?

The first question for the High Court to consider was whether the need for the Commonwealth Government to pay compensation on “just terms” applied to land acquired in the Northern Territory. There had long been an argument that the power of the Commonwealth Government over the Northern Territory was different to that it exercised over the States. While the powers of the Commonwealth could exercise over the States were constrained by the s 51 heads of power, s 122 of the Constitution created disparate powers over the territories. This theory was upheld in the case of Teori Tau v Commonwealth (1969) 119 CLR 564, and it was found that the Commonwealth did not have to pay compensation on just terms when land was acquired in territories.

French CJ, Gummow and Hayne JJ and Kirby J found that Teori Tau should be overruled, and that the requirement that land be acquired on “just terms” should apply equally to territories. Crennan J did not find it necessary to decide.

Did the Commonwealth in fact acquire the Land Trust’s property?

The second question was whether the Commonwealth in fact acquired property by reason of the lease over the Trust Land. The Commonwealth had attempted to argue that the extent of control it had over indigenous land meant that it was not true fee simple title, or that the intervention was simply a shifting of the various interests of the Commonwealth and indigenous people in the land.

The character of the interest of indigenous people in Trust Land has recently been clarified by the High Court in the Blue Mud Bay Case (per Gleeson CJ, Gummow, Hayne and Crennan JJ at [50]):

It is thus apparent that the interest granted under the Land Rights Act differed in some important ways from the interest ordinarily recorded under the Torrens system as an estate in fee simple. But despite these differences, because the interest granted under the Land Rights Act is described as a “fee simple”, it must be understood as granting rights of ownership that “for almost all practical purposes, [are] the equivalent of full ownership” of what is granted. In particular, subject to any relevant common law qualification of the right, or statutory provision to the contrary, it is a grant of rights that include the right to exclude others from entering the area identified in the grant.

Thus, it was particularly relevant to the plaintiffs’ claims that s 70 of the Land Rights Act prevents a person from entering onto Aboriginal land. Section 71(1) of the Land Rights Act provides that indigenous people may enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of those indigenous people with respect to the land. The permit system which prevented others from entering upon the land was removed in certain townships by the NER Act and the FaCSIA Act.

French CJ, Hayne and Gummow JJ and Kiefel J found that the interest of the Land Trust in the land, although unusual, was a full fee simple interest, and that the legal effect of the leases imposed by the NER Act was to diminish the rights of indigenous people in that interest. Such dimunition is an acquisition for the purposes of s 51(xxxi) of the Constitution. French CJ also found the partial roll-back of the permit system was an acquisition of property by the same reasoning.

Crennan J rejected the argument by the Commonwealth that the Land Trusts’s fee simple was inherently vulnerable to any statutory change. However, her Honour accepted the narrower proposition that the scheme of control of Aboriginal land in the Land Rights Act was susceptible to an adjustment of the kind effected by the intervention (decreased indigenous control and increased Commonwealth control).

The plaintiffs further argued that ss 70 and 71 of the Land Rights Act conferred upon them personally an exclusive right to enter upon, use or occupy the Maningrida land in accordance with Aboriginal tradition, and that this was removed by s 37 of the NER Act which allowed the Minister to terminate their rights at will.

French CJ and Gummow and Hayne JJ and Kiefel J held that this was not an acquisition of the rights of the plaintiffs pursuant to s 71, essentially because s 37 of the NER Act was not intended to allow arbitrary removal of the rights of individual indigenous people to the land, and was unlikely to be used by the Minister in this way.

Was compensation on “just terms” as required by s 51(xxxi)?

The third question was whether the compensation provided by the NER Act and the FaCSIA Act was just in the circumstances. The plaintiffs argued that “[t]raditional Aboriginal rights and interests in land cannot be readily replaced, nor readily compensated for by the payment of money”.

They also argued that terms of acquisition were unjust because:

  • the NER Act did not create a binding obligation to pay rent for the leases over the land;
  • the Commonwealth was able to receive any rent without accounting for it to the Land Trust or traditional Aboriginal owners; and
  • the NER Act allowed the Commonwealth to vary or terminate the lease or dispose of its interest as lessee in a manner adverse to the Land Trust without compensation.

Finally, the plaintiffs argued that the procedure provided by s 60(2) providing for reasonable compensation was an onerous, costly and time-consuming process, without any aid or protection for those indigenous people who sought to obtain compensation. Therefore it could not be just.

However, French CJ, Gummow and Hayne JJ, Heydon J and Kiefel J each found that the NER Act and the FaCSIA Act did provide just compensation for the acquisition of indigenous rights in the land. Heydon J’s reasons were particularly detailed in this respect. Apparently similar provisions in other Acts have been found to constitute acquisition on just terms.

The last dissent: Kirby J

Kirby J retired from the High Court yesterday. I will miss his judgments, although I did not necessarily agree with all of them. They were thought provoking, well-researched and well-structured.

It should not surprise High Court junkies to learn that his Honour dissented in his last judgment. However, it is a particularly controversial dissent, primarily because of his Honour’s statement at paragraphs [214] – [215]:

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. 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. 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”, this reasoning is essential and, in truth, self-evident. The demurrer should be overruled.

The penultimate sentence of the second paragraph refers to the following acerbic comment by French CJ at [14]:

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. [emphasis added]

Before we get into that particular battle, let’s look at Kirby J’s reasoning. As an introduction, His Honour argues that any dimunition of the rights of indigenous people over their land should be viewed with suspicion given the history of Australia, and given that race forms the basis of the reason for deprivation. Kirby J was also concerned by the fact that the intervention was initiated without genuine consultation with indigenous people.

First, Kirby J argued that the proceeding should not have been decided on a demurrer (a pleading that even if the facts are as alleged by the opposite party, they do not sustain the legal contention based upon them). His Honour would have dismissed the demurrer on all grounds apart from that which dealt with s 122 of the Constitution. This was on the basis that the other questions (about property and just terms) should have been decided on the evidence with full legal argument, not on bare pleadings.

Secondly, Kirby J argued (along with the majority) that Teori Tau should be overruled on the basis that it does not represent good law.

Thirdly, Kirby J argued not only that the fee simple interest of the Land Trust was property, but that the interests of the individual plaintiffs could potentially constitute property for the purposes of s 51(xxxi) if regard was had to general law principles and not just the Land Rights Act.

Fourthly, Kirby J argued that the acquisition was not done on “just terms”. His Honour stated at [307] – [309]:

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. …

…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.

For the most part, it was a cogent and scorching judgment – a fitting last hurrah.

Conclusion

Ultimately, the judgments agree more than they disagree. They agree that the requirement to pay just terms for acquisition of property should apply to territories. Apart from Crennan J, the majority holds that the fee simple interest held by the Land Trust is not peculiarly defeasible, and thus the leases do constitute an acquisition for the purposes of s 51(xxxi). I am pleased that the majority concluded this. To hold otherwise would create a mockery of the Land Rights Act.

The main issues on which the majority and Kirby J part company are the interests of the individual plaintiffs, and what is meant by “just terms”. The majority takes a formal approach, merely requiring that the Commonwealth have a procedure whereby the Land Trust can seek compensation. Kirby J takes a substantive approach, arguing that “just terms” does not mean mere availability of monetary compensation, but also that the acquisition proceed in a just and fair way, and in particular, given the history of interaction with indigenous people in Australia, with proper consultation.

My own concern with the Northern Territory intervention has always been that it was not undertaken with proper consultation of indigenous people, but was rushed through in a panic. That being said, I do not doubt that there were good intentions present on the part of many involved with the intervention.

Nonetheless, I do not think it is fair of Kirby J to infer that the rest of the High Court is prejudiced against indigenous people. The situation faced by some indigenous communities is terrible and unusual; and I think that if such a situation was faced by any other specific group of people living in discrete communities, the Court would have taken the same attitude, whatever the race of the people involved. His criticism of the majority as racist has an unpleasantly pious tang, and mars the judgment.

I do wish the Federal Government had listened to the recommendations of the authors of the original Little Children are Sacred report which sparked the intervention. I’m not sure yet whether consultation and special care should be incorporated into the law via “just terms” as Kirby J suggests. Really I think it’s a matter of common sense rather than law – the best way to fix other people’s problems is to get them on board before you start belabouring them with solutions. Too much harm has been done already, with the best of intentions.

41 Comments

  1. dan
    Posted February 4, 2009 at 6:19 am | Permalink

    Still reading through the judgments, but was struck how some of Kirby’s reasoning really did seem to echo “the Castle”, when he argues that just terms is not the same as monetary compensation for value. Was waiting for him to say “It’s not a house, it’s a home”.

  2. Ken N
    Posted February 4, 2009 at 6:30 am | Permalink

    Nicely analysed, LE with insightful comments.

    I agree that it would have been better for there to have been consultation and deeper thought before the intervention.

    However, this almost always causes great delay and then no action. Politicians have a short attention span. If they want action, they usually whip themselves into a panic. This is a great pity and, to me, a reason why government action is rarely the best way to solve a problem. I just wish we knew what is the best way to help Aboriginal Australians. It is clear that much of what we have done over the past 35 years has made the situation worse.

  3. Posted February 4, 2009 at 6:46 am | Permalink

    Kirby for better or worse is bringing a level of analysis that the others simply don’t want to touch. I’ve read far too little of the judgement to have an opinion on whether he was right, and he does go right out on a limb sometimes, but I don’t think it is too much of a stretch to suggest, in a Court that can reconstruct ‘corporations’ to mean ’employment and labour rights’, that ‘terms’ might be wider than money.

    His comments more generally, outside the Court, ring particularly true – you might expect a little more intellectual variety and dissent up there.

    PS you are a massive nerd.

  4. Posted February 4, 2009 at 7:05 am | Permalink

    As I just said over at LP, it is striking when we depend on a broadly ‘left-leaning’ judge to make the sort of eminent domain arguments that should be the preserve of good federalists and respecters of property rights.

    Big government conservatism, long may you rot.

  5. Theodora
    Posted February 4, 2009 at 7:24 am | Permalink

    I was half expecting something out of “The Castle” too by the time I’d laboured through the judgment. I will miss Kirby too – though I rarely agree with him, I do like a man who’s not afraid of a comma. I think he’s certainly one of the easiest judges to read from a comprehension level, though not always on a legal analytical one.

    As always, thank you LE for your insightful analysis and summary of the case (and of previous cases of interest to Lawnerdistan).

  6. John Greenfield
    Posted February 4, 2009 at 12:14 pm | Permalink

    Cases like this highlight how disastrous a judicially-reviewable “rights” based resolution of these issues would be. They are far too complex, with far too many competing interests and values for the judiciary to deal with. It is only governments – for good or bad – which have the data -gathering facilities and democratic imprimatur to rank the differing interests, “rights” and values.

  7. John Greenfield
    Posted February 4, 2009 at 12:15 pm | Permalink

    Armagny

    You say “go out on a limb” I say “authority shops”. 😉

  8. Posted February 4, 2009 at 3:39 pm | Permalink

    Nonetheless, I do not think it is fair of Kirby J to infer that the rest of the High Court is prejudiced against indigenous people. The situation faced by some indigenous communities is terrible and unusual; and I think that if such a situation was faced by any other specific group of people living in discrete communities, the Court would have taken the same attitude, whatever the race of the people involved. His criticism of the majority as racist has an unpleasantly pious tang, and mars the judgment.

    I totally disagree. I also think that his hypothetical is totally valid. Imagine if the Federal Government decided that, say, the Italian community was too closely associated with organised crime and therefore seized various assets from people simply because they were of Italian origin. Would French CJ and co really make the same determination?

    Cases like this highlight how disastrous a judicially-reviewable “rights” based resolution of these issues would be. They are far too complex, with far too many competing interests and values for the judiciary to deal with. It is only governments – for good or bad – which have the data -gathering facilities and democratic imprimatur to rank the differing interests, “rights” and values.

    I don’t think that reasoning holds water, myself. What is more important that the rights of citizens? Nothing. They are not complex things in and of themselves – they are generally fairly simple. Right to vote. Right to freedom of association. Right to political expression. Etc.

    We are alone in the democratic world in having a supreme national court which flat out refuses to engage with questions of fundamental rights. Refusing to determine disputes on the basis of rights is functionally identical to denying those rights.

  9. Posted February 4, 2009 at 3:42 pm | Permalink

    I should add a comment that I think still rings true – on virtually any other Court in the common law world/US, Kirby would be regarded as a moderate liberal and would consistently be part of a voting bloc. It is only on our extreme black-letter High Court that he appears to be a radical by way of contrast. I admire him greatly for the fact that he appears to be the one judge of the Court (perhaps Callinan too) in recent times to remain steadfast in his positions despite the politico-legal tide.

  10. Posted February 4, 2009 at 4:26 pm | Permalink

    I suppose from a philosophical point of view, what is offensive is the clear political statement that this is directed towards people based upon race (even if the practical effect is to help only those in dire straits).

    I would be much more comfortable (in this sense) with a law which applied across the nation to every Australian, black, white or purple, who met the relevant criteria for being subjected to the intervention. E.g. you haven’t had a source of income for X months, your kids haven’t been to school more than 100 days out of the past year, there have been more than 3 alcohol related incidents of violence in your household or immediate neighbourhood in the last 6 months, then you are hereby subject to The Intervention TM. The extremely uncomfortable thing is when it seems to be exclusively applied to people based on race – and it also makes me wonder how many perfectly good and caring Aboriginal parents are being treated like abusive imbeciles simply because of their race.

  11. sweeney
    Posted February 4, 2009 at 5:49 pm | Permalink

    The ‘race power’ is endlessly problematic. Kirby, to his credit attempted to nail it to being a ‘positive power for good’ power insofar as it affects indigenous Australians (and has it ever affected anyone else?), and maybe that is what he is obliquely getting at here.

    As governments (and their oppositions) don’t appear to have the will to address these matters, it’s good that at least one person on the High Court bench has been willing to stick his head above the parapet. The lesser of two evils, I agree.

  12. saint
    Posted February 4, 2009 at 6:32 pm | Permalink

    Frankly – and let me be the dissenter here – I don’t know that a drunk, an unemployed loser who has no hope of ever being able to escape a jobless hellohole, who beats up the local women and is prone to raping her and her children could give a toss about asking for help, consulation, performance participation or whatever. Nor could they give a toss about their “property rights”. I doubt those whom the intervention is designed to help have ANY sense of identity, much less on tied up with land or whatever the latest fashionable catch cry is amongst the indigienous welfare industrialists. It’s the Kirby luvvies and their identity politics which have contributed to the enslavement of many, including those in remote communities who are now subject to the intervention.

    Frankly too, Kirby might be surprised to even talk to some of those who have already benefited from the intervention or who begged for their (grand)children to be taken away from certain hell holes.

    BTW too, the remote communities which are subject to the intervention are not necessarily 100% indigenous and the intervention does not limit itself to just indigenous community members. Kirby’s inference that his fellow judges or others are racist only exposes him for the bigot he is.

    Whatever his brilliance, I for one, say good riddance to Kirby although I suspect we will continue to hear his whining – perhaps moreso now that he’s retired – until the day he dies.

  13. Posted February 4, 2009 at 8:17 pm | Permalink

    Unlike Kirby J, I don’t have a falsely romantic notion of traditional Aboriginal culture, and don’t support the continued taxpayer subsidies Aboriginal people receive in order to live where they do. History cannot be other than it is, and romantic attempts to turn back the clock fail insofar as they fail to take the way we live now into account.

    My concern with Aboriginal land rights (and property rights generally) is that we don’t respect them enough, and letting Joe Government tear up Aboriginal land permits is a cousin under the skin to letting the state mess with everyone else’s property. Witness the silliness about self-defence and the householder’s right to defend his property, for example.

    Beyond this, there is the larger issue of justice in acquisition. Unlike the Native Americans, Aboriginal people were given no realistic chance to participate in the new market society that the British colonists brought with them, and this was largely because they were (a) deprived of all their land, (b) when some of it was returned to them, it was rendered useless as collateral (‘group ownership’) and (c) their ownership rights were made ‘unusually vulnerable’ to extinguishment.

    For all that Native Americans lost much of their land, the land they kept could be bought and sold in the normal way. Sure, some tribes flogged the lot for glass beads etc, but lots didn’t — and went on to make shrewd investment decisions. Native Americans show the ‘normal’ distribution of success and failure that one would expect for any given group in a market society. Some are rich, some are poor, but many more are somewhere in between. The life expectancy gap between them and whites is small, plenty go to college and so on.

    This is plainly not the case for Aborigines. If Aborigines had been able to keep some of their land and alienate/leverage it in the usual way, then it is obvious (consistent with the arguments of Robert Nozick) that the distribution of holdings would have been very different to what it is now, and very much to the good for Aborigines. Nozick thinks that in these circumstances, some form of rectification is the only just response (because, let’s face it, we got rich because we nicked their land).

  14. saint
    Posted February 4, 2009 at 10:22 pm | Permalink

    “I agree – we benefited because we nicked their land ”

    Most (perhaps all?) traditional Aboriginal cultures wouldn’t have a concept of it being “their land” able to be “nicked”. And again, let me also be the dissenter here: a fair whack of Aboriginal cultural/religious beliefs contribue to some of the most appalling inequalities and injustices (and I have no qualms suggesting some cultures and religions are preferable to others).

    I find it ironic too that most indigenous whingers in the Indigenous Welfare industry who like to talk about land being nicked have also done very well for themselves in whitefella’s culture and wouldn’t survive two minutes in a “traditional” Aboriginal culture (not that any such thing exists anymore and hasn’t for decades).

  15. Posted February 5, 2009 at 1:50 pm | Permalink

    Most (perhaps all?) traditional Aboriginal cultures wouldn’t have a concept of it being “their land” able to be “nicked”.

    I think this is a quaint mythology that is a load of unmitigated bollocks. Aborigines and most hunter gatherers do have a sense of personal ownership, they do fight over land and hunting regions, so for all intents and purposes this noble savage oriented nonsense makes no difference in the real world. Get some perspective here, hunter gatherers gain access to more resources by killing nearby tribe members. Welcome to the Jungle.

    We invaded Australia, we killed them off. That is our way and we’re very good at it. Only very recently has that changed. If you keep looking over your shoulder while trying to move ahead you’ll trip and fall. Aborigines must focus much more on the future consequences of their behavior and worry much less about the consequences of our invasion.

  16. Posted February 6, 2009 at 1:10 pm | Permalink

    “it is striking when we depend on a broadly ‘left-leaning’ judge to make the sort of eminent domain arguments that should be the preserve of good federalists and respecters of property rights. ”

    Aha Skeptocrat, indeed post the Work Choices decision (my constant bugbear when it comes to the shaky nature of the concept of an activist judge) I think I wrote somewhere in the blogosphere that only Callinan, may his career rest in peace, actually stuck to what should classically have been his guns.

    As a black letter federalist.

  17. Posted February 6, 2009 at 1:12 pm | Permalink

    Hither (apologies for self promotion!)

    http://armagnacd.blogspot.com/2006/11/one-solitary-judicial-conservative.html

  18. dover_beach
    Posted February 6, 2009 at 3:49 pm | Permalink

    “Big government conservatism, long may you rot.”

    SL, yes, I may sound like a broken record, but I don’t think this is necessarily a problem with conservatism so much as with big government. My rather cursory knowledge of eminent domain/ compulsory acquisition is that it is performed in ‘the public interest’. The principle English cases and decisions being Hole v. Barlow (1858) and St. Helen’s v. Tipping (1865). In the former, Wilkes, J wrote: “Necessities may arise for an interference with the common law right to clean air pro bono publico…private convenience must yield to public necessity”. This opened the door for every conceivable interference so long as it could be argued to be ‘in the public interest’.

    Which raises the problem, in this instance, of whether the property in question is a private convenience of those being deprived its enjoyment.?

  19. Jacques Chester
    Posted February 6, 2009 at 5:28 pm | Permalink

    I totally disagree. I also think that his hypothetical is totally valid. Imagine if the Federal Government decided that, say, the Italian community was too closely associated with organised crime and therefore seized various assets from people simply because they were of Italian origin.

    They aren’t comparable because there isn’t an Italian Land Rights Act preventing economic progress amongst Italo-Australians.

  20. Jacques Chester
    Posted February 6, 2009 at 5:31 pm | Permalink

    Refusing to determine disputes on the basis of rights is functionally identical to denying those rights.

    Or, alternatively, it’s judges sticking to interpreting law and not making it. You know, like we pay them to.

    If they want a Bill of Rights they have the same right and mechanism to introduce one that anyone else has: resign their office and run for Parliament.

  21. Jacques Chester
    Posted February 6, 2009 at 5:36 pm | Permalink

    Kirby, to his credit attempted to nail it to being a ‘positive power for good’ power insofar as it affects indigenous Australians (and has it ever affected anyone else?), and maybe that is what he is obliquely getting at here.

    Except that Kirby J, one of the High Court’s great critics of Intentionalist reading of the Constitution, used an Intentionist reading of that amendment in his argument for the Hindmarsh Bridge Case. That’s about the point I gave him up as an active threat to the law.

  22. Jacques Chester
    Posted February 7, 2009 at 5:58 pm | Permalink

    I remember that case vividly because I had just done an essay on the various theories of interpretation and had delved into Kirby’s essays on Dynamism.

  23. polpak
    Posted February 8, 2009 at 5:58 am | Permalink

    “Such interests are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned. ”

    Shudder in memory of past legal and political failings, past justifications, for actions later discredited.

    Regret that from Kirby.

    Question whether decision not on wider merit or standing, rather more dubiously a decisions on basis of deemed racial identification of claimants.

    To receive just compensation, must victims of crime first accept the continuance of the crime ?

    This crime continues, determining the legal rights and or responsibilities of fellow Australians on basis of their racial identification.

    Racism the Australian people acted overwhelmingly to outlaw when creating the Commonwealth and in 1967.

    Australians continue to be segregated due racial decisions, even Australian families.

    Crime is refusal of our Justices to do their duty.

    Justice’s duty is to uphold the Constitution as agreed to by the Australian people.

    Control Commonwealth and State’s avarice for power.

    Australian people sort no legislation discriminate amongst Australians on grounds of race.

    Here just such crime is being defended not rejected.

    That NT intervention occurs is clearly result earlier High Court Justice’s failures to reject legislative racism.

    Their allowing it to continue as a ‘positive power for good’ .

    Ongoing disgraceful circumstances in communities the direct result.

  24. andrew
    Posted March 22, 2009 at 5:00 pm | Permalink

    thanks legal eagle. ..you have helped me with my essay! i like your turn of phrase…keep on keepin on being a legal nerd!

  25. John Greenfield
    Posted March 26, 2009 at 9:31 am | Permalink

    LE

    We WILL get around to our chin-wag on Mabo one day, but for now tell me what you think of the HC’s “rediscovery” of ‘Native Title’ in Mabo 2. As I have said, I have not studied Property law and am not a lawyer.

    I have now read all the judgments, and for the life of me I cannot conclude other than that Brennan was extremely confused and all over the shop, while Deane and gaudron’s reasoning was so glaringly subpar, I wonder if an attempt to overturn the decision will ever be mounted?

    I have only recently finished Dawson’s dissenting judgment. It was by far the crispest, most rigorous, and forced me to reject my earlier support for the decision.

    Your thoughts?

  26. John Greenfield
    Posted April 7, 2009 at 11:39 am | Permalink

    Well they’re going to have rights coming out their nostrils now that Rudd has signed this extremely foolish UN Declaration of the Rights of “indigenous” Peoples. Whoever they might be.

  27. John Greenfield
    Posted April 7, 2009 at 11:44 am | Permalink

    LE

    My reading of Mabo is that common law “native title” was assumed to continue in all British colonies unless the Crown explicilty revoked it. The High Court used the notion of terra nullius to decide which colonies this applied to, and Australia was one.

    What is even more bizarre is that they should bundle the Torres Strait Islanders and Tasmanian aborigines into the same category.

  28. CIndy
    Posted April 10, 2009 at 12:42 pm | Permalink

    The discussions were informative and controversial. I am not a supporter of the NER; if I had been taken from my culture and then had it ‘somewhat’ reinstated I would be fearful of the outcome of any major intervention. The need for action is evident, but the consultation of Aboriginal people is lacking. The ‘Little Children are Sacred’ clearly recognises that all actions must oocur with consultation of communities.

    If the Government had clearly and simplistically identified the plan and action with Elders there would be a more positive outcome for the long term, and that should be the aim, bandaid acts won’t fix the ingrained skeptism and may I say disdain for ‘whitefellas’ and the short term results may be positive, but what is the clear plan after the 5 year lease…….. Is there one?

  29. Petierla
    Posted April 11, 2009 at 11:34 am | Permalink

    There is a scheme to work toward solving the problem but very few would have the guts to admit it. This is not politically correct but here goes;
    In any nation that has been taken by conquest, such as Australia, the conquered people really only have two choices. One, assimilate, at least to a workable extent,and accept all the benefitsand responsibilities that may provide or two,remove themselves from the conquoring society and fend for themselves. This is an either/or proposition, trying to take the best of both options cannot work and results in atrocities such as children being forcibily removed from their parents.
    The only practical way to end this dilemma is to phase out all specifically targeted government intervention over, say, the next five years, and force a transition to self sufficiency for the communities. Human ingenuity is a marvelous thing when given the opportunity and, more importantly the drive, to come to the fore.

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