University of New South Wales Faculty of Law Research Series
Last Updated: 11 March 2011
Territory Exceptionalism and Indigenous Property Holders: Federalism, Rights Protection and the Australian Constitution
Sean Brennan, University of New South Wales
This paper is available for download at http://law.bepress.com/unswwps/flrps11/art18/
This article was published in the City University of Hong Kong Law Review (2010) 2 pp. 117-135.
The guarantee of ‘just terms’ for the compulsory acquisition of property is a rare example of rights protection in the Australian Constitution. Residents of those parts of Australia categorised as Commonwealth Territories were long denied an entitlement to this and other constitutional limitations on governmental power. This resulted from High Court interpretation of Section 122, the constitutional provision conferring power on the Commonwealth to make laws about its Territories. A federalist focus to Australian judicial review, influenced by Diceyan perspectives on law and politics, over-rode the equality of rights protection that might have been prioritised under a different form of constitutionalism. Slowly, over time, territorial exceptionalism has lost favour in the High Court and a more integrationist approach has taken hold. A High Court decision in 2009 about Aboriginal land rights in the Northern Territory, Wurridjal v Commonwealth, brought this integrationist perspective to bear on the property rights guarantee. A 1969 decision denying ‘just terms’ protection to traditional landowners in the then Australian colony of Papua New Guinea was over-turned. But Aboriginal property rights, and rights more generally in Australia, remain situated in a polity where utilitarianism, majoritarian politics and Diceyan legal ideas still hold powerful sway.