Territory Exceptionalism and Indigenous Property Holders: Federalism, Rights Protection and the Australian Constitution

City University of Hong Kong Law Review, Vol. 2, pp. 117-135, 2010

UNSW Law Research Paper No. 2011-18

20 Pages Posted: 13 Mar 2011 Last revised: 15 Dec 2011

See all articles by Sean Brennan

Sean Brennan

University of New South Wales (UNSW) - UNSW Law & Justice

Date Written: March 9, 2011

Abstract

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, territory 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.

Keywords: Australian Constitution, Governmental Power, Aboriginal Property Rights

Suggested Citation

Brennan, Sean, Territory Exceptionalism and Indigenous Property Holders: Federalism, Rights Protection and the Australian Constitution (March 9, 2011). City University of Hong Kong Law Review, Vol. 2, pp. 117-135, 2010, UNSW Law Research Paper No. 2011-18, Available at SSRN: https://ssrn.com/abstract=1782389

Sean Brennan (Contact Author)

University of New South Wales (UNSW) - UNSW Law & Justice ( email )

Kensington, 2052
Australia

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