An unconstitutional acquisition of property?

John Quiggin posed an interesting question last week on the constitutionality of the Northern Territory National Emergency Response Act 2007 (Cth):

One of the striking features of the government’s intervention in Aboriginal communities, embodied in the Northern Territory National Emergency Response Act 2007 was how rapidly the ostensible motive of intervening to tackle social problems, most notably child abuse, was swallowed by the ideological push to refashion property rights, taking over land owned by Aboriginal communities, with the presumed goal of turning it into individualised private property

A question that’s come up a couple of times and to which I haven’t seen an answer is how this squares with the Constitutional requirement for “just terms” in acquisition of land and other property, and also the statutory requirements of the Lands Acquisition Act (unless these have been overridden by the latest legislation). Is there anyone with a legal background who can comment on this?

At Club Troppo, Ken Parish has posted an excellent and comprehensive response to John's question.  Read it here.

While I agree with Ken's constitutional analysis, some of the comments on both Club Troppo and John Quiggin's blog about what this means for the rights (or lack of thereof) of residents of the territories - in contrast to the rights of residents of the States -  are forgetting two important aspects of s 51(xxxi) of the Constitution. 

First, the Commonwealth Executive enjoys a power to acquire property unencumbered by the requirements of just terms (see Johnston Fear and Kigham & The Offset Printing Co v Commonwealth (1943) 67 CLR 314); although this seems to be limited to national emergencies and some would argue that this intervention is in response to a national emergency) or wartime (see Clunies Ross v Commonwealth (1984) 155 CLR 193 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

Second, s 51(xxxi) does not appy the States; that is, the States can acquire property compulsorily without providing just terms (see Pye v Renshaw (1951) 84 CLR 58).  Furthermore, in Durham Holdings Pty Ltd v New South Wales (2000) 205 CLR 399, the High Court held there was no "deeply rooted right" to receive compensation for property acquired under State legislation.

I make these two points simply because I think it is worth remembering them when discussing the constitutional issue, as distinct from the policy or political aspects to this debate.