Two new BTHC columns in Sydney Law Review

Ashleigh Barnes writes in Stare Decisis and Constitutional Guarantees: Commonwealth v Yunupingu: 

In Commonwealth v Yunupingu, the High Court of Australia will consider, inter alia, whether the requirement in s 51(xxxi) of the Australian Constitution that acquisitions of property must be on just terms applies to a Commonwealth law that is supported by the territories power in s 122 and no other head of power in s 51. Whether the just terms requirement applies to laws made under the territories power is a question of enormous significance. This question is in part answered by whether either Wurridjal v Commonwealth or Teori Tau v Commonwealth is good law, and whether either or both of those cases should be reopened and overruled. This column analyses this question in light of novel insights into the Court’s current approach to stare decisis in the constitutional setting drawn from the Court’s recent application of the doctrine in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, Vanderstock v Victoria and Vunilagi v The Queen. Read the column

Lael K Weis and Rosalind Dixon write in Rethinking “On Just Terms”: Commonwealth v Yunupingu:

Commonwealth v Yunupingu raises a number of constitutionally significant issues concerning the scope of the Commonwealth Parliament’s power under s 51(xxxi) of the Australian Constitution and its relationship to the territories power in s 122. One issue that is not directly raised by the questions before the High Court of Australia, but that will nevertheless inform the Court’s answers, concerns the meaning of ‘on just terms’. Is ‘on just terms’ a narrow and inflexible requirement to provide full market-based compensation? Or does it permit a broader and more flexible approach to determining the obligations of the Commonwealth and territory governments, which would allow for structural reparations and non-pecuniary remedies? We suggest that a broader and more flexible approach is generally to be preferred as a matter of both principle and prudence and that such an approach is especially relevant for the Court as it considers the consequences of its answers to the questions before it. Read the column