Kean v. the Commonwealth1
| DOI | 10.1177/0067205X6400100109 |
| Published date | 01 March 1964 |
| Date | 01 March 1964 |
| Author | T. J. Higgins |
| Subject Matter | Article |
146
Federal Law Review [VOLUME 1
speaking, they are general laws which do not take for their operation
events, circumstances
or
conduct which
of
their own nature fall within,
constitute or necessarily include any essential element
or
attribute
of
trade commerce and intercourse among the States.
36
Moreover,
Dixon C.J. in Chapman
v.
Suttie,37 said that in considering whether
compliance with the Act would mean an interference with freedom
of
interstate trade one could not disregard the fact that the Court was
not
concerned with the ordinary course
of
trade and commerce in com-
modities where delay and the like may form real impediments.
A. CIRULIS.
KEAN
v.
THE
COMMONWEALTH'
Constitutional law-Acquisition power
in
the Territories-Northern
Territory (Acceptance)
Act
1910
(Cth)-Acquisition
of
Territories-
Scope
of
the power under section 122-Compensation
on
'just
terms '.
The plaintiff, prior to the enactment
of
the Northern Territory
(Acceptance) Act
1910
(Cth), had been granted an estate in
fee
simple
by the State
of
South Australia.
The Legislative Council
of
the Northern Territory by the Minerals
(Acquisition) Ordinance 1953-1954 (N.T.) purported to acquire all
minerals in the Territory for the Crown. Compensation was to be
paid in accordance with agreement between the parties concerned
or
by action against the Commonwealth
if
an agreement
on
compensation
could not be reached. This right to claim compensation from the
Commonwealth was subject to two conditions. First, awritten claim for
compensation was to be filed and secondly, the action for determination
had to be commenced within one month from service by the Adminis-
trator
of
anotice that agreement could
not
be reached.
The plaintiff in this case owned lands which were affected by the
Ordinance. However, agreement could not be reached on the com-
pensation payable. The plaintiff therefore brought action against the
Commonwealth claiming declarations that the Ordinance was invalid
and so did not vest the minerals in the Commonwealth or, alternatively,
compensation under the Ordinance with interest.
Bridge J. refused to grant the relief sought by the plaintiff, dismissing
her suit with costs.
It
was argued for the plaintiff that the Ordinance
was invalid as it was repugnant to the Northern Territory (Surrender)
Act
1907
(S.A.) and the Northern Territory (Acceptance) Act
1910
(Cth). This argument sought to gain acceptance
of
the view that these
two Acts formed abilateral agreement between South Australia and the
36
Dixon C.J., Webb and Fuijagar JJ. in Mansell
v.
Beck (1956)
95
C.L.R.
550.
37
(1962-1963)
36
A.L.J.R.
342,
345.
,Judgment
29
March
1963,
not yet reported; Supreme Court
of
the Northern
Territory; Bridge J.
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