Compensation

Papuan Owners and High Court Judgment

THE decision of the High Court of Australia on the Crabtree case, pub lished on August 11, is of import ance to all owners of Papuan or New Guinea property taken over by the Commonwealth military authorities.

The military authorities have been taking over property in Australia and compensating owners therefor according to some formulae arranged by the mili tary themselves, under National Security Regulations. In many cases—as in Papua—the compensation awarded was

grossly inadequate.

The High Court swept away the National Security formulae, because they did not comply with Section 51 of the Constitution, which provides that, when property is taken by the Government from private citizens, it must be on “just terms.” Judges held that “just terms” meant “full and adequate com pensation for the compulsory taking.”

Much property was taken or used by the Australian military authorities in Papua. Owners have been offered—in most cases, by a gentleman named Aider man (appointed by either the Army or the Australian Government as a sort of claims officer)—miserable rates of com pensation, upon some obscure basis apparently fixed by Mr. Alderman him self. Some, being in need of money, have accepted; but many, very wisely, have refused.

Advice secured by the Pacific Terri tories Association would indicate that the question of compensation in the Ter ritories is affected to some extent by the argument that evacuation previously had taken place, and the property, when acquired, was consequently out of use.

That is an Aldermanic argument, typical of the narrow legal interpretation, and fallacious.

Niggling legal gentlemen may argue that the property was useless because of the war and the evacuation. But, to the owners, it was not useless. It repre sented, to them, a means to their reha bilitation in the Territories after the war. The property was abandoned, under compulsion. If it is there, on the own er's return, then the owner is not obliged to pay the heavy cost of replacing it. If it is not there (lost as a result of war conditions) then the owner, sooner or later, should be able to claim War Dam age compensation.

If “justice and moral right” are to prevail—and that is the basis of the High Court judgment—then owners of property taken by the Army must be compensated on replacement cost, and not according to some arbitrary legal formulae.

The law often is an ass; that is why law and justice are not necessarily synonymous terms.