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Express Rights & Freedoms
- By Student at Law
- Published 19/05/2007
- Sydney Uni 2006
- Unrated
8 Express Rights & Freedoms – s 51(31) /s117/ s80 /s116
Section 51 (xxxi) – Acquisition on Just Terms
The Parliament shall have power to make laws…w.r.t:
(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.
• Only binds the Cth
• It is both a power, and a right contingent on its exercise.
• General view is that the HC has been quite generous in the protection they provide citizens against the Cth power – especially economic protection.
1. Parliament must have power P J Magennis Pty Ltd v Cth (1949)
• this means that every law supported by s51(xxxi) must be supported by at least one additional legislative power. Per Latham CJ
2. What is property?
It is a general term Army v Dalziel (1944)
• “not restricted to acquisition by particular methods or of particular types of interests or of particular types of property.”
• “means any tangible or intangible thing which the law protects under the name of property.” per Rich J
• Minister for Army seized a lot that the tenant, Dalziel, used as a carpark.
Includes Possesory Interest Army v Dalziel (1944)
• Property in relation to land, is a bundle of rights exercisable w.r.t the land.
• Means any proprietory interest recognised by law
• Recognises ownership, tenancy & lesser forms.
Includes innominate & anomalous interests Bank Nationalisation Case (1948)
• Acquisition of property extends to “the assumption & indefinite continuance of exclusive possession & control for the purposes of the Cth of any subject of property” per Dixon J
• In this case extended to shareholders’ right to elect directors.
Includes common law chose in action Georgiadis (1994)
• A common law chose in action is property
• It is a right to sue of some sort, which is property
• Case concerned introduction of a Cth Act that created a statutory right of action for employees suing employers, which extinguished G’s chose of action against his employer (for damages in negligence).
Excludes statutory chose in action HIC v Peverill (1994)
• Removal of rights enjoyed under a statutory license doesn’t constitute an acquisition of property.
• Rights created under statute “are inherently susceptible to variation”
• Cth retrospectively amended the amount payable to Dr. for services rendered under medicare. Held not to be an acquisition of property.
Identifiability Australian Tape Manufacturers (1993) per Dawson & Toohey JJ
• Must be definable & identifiable by 3rd parties (use this as an indicator only)
3. What is acquisition?
Not where there’s an agreement John Cooke & Co v Cth (1924)
• Not when interest is aquired by agreement, or acquisition is negotiated.
• There must be some compulsion
Must obtain benefit or advantage Mutual Pools v Cth (1994)
• “for an acquisition of property, there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of the property” per Deane & Gaudron JJ
• Cth Act tried to deprive SPSA of its contractual right to a refund of a tax that had been found invalid.
• HC held this wasn’t an acquisition cause no ‘benefit’ obtained by Cth
Deprivation not acquisition Tasmanian Dam Case (1983)
• Not an acquisition where property rights are merely affected by Cth law
• Mere extinguishment of a right enjoyed by an owner in relation to his property doesn’t amount to an acquisition.
• Federal Act restricted State from using land in a certain way.
Identifiable & measurable advantage Newcrest Mining (1997)
• Probably
have to reconcile with the decision in Tasmanian Dams above
• Found that Cth had received an “identifiable and measurable advantage” & so termination of mining rights was an acquisition of property.
• A Cth Act removed the right to mine from Newcrest, without compensation.
• Majority held there was an indirect acquisition of “the substance of a proprietary interest” of the relevant land.
Benefit not equal to interest taken away Newcrest
• It is irrelevant that the benefit accruing to the Cth doesn’t correspond exactly to that which was taken away.
Acquisition must not be for Cth itself McClintock v Cth (1947)
• Property may be acquired by someone else for the purposes of the Cth
• Cth compelled pineapple growers to deliver produce to agents of the Cth
Recouping of debts not acquisition Airservices Australia (1999)
• It is not an acquisition when the Cth is merely asserting its right to debts owed
• HC upheld validity of act that enabled Cth authority to sell plaintiff’s aircraft to recoup monies owed to them.
4. What are just terms?
Should reflect market value Nelungaloo Pty Ltd. v Cth (1946)
• The price which a reasonably willing vendor would have been prepared to accept and a reasonably willing vendor would have been prepared to pay for the property
• Not necessarily a “free market”
• Unlike ‘compensation’, just terms are concerned with fairness
• Concerned a compulsory acquisition scheme for wheat.
Can be determined by administrative agency Bank of NSW v Cth
• It is permissible for just terms to be determined by an administrative agency, provided their determination is not conclusive & is open to judicial review.
Special value considered Johnson Fear & Kingham v Cth (1943)
• Special or sentimental value of property will be considered when determining just terms
• This case involved the acquisition of a specialist printing machine that was fundamental to business & would have been difficult & lengthy to replace.
Interests of the community may be considered Grace Bros v Cth (1946)
• Justice involves consideration of the interests of the community as well as of the person whose property is acquired. Per Latham CJ
• In this case, just terms considered in context of efficient use of money for WWII
• Also authority for fact that just terms need not be determined based on date of acquisition.
• In this case just terms were determined based on value at Jan. 1st preceding the acquisition.
• BUT more recently the court appears to be more turning towards a “full compensation” model as opposed to balancing of all interest approach. This is evidenced by Gleeson’s endorsement in Smith of Brennan J’s statement in Georgiadis that says “the court does not attempt a balancing of the interests of the dispossessed against the interests of the community at large” when determining just terms.
5. Exceptions to requirement of Just Terms
• The requirement of just terms will not apply whenever the law can validly be characterised as being a law other than directed to the acquisition of property.
• It is critical to determine the purpose of the Federal law, as it may stand outside s 51 (xxxi) if its purpose is other than the compulsory acquisition of property.
o Ie. If it’s a law that imposes a penalty or requires forfeiture of property for a criminal offence Re DPP; Ex parte Lawler & Anor (1994)
o above was the case of the forfeiture of the fishing boat for illegal fishing
o To create a special regime of intellectual property protection Nintendo v Centronic Systems (1994)
S 51 (xxxi) “is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorising seizure of the property of enemy aliens or the condemnation of prize.” They are not laws of acquisitions that permit of just terms. Per Deane & Guadron in Re DPP; Ex parte Lawler & Anor (1994)
Section 51 (xxxi) – Acquisition on Just Terms
The Parliament shall have power to make laws…w.r.t:
(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.
• Only binds the Cth
• It is both a power, and a right contingent on its exercise.
• General view is that the HC has been quite generous in the protection they provide citizens against the Cth power – especially economic protection.
1. Parliament must have power P J Magennis Pty Ltd v Cth (1949)
• this means that every law supported by s51(xxxi) must be supported by at least one additional legislative power. Per Latham CJ
2. What is property?
It is a general term Army v Dalziel (1944)
• “not restricted to acquisition by particular methods or of particular types of interests or of particular types of property.”
• “means any tangible or intangible thing which the law protects under the name of property.” per Rich J
• Minister for Army seized a lot that the tenant, Dalziel, used as a carpark.
Includes Possesory Interest Army v Dalziel (1944)
• Property in relation to land, is a bundle of rights exercisable w.r.t the land.
• Means any proprietory interest recognised by law
• Recognises ownership, tenancy & lesser forms.
Includes innominate & anomalous interests Bank Nationalisation Case (1948)
• Acquisition of property extends to “the assumption & indefinite continuance of exclusive possession & control for the purposes of the Cth of any subject of property” per Dixon J
• In this case extended to shareholders’ right to elect directors.
Includes common law chose in action Georgiadis (1994)
• A common law chose in action is property
• It is a right to sue of some sort, which is property
• Case concerned introduction of a Cth Act that created a statutory right of action for employees suing employers, which extinguished G’s chose of action against his employer (for damages in negligence).
Excludes statutory chose in action HIC v Peverill (1994)
• Removal of rights enjoyed under a statutory license doesn’t constitute an acquisition of property.
• Rights created under statute “are inherently susceptible to variation”
• Cth retrospectively amended the amount payable to Dr. for services rendered under medicare. Held not to be an acquisition of property.
Identifiability Australian Tape Manufacturers (1993) per Dawson & Toohey JJ
• Must be definable & identifiable by 3rd parties (use this as an indicator only)
3. What is acquisition?
Not where there’s an agreement John Cooke & Co v Cth (1924)
• Not when interest is aquired by agreement, or acquisition is negotiated.
• There must be some compulsion
Must obtain benefit or advantage Mutual Pools v Cth (1994)
• “for an acquisition of property, there must be an obtaining of at least some identifiable benefit or advantage relating to the ownership or use of the property” per Deane & Gaudron JJ
• Cth Act tried to deprive SPSA of its contractual right to a refund of a tax that had been found invalid.
• HC held this wasn’t an acquisition cause no ‘benefit’ obtained by Cth
Deprivation not acquisition Tasmanian Dam Case (1983)
• Not an acquisition where property rights are merely affected by Cth law
• Mere extinguishment of a right enjoyed by an owner in relation to his property doesn’t amount to an acquisition.
• Federal Act restricted State from using land in a certain way.
Identifiable & measurable advantage Newcrest Mining (1997)
• Probably
• Found that Cth had received an “identifiable and measurable advantage” & so termination of mining rights was an acquisition of property.
• A Cth Act removed the right to mine from Newcrest, without compensation.
• Majority held there was an indirect acquisition of “the substance of a proprietary interest” of the relevant land.
Benefit not equal to interest taken away Newcrest
• It is irrelevant that the benefit accruing to the Cth doesn’t correspond exactly to that which was taken away.
Acquisition must not be for Cth itself McClintock v Cth (1947)
• Property may be acquired by someone else for the purposes of the Cth
• Cth compelled pineapple growers to deliver produce to agents of the Cth
Recouping of debts not acquisition Airservices Australia (1999)
• It is not an acquisition when the Cth is merely asserting its right to debts owed
• HC upheld validity of act that enabled Cth authority to sell plaintiff’s aircraft to recoup monies owed to them.
4. What are just terms?
Should reflect market value Nelungaloo Pty Ltd. v Cth (1946)
• The price which a reasonably willing vendor would have been prepared to accept and a reasonably willing vendor would have been prepared to pay for the property
• Not necessarily a “free market”
• Unlike ‘compensation’, just terms are concerned with fairness
• Concerned a compulsory acquisition scheme for wheat.
Can be determined by administrative agency Bank of NSW v Cth
• It is permissible for just terms to be determined by an administrative agency, provided their determination is not conclusive & is open to judicial review.
Special value considered Johnson Fear & Kingham v Cth (1943)
• Special or sentimental value of property will be considered when determining just terms
• This case involved the acquisition of a specialist printing machine that was fundamental to business & would have been difficult & lengthy to replace.
Interests of the community may be considered Grace Bros v Cth (1946)
• Justice involves consideration of the interests of the community as well as of the person whose property is acquired. Per Latham CJ
• In this case, just terms considered in context of efficient use of money for WWII
• Also authority for fact that just terms need not be determined based on date of acquisition.
• In this case just terms were determined based on value at Jan. 1st preceding the acquisition.
• BUT more recently the court appears to be more turning towards a “full compensation” model as opposed to balancing of all interest approach. This is evidenced by Gleeson’s endorsement in Smith of Brennan J’s statement in Georgiadis that says “the court does not attempt a balancing of the interests of the dispossessed against the interests of the community at large” when determining just terms.
5. Exceptions to requirement of Just Terms
• The requirement of just terms will not apply whenever the law can validly be characterised as being a law other than directed to the acquisition of property.
• It is critical to determine the purpose of the Federal law, as it may stand outside s 51 (xxxi) if its purpose is other than the compulsory acquisition of property.
o Ie. If it’s a law that imposes a penalty or requires forfeiture of property for a criminal offence Re DPP; Ex parte Lawler & Anor (1994)
o above was the case of the forfeiture of the fishing boat for illegal fishing
o To create a special regime of intellectual property protection Nintendo v Centronic Systems (1994)
S 51 (xxxi) “is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorising seizure of the property of enemy aliens or the condemnation of prize.” They are not laws of acquisitions that permit of just terms. Per Deane & Guadron in Re DPP; Ex parte Lawler & Anor (1994)
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