Express Rights & Freedoms
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)
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Continued
Section 117 – Rights of out of state residents
Rights
of residents in States: A subject of the Queen, resident in any State,
shall not be subject in any other State to any disability or
discrimination which would not be equally applicable to him if he were
a subject of the Queen resident in such other State.
• Main culprits are going to be states
• Undecided as to whether it actually binds the Cth Leeth
• Remember this Section was “designed to enhance national unity and a real sense of national identity” per Mason in Street
Test Street v Qld Bar Association (1989)
•
When discrimination alleged, must make comparison between the
hypothetical situation of him being resident in the discriminating
State, & the discrimination or disability that he is actually being
subjected to in that other state. Per Brennan.
• Residence is interpreted liberally to include all kinds of residence.
•
Regulations of admission to bar in Qld required residence in Qld. NSW
resident argued that it discriminated against him. Would have had to
give up NSW practice.
Discriminatory in effect Street v Bar Association (1989)
• Test for discrimination is one of effect, not purpose
•
Criterion of discrimination is irrelevant – it’s sufficient that a
person is subject to disability or discrimination, while a person in
another State is not subject to that disability or discrimination.
Domicile could be sufficient Davies & Jones v WA
• Doesn’t necessarily preclude discrimination on the basis of domicile
Exceptions acknowledged by court in Street
•
Guiding principle that any law that is about rights that are essential
to & naturally associated with residents of a state can
discriminate without infringing s117.
• Think voting rights, welfare benefits, or anything that is required for autonomy & integrity of states.
Goryl v Greyhound Australia (1994)
• Victim of the Grafton bus crash sued in Qld, but was resident of NSW
•
Vic law sought to limit damages available to out of state resident,
although Qld resident could have claimed a greater amount.
• Held that they could not limit the amount of damages available to her based on her place of residence.
Section 80 – Trial by Jury
80.
The trial on indictment of any offence against any law of the Cth shall
be by jury, and every trial shall be held in the State where the
offence was committed, and if the offence was not committed within any
State the trial shall be held at such place or places as the Parliament
prescribes.
• A very weak right (some question whether it’s a right at all)
• Only applies to Cth offences
•
Only applies to indictable offences – which are defined by the Cth, so
Cth can ultimately determine whether there’s a trial by jury
• Doesn’t apply to summary offences Archdell
• Defendant can’t elect to waive the right to jury Brown v the Queen (1986)
→ hence the view that this isn’t even a right.
Current Position
•
A narrow, literal interpretation of s80 currently applies. Cth retain
legislative discretion whether offence to be tried summarily or on
indictment – essentially able to decide whether to grant or remove the
right to trial by jury
• Strong string of dissent for a wider interpretation – see following
Serious Criminal Cases R v Federal Ct of Bankruptcy; Ex parte Lowenstein
• Evatt & Dixon JJ in dissent
• s 80 should be read as a guarantee of a fundamental right to trial by jury in criminal cases.
• Current interpretation makes mockery of an intended important right
Serious Offence Kingswell v The Queen (1985)
• Deane J in dissent. Detailed attempt at giving s80 a different operation.
•
Took the view that offence ‘triable on indictment’ is shorthand for a
serious offence, and that serious offences should be tried by jury
• Serious offence determined by gravity of punishment (ie > 1 year)
As Above Cheng per Gaudron and Kirby JJ
Section 116 – Freedom of Religion
116.
The Cth shall not make any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise
of any religion, and no religious test shall be required as a
qualification for any office or public trust under the Cth.
• Applies to all Cth laws Jehova’s Witnesses Case (1943)
• Doesn’t apply to state laws The DOGS case (1981)
• Likely to apply to laws made under s122 Kruger per Gaudron, Gummow, Toohey
1. What is a religion? Church of New Faith v Commissioner for Payroll Tax (1983)
• Five indicia identified by Wilson & Deane JJ (not a rigid test)
1. belief in the supernatural (what extends beyond the senses)
2. ideas relating to man’s nature & place in the universe
3. requirements that adherents engage in particular conduct
4. ability to recognise adherents as a particular group
5. recognition by adherents themselves of their beliefs & practices as constituting a particular religion.
• A wider test put forward by Murphy
o “any body which claims to be religious, and offers a way to find meaning & purpose in life is religious.”
•
Case involved Church of Scientology seeking to be classified as a
religion in order to be exempt from pay-roll tax legislation.
2. What breaches s 116?
Establishment Clause The DOGS Case (1981)
• Establishment clause adopts a narrow interpretation
•
Clause refers to laws “intended & designed to set up the religion
as an institution of the Cth” per Barwick J (majority focused on this
“institution of the Cth” notion)
• Appears that the recognition of certain religions under general legislation doesn’t amount to ‘establishment’.
• Grants to religious schools not held to contravene s 116
Prohibiting Free Exercise Krygger v Williams (1912)
•
Question whether a law that someone claims forces them to do a
prohibited act, is a law prohibiting free exercise of religion
• HC decided it wasn’t, but that s116 would operate when a law prohibits an act that a religion requires.
•
Ie. Can’t legislate to stop someone from doing a religious act, but
can compel someone to do something they’re required not to.
• →this interesting judgement hasn’t been expressly overruled.
• K objected to swearing an oath of military service, on the ground that it was contrary to his Christian beliefs.
Limitations on Freedom of Exercise Jehova’s Witnesses Case (1943)
• Freedom guaranteed by s116 is not absolute
•
It is subject to limitations necessary for the protection of the
community & in the interests of the social order. Per Starke J
•
“it is subject to powers & restrictions of govt. essential to the
preservation of the community. Freedom of religion may not be invoked
to cloak & dissemble subversive opinions or practices &
operations dangerous to the common weal.” per Rich J
• GG was
empowered to declare the existence of an association to be prejudicial
against the war effort, rendering it illegal & resulting in
dissolution & seizure of property.
• Adelaide Co of JWs was declared unlawful. Argued that Regulations contravened s116.
• HC held (5:O) that Regulations didn’t contravene s116.
Kruger v The Cth (Stolen Generation Case) (1997)
• Argued that s116 should protect the tribal culture of Aboriginal families & communities in the NT.
•
Forced removal of Aboriginal children did not breach s116 as ‘no
conduct of a religious nature was sought to be regulated in any way.’
per Gummow J.