LWB 233 Intro to Public Murray McCarthy

Week 13
FEDERAL GUARANTEES
Acquisition of property on just terms s.51(xxxi)
The freedom of intercourse aspect of (applies to States and Cth, in practice mainly the states) s.92
Laws not to discriminate on the basis of residence out of the state (similar application).

Acquisition on Just Terms

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good
govt of the Cth with respect to:
(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.

Under this head of power the Cth Parl may legislate to make provision for the acquisition of property
(whether real or personal) from either a State of the Cth or a person (corporate or natural).
The acquisition must however be related to Cth purposes (derived from other sections of the Const).
Being in s.51, the para. does not apply to Territorial laws: Teori Tau v. Cth

ELEMENT 1: Is the acquisition of PROPERTY?

Property is very broadly interpreted, but see qualifications re just terms

Property includes:
Land - eg Blakeley, Jones
All sorts of chattels and fungible goods - see war time cases.
any tangible or intangible thing which the law protects under the name of property
- eg the license to use land to run a car park in:
Minister of State for the Army v Dalziel:
- The Minister took possession of land of the def. under National Security Regulations.
- The def was a tenant from week to week of the land.
- The question to be determined was whether the acquisition of a leasehold interest amounted to an
acquisition of property and therefore came within the operation of s.51(xxxi).
HELD:
- HC held that Cth regulations authorising the Cth government to enter into possession of privately owned
land for an indefinite period did constitute an acquisition of property within s.51(xxxi)
- The word property signified any tangible or intangible thing which the law protected under the name of
property.
- Therefore according to McTiernan J the acquisition of the possession of land is an instance of the
acquisition of property.

innominate or anomolous interests :

Bank of NSW v Cth (The Banking Case)
- (major authority on the power of the Cth to acquire personal property in peacetime)
- The Banking Act 1947 enabled the Cth Bank (agent for Federal Govt) to acquire the business of private
banks in Australia
- The Federal Govt contemplated 3 methods to achieve this end. First the Cwth Bank was authorised to buy
shares in the private bank. Secondly the Federal Treasurer was given the power to direct that shares in
private banks be vested in the Cth.
- Thirdly, it also gave itself power to nominate new boards of directors to the banks with full power to run
the bank..

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- Legn was challenged on a number of grounds, including that the provisions relating to removal of the
private bank directors constituted a compulsory acquisition of property on other thn just terms
Held:
- This was an acquisition of a proprietary right since a proprietary interest is characterised by the capacity to
exercise real and effective control over the property concerned.

Mining leases - Newcrest Mining c.f. WMC Resources.

Statutory Rights
- A retrospective alteration of entitlements under a statutory scheme which provides benefits from public
funds will not amount to an acquisition of property or purposes of para(xxxi): such statutory entitlements
are inherently susceptible to variation
Health Insurance Commission v Peverill:
- The HC held that the Cth Parliament could legislate to reduce retrospectively the amount of medicare
benefits payable, under s.20 of the Health Insurance Act, to a pathologist for the provision of medical
services.
- The majority of the court regarded the pathologists right of payment of benefits as a form of property, BUT
the legislation reducing the pathologists entitlements was not caught by s.51(xxxi) in this case because the
right created by the Health Insurance Act was a right inherently susceptible to variation.

Cth v WMC Ltd:

- Mineral rights under land were compensable because they were a recognised proprietary right, even though
granted under statute, but petroleum exploration rights at sea were not compensable because they only
existed under statute

Choses in Action:
eg a right of action, at least to enforce common law rights - applied to a tort action against the Cth as
employer in:
Georgadis v Australian & OS Telecommunications Commission:
- where a majority of the HC held that Cth legislation which extinguished an injured workers common law
right to sue his employer for damages did affect an acquisition of property and was ineffective because the
legislation did not provide just terms, (see also Mewett);
intellectual property rights.

ELEMENT 2: Has there been an actual Acquisition?

The acquisition must be for some purpose in respect of which the Parl. has power to make laws.
Therefore the acquisition must be brought within s.51(xxxi)

This applies only to compulsive acquisitions so that any voluntary (non-compulsive) acquisition is
outside its scope: Poulton v. Cth.
If voluntary, the terms could hardly be claimed to be unjust.
Doesnt apply to tax, penalty, forfeiture, laws (Gibbs J. in Tooth)

It is NOT necessary for the Cwth or its agent to acquire the property in question for an acquisition to
take place under s.51(xxxi)
PJ Magennis Pty Ltd v Cth
- The property may be acquired by someone else for the purposes of the Cwth.

An acquisition does NOT take place where property rights are merely affected by a Commonwealth
law., for example where a State is restricted from using its land in a certain way as a result of the operation
of a Federal Statute.

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Tasmanian Dams Case

- The State argued that several pieces of the Cth legn effected an acquisition of its property because the legn
prevented the State from using land for a wide variety of purposes without the consent of the Cth
- The Majority disagreed that there was no vesting of possession in the Cth and therefore no acquisition of
property.

The law only applies to laws of acquisition made by the Cth. So it doesnt
apply:
Where Cth has an executive agreement with a State: Pye v. Renshaw; OR
Where the Cth executive has prerogative power to acquire ( Dicta in Schmidt ). OR

Where law is directed to a genuine resolution of competing claims of property:

Mutual Pools No.2
- Here the HC held that the Cth parliament could legislate so as to limit the rights of a manufacturer to
recover from the Cth moneys paid by the manufacturer by way of unconstitutional tax.
- The legislation was supported by s.51(ii) of the constitution and did not contravene s,51(xxxi).

Therefore the HC recognises that certain Cth legislative powers permit interference with property interests
independently of the protection guaranteed by s.51(xxxi)
Nintendo Co Ltd v Centronics Systems Pty Ltd
- Here the Circuit Layout Act which created a right in the designer of an electronic circuit to restrain the use
of that electric circuit by others, was not a law for the acquisition of property of those whose use of the
circuit was affected by the act.
- The legislation was a law for the adjustment and regulation of the competing claims, rights and liabilities
of the designers or first makers of original circuit layouts and those who benefit from the work, and was
therefore beyond the reach of s.51(xxxi)

Not apply to Territories, the Cth is not required to provide just terms when acquiring property from
a territory or from a person in a territory.
Re:DPP; Ex Parte Lawler
- Where the court upheld the validity of s.106(1)(a) of the Fisheries Management Act 1991 Cth which
authorised the forfeiture of the Cth of an unlicensed boat used for commercial fishing in the Australian
fishing zone.
- The validity of the laws was not affected by the fact that the property in question was owned by a person
not involved in the illegal fishing activity.
HELD:
- The court held that a law which authorised the seizure of property in consequence of the propertys illegal
use stood outside s.51(xxxi).
- In the present case, the forfeiture was an aspect of law with respect to fisheries in Australian waters and
was therefore supported by s.51(x).

ELEMENT 3: Was the Acquisition made on Just Terms?

A law for the acquisition of property not on just terms is not within the head of power and therefore
is invalid: Banking Case; Newcrest
However in some cases where law didnt spell out just terms, court has read it in: Dalziel; Huon Transport

Assessment of Just Terms:

The underlying principle is that the terms provided should reflect the properties market value and if there is
no market - the price that would be agreed on by a willing but not anxious vendor and a willing but not
anxious purchaser: Nelungaloo v Cth

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However, not just concerned with justness to previous owner but to community - so some measures to
protect public fund from exploitation are allowed: Grace Bros.
Reasonableness: The requirements of Justice may mean in an individual case, that a peculiar value of the
property should be taken into a/c when determining just terms.
Johnston Fear & Kingham v. Cth
- It was held that the compulsory acquisition by the Cwth of a three-colour offset press electric printing
machine would require more than the mere payment of the price of the goods.
- In the case of goods a person uses in their business, such a price might fall bellow fair compensation if the
machine could not be replaced without long delay
- Therefore pmt for the price of the goods would not be on just terms.

Loss of profits may be relevant to justness: Re Fish Steam Laundry

The Ct has discretion to award interest from date of acquisition to payment as part of the compensation:
Australian Apple and Pear Marketing Board v. Tonking

Damages and costs do not form part of just terms: Banking Case

ELEMENT 4: From any State or Person

No significant cases to interpret this

Just remember that the Cth cannot only acquire land from ordinary people and companies, it can also
compulsorily acquire land from the States.

ELEMENT 5: For Any Purpose in Respect of Which the

Parliament has Power to Pass Laws

In effect every acquisition must be based on 2 heads of power para. (xxxi) itself plus one other: PJ
Magennis Pty Ltd
The acquisition must be for some purpose in respect of which the Parl has power to make laws.
The purpose must be consistent with the carrying our or furthering a purpose comprised in some other
legislative power: Schmidt
The Govt is required to state the purpose for which the land is to be acquired: Lands Acquisition Act - in
effect, unchallengable: Blakeley
The purpose must be for an active or passive use, and not merely to deprive the current owner of the
property. Possibly only valid where acquired for an actual use, not just to deprive current owner: Clunies
Ross

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FREEDOM OF INTERSTATE INTERCOURSE

Trade within the Commonwealth to be free
92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States,
whether by means of internal carriage or ocean navigation, shall be absolutely free.

Intercourse literally means running between i.e. right to travel, to pass to and fro between States
without hindrance.
Intercourse therefore covers the physical movement of individuals between one State and another and
interstate communications such as postal and telecommunication.

Note that this is NOT a guarantee of free movement anywhere in Australia:

R v Smithers
- A NSW Law made it a criminal offence for persons convicted and sentenced to a term of imprisonment of
one year or longer to enter within 3yrs after completing there term of imprisonment.
- Benson was charged with the offence upon entering NSW 3 weeks after his release from a Victorian Prison
where he had served 10mths for vagrancy
HELD:
- HC held that NSW could not prevent through the Influx Of Criminals Prevention Act persons resident in
another State entering NSW within 3 years of completing a sentence of imprisonment.
- Isaacs: Borders of the States were not to operate as barriers to free movement in the Cwth.
- The Act was held invalid

Gratwick v Johnson
- The HC considered the constitutional validity of an order made under defence regulations which prohibited
interstate travel without a permit granted by a federal agency.
- Johnson was refused a permit on the grounds that her reasons for travel were insufficient, yet travelled to
Perth from Sydney without a permit to visit her fiance.
Held
- HC concluded that a Cth law prohibiting unauthorised rail travel from one State to another infringed the
absolute freedom of interstate intercourse guaranteed by s.92 the government cannot impose a barrier to
such transit access simply because it is interstate.
- The defence power is subject to s.92
- Like R v. Smithers, while civilian travel might well be within the defence power, a regulation which is
simply based on the inter-Stateness of the journeys it assumes to control is bad (Dixon J.)
- As Starked observed: the people of Australia are free to pass to and fro among the States without
burden, hindrance of restriction.

This statement was endorsed by:

Cole v Whitfield:
- Freedom of intercourse should be allowed a wider scope than trade and commerce as an absolute
freedom of trade and commerce would result in anarchy, and therefore the notion of absolutely free
intercourse is quite distant from that of absolutely free trade and commerce.

Suggestion by Brennan CJ in Nationwide News that where a law is aimed squarely at interstate
intercourse it will be invalid but where law with some other purpose has incidental effect on interstate
intercourse it will be tested as to whether it is appropriate and adapted to the purpose.
No cases yet on application to communication.

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STATE LAWS NOT TO DISCRIMINATE AGAINST OUT OF

STATE RESIDENTS
Rights of residents in States
117. 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.

S.117 protects out-of-state residents from discriminatory operation of the laws of a State on the basis
of their residency.
Most obviously applies to States but possibly could be breached by the Cth.
Applies to all Australian citizens

This section does NOT preclude all discrimination each member of the Court in Street
acknowledged that the autonomy and integrity of the States may require discrimination for some
purposes, such as regulation of voting rights
Doesnt prevent discrimination on the basis of former residence (Lee Fay).
Includes both long term and short term residences of the State: Davies and Jones v WA
Therefore a sailor who merely had home base in NSW was allowed to challenge QLD law on the basis that
it discriminated against him as a NSW resident: C of T v Parks

TEST
As stated by Stephen J and adopted in Street

Does a State law subject the complainant, who is a resident in another state, to a disability or
disadvantage compared to a hypothetical or notional person who is in all respects identical to the
complainant except that she resides in the first (legislating) state?

Test by applying practical effect of the challenged law. (not by inventing abstract possibilities like the
chance that there might be some SA residents with a Victorian degree, used to deny discrimination in:
Henry v Boehme
- HC held that SA rules which required a period of continuous residence in SA before a legal practitioner
admitted in another State could be admitted to practice in the State did not offend s.117.
- Therefore no breach of s.117

Davies & Jones v WA

- The court here decided that the Administration Act (WA) did not offend s.117, although the section
discriminated between a person who was a resident of and domiciled in another State and a person who
was in fact a resident of and domiciled in WA.
- Barton J said that s.117 aimed at discrimination on the sole ground of residence outside the legislating
state, and none of the justices conceded that domicile was a concept which incorporated the concept of
residence.

A broad view of the operation of s.117 was adopted in:

Street v QLD Bar Association
- Street, a resident of NSW applied for admission to the QLD Bar.
- The QLD Bar Rules, which were authorised by Queensland Law, required that persons applying for
membership of the Bar had to be residents of QLD for a period of 1yr Orthey must practice principally in
QLD.
- This would have required Street to give up his practice in NSW. He challenged the constitutional validity
of the Rules on the basis that it subjected him to a disability or discrimination contrary to s.117.
Held

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- The argument was upheld by the HC.
- The rules subjected him to discrimination, namely giving up his practice which would not be equally
applicable to him if he were a resident in QLD.
- Henry v Boehm overruled:

Prohibition of discrimination Not Absolute

Street
- All judges agreed that section would have to be subject to some exceptions - residence requirements
for voting and to qualify for state social welfare - different formulations ranging from necessary
implication to appropriate and adapted.
- Mason CJ suggested that a State would have to show that it had a compelling justification and that to
disallow the discrimination would threaten its autonomy.
- Deane J. suggested that a discrimination would be allowed only if it flowed naturally from the
Constitution of the State or the nature of the particular subject matter of the law.
- Dawson J. would allow discriminations the basis of which isthe ordinary and proper administration of
the affairs of the State.
- Toohey J. suggested that laws will be allowed if the difference is a natural consequence of legislation
aimed at protecting the legitimate interests of the State community.
- Gaudron J. would allow different treatment if it is reasonably capable of being seen as appropriate and
adapted to a relevant difference.
- McHugh J. allowed that some exceptions must arise by necessary implication from the assumptions and
structure of the Const and that the question is whether, by necessary implication, the matter is so
exclusively the concern of the State and its people that an interstate resident is not entitled to equality of
treatment in respect of it
- Brennan J. held that any exception of necessity (i.e. necessary implication) should be narrowly
confined but also held that a State could impose conditions on the grant of a benefit or the avoidance of a
burden if the condition has a rational and proportionate connection with some legislative objective.

Goryl v Greyhound Australia Pty Ltd

- The HC applied s.117 to override s.20 of the Motor Vehicles Insurance Act 1936 (Qld), which restricted
recovery of damages for MV injuries sustained by a NSW resident to a lesser rate than if she were resident
in Qld.
- McHugh J claimed that it was only necessary implication that could support exception.
- Others didnt discuss test but none thought that the limit on NSW residents damages was justified.

Effect of Law Breaching the Section

The court does not hold the law invalid but says it cant apply to the complainant (and people in a similar
position; it is pro tanto inoperative.)

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RACE POWER
51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good
government of the Cth with respect to:
(xxvi) the people of any race for whom it is deemed necessary to make special laws.

ELEMENT 1: People of ANY Race..

Race is a scientifically imprecise term, but has a biological element. : Brennan per Tasmanian Dam
The term at least includes the Aboriginal Race and Torres Strait Islanders and any subdivision of those
peoples (Murphy J.) : Dams Case

Race Test
1. People of a group identify themselves as a particular race
2. Are identified by others as a race by reference to their common history, religion, spiritual beliefs,
culture, biological origins, physical similarities (Brennan J. in Dams Case)

ELEMENT 2: Special Laws..

The para refers to special laws so they must be selective or discriminatory.

Therefore, it does not support a general prohibition of racial discrimination: Koowarta

The special signif of a sacred site for a race is enough to make the law a special law for that race:
Dams Case
- ss.8 and 11 of the Act protected sites of historic/archeological significance used by Abos 30000yrs ago.
- Sites were NOT particularly significant to any living Abo in Tas but were of general significance to
Aboriginal history.
HELD:
- (4:3) that power includes laws that protect cultural and spiritual heritage of a race (Deane J.) or preserve
the material evidence of the history and culture of a race (MurphyJ.)

A law is special when it confers a right or benefit especially on the people of a particular race.
The law may be special even when it confers a benefit generally, provided the benefit is of special
importance to the people of a particular race:
Native Title Act Case
- Law conferred a benefit on some indigenous people only those who still held native title under Mabo
principles.
- Therefore WA claimed that the law was not enforcing a special law of all people of the Abo race.
HELD:
- (6:1) first cited Dams Case, that a law is special even when if confers a benefit generally, provided the
benefit is of special significance to the people of a race.
- Extended to case where benefit is conferred on some people of a race [and observed that this law may
confer benefit on all people of Aboriginal and TSI races].

ELEMENT 3: Deemed Necessary

Early cases suggested that it was clearly up to Parliament to decide whether a law was necessary.

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However, according to the NT Act Case the Ct retains some supervisory jurisdiction to examine the
question of necessity against the possibility of a manifest abuse

Adopted in:
Kartinyeri Gaudron J. suggested that the test is whether law might be seen as appropriate and adapted to
a real and relevant difference

ELEMENT 4: Does s.51(26) support BOTH Beneficial and

Detrimental Laws??

What is the purpose of the para? does the para only support laws for the benefit of the race?
General agreement (Murphy J dissenting) that the power extended to either: Koowarta; Dams Case.

Kartinyeri v. The Cth (Hindmarsh Island Case) [1998]

- H I Bridge Act removed area around proposed bridge from protection of Aboriginal and TS Islanders
Heritage Protection Act.
- K argued that this was to the detriment of her people and outside the power.
HELD:
- Valid 5:1
- Brennan CJ and McHugh J. whatever Parliament can enact it can repeal since the ATSIHP Act is under
the Power, so is the HIB Act
- Gummow and Hayne JJ power extends to laws for the benefit or detriment (subject to a power to review
necessity for manifest abuse)
- Gaudron J only applies to laws which are appropriate and adapted to a real difference. In todays
conditions that would only authorise laws which benefit Aboriginal Australians. But this is only partial
repeal.
- Kirby J. agreed anything which Parliament can enact it can repeal. But power only extends to beneficial
laws, and first principle must give way to that. Therefore HIB Act invalid.

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