A common law principle
20.9 As noted in Chapter 18, the common law has long regarded a person’s property rights as fundamental, and ‘property rights’ was one of the four areas identified as of concern in the national consultation on ‘Rights and Responsibilities’, conducted by the Australian Human Rights Commission in 2014.[5]20.10 With respect to the right to exclude …
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Read moreLaws that interfere with real property rights
20.96 A range of Commonwealth laws may be characterised as interfering with vested property rights—whether or not this interference may be considered justified.20.97 The Lands Acquisition Act 1989 (Cth) is the key piece of legislation concerning Commonwealth acquisition of land. With some exceptions, the Commonwealth can only acquire an interest in land[178] in accordance with …
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Read moreLaws that interfere with property rights
19.3 A wide range of Commonwealth laws may be seen as interfering with personal property rights. Grouped into areas, provisions affecting personal property are considered below under the following headings: banking laws;taxation;personal property securities;intellectual property;protection of cultural objects; and search and seizure provisions.19.4 These laws are summarised below. Some of the justifications that have been …
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Read moreExamples of laws that delegate legislative power
17.34 There are thousands of legislative instruments currently in force in Australia, covering a wide range of subject matter, including laws about food standards, fisheries, civil aviation, corporations, superannuation, taxation and migration, to name only a few.17.35 Acts that include delegations of legislative power often do so in terms similar to this provision, from the …
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Read moreA common law principle
16.10 Historically, the executive had the benefit of the broad common law immunity of ‘the Crown’.[10] This extended not only to the sovereign, but to the executive government. In Commonwealth v Mewett, which includes a discussion of the history and rationale of Crown immunity, Dawson J said:The immunities which the Crown enjoys from suit in …
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Read moreA common law principle
15.7 Access to the courts for the purpose of judicial review is an important common law right. Sir William Wade stated that ‘to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power’.[6]15.8 In Church of Scientology v Woodward, Brennan J said:Judicial review is neither …
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Read moreLaws that restrict access to the courts
15.36 Set out below is a short discussion of three areas of Commonwealth law which have sought to exclude judicial review by way of privative clauses, some of which have already been considered by the courts. Migration Act 1958 (Cth)15.37 Restrictions on access to the courts under the Migration Act 1958 (Cth) (Migration Act) were …
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Read moreThe common law
14.6 In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (Lam), Callinan J explained that ‘natural justice by giving a right to be heard has long been the law of many civilised societies’. He quoted Stanley de Smith, Harry Woolf and Jeffrey Jowell:That no man is to be judged unheard was a precept …
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Read moreLaws that exclude procedural fairness
14.37 A number of Commonwealth laws purport to expressly exclude procedural fairness in the exercise of a statutory power, by providing, for example, that natural justice does not apply to a particular decision.[66]14.38 Some of these laws are examined below, in relation to corporate and commercial regulation; migration law; and the exercise of maritime powers.Corporate …
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Read moreA common law principle
Criminal law13.11 The common law’s disapproval of retrospective criminal laws has deep roots and a long history. 13.12 In Leviathan, Thomas Hobbes wrote that ‘harm inflicted for a fact done before there was a law that forbade it, is not punishment, but an act of hostility: for before the law, there is no transgression of …
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