8.137 The common law has long regarded a person’s property rights as fundamental. Property rights find some protection from statutory encroachments in s 51(xxxi) of the Australian Constitution, through the principle of legality at common law, and in international law. Section 51(xxxi) provides that any ‘acquisition’ of property must be on ‘just terms’.
8.138 Some Commonwealth laws may be seen as interfering with real property rights. These laws impose upon property owners in different contexts and in different ways. The laws that raised the most controversy and debate among stakeholders in this Inquiry—and in a series of cases, some of which have gone to the High Court—were provisions in environmental laws imposing restrictions on the use of land and water. For example, the prohibition of ‘action’ such as clearing, ploughing and sowing land which has or will have a significant impact on the ecological character of a declared Ramsar wetland. Concerns have been expressed that such laws may actually significantly reduce the commercial uses to which property can be applied.
8.139 Sometimes the complaints have been about state laws. This reflects the fact that state and territory governments are primarily responsible for the management of native vegetation and biodiversity, and that state governments have legislative power in relation to internal waters. Most states do not have an equivalent provision to s 51(xxxi) of the Australian Constitution. State legislation is not the concern of this Inquiry. However, concerns have been expressed about potential Commonwealth involvement through partnerships. The Commonwealth has sought to become involved in the management of water resources within Australia, sometimes by the provision of financial assistance. Notably, the Commonwealth now has primary responsibility for water management in the Murray-Darling Basin. The Commonwealth may also financially assist states with respect to natural resources management.
8.140 This Inquiry heard particular concerns about the EPBC Act and the Water Act. While the restrictions on the use of land and water brought about by these statutes do not necessarily amount to ‘acquisitions’ attracting s 51(xxxi) of the Constitution, there is evident concern about the impact of legislative interventions that are considered as interfering with a landowner’s enjoyment of land—beyond minor interferences. For example, the Productivity Commission was concerned that regulation of native vegetation clearing on private property can result in a loss of value for the landholder. It recommended that conservation aimed at achieving biodiversity and threatened species, which is over and above landholder responsibilities, should be purchased from landholders where it is cost-effective to do so.
8.141 Although the Commonwealth is under no constitutional obligation to compensate for interferences that fall short of constituting ‘acquisitions’ of property, this does not mean that such interferences never warrant compensation or are always justified. In developing policies and laws, the Commonwealth could investigate whether consensual arrangements with the property holders could deliver the policy outcomes so as to address both s 51(xxxi) issues and broader concerns about the effect on property rights. Further, the EPBC Act and the Water Act could be reviewed to ensure that these laws do not unjustifiably interfere with rights pertaining to real property. The ALRC is interested in comments on these suggestions and on other approaches to assessing whether Commonwealth laws unjustifiably encroach on rights pertaining to real property.
See Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 16(1); Greentree v Minister for Environment and Heritage (2005) 144 FCR 388.
Westlaw AU, The Laws of Australia (at 1 March 2015) 14 Environment and Natural Resources, ‘14.9 Water’ [14.9.420].
For a discussion of moves to change the position in Western Australia see Lorraine Finlay, Strengthening Property Rights in Western Australia (13 March 2015) <www.freedomwatch.ipa.org.au>.
‘In practice, the provision of financial assistance has been one of the principal mechanisms used by the Commonwealth to become involved in the management of the water resources of Australia’: Westlaw AU, The Laws of Australia (at 1 March 2015) 14 Environment and Natural Resources, ‘14.9 Water’ [14.9.430].
Water Act 2007 (Cth).
Natural Resources Management (Financial Assistance) Act 1992 (Cth).
‘Impacts of Native Vegetation and Biodiversity Regulations’, above n 86, 225.
Ibid 239 (Recommendation 10.9).
This is the approach that the Commonwealth took with respect to water in the Murray-Darling Basin as noted in the discussion in the judgments in Lee v Commonwealth (2014) 220 FCR 300; Lee v Commonwealth  FCAFC 174 (18 December 2014).