20.16 As outlined in Chapter 18, property rights find protection in the Australian Constitution, through the principle of legality at common law, and in international law.
20.17 Section 51(xxxi) of the Australian Constitution concerns the acquisition of property on just terms. However, the protection offered by the Constitution is limited. It does not extend to the acquisition of property by state governments. Further, it relates only to ‘acquisitions’ of property, which does not capture all interferences with property rights.
States and territories
20.18 As Latham CJ observed in PJ Magennis Pty Ltd v Commonwealth (Magennis), state parliaments do not have a constitutional limitation equivalent to s 51(xxxi) of the Australian Constitution: ‘[t]hey, if they judge it proper to do so for some reason, may acquire property on any terms which they may choose to provide in a statute, even though the terms are unjust’.
20.19 States are able to, and often do, provide compensation even though there is no constitutional requirement for them to do so. As at 1 November 2015, the Parliament of Western Australia was considering two Bills which would change the position in that state on the issue. One is a private members Bill which seeks to provide that ‘[a] public authority must not take property from a person, whether by direct or indirect means and whether intentionally or otherwise, under a written law or policy except on just terms’. The other is a Government Bill that is intended to ‘ensure that compensation which is payable for the compulsory acquisition of a part of a property is assessed not only on the value of the land taken, but also on the greater impact it has on the entire property’.
20.20 On some occasions the Commonwealth has used its influence to encourage states to provide compensation. Further, the Commonwealth has imposed a requirement for just terms for any acquisition of property on both the Northern Territory and the Australian Capital Territory in their respective self-government statutes.
20.21 The Law Council of Australia (Law Council) submitted that ‘the lack of any constitutional or general protection from acquisition other than on just terms under State constitutions or statutes’ amounted to ‘a significant gap in property rights protection’.
In some cases, this has resulted in States compulsorily or inadvertently acquiring or interfering with property rights, without any corresponding compensation for the right-holder.
20.22 The federal referendum in 1988 included a proposed law to alter the Australian Constitution, among other things, ‘to ensure fair terms for persons whose property is acquired by any government’. The vote in favour of the resolution was only 30%. One commentator argued that the ‘true level of public support for the idea was, however, impossible to gauge due to the way in which the question was presented as part of a larger package’.
20.23 The Law Council was concerned by the utilisation by the Commonwealth of the limit in constitutional compensatory provisions in the states:
Of particular concern to this Inquiry is where this may have occurred due to intergovernmental arrangements or agreements between the Commonwealth and States, which require or encourage States to interfere with property rights but with no corresponding duty to compensate on just terms.
In such cases, there has been no remedy available to the land-owner because the scheme might have been established informally, through mutual agreement, rather than through a federal statute.
20.24 In Pye v Renshaw, the High Court dismissed an appeal by a landholder (Mr Pye) with respect to the resumption of his land by New South Wales for the purpose of resettling returned soldiers. NSW and the Commonwealth had earlier entered into a funding agreement in respect of the general scheme for resettling returned soldiers. Both jurisdictions had enacted a statute with respect to the agreement. The Commonwealth statute was struck down in Magennis on s 51(xxxi) grounds; and NSW subsequently repealed its statute—the War Service Land Settlement Agreement Act 1945 (NSW). The state had sought to authorise the acquisition of land by way of a different statute, the Closer Settlement (Amendment) Act 1907–1950 (NSW). In 1950, following the High Court’s decision in Magennis, NSW amended the Closer Settlement (Amendment) Act ‘by deleting all reference to any agreement with the Commonwealth’ and ‘also deleted from all relevant legislation all reference to any agreement with the Commonwealth and all reference to any direct or indirect participation of the Commonwealth in any scheme of soldier settlement’. The High Court held that the effect of the amending legislation was
to make it perfectly clear that all relevant legislation of the Parliament of New South Wales is intended to take effect unconditioned by any Commonwealth legislation and irrespective of the existence of any agreement between the Commonwealth and the State of New South Wales.
20.25 The Court concluded that ‘[t]here is no possible ground of attack on the validity of this legislation, there is no ground whatever for saying that it is inoperative, and all courts are bound to give effect to it according to its tenor’.
20.26 In ICM Agriculture Pty Ltd v Commonwealth (ICM Case) there was a constitutional challenge to a funding agreement (and related legislation) under which the Commonwealth had paid financial assistance to NSW. While the claim failed, the High Court held that a grant under s 96 of the Constitution—which relevantly provides that ‘the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit’—cannot be made on terms and conditions that may require a state to acquire property on other than just terms. A majority of the High Court approved Magennis and held that ‘the legislative power of the Commonwealth conferred by ss 96 and 51(xxxvi) does not extend to the grant of financial assistance to a State on terms and conditions requiring the State to acquire property on other than just terms’. Hayne, Kiefel and Bell JJ noted that a law may contravene s 51(xxxi) ‘directly or indirectly, explicitly or implicitly’. Further, French CJ, Gummow and Crennan JJ indicated that the limitation in s 51(xxxi) may extend to executive action.
20.27 The Law Council drew attention to Spencer v Commonwealth, as demonstrating a possible inconsistency in relation to protection of property rights under Australian law. The applicant, Peter Spencer, owned a farm, ‘Saarahnlee’, in NSW. He claimed that the restrictions on the clearing of vegetation imposed on his farm by the Native Vegetation Conservation Act 1997 (NSW) and the Native Vegetation Act 2003 (NSW)—in furtherance of agreements between NSW and the Commonwealth—constituted an acquisition of property other than on just terms pursuant to s 51(xxxi) of the Constitution. Spencer alleged that, by reason of the state legislation, he had been prevented from clearing native vegetation on his land, which amounted to an acquisition of his property. His inability to clear his land rendered it commercially unviable. He argued that the scheme between the Commonwealth and NSW was designed to avoid the ‘just terms’ constraint on the exercise of legislative power under s 51(xxxi) of the Constitution. The Federal Court rejected Spencer’s claim.
20.28 The High Court granted special leave to appeal. French CJ and Gummow J stated:
The case which Mr Spencer seeks to raise potentially involves important questions of constitutional law. It also involves questions of fact about the existence of an arrangement between the Commonwealth and the State of New South Wales which may justify the invocation of pre-trial processes such as discovery and interrogatories. The possible significance of those questions of fact has become apparent in the light of this Court’s judgment in ICM Agriculture Pty Ltd v The Commonwealth … , which had not been delivered when the primary judge and the Full Court delivered their judgments.
20.29 The case was referred back to the Federal Court for reconsideration, with the Federal Court subsequently ordering that Spencer’s application be dismissed.
20.30 Essentially, Spencer claimed that the State of NSW had enacted the two state laws in response to, and induced by, the Commonwealth providing funds and imposing pressure on the state, in part so that the Commonwealth could meet its greenhouse gas emission targets under the Kyoto Protocol to the United Nations Framework Convention on Climate Change. Spencer challenged the validity of two federal laws, four intergovernmental agreements, the two state laws and an ‘informal arrangement’ between the Commonwealth and NSW. Whether the two federal laws could be characterised as laws with respect to the acquisition of property lay at the heart of the case.
20.31 Under the Natural Resources Management (Financial Assistance) Act 1992 (Cth), the Commonwealth may enter into an agreement with a state to provide financial assistance in respect of projects jointly approved by the relevant Commonwealth and state ministers or specified in the agreement. The Federal Court observed that, according to the provisions of the Act, the state ‘may accept the financial assistance on the terms offered, and if it does, then it will be subject to conditions concerning repayment’. The Natural Heritage Trust of Australia Act 1997 (Cth) established the Natural Heritage Trust of Australia Account, one purpose of which is to conserve remnant native vegetation. Pursuant to an agreement with the Commonwealth in 1997, the State of NSW undertook to enact native vegetation conservation legislation. In 1997 the Native Vegetation Conservation Act 1997 (NSW) was introduced, restricting the clearing of native vegetation on land.
20.32 The Federal Court was of the view that the 1997 intergovernmental agreement
does impose terms and conditions on New South Wales, requiring it to enact legislation to decrease vegetation clearance, and increase retention of native vegetation. However, unlike Magennis, the agreement says nothing about the content of the legislation, and certainly nothing about New South Wales having to acquire property as part of any native vegetation clearance legislative scheme.
20.33 Further agreements provided for compensation to assist where property rights were lost, which were to be addressed in developing catchment or regional plans.
20.34 The Court observed that there was ‘considerable’ state legislation controlling land management and native vegetation clearing that dated from ‘well before 1997’, but found that both the Native Vegetation Conservation Act and the Native Vegetation Act 2003 (NSW) were ‘intended to continue, and increase, that control’.
20.35 The Court was in ‘no doubt’ that each of the four intergovernmental agreements
proposed a series of measures to be carried out principally by the State, to reduce the clearance of native vegetation and indeed to increase the total cover of native vegetation across New South Wales. They did so in the context of much broader measures to promote natural resources management and ecologically sustainable development, those purposes and objectives being shared (at least to a significant extent) by the Commonwealth and the State.
20.36 The evidence revealed ‘the Commonwealth relying on its grants power as a way to influence policy and reform initiatives over which it does not have exclusive legislative competence’. However, the Court saw this as ‘the working out of the federal system’, finding ‘no evidence of any improper or inappropriate, let alone unlawful, collusion or conspiracy’, nor ‘any plan to “get around” s 51(xxxi)’.
20.37 The Court considered the practical operation and effect of the two Commonwealth statutes as part of a broader scheme. While the Natural Resources Management (Financial Assistance) Act obliges a payee (here the state) to repay the whole or part of the payment if a condition to which the agreement is subject is not fulfilled, the Court concluded that the imposition of a liability is ‘at the most general level, without regard to subject matter, and in particular without any reference, express or implied, to proprietary interests, let alone the acquisition of property’. With respect to the Natural Heritage Trust Act, the Court did not see a sufficient connection between the objectives of the National Vegetation Initiative that were set out in s 10 ‘and any conduct amounting to an acquisition of property’.
20.38 The Federal Court concluded that the two federal laws should not be characterised as laws with respect to the acquisition of property; that the four intergovernmental agreements did not require or effect an acquisition of property; and that the two state Acts did not have the effect of acquiring ‘Saarahnlee’. Spencer did not prove the existence of an informal arrangement.
20.39 In Esposito v Commonwealth (Esposito), a similar argument was made. The argument was that
the funding agreement between the Commonwealth and New South Wales which provided the funds which were to be used to acquire the appellants’ land was to be seen as a circuitous device by which the Commonwealth and the State could, by combination, avoid the prohibition in s 51(xxxi). … There were two steps. First, the Commonwealth would use its powers under the EPBC Act to render the land in the Heritage Estates effectively worthless. Secondly, New South Wales would then use its powers to acquire the land using the funds provided by the Commonwealth under the agreement.
20.41 As discussed in Chapter 18, there must be an ‘acquisition’ of property in order for s 51(xxxi) of the Constitution to be engaged. The Law Council observed that ‘some limits on the use of property are not an “acquisition” by the Commonwealth’. A number of High Court cases which have considered whether there has been an ‘acquisition’ of property on other than just terms have concerned the right to use land.
20.42 In Commonwealth v Tasmania (Tasmanian Dam Case), Tasmania argued that the relevant Commonwealth statute and regulations—which prohibited the construction of a hydro-electric dam in an area in south-western Tasmania—were invalid because they constituted an acquisition of property on other than just terms. The State argued that an ‘acquisition can occur through the operation of legislation which so restricts the use of land that it assumes the owner’s rights for an indefinite period’. The High Court did not accept this contention.
20.43 Three of the four Justices who considered the issue rejected Tasmania’s argument about s 51(xxxi) of the Constitution as they did not consider that there had been an ‘acquisition’ of property by the Commonwealth. While Mason J observed that the property is ‘sterilised’ in terms of its potential for use—as the provisions prevented any development of the property without the Minister’s consent—he did not consider that the Commonwealth or anyone else had ‘acquired’ a proprietary interest in the property. Similar views were expressed by Murphy and Brennan JJ. Dr Gerry Bates has explained this judicial reasoning: ‘sterilising’ the land for this use did not ‘prohibit other uses to which the property might be put and the Commonwealth had not effectively acquired the property’.
20.44 By contrast, Deane J concluded that there had been an acquisition of property on other than just terms, as the ‘Commonwealth has, by the Wilderness Regulations, brought about a position where the HEC [Hydro-Electric Commission] land is effectively frozen unless the Minister consents to development of it’. His Honour continued:
the Commonwealth has, under Commonwealth Act and Regulations, obtained the benefit of a prohibition, which the Commonwealth alone can lift, of the doing of the specified acts upon the HEC land. The range of the prohibited acts is such that the practical effect of the benefit obtained by the Commonwealth is that the Commonwealth can ensure, by proceedings for penalties and injunctive relief if necessary, that the land remains in the condition which the Commonwealth, for its own purposes, desires to have conserved. In these circumstances, the obtaining by the Commonwealth of the benefit acquired under the Regulations is properly to be seen as a purported acquisition of property …
20.45 In Newcrest Mining (WA) Ltd v Commonwealth (Newcrest),the extension of the Kakadu National Park by proclamations made under the National Parks and Wildlife Conservation Amendment Act 1987 (Cth) extinguished the appellant’s mining rights. As Kirby J explained:
If s 7 of the 1987 Act is valid it purportedly exempted the Commonwealth from any liability to pay compensation to the appellants for such acquisition. Hence the appellants’ assertion of invalidity based upon the constitutional requirement of just terms.
20.46 The Commonwealth contended that it had not acquired any property. A majority of the High Court rejected this contention. The termination of the right to mine was found to constitute an ‘acquisition’ of property partly because ‘there was no other form of land use open to the plaintiff following the sterilisation of that particular form of land use’. Brennan CJ explained that the sterilisation had amounted to an acquisition of property because
the Commonwealth was left in undisturbed possession of the minerals on and under the land included in Kakadu National Park. The Commonwealth’s interest in respect of the minerals was enhanced by the sterilisation of Newcrest’s interests therein. … The property consisted not in a right to possession or occupation of the relevant area of land nor in the bare leasehold interest vested in Newcrest but in the benefit of relief from the burden of Newcrest’s rights to carry on ‘operations for the recovery of minerals’.
20.47 That is, the benefit that passed to the Commonwealth was the unexpired term of the mining leases. Gummow J stated that there is ‘no reason why the identifiable benefit or advantage relating to the ownership or use of property, which is acquired, should correspond precisely to that which was taken’.
20.48 Commonwealth v Western Australia also concerned the right to use land for mining. The land had been acquired by the Commonwealth pursuant to the Lands Acquisition Act 1955 (Cth), and was subsequently declared a defence practice area (DPA) pursuant to the Defence Force Regulations. Two mining companies applied for mining exploration licences over land within the DPA, pursuant to the Mining Act 1978 (WA). The Commonwealth argued that such licences could not be granted in the DPA. The State counterclaimed that the relevant Commonwealth laws were invalid as amounting to an acquisition of the State’s property other than on just terms. The counterclaim was unsuccessful. The majority thought that frequent or prolonged authorisations for defence operations under the Defence Force Regulations could amount to an acquisition of the state’s property, but that the evidence of the frequency of authorisations was absent in this case.
20.49 By contrast, Kirby J considered that the use of the land for defence operations was ‘clearly substantial’. Kirby J found that there had been an ‘acquisition’:
Because of those Regulations the entire area, and access to it, come under the power of the Commonwealth. The identifiable benefit or advantage to the Commonwealth was the ultimately unimpeded control which it thereby gained over the entire DPA … The loss of property interests suffered by the State is the loss of control over, and potential revenue from the exploitation of minerals found in the DPA during the currency of the designation of the area as a DPA. There is an adequate correspondence between the loss of the State’s interest and the countervailing benefit or advantage gained by the Commonwealth. The one is the result of the other. At the very least, the Commonwealth, by reason of the Defence Force Regulations, acquired the benefit of relief from the burden of the State’s interests.
20.50 However, Kirby J held that the Defence Force Regulations afforded ‘just terms’ to the state.
20.51 The views expressed by Mason, Brennan and Murphy JJ in the Tasmanian Dam Case have generally continued to have majority support, while the view of Deane J has been carried on by Kirby and Callinan JJ in particular, but always as a minority view.
20.52 In Spencer, the Court found that there had been a ‘taking’ of Spencer’s ‘bundle of rights’ in his farm, but no ‘acquisition’ in constitutional terms. Spencer alleged that he held a ‘bundle of rights’ over ‘Saarahnlee’ including rights to use and develop it as he saw fit and that the State had ‘acquired’ a benefit of a proprietary character, ‘which was effectively to control what occurred on, or what was done’ with it.
20.53 The Court found that the impact of the state legislation had led to a ‘taking’ or ‘sterilisation’. The Court explained that, by 2006, the NSW Government had a ‘specific exit assistance scheme for those farmers adversely affected by the State’s native vegetation clearance laws’. In 2007 ‘Saarahnlee’ was assessed for the purposes of the Farmers Exit Assistance Program and public monies were offered to Spencer. The Court stated that this evidence ‘proves that [‘Saarahnlee’] was considered, by those administering the scheme, not to be commercially viable by reason of the operation and application of the native vegetation clearance laws’. There was ‘a sterilisation of Mr Spencer’s property, in terms of the uses to which it could be put’. The Court was of the view that the offer under the Farmers Exit Assistance Package constituted a ‘taking’ because Spencer’s bundle of rights in Saarahnlee was ‘fundamentally’ altered and impaired.
20.54 Importantly, however, ‘there was no acquisition by the State nor by any other person of an interest or benefit of a proprietary nature in the bundle of rights Mr Spencer held in his farm’. The Court explained that for ‘acquisition’, ‘what must be identified in the circumstances is the legal interest said to have been created between another party and Mr Spencer’s land’. In the Court’s view, Spencer’s rejection of the State’s offer to pay the then market value for the property ‘illustrates that he, and not anyone else, continued to be the person with a proprietary relationship over Saarahnlee’.
20.55 Spencer also argued that his property, acquired pursuant to the scheme between the Commonwealth and NSW, included carbon sequestration rights. Spencer alleged that he had rights in the carbon sequestered in vegetation on the property:
Absent the stricter vegetation clearance laws, he claims, he could have pursued his projects and development plans throughout the later 2000s and onwards. Emissions from his clearing of land would then have counted in Australia’s inventory [of greenhouse gas emissions] and would have contributed to an increase in emissions reported.
20.56 He alleged that the Commonwealth had obtained two kinds of benefits of a proprietary nature. First, it had ‘acquired’ a financial advantage in not having to implement other measures to reduce greenhouse gas emissions to meet targets under the Kyoto Protocol. Secondly, it had obtained the benefit of the carbon stored in the native vegetation on the land as a result of banning land clearing. The Court did not accept this claim, finding that Spencer ‘has not established he ever held, at the requisite time, any carbon sequestration rights under the Conveyancing Act, and that no such rights existed as a profit à prendre at common law’ and that the alleged benefits or advantages that were secured did not have the necessary proprietary character.
20.57 In Esposito, the appellants’ arguments about s 51(xxxi) also failed on the basis that there was no acquisition of property. The case concerned allotments of land, in an area called the Heritage Estates. The landowners were not permitted to build on the land because of the zoning. The applicants and other landowners within the Heritage Estates had been agitating for the land to be rezoned for a number of years. The Shoalhaven City Council sought the approval of the then Commonwealth Minister for the Environment, Water, Heritage and the Arts for the Council’s proposal to rezone some of the land and to undertake certain infrastructure works. The Minister made a decision under s 130 of the EPBC Act to refuse the approval sought. Subsequently, the relevant Commonwealth Department and the State of NSW entered into a cooperative arrangement to facilitate the Commonwealth providing funding to NSW to assist the State with the voluntary acquisition of the land within the Heritage Estates.
20.58 One of the arguments about s 51(xxxi) of the Constitution, concerning Commonwealth funding, was outlined earlier. The other argument was that the impact of the Minister’s decision was to reduce the value of the land ‘effectively to nil’
by imposing upon them Federal legal constraints which, in substance if not form, have had the effect of barring them from the enjoyment of their land. At the same time, the Commonwealth has received what was said to be the correlative advantage of increasing the environmental amenity of the [nearby] Booderee National Park.
20.59 The Full Court of the Federal Court explained that the Council had sought the Federal Minister’s approval for both the rezoning of the land (despite such permission not being required by the EPBC Act) and for infrastructure works which would have involved actual development activity by the Council. The latter approval was required under the EPBC Act because the Heritage Estates contained two threatened flora and two threatened fauna which were listed under the provisions of the EPBC Act. The Minister had decided that the land should not be rezoned and that the infrastructure works should not be permitted to proceed.
20.60 When examining the status of the land, the Full Court observed that, ‘at the time the various members of the class acquired their lots they were acquiring land upon which, by State law, they were not permitted to build residential dwellings’, noting that the landowners’ use of their land ‘was already largely sterilised by State law’. With respect to the effect of the EPBC Act, the Full Court stated:
Whatever the fetter on the development of the appellants’ land was, it arose when the EPBC Act came into force on 16 July 2000. It was at that time that it became subject to a prohibition that prevented significant action which impacted on the Threatened Species or the environment of the Booderee National Park. What occurred on 13 March 2009 was not the imposition of some fresh prohibition by the Federal Minister but rather a decision by him under Pt 9 not to lift the prohibition which already existed under Pt 3.
20.61 The Full Court explained that the appellants ‘were not legally permitted to build residential dwellings on their land at any time and the EPBC Act did not change that state of affairs either when it became law on its proclamation or when the Federal Minister made his decision under it’. Noting that a hope ‘is not a species of property’, it concluded:
it is clear to us that the appellants continue to own all of the property they have always owned. What they have lost—the fulfilment of a value adding hope and with it the destruction of much of the value of their property—are not themselves proprietary in nature.
20.62 The two limitations in the protection afforded by s 51(xxxi) of the Constitution—the need for an ‘acquisition’ and the position in the states—have been viewed by some as problematic. In June 2010, the Hon Bob Katter MP introduced a private member’s Bill into the Commonwealth Parliament. The Constitution Alteration (Just Terms) Bill 2010 sought to do two things. First, it sought to alter the Constitution so as to extend the constitutional requirement for just terms to ‘any restrictions on the exercise of property rights’. Secondly, it sought to alter the Constitution so as to ‘prohibit state laws acquiring property or restricting the exercise of property rights of any person, except on just terms’. The first reading speech referred to Spencer’s legal action. The Bill did not proceed.
Principle of legality
20.63 The ‘principle of legality’ provides some protection to vested property rights. Blackstone commented:
So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land … Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained … All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.
20.64 In R & R Fazzolari Ltd v Parramatta City Council, a case which concerned the Parramatta City Council’s attempt to acquire land by compulsory process, French CJ stated:
Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretive approaches where statutes are said to affect such rights. … The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights.
20.65 However, the protection afforded by the principle of legality is not absolute. Rather, a significant qualification is placed on the principle in respect of regulatory restrictions on land use:
Across the common law world the standard response is that mere regulatory interference with land use or land management does not constitute a deprivation of property for which compensation need be paid. The words which ring in the common lawyer’s ear are those of the English law lord, Viscount Simonds [in Belfast Corporation v O D Cars Ltd  AC 490, 519], who acidly observed almost 50 years ago that regulatory diminutions of an owner’s rights ‘can be effected without a cry being raised that Magna Carta is dethroned or a sacred principle of liberty infringed’.
20.66 Article 17(2) of the Universal Declaration of Human Rights provides that ‘[n]o one shall be arbitrarily deprived of his property’. This protection is, however, a limited one.
20.67 As discussed in Chapter 18, Australia has entered into a number of free trade agreements, and obligations under international law may also arise in this context.
20.68 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’. However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.
Bills of rights
20.69 As noted in Chapter 18, in other countries, bills of rights or human rights statutes provide some protection to property rights. The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) expressly added a recognition of property rights in protocol 1, art 1—‘for the peaceful enjoyment of one’s possessions’.
Chapter 19 considered the application of this provision to Commonwealth laws concerning personal property. This chapter focuses upon real property.
See Lorraine Finlay, ‘The Attack on Property Rights’ (The Samuel Griffith Society, 2010) 23 <http://samuelgriffith.org.au/>. See also L Finlay, Submission 97.
PJ Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382, 397–8.
Taking of Property on Just Terms Bill 2014 (WA) cl 6. The Explanatory Memorandum states that ‘there is a strong case for legislative confirmation of the common law right to compensation on just terms where there has been a taking of property without recourse to existing statutory processes’: Explanatory Memorandum, Taking of Property on Just Terms Bill 2014 (WA) 6.
Explanatory Memorandum, Land Acquisition Legislation Amendment (Compensation) Bill 2014 (WA) 1.
See, eg, Native Title Act 1993 (Cth) s 20(1). Sections 19 and 20 empower state and territory governments to extinguish or impair native title by ‘validating’ past acts but only if those schemes are consistent with the Native Title Act, including payment of compensation.
Northern Territory (Self-Government) Act 1978 (Cth) s 50; Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23(1)(a).
Law Council of Australia, Submission 75.
Tony Wassaf, ‘Implications of Durham Holdings Case and Coal Compensation Discrimination’ (2001) 20 Australian Mining and Property Law Journal 10, 12.
Sean Brennan, ‘Section 51(xxxi) and the Acquisition of Property under Commonwealth-State Arrangements: The Relevance to Native Title Extinguishment on Just Terms’ (2011) 15 Australian Indigenous Law Review 74, 74.
Law Council of Australia, Submission 75.
Pye v Renshaw (1951) 84 CLR 58.
Pye v Renshaw (1951) 84 CLR 58, 80.
See discussion in Ch 18.
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140,  (French CJ, Gummow and Crennan JJ),  (Hayne, Kiefel and Bell JJ). See also – (Hayne, Kiefel and Bell JJ).
Ibid  (French CJ, Gummow and Crennan JJ);  (Heydon J). The extract quoted is from the joint judgment. Heydon J expressed different reasons. The joint judgment of Hayne, Kiefel and Bell JJ expressed no opinion on this issue.
Spencer v Commonwealth (2010) 241 CLR 118.
Law Council of Australia, Submission 75.
The relationship between the various Acts and agreements is set out in the judgment of French CJ and Gummow J: Spencer v Commonwealth (2010) 241 CLR 118, .
Spencer v Commonwealth  FCA 1256 (26 August 2008).
Spencer v Commonwealth (2010) 241 CLR 118, . The Federal Court noted that ‘the aspect of ICM on which some members of the Court focused was the possibility of an informal arrangement or agreement’: Spencer v Commonwealth  FCA 754 (24 July 2015) .
Spencer v Commonwealth  FCA 754 (24 July 2015).
Ibid . Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 2303 UNTS 162 (entered into force 16 February 2005).
Natural Heritage Trust of Australia Act 1997 (Cth); Natural Resources Management (Financial Assistance) Act 1992 (Cth).
Two Natural Heritage Trust agreements (described in the case as the ‘1997 NHT Agreement’ and the ‘2003 NHT Agreement’) and two salinity agreements (described as the ‘2000 Salinity Agreement’ and the ‘2002 Salinity Agreement’).
Native Vegetation Act 2003 (NSW); Native Vegetation Conservation Act 1997 (NSW).
Natural Resources Management (Financial Assistance) Act 1992 (Cth) s 5(1).
Spencer v Commonwealth  FCA 754 (24 July 2015) .
Natural Heritage Trust of Australia Act 1997 (Cth) s 10(a).
Spencer v Commonwealth  FCA 754 (24 July 2015) .
‘The likelihood of adverse impacts on some farmers being sufficiently serious to warrant “structural adjustment”, or compensation by way of the State purchasing properties, was recognised expressly in the two Salinity Agreements and by reports leading to the state legislative reforms’: Ibid .
Natural Resources Management (Financial Assistance) Act 1992 (Cth) s 8.
Spencer v Commonwealth  FCA 754 (24 July 2015) .
Ibid , , , .
Ibid , .
Esposito v Commonwealth  FCAFC 160 (17 November 2015) .
Ibid , –. Importantly, the Full Court observed that ‘New South Wales did not use any of its powers to acquire land compulsorily nor was it required to do so under the [inter-governmental] agreement’: .
Ibid , .
Law Council of Australia, Submission 140. See also L Finlay, Submission 97.
Commonwealth v Tasmania (1983) 158 CLR 1, 24.
Ibid 181 (per Murphy J); 248 (per Brennan J).
Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 2013) 151.
Commonwealth v Tasmania (1983) 158 CLR 1, 286.
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513.
Bates, above n 68, 151 [5.34].
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 530.
Bates, above n 68, 151 [5.34].
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 634.
Commonwealth v Western Australia (1999) 196 CLR 392.
The laws are outlined at Ibid .
Ibid  (Gleeson CJ and Gaudron J),  (McHugh J agreeing with Hayne J),  (Gummow J),  (Hayne J).
Ibid . Callinan J similarly held that there was a purported ‘acquisition’ of the state’s property, but considered that the Regulations did not provide ‘just terms’ and that the Declaration was invalid. See Ibid –.
See further Andrew Macintosh and Deb Wilkinson, ‘Evaluating the Success or Failure of the EPBC Act; A Response to McGrath’ (2007) 24 Environmental and Planning Law Journal 81. The article they were responding to was Chris McGrath, ‘Swirls in the Stream of Australian Environmental Law: Debate on the EPBC Act’ (2006) 23 Environmental and Planning Law Journal 165.
Spencer v Commonwealth  FCA 754 (24 July 2015) , .
Ibid . The Court considered that there was insufficient evidence to make a positive finding that the exit assistance program was entirely funded and operated by the State: Ibid .
Spencer v Commonwealth  FCA 754 (24 July 2015) , , .
Carbon sequestration rights are mentioned in Ch 18. A carbon sequestration right is defined in NSW legislation as a right to the ‘legal, commercial or other benefit … of carbon sequestration by any existing or future tree or forest on the land after 1990’: Conveyancing Act 1919 (NSW) s 87A. It is also deemed to be a profit à prendre, a defined interest in land: Ibid s 88AB.
Spencer v Commonwealth  FCA 754 (24 July 2015) .
Ibid , .
The appellants (the landowners) were representative members of a class action.
Esposito v Commonwealth  FCAFC 160 (17 November 2015) .
Ibid . Relevant provisions of the EPBC Act are detailed later in this chapter.
See, eg, National Farmers’ Federation, Submission 127; L Finlay, Submission 97.
Diane Spooner, ‘Property’ and Acquisition on Just Terms <www.aph.gov.au> 1. This second aspect is similar to the idea raised in the 1988 referendum.
For further information about the Bill see Diane Spooner, ’Property’ and Acquisition on Just Terms <www.aph.gov.au>.
See Ch 2 and Ch 18.
William Blackstone, Commentaries on the Laws of England, (Clarendon Press reprinted by Legal Classics Library, first published 1765–1769, 1983 ed) vol I, bk I, ch 1, 135.
R & R Fazzolari Ltd v Parramatta City Council (2009) 237 CLR 603,  (French CJ).
See D Farrier, Submission 126.
Kevin Gray, ‘Can Environmental Regulation Constitute a Taking of Property at Common Law?’ (2007) 24 Environmental and Planning Law Journal 161, 163.
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948).
Minister for Immigration v B (2004) 219 CLR 365,  (Kirby J).
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed more generally in Ch 2.
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).