6.17 The Australian Constitution protects property from one type of interference: acquisitions by the Commonwealth other than on just terms. Section 51(xxxi) of the Constitution provides that the Commonwealth Parliament may make laws with respect to:
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.
6.18 There is no broader constitutional prohibition on the making of laws that interfere with vested property rights. Nevertheless, this constitutional protection is significant. The provision reflects the ideal enunciated by Blackstone in the 1700s that where the legislature deprives a person of their property, fair payment should be made: it is to be treated like a purchase of the property at the market value.
6.19 A question often arises as to whether or not a person whose rights are affected by a Commonwealth statute had a ‘property’ right. The High Court is said to have taken a wide view of the concept of ‘property’ in interpreting this section. ‘It means any tangible or intangible thing which the law protects under the name of property.’
6.20 A statute extinguishing a vested cause of action or right to sue the Commonwealth at common law for workplace injuries was treated as an acquisition of property in Georgiadis v AOTC (1994). Similarly, the High Court in Greville v Williams (1906) treated the plaintiff’s right to receive a pension from his superannuation contributions on the abolition of his office as a vested property right attracting the presumption.
Principle of legality
6.22 The principle of legality provides some protection to vested property rights. When interpreting a statute, courts will presume that Parliament did not intend to interfere with vested property rights, unless this intention was made unambiguously clear. More narrowly, legislation is presumed not to take vested property rights away without compensation.
6.23 The general presumption in this context is longstanding and case law suggests that the principle of legality is particularly strong in relation to property rights. The presumption is also described as even stronger as it applies to delegated legislation. The wording of a statute may of course be clear enough to rebut the presumption.
6.24 As early as 1904,Griffith CJ in Clissold v Perry (1904) referred to the rule of construction that statutes ‘are not to be construed as interfering with vested interests unless that intention is manifest’. More recently in 2009, French CJ stated in the High Court of Australia:
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.
6.25 Article 17 of the Universal Declaration of Human Rights provides:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
6.26 This and other 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
6.27 In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. Constitutional and ordinary legislation prohibits interference with vested property rights in some jurisdictions, for example the United States, New Zealand and the state of Victoria.
‘It was and has remained the case in England and Australia that compulsory acquisition and compensation for such acquisition is entirely the creation of statute’: R & R Fazzolari Ltd v Parramatta City Council (2009) 237 CLR 603, 619  (French CJ). See also Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259, 270.
Minister of State for the Army v Dalziel (1944) 68 CLR 261, 295 (McTiernan J). In the Bank Nationalisation Case (1948), Dixon J said s 51(xxxi) ‘extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property’: Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1, 349.
Georgiadis v AOTC (1994) 179 CLR 297.This was upheld in Commonwealth v Mewett (1997) 191 CLR 471; Smith v ANL Ltd (2000) 204 CLR 493. A majority in Georgiadis v AOTC held that the Commonwealth acquired a direct benefit or financial gain in the form of a release from liability for damages: see further, Anthony Blackshield and George Williams, Australian Constitutional Law and Theory (Federation Press, 4th ed, 2006) 1280.
Greville v Williams (1906) 4 CLR 694, 703 (Griffiths CJ). This decision was reversed on other grounds by the Privy Council in Williams v Curator of Intestate Estates (1909) 8 CLR 760.
Eg, intellectual property laws based on s 51(xviii) of the Constitution may ‘impact upon existing proprietary rights’ or adjust or regulate competing rights, claims, obligations or liabilities without infringing s 51(xxxi): Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134.
What amounts to an acquisition is contentious. Generally, acquisition involves the acquirer receiving something; it involves more than the mere extinguishment of rights. See further, JT International SA v Commonwealth (2012) 250 CLR 1.
‘A right to receive a benefit to be paid by a statutory authority in discharge of a statutory duty is not susceptible of any form of repetitive or continuing enjoyment and cannot be exchanged or converted into any kind of property … That is not a right of a proprietary nature’: Health Insurance Commission v Peverill (1994) 179 CLR 226, 243–244 (Brennan J).
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 1.
The narrower presumption is useful despite the existence of the Constitutional protection because, first, ‘It is usually appropriate (and often necessary) to consider any arguments of construction of legislation before embarking on challenges to constitutional validity’: Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 414  (Kirby J). Second, the Constitutional limitation in s 51(xxxi) does not apply to acquisitions of property by a state. See also DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [5.21]–[5.22].
‘This rule certainly applies to the principles of the common law governing the creation and disposition of rights of property. Indeed, there is some ground for thinking that the general rule has added force in its application to common law principles respecting property rights’: American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, 683 (Mason J). See also, Marshall v Director-General, Department of Transport (2001) 205 CLR 603, 623  (Gaudron J).
CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1986) 120 CLR 400, 406 (Kitto J). Kitto J was citing Newcastle Breweries Ltd v The King  1 KB 854. See also, UWA v Gray  FCA 498  (French J).
‘It is of little assistance, in endeavouring to work out the meaning of parts of that scheme [allowing an offeror to compulsorily acquire shares after a takeover on certain conditions under the Corporations Law NSW], to invoke a general presumption against the very thing which the legislation sets out to achieve. Furthermore, for the reasons given in the preceding paragraph, it does not help to say that legislation enabling abrogation of property rights should be strictly confined according to its terms, when the legislation confers a power upon a regulatory authority (subject to procedures of review) to alter those terms’: ASIC v DB Management Pty Ltd (2000) 199 CLR 321, 340 .
Clissold v Perry (1904) 1 CLR 363, 373.
R & R Fazzolari v Parramatta City Council (2009) 237 CLR 603, 618–619,  (French CJ).
A right to property is not provided for in the ICCPR or the ICESCR.
Minister for Immigration v B (2004) 219 CLR 365, 425  (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 1.
United States Constitution amend V.
Bill of Rights Act 1990 (NZ) s 21.
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20.