Protections from statutory encroachments

Australian Constitution

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.[24]

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.’[25]

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).[26] 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.[27]

6.21       However, many claimants have failed to show an acquisition of property,[28] either because there was no acquisition,[29] or because there was no property right.[30]

Principle of legality

6.22       The principle of legality provides some protection to vested property rights.[31] 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.[32]

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.[33] The presumption is also described as even stronger as it applies to delegated legislation.[34] The wording of a statute may of course be clear enough to rebut the presumption.[35]

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’.[36] 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.[37]

International law

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.[38]

6.26       This and other international instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[39] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[40]

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,[41] New Zealand[42] and the state of Victoria.[43]