Laws that interfere with property rights

8.43       A range of statutory provisions may be characterised as interfering with vested property rights—whether or not this interference may be considered justified.

8.44       The Lands Acquisition Act 1989 (Cth) is the key piece of legislation concerning Commonwealth acquisition of land. With some exceptions, the Commonwealth cannot acquire an interest in land[59] other than in accordance with the procedures outlined in that Act.[60] The Act provides a detailed process for Commonwealth acquisitions of land[61] and protections—including compensatory mechanisms—for people whose interests in land are adversely affected by a compulsory acquisition.[62] The Lands Acquisition Act was largely based on recommendations in the ALRC’s report Lands Acquisition and Compensation.[63] The Act was designed to modernise Australia’s system of compulsory land acquisition. Previously, the law lacked procedures to ensure fairness in decision-making, including ‘a mechanism for an individual adversely affected by a decision to compulsorily acquire property to require the acquiring authority to justify publicly the need for, and choice of, their property’.[64]

8.45       A number of Commonwealth laws may be seen as encroaching on real property rights. These include:

  • environmental laws;

  • native title laws; and

  • criminal laws.

8.46       These laws are summarised below. Some of the justifications that have been advanced for environmental laws that encroach on property rights, and public criticisms of laws on that basis, are also discussed.

Environmental laws

8.47       Environmental legislation may be understood as any statute that includes provisions intended ‘to protect the environment [including national heritage] and conserve natural resources in the public interest’.[65] There are approximately 60 Commonwealth environment-related statutes in force.[66]

8.48       Commonwealth environmental laws may be seen as interfering with real property rights by authorising, for example:

  • the compulsory acquisition of property;

  • the regulation of land use, development and activities;[67]

  • restrictions on the sale or lease of real property;[68]

  • actions which adversely affect the ‘enjoyment’ (for example, search and enter powers), or value of real property;[69] and

  • restrictions on the assignment/sale of tradeable resource-use property rights.[70]

8.49       Many environmental planning statutes that may be considered to interfere with property rights are state—not Commonwealth—Acts.[71] While particular concerns have been expressed about the actions of state governments,[72] state legislation is not the concern of this Inquiry.

8.50       The Australian Network of Environmental Defender’s Offices (ANEDO) submitted that ‘there are currently no Commonwealth environmental laws that unjustifiably interfere with vested property rights’.[73] While some Commonwealth environment-related statutes which may interfere with property rights may be widely accepted in the community as justified, this Inquiry heard particular concerns about the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Water Act 2007 (Cth) (Water Act).

Compulsory acquisition of property

8.51       Most Commonwealth environmental statutes include an express provision precluding the Commonwealth from compulsorily acquiring property without providing compensation on just terms.[74] While both the EPBC Act and the Water Act contain such provisions,[75] concerns have been expressed that these two statutes may unjustifiably interfere with property rights in a way that falls short of triggering invalidity pursuant to s 51(xxxi) of the Australian Constitution, as it has been interpreted.

EPBC Act

8.52       The EPBC Act is the Australian Government’s main piece of environmental legislation. The Act affects a landowner’s real property rights by imposing environmental land use restrictions. For example, a person is prohibited from taking an ‘action’[76] that

  • has or will have, or is likely to have a significant impact on the world heritage values of a declared ‘World Heritage property’—s 12(1) (civil penalty);

  • results or will result in, or is likely to have a significant impact on the world heritage values of a declared ‘World Heritage property’—s 15A(1), (2) (offence);

  • has or will have, or is likely to have a significant impact on the ecological character of a ‘declared Ramsar wetland’—s 16(1) (civil penalty);

  • results or will result in, or is likely to have a significant impact on the ecological character of a ‘declared Ramsar wetland’—s 17B(1), (2) (offence);

  • has or will have, or is likely to have a significant impact on a ‘listed threatened species’ that are included in the extinct in the wild, critically endangered, endangered or vulnerable categories—s 18(1)–(4) (civil penalty);

  • has or will have, or is likely to have a significant impact on a ‘listed threatened ecological community’ included in the critically endangered or endangered categories—s 18(5), (6) (civil penalty);

  • results or will result in, or is likely to have a significant impact on a ‘listed threatened species or a listed threatened ecological community’—s 18A(1), (2) (offence);

  • has or will have, or is likely to have a significant impact on a ‘listed migratory species’—s 20(1) (civil penalty); and

  • results or will result in, or is likely to have a significant impact on a ‘listed migratory species’—s 20A(1), (2) (offence).

8.53       The provisions with respect to a World Heritage property, a declared Ramsar wetland and a listed migratory species do not apply if the person has been approved to take the action under pt 9 of the Act; is exempted from needing such approval by pt 4 of the Act; or in certain other circumstances.[77] The Act gives certain, different, circumstances when the offence provisions with respect to a listed threatened species or a listed threatened ecological community (s 18A(1) and (2)) will not apply.[78] The civil penalty provisions with respect to a listed threatened species (s 18(1)­–(4)) and a listed threatened ecological community (s 18(5) and (6)) do not have exclusions.

8.54       Justification for the prohibition of these actions and interference with vested property rights draws primarily on the requirement for an action to have, or be likely to have, a ‘significant’ impact. The Explanatory Memorandum implicitly suggests that this requirement strikes a balance between an owner’s rights and the public interest. For example, in relation to s 12, the Explanatory Memorandum states that

Not all actions impacting on a world heritage property will have, or are likely to have, a significant impact on the world heritage values of that property. This clause therefore does not regulate all actions affecting a world heritage property.[79]

8.55       Dr Gerry Bates has commented that the question of significance is ‘for subjective determination by the minister’.[80]

8.56       The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) considered the provisions of the Environment Protection and Biodiversity Conservation Bill 1998 (Cth) but it did not express concerns about any impact on vested property rights.[81] Nor did it express concerns in this regard about a subsequent Bill that, among other things, sought to amend the EPBC Act by imposing strict liability on certain elements of the offences in ss 15A, 17B, 18A and 20A of the EPBC Act (outlined above).[82]

8.57       Since the commencement of the EPBC Act in 2000, there have been a number of reviews of the Act and natural resource management more broadly,[83] including an independent review of the Act[84] undertaken pursuant to s 522A.[85] Two of them are of particular relevance to the matters considered in this Inquiry.[86]

8.58       The potential for the EPBC Act to encroach on vested property interests is illustrated in Greentree v Minister for the Environment and Heritage.[87] The Full Court of the Federal Court upheld the Federal Court’s decision that Mr Greentree had taken an action which had a ‘significant impact on the ecological character of a declared Ramsar wetland’, contrary to s 16(1) of the EPBC Act.[88] The property had been farmed by Greentree Farming (a partnership),[89] which cleared, ploughed and sowed the land.[90] Consequently, the farmer and his company had to pay $150,000 and $300,000 respectively to the Commonwealth, conflicting with Mr Greentree’s asserted right to use and enjoy his own property.

8.59       In March 2010, the National Farmers’ Federation (NFF) submitted to the Senate Finance and Public Administration References Committee’s Inquiry into Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures, that where the operation of the EPBC Act results in landholders’ property rights being reduced, the Act should require landholders to be compensated.[91] The Committee reported that

While the committee does not believe that it is always inappropriate for government to regulate the use or utilisation of private landholdings, there comes a point at which regulation of land may be so comprehensive as to render it of a substantially lower economic value to the landowner. In such circumstances consideration should be given to compensation being provided to the landowner in recognition of this.[92]

8.60       However, the Committee did not make a specific recommendation in this regard. 

8.61       In this ALRC Inquiry, the NFF again expressed the view that the degree of interference by the EPBC Act with property rights may be unjustified. The NFF’s main argument was that the Act ‘is having a significant financial impact on farmers as a consequence of the limitations it places on property development and land use change’.[93] It suggested that the land use restrictions were resulting in adverse economic and environmental outcomes by preventing the effective introduction of modern agricultural technology. For example, it suggested that prohibitions on cutting down isolated paddock trees frustrates precision cropping practices, which may: reduce chemical and fertiliser use, prevent run-off into waterways, lower fuel consumption and mitigate soil loss. In its view, such restrictions—where referral is required—‘substantially limit the continued profitability and viability of farms’.[94] It submitted that the fact that ‘there is no compensation directly available under the EPBC Act’ should be of interest to this Inquiry.[95]

8.62       By contrast, ANEDO submitted that the common law has ‘long accepted that government regulation of activities that can occur on private property (for example, restricting water use, land-clearing or requiring development consents) is not an acquisition of property, and therefore does not trigger a right to compensation’.[96] ANEDO cited two cases to support this statement: Commonwealth v Tasmania[97] and ICM Agriculture Pty Ltd v Commonwealth.[98] Both cases concerned s 51(xxxi) of the Constitution, among other provisions.

8.63       In Commonwealth v Tasmania, 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’.[99] An analogous argument could potentially be made by a landowner prevented from carrying out certain activities by the EPBC Act. The High Court, however, did not accept this contention by Tasmania.

8.64       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 ‘sterilized’ 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.[100] Similar views were expressed by Murphy J[101] and Brennan J.[102] Dr Bates has explained this judicial reasoning: ‘sterilising this particular form of land use did not ... prohibit other uses to which the property might be put and the Commonwealth had not effectively acquired the property’.[103]

8.65       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 land is effectively frozen unless the Minister consents to development of it’.[104] 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...[105]

8.66       Andrew Macintosh and Deb Wilkinson have argued that ‘[s]everal High Court decisions in the 1990s and early 2000s have cast doubt over the weight of Mason, Brennan and Murphy JJ’s findings in the Tasmanian Dam case’.[106] It is a matter of ongoing debate about ‘exactly where the dividing line for constitutional acquisition lies in relation to laws that regulate natural resources’.[107] They concluded that ‘when the EPBC Act goes beyond minor interferences so as to significantly reduce the commercial uses to which property can be applied, or if it deprives property of any commercial use, questions may arise about acquisition’.[108]

8.67       Even if not a compulsory acquisition of property, the interference of the EPBC Act with property rights may still be considered to be unjustified if compensation is not provided. Indeed, the NFF claims that farmers should receive compensation for ‘shouldering the burden of providing a public benefit’ provided by the EPBC Act.[109]

Water Act 2007

8.68       The Scrutiny of Bills Committee did express some concerns about vested property rights when considering the provisions of the Water Act. Specifically, it expressed concern about provisions relating to entry to premises, without warrant, as it considered that they may trespass unduly on personal rights and liberties.[110]

8.69       In this Inquiry, the NFF had a different complaint. It submitted that the Water Act has the potential to cause unjustified interferences with property rights. Its two particular concerns were first, that the Act, particularly the Murray-Darling Basin Plan, has the potential to ‘erode’ farmers’ water rights and entitlements without full compensation and secondly, that the Murray-Darling Basin Plan’s Constraints Management Strategy could potentially result in the flooding of private land.[111]

8.70       With respect to the first issue, the NFF expressed concern that Commonwealth laws ‘fail to fully ensure that full compensation provisions are in place for any diminution in water access’. It submitted that ‘[w]here such action undertaken by government results in diminution of entitlement reliability, water access entitlement holders should be fully compensable at the market rate’. It called for the Commonwealth to provide just compensation ‘where States fail to do so’.[112] An access entitlement is ‘the long term right to receive annual allocations’.[113]

8.71       The National Water Initiative is an intergovernmental agreement between the Commonwealth and all state and territory governments.

The States and Territories are to make plans to address any existing overallocation for all river systems and groundwater resources. The use of water for private consumption (such as for irrigation, industry and domestic use) is to require a water access entitlement (such as a water licence), as determined by a State or Territory water plan.

Water access entitlements are to be described as a share of the water available for consumption (the consumptive pool) from a specified water resource. They must be separate from land and will, among other things, be mortgageable, capable of being traded ...

Water plans are to be prepared by States and Territories for surface water and groundwater management units in which water entitlements are issued. They are to provide for secure ecological outcomes by defining appropriate water management arrangements to achieve environmental and other public benefit outcomes ...They are also to ... determin[e] the shares in the consumptive pool, and the rules to allocate water during the life of the plan.[114]  

8.72       The Water Act, the Murray-Darling Basin Plan and other intergovernmental agreements have developed the approach in the National Water Initiative.

8.73       Water entitlements may constitute a form of personal property. For example, Michael McKenzie has analysed rights under the Water Management Act 2000 (NSW) and observed that the NSW Government had ‘stopped short of explicitly defining water rights under a water access licence as personal property’.[115] He explained that the case law, however, has made it clear that ‘whether the water rights amount to property rights depends on the terms of the legislation’.[116] While water entitlements may constitute a form of personal property, they are discussed in this chapter, rather than Chapter 7, because many conceive of rights to water in a non-technical way, as intrinsically related to real property.

8.74       With respect to the Water Act, as noted earlier, s 254 provides for just terms compensation for any acquisition of property. Further, pt 2 div 4 of the Act, which concerns management of Basin water resources and specifically allocates risks in relation to reductions in water availability, is in effect a compensation regime for losses suffered by the holders of water rights.   

8.75       The Murray-Darling Basin Plan is a legislative instrument authorised under the Water Act[117] for the purpose of facilitating the integrated management of the Murray-Darling Basin water resources in a way that promotes the objects of the Act.[118] The objects of the Act include the promotion of ‘the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes’.[119] For present purposes, key aspects of the Water Act include the following:

The central concept of the Water Act is the development of the Basin Plan (Pt 2 div 1).

The Basin Plan must identify water resource plan areas and they must align as far as possible with the areas provided under State legislation for the management of water resources (s 2(1) item 2).

The Basin Plan must establish the maximum long-term annual average quantities of water that can be taken in a sustainable basis from the Basin water resources as a whole and from the water resources of each of the water resource plan areas (s 22(1) item 6). These averages are called SDLs [sustainable diversion limits].[120]

8.76       The Full Court of the Federal Court gave this overview of the Water Act in the case of Lee v Commonwealth, which involved, among other things, an appeal by two landowners from the Federal Court’s rejection of their claim for compensation under s 254 of the Water Act—the statutory just terms provision in that Act. Each landowner operated an irrigated horticultural farm that draws water from the Murray River. Before the Federal Court, the landowners had argued that

by reducing the amount of water they could carry over from one year to the next pursuant to State legislation, and by detrimentally affecting the cost of access to irrigation delivery infrastructure, the value of their farms, and the price at which they were able to sell their water entitlements to the Commonwealth, the Act had effected an acquisition of property otherwise than on just terms, which entitled them to compensation under s 254 of the Act.[121]

8.77       That is, there were essentially four claims in respect of s 254.[122] The Federal Court concluded that the two landowners—Mr Lee and Mr Gropler—had ‘no reasonable prospect of prosecuting the s 254 claim successfully’.[123] The focus of discussion in this chapter is the claim concerning carryover water.[124] In respect of this claim, the Federal Court stated that ‘[i]t is alleged that as a result of the Commonwealth Environmental Water Holder conserving water for environmental use, Mr Lee’s entitlement to carryover water will be reduced and the value of his water entitlements has, as a result, been reduced’.[125] The Court continued:

It seems that these [carryover] entitlements arise under State laws. For the purpose of argument, let it be assumed that those rights were taken from Mr Lee. He still faces the obstacle that there was no acquisition of property from him by any other person. Sections such as s 254 are directed to acquisition, not deprivation.[126]

8.78       The Federal Court found that ‘there was no acquisition of property from the appellants and no measurable advantage conferred on the Commonwealth’.[127] The trial judge ordered summary judgment in favour of the Commonwealth and the Murray-Darling Basin Authority in respect of all the claims made in the proceeding.[128]

8.79       On appeal, the Full Court explained that the Federal Court had found the case in respect of s 254 to be analogous to that in ICM Agriculture Pty Ltd v Commonwealth, rather than that in Newcrest Mining (WA) Limited v Commonwealth, as the appellants had contended.[129]

His Honour explained ... that the appellants’ case was governed by ICM and not Newcrest ‘in that there was no measurable or identifiable advantage conferred on the Commonwealth in consequence of Mr Lee and Mr Groper’s alleged loss of carryover entitlements’.

We respectfully agree with his Honour’s legal analysis and conclusion, which disclose no appealable error.[130]

8.80       The Federal Court had also observed some ‘misconceptions’[131] about the landowners’ concern that the ‘fixing’ of the sustainable diversion limits (SDLs) has the effect of reducing their water entitlements ‘by around 25% and thereby denying them water to such a degree that their farms are no longer viable’.[132] The SDLs were to come into operation in 2019.[133]

8.81       The Court outlined the Commonwealth Government’s policy in relation to the operation of the Water Act.[134] It referred to the Sustainable Water Use and Infrastructure Program[135] and the Restoring the Balance in the Murray-Darling Basin program.[136] The first program provided for Commonwealth funding to be used to invest in projects which would improve and modernise irrigation infrastructure so as to address significant water losses caused by leakage and evaporation. The second program provided for the Commonwealth to purchase water entitlements in the Murray-Darling Basin from those who volunteered to sell and then to use that water for environmental purposes. The Court also referred to a Government commitment to ‘“bridge the gap” between the current diversion levels, being the baseline diversion limits, and the proposed level of diversion reflected in the Basin SDL’.[137] The Court stated of the latter that ‘the Commonwealth’s intention was to reduce the current diversion level without reducing irrigators’ water entitlements’.[138]

8.82       The Court explained that under the policy,[139] the Commonwealth committed to purchase a certain amount of water entitlements from willing sellers in the market and then to use that water for environmental purposes.[140] The remaining irrigators who did not sell their entitlements would retain their same entitlements.[141]

The reduction in water entitlements for use in irrigation is achieved by devoting the water purchased by the Commonwealth to environmental uses.

... Whilst government policy may change, the evidence in this case is that the policy means irrigators who retain their entitlements will suffer no loss of entitlement to water as a result of the fixing of the SDLs.[142]

8.83       The Full Federal Court included this extract in the Court’s reasons[143] and also recounted the Federal Court’s explanation of the Government’s policy.[144] The Court granted leave to appeal but dismissed the appeal.[145]

8.84       The application for special leave to the High Court in this case was refused. Keane J remarked:

Given the findings of the courts below as to the likely and actual operation of the Water Act upon the applicants’ rights, any adverse effect upon their legal rights is so remote that their standing to challenge the validity of the Act is doubtful ... [146]

8.85       It is useful now to refer to ICM Agriculture Pty Ltd v Commonwealth and Newcrest Mining (WA) Limited v Commonwealth as the distinction between the two cases was key to the outcome in Lee in respect of the s 254 claim.

8.86       In ICM Agriculture Pty Ltd v Commonwealth, three landowners commenced proceedings in the High Court claiming that a reduction in their water entitlements amounted to an acquisition of property other than on just terms, contrary to s 51(xxxi). The case did not concern the Water Act. Each landowner conducted farming enterprises near the Lachlan River in New South Wales.[147] The land was within the area known as the Lower Lachlan Groundwater System (LLGS).[148] Agricultural enterprises in this area were reliant upon both groundwater and surface water.[149] The case concerned the replacement of bore licences with aquifer access licences under New South Wales legislation. The aquifer access licences reduced the amount of groundwater to which the plaintiffs were entitled—for two plaintiffs by about 70%.[150] The state of New South Wales offered the plaintiffs ‘structural adjustment payments’ which the landowners considered to be inadequate.[151] The Commonwealth, as represented by the National Water Commission, and the state of New South Wales had earlier entered into a funding agreement which provided that each was to provide equal funds to be used for structural adjustment payments.[152]

8.87       The majority of the High Court decided that the replacement of the bore licences did not constitute an ‘acquisition’ of property within the meaning of s 51(xxxi). It is important to note that the case concerned groundwater. Since 1966 the right to the use, flow and control of sub-surface water has been vested by statute in the state ‘for the benefit of the Crown’[153] and New South Wales legislation imposed a prohibition on access to, and use of, groundwater without a licence.[154] So, while the cancelled bore licences were a species of property,[155] there was no ‘acquisition’ by New South Wales.[156]

8.88       French CJ, Gummow and Crennan JJ concluded that

... in the present case, and contrary to the plaintiff’s submissions, the groundwater in the LLGS was not the subject of private rights enjoyed by them. Rather ... it was a natural resource, and the State always had the power to limit the volume of water to be taken from that resource. ... The changes of which the plaintiffs complain implemented the policy of the State respecting the use of a limited natural resource, but that did not constitute an ‘acquisition’ by the State in the sense of s 51(xxxi).[157]  

8.89       Hayne, Kiefel and Bell JJ concluded that

Neither the existence, nor the replacement or cancellation, of particular licences altered what was under the control of the State or could be made the subject of a licence to extract. If, as was hoped or expected, the amount of water in the aquifer would thereafter increase (or be reduced more slowly) the State would continue to control that resource. But any increase in the water in the ground would give the State no new, larger, or enhanced ‘interest in property, however slight or insubstantial’, whether as a result of the cancellation of the plaintiff’s bore licences or otherwise.[158]  

8.90       By contrast, in his dissent, Heydon J determined that the increase in water in the ground ‘will be a benefit or advantage which New South Wales has acquired within the meaning of s 51(xxxi)’.[159]

8.91       In Newcrest Mining, 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’.[160] The benefit that passed to the Commonwealth was the unexpired term of the mining leases.[161]

8.92       In ICM Agriculture Pty Ltd v Commonwealth, French CJ, Gummow and Crennan JJ distinguished the case before them from Newcrest Mining:

To acquire the substance of proprietary interests in the mining tenements considered in that case is one thing, to cancel licences to extract groundwater is another. The mining tenements were interests carved out of the radical title of the Commonwealth to the land in question, and the radical title was augmented by acquisition of the minerals released from the rights of another party to mine them. As Brennan CJ later explained [in Commonwealth v WMC Resources Ltd (1998) 194 CLR 1, [17]], the property of the Commonwealth had been enhanced because it was no longer liable to suffer the extraction of minerals from its land in exercise of the rights conferred by the mining tenements held by Newcrest.[162]

8.93       As noted earlier, the NFF views a ‘diminution’ of water access entitlements (caused by the Commonwealth’s administration of the Water Act), unaccompanied by compensation ‘at market rates’, as an unjustifiable interference with property rights. However, the judgments in the Lee litigation suggest that any diminution of the consumptive pool caused by the Commonwealth under the Water Act will be by consensual purchase of water entitlements and from water savings associated with investments in more efficient infrastructure. In such circumstances, the argument could be advanced that the Commonwealth was sufficiently concerned about property issues that it implemented a policy that required consensual arrangements which overcame the need for compulsory acquisition and compensation. That is, that it introduced measures to address any unjustifiable interference with property rights. Accordingly, some might say that the operation of the Water Act does not amount to an unjustifiable interference with property rights.  

Native title laws

8.94       Native title laws were also raised in a submission to this Inquiry.[163] Two reports have been released in 2015 which have outlined consultations about the Native Title Act 1993 (Cth) (Native Title Act) and raise issues of relevance to this Inquiry. 

8.95       In 2014, the Australian Human Rights Commission consulted nationally on the protection of human rights and freedoms in Australia. In the subsequent report, the ‘freedom to exercise native title’ was identified as an issue emerging from the consultation on property rights.

Consultations with native title holders revealed that they face complex legislative and bureaucratic regulations that impede their capacity to use their native title to achieve economic development. These barriers obstruct the potential for Aboriginal and Torres Strait Islander peoples to build and own houses on their native title lands, and use their native title as a foundation to create and participate in businesses.[164]

8.96       The ALRC conducted an Inquiry into aspects of the Native Title Act from August 2013 to April 2015, including national consultations. The final report was released in June 2015.[165] The Terms of Reference asked the ALRC to examine, among other things, whether the Native Title Act should be clarified to provide that native title rights and interests ‘can include rights and interests of a commercial nature’.

8.97       Section 223(2) of the Native Title Act states that native title rights and interests include, but are not limited to, hunting, gathering, or fishing, rights and interests. That is, the provision provides a non-exhaustive list of some native title rights and interests. The ALRC drew upon the approach to native title rights taken in Akiba v Commonwealth[166] and recommended that s 223(2) be amended to confirm that native title rights and interests may comprise a broadly-framed right that may be exercised for any purpose, including commercial or non-commercial purposes where the evidence supports such a finding.[167] The ALRC recommended that the Native Title Act should further provide a non-exhaustive list of kinds of native title rights and interests, including trading rights and interests that might be established on the evidence.[168] This part of the recommendation reflects case law where a right to trade has been recognised in principle.[169] The ALRC recommended that the terms ‘commercial purposes’ and ‘trading’ should not be defined in the Act.[170]

8.98       The ALRC’s recommendations will contribute to the ongoing discussions about how native title holders may be empowered to use their native title to create economic development opportunities.

Criminal laws

8.99       A number of Commonwealth criminal law provisions may interfere with property rights. A number of these are considered in Chapter 7, dealing with personal property.  

8.100   There are few criminal offences that may be characterised as interfering with a person’s interests in real property.

8.101   In the Crimes Act 1914 (Cth), s 3ZB empowers a police constable to enter premises to arrest an offender if the constable has a warrant for that person’s arrest and has a reasonable belief that the person is on the premises.

8.102   In the Criminal Code (Cth), s 105.22 allows the police to enter premises if a preventative detention order is in force against a person and the police have a reasonable belief that the person is in the premises.

8.103   Other Commonwealth statutes also contain offence provisions for preventing entry to land where an officer or other specified person is empowered to enter.[171] 

Search warrants to enter premises

8.104   While entry powers for law enforcement authorise what would otherwise be a trespass, they may be considered, broadly conceived, as an interference with real property.

8.105   At common law, whenever a police officer has the right to arrest, with a warrant, they may enter private premises without the occupier’s permission in order to execute the warrant.[172] Police powers to enter and search private premises through the issue of search warrants are, however, a relatively modern phenomenon. Historically, courts were not empowered to issue search warrants on private property, unless in relation to the search and seizure of stolen goods.[173]

8.106   Where legislation has been passed to derogate from the principle of a person’s right to undisturbed enjoyment of their premises, the legislation is to be construed so as not to derogate from the common law right without express words or necessary implication.[174] This is underscored by the principle that there is no common law right for law enforcement to enter private property without a warrant.[175]

8.107   By way of example, s 3ZB of the Crimes Act was introduced through the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth) which amended the Crimes Act 1914 (Cth). When introducing the Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth) to the House of Representatives, the then Minister for Justice explained the purpose of the Bill was to implement the recommendations of the Review of Commonwealth Criminal Law, in order

to make much needed reforms of the law relating to search, arrest and related matters for the investigation of most Commonwealth offences. These areas of the law have been the subject of careful examination by the Australian Law Reform Commission in its report entitled Criminal Investigation, and more recently by the Review of Commonwealth Criminal Law established by Mr Bowen as Attorney-General and chaired by the Rt. Hon. Sir Harry Gibbs. The bill closely follows the recommendations made by the Review of Commonwealth Criminal Law in its fourth and fifth interim reports.[176]

8.108   In the ALRC’s 1975 Criminal Investigation report, the ALRC wrote that

A power to enter should be available, first, in order to arrest a person named in a warrant of arrest and reasonably believed to be on the premises, and, secondly, where no warrant exists, to accomplish the lawful arrest of a person reasonably believed to have committed a serious offence and reasonably believed to be on the premises.[177]

8.109   In light of this commentary, s 3ZB appears to be fairly uncontroversial.[178]

[59]         ‘Interest in land’ is broadly defined as ‘any legal or equitable estate or interest in land’, a restriction on the use of land, whether or not annexed to other land’, or ‘any other right (including a right under an option and a right of redemption), charge, power or privilege in connection with the land or an interest in the land’: Lands Acquisition Act 1989 (Cth) s 6(a), (b), (c).

[60]         Ibid s 21(1).

[61]         See for example, Ibid pts IV, V, VI. These parts provide procedures for the acquisition of interests in land, as well as pre-acquisition procedures and the right to seek review of a decision to acquire land.

[62]         See, for example, the compensation scheme in pt VII of the Act.

[63]         Australian Law Reform Commission, Lands Acquisition and Compensation, ALRC Report 14 (1977).

[64]         Department of the Parliamentary Library (Cth), Bills Digest, No 114 of 1988, 24 October 1988, 1.

[65]         Australian Network of Environmental Defender’s Offices, Submission 60.

[66]         See Australian Government, Department of the Environment, ‘Legislation’ <http://www.environment.gov.au/about-us/legislation>.

[67]         Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 12, 15A, 15B, 15C, 16, 17B, 18, 18A, 20, 20A; Comprehensive Nuclear-Test-Ban Treaty Act 1988 (Cth); Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) div 1; Great Barrier Reef Marine Park Act 1975 (Cth) s 38DD. 

[68]         Building Energy Efficiency Disclosure Act 2010 (Cth) s 11.

[69]         Environment Protection and Biodiversity Conservation Act 1999 (Cth); National Radioactive Waste Management Act 2012 (Cth) s 11.

[70]         Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth); Water Act 2007 (Cth); Renewable Energy (Electricity) Act 2000 (Cth).

[71]         See eg, Environmental Planning and Assessment Act 1979 (NSW).

[72]         National Farmers’ Federation, Submission 54. See also Finlay, above n 7.

[73]         Australian Network of Environmental Defender’s Offices, Submission 60.

[74]         See, eg, Greenhouse and Energy Minimum Standards Act 2012 (Cth) s 174. See the discussion of s 51(xxxi) in Ch 7.

[75]         Water Act 2007 (Cth) s 254; Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 519. 

[76]         Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 523.

[77]         See Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 12(2), 15A(4), 16(2), 17B(4), 20(2) and 20A(4). 

[78]         Ibid s 18A(4).

[79]         Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill (Cth) 23 [23] (emphasis in original). See other examples at [49] (‘Not all actions affecting a nationally threatened species or community will have, or are likely to have, a significant impact on that species or community’); [59] (‘Not all actions affecting a migratory species will have, or are likely to have, a significant impact on that species’).

[80]         Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 2013) 174 [5.71].

[81]         Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Seventh Report of 1999 (1999). 

[82]         Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Eleventh Report of 2006 (2006). The Committee did express concerns about the imposition of strict liability.

[83]         Some of these reviews are outlined in National Farmers’ Federation, Submission No 136 to ‘Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999’ (2009) 4, 7–12; ‘The Australian Environment Act—Report of the Independent Review of the Environment Protection  and Biodiversity Conservation Act 1999’ (Final Report, October 2009) 4, 8. Further, in its submission to this ALRC Inquiry, ANEDO outlined a number of inquiries and consultations that it had been involved in that were concerned with ‘cutting green tape’, see Australian Network of Environmental Defender’s Offices, Submission 60.

[84]         ‘The Australian Environment Act—Report of the Independent Review of the Environment Protection  and Biodiversity Conservation Act 1999’, above n 83. 

[85]         This section provides that the Minister must cause an independent review, of the operation of the Act and the extent to which the Act’s objects have been achieved, to be undertaken within 10 years of commencement and thereafter in intervals of not more than 10 years.

[86]         Senate Finance and Public Administration References Committee, Parliament of Australia, Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures (2010); ‘Impacts of Native Vegetation and Biodiversity Regulations’ (Inquiry Report 29, Productivity Commission, 2004).

[87]         Greentree v Minister for Environment and Heritage (2005) 144 FCR 388.

[88]         Ibid [45]–[50].

[89]         Ibid [4].

[90]         Ibid [45].

[91]         National Farmers’ Federation, Submission No 265 to Senate Finance and Public Administration References Committee, Inquiry into Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures, 2010 4.

[92]         Senate Finance and Public Administration References Committee, Parliament of Australia, Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures (2010) [5.13].

[93]         The NFF also claimed that the ‘complexity’ of the Act’s operation frustrates farmers from achieving ‘optimum value from their land assets’: National Farmers’ Federation, Submission 54.

[94]         Ibid.

[95]         Ibid.

[96]         Australian Network of Environmental Defender’s Offices, Submission 60 citing ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; Commonwealth v Tasmania (1983) 158 CLR 1, 145–6.    

[97]         Commonwealth v Tasmania (1983) 158 CLR 1, 145–6.

[98]         ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140.

[99]         Commonwealth v Tasmania (1983) 158 CLR 1, 24.

[100]       Ibid 145–6.

[101]       Ibid 181.

[102]       Ibid 248.

[103]       Bates, above n 80, 151.

[104]       Commonwealth v Tasmania (1983) 158 CLR 1, 286.

[105]       Ibid 287.

[106]       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, 82. 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.

[107]       Macintosh and Wilkinson, above n 106, 83. See also McGrath, above n 106.

[108]       Macintosh and Wilkinson, above n 106, 83. O’Connor makes a similar point. ‘Landowner lobby groups argue that the effect of Australia’s land clearing laws is to make some private land effectively conservation estate, depriving the owners of all economically viable uses. In Australia, as in the US, it is generally accepted that compensation should be paid when regulation crosses that threshold’: O’Connor, above n 15, 78. She argues that ‘[i]n many if not most cases, land affected by clearing restrictions may be suitable for other viable uses’.

[109]       National Farmers’ Federation, Submission 54.  

[110]       Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, First Report of 2008 (2008) 43–4.

[111]       National Farmers’ Federation, Submission 54.

[112]       Ibid.

[113]       Henning Bjornland and Geoff Kuehne, ‘Water Soft Path Thinking in Other Developed Economies—Part C: Australia’ in David B Brooks, Oliver M Brandes and Stephen Gurman (eds), Making the Most of the Water We Have: The Soft Path Approach to Water Management (Earthscan) 220, 223.

[114]       Westlaw AU, The Laws of Australia (at 1 March 2015) 14 Environment and Natural Resources, ‘14.9 Water’ [14.9.570].

[115]       Michael McKenzie, ‘Water Rights in NSW: Properly Property?’ (2009) 31 Sydney Law Review 443, 462.

[116]       Ibid.

[117]       Water Act 2007 (Cth) s 33.

[118]       Ibid s 20.

[119]       Ibid s 3(c).

[120]       Lee v Commonwealth [2014] FCAFC 174 (18 December 2014) [31]–[34].

[121]       Lee v Commonwealth (2014) 220 FCR 300, 301. The Federal Court commented that the allegations in the amended statement of claim in respect of the s 254 claims ‘lack clarity’: Ibid [192]. The Court sought to detail the claims at Ibid [193]–[200].

[122]       Claims in respect to: (1) carryover water; (2) an increase in the cost of access to the irrigation delivery system; (3) a decline in the value of the properties; and (4) a reduction in the price at which the landowners were able to sell their water entitlements to the Commonwealth.

[123]       Lee v Commonwealth (2014) 220 FCR 300, [221].

[124]       With respect to the claim that there had been an increase in the cost of access to the irrigation delivery system, the Federal Court explained that the applicants ‘seek to claim that the Commonwealth Environmental Water Holder has acquired water entitlements for use for environmental purposes from farmers who previously used the rights to operate irrigation farms’ with a consequence that ‘[t]he costs of maintenance of the infrastructure must be borne by fewer users and as a result the cost for the remaining users is increased’: [212]. The Court concluded that this economic consequence did not result in the Commonwealth having acquired any property: [215]. With respect to the claim that there had been a decline in the value of the two properties ‘because irrigators in their localities sold out to the Commonwealth and their farms are no longer used as irrigation properties’, resulting in the ‘Swiss cheese effect’ where ‘the remaining irrigation farms are left isolated and surrounded by empty blocks which were previously irrigation properties’, the Federal Court concluded that such economic consequences ‘have not resulted in any acquisition of property by the Commonwealth’: [214]–[215]. With respect to the claim that there had been a reduction in the price at which the landowners were able to sell their water entitlements to the Commonwealth, the Federal Court observed that the rights had been sold on the market for the market price—a price which fluctuates—and concluded that ‘[t]he complaint that Mr Lee and Mr Gropler did not achieve a better price in the market when they sold to the Commonwealth is not a suitable claim under s 254’: [220].

[125]       Lee v Commonwealth (2014) 220 FCR 300, [197].

[126]       Ibid [200].

[127]       Lee v Commonwealth [2014] FCAFC 174 (18 December 2014) [15].

[128]       Lee v Commonwealth (2014) 220 FCR 300, [234].

[129]       Lee v Commonwealth [2014] FCAFC 174 (18 December 2014) [174]–[175].

[130]       Ibid [176]–[177].

[131]       Lee v Commonwealth (2014) 220 FCR 300, [228].

[132]       Ibid [227].

[133]       Ibid [225].

[134]       Ibid [71]–[78].

[135]       Ibid [73].

[136]       Ibid [74].

[137]       Ibid [75].

[138]       Ibid.

[139]       Presumably the Restoring the Balance in the Murray-Darling Basin program.

[140]       Lee v Commonwealth (2014) 220 FCR 300, [229].

[141]       Ibid.

[142]       Ibid [229]–[230].

[143]       Lee v Commonwealth [2014] FCAFC 174 (18 December 2014) [20].

[144]       Ibid [56]–[61].

[145]       Ibid [187].

[146]       Transcript of Proceedings, Lee v Commonwealth [2015] HCATrans 123 (15 May 2015) 16.

[147]       ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, [91].

[148]       Ibid.

[149]       Ibid [1].

[150]       Ibid [6].

[151]       Ibid [7].

[152]       Ibid [10]–[11].

[153]       Ibid [72]–[73] (French CJ, Gummow and Crennan JJ); [108], [124], [144] and [146] (Hayne, Kiefel and Bell JJ). 

[154]       Ibid [58]–[59], [84] (French CJ, Gummow and Crennan JJ); [122]–[123], [144] (Hayne, Kiefel and Bell JJ). 

[155]       Ibid [147] (Hayne, Kiefel and Bell JJ).

[156]       Ibid [84] (French CJ, Gummow and Crennan JJ), [148]–[154] (Hayne, Kiefel and Bell JJ).

[157]       Ibid [84].

[158]       Ibid [153].

[159]       Ibid [235]. See [232]­–[235].

[160]       Bates, above n 80, 151 [5.34].

[161]       Ibid.

[162]       ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, [85].

[163]       D Wy Kanak, Submission 38.

[164]       Australian Human Rights Commission, Rights and Responsibilities (Consultation Report, 2015) 42.

[165]       Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth), Report No 126 (2015).

[166]       Akiba v Commonwealth (2013) 250 CLR 209.

[167]       Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth), Report No 126 (2015) Rec 8–1, see recommended text for s 223(2)(a).

[168]       Ibid Rec 8–1, see recommended text for s 223(2)(b).

[169]       Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, [153], [155].

[170]       Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth), Report No 126 (2015) Rec 8–2.

[171]       See, eg, Taxation Administration Act 1953 (Cth) s 353–10.

[172]       Australian Law Reform Commission, Criminal Investigation, Interim Report No 2 (1975) [60]. See also, Handock v Baker (1800) 2 Bos & P 260.

[173]       See, eg, Entick v Carrington (1765) 19 St Tr 1029. See discussion in Ch 7.

[174]       Melbourne Corporation v Barry (1922) 31 CLR 174, 206 (The Court).

[175]       Entick v Carrington (1765) 19 St Tr 1029.

[176]       Commonwealth, Parliamentary Debates, House of Representatives, Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth) 3 May 1994 (Minister Keen). These aims are also reflected in the Explanatory Memorandum, Crimes (Search Warrants and Powers of Arrest) Amendment Bill 1994 (Cth). There was a significant Review of Commonwealth Criminal Law established in 1987 and chaired by Sir Harry Gibbs. The Review published five interim reports and a final report (1988–1991).

[177]       Australian Law Reform Commission, Criminal Investigation, Interim Report No 2 (1975) [60].

[178]       The ALRC did not receive any submissions on this provision or other entry pursuant to arrest or search warrants under Commonwealth or state and territory law.