LAWS1116 Lecture 9

Explicit Constitutional Rights

  • Includes suffrage (ss 7, 24) (Express ‘directly elected’ and implied right to vote)
  • Bentham “Laws in General” and Hohfeld (Yale Law Journal) – clinical analysis of rights
  • “claim-right” – a duty on the part of another to do/refrain from doing an act
  • “liberty” – ability to do an act with no corresponding duty to refrain
  • “power” - liberty to change legal position of another
  • “immunity” – right that someone else NOT exercise their power

Common Law Freedoms

  • Can do anything a law does not prohibit, can refrain from doing anything the law does not require

Common Law Rights

  • Contract Law – sellers right to money, buyers to goods/services once a valid contract is established
  • Tort Law – right to not have trespassers to your property/person, be harmed through negligence, etc.
  • Crime – right to not be a victim of a defined crime (Reminder: Criminal law is ENTIRELY statutory now – common law not directly applicable)

Statutory Rights

  • Not to be discriminated against (Anti-Discrimination legislation)
  • Received benefits promised (Centrelink, tax rebates, etc.)

Constitutional Rights

  • Very narrow and limited
  • Trump common law and statutory rights

Right to Compensation (s 51(xxxi))

  • Limited to only taking property for a constitutional purpose – not like the grants power which can be exercised for any reason
  • States all self-imposed limitations for land-acquisition (state statutes, not constitutional)
  • High Court has held that the Cth CAN bribe states to acquire property for them on unjust terms, but must be done informally

Federal Acquisitions Power

  • Specific acquisitions set out in Constitution – railways (xxxiii), public service property from state public services (s 85) and seat of government (s 125)
  • General acquisitions power – s 51(xxxi)

s 51(xxxi)

  • Exclusive Cth power – only affects/binds the Cth, but States can still acquire anything within their state borders
  • High Court held it does not apply to territories – but this was struck down last year in Wurridjal v Commonwealth of Australia (2009), so Teori Tau is no longer good law, and Newcrest serves only to illustrate what WOULD require just terms
  • Applies to all other s51 powers, and even property acquired for purposes outside of the enumerated heads of power
  • Limits taking/acquisition to require just compensation (AG (Cth) v Schmidt (1961) eg. Taking land for a base under the defence power would still require just terms.
  • Cth Government CAN NOT take property for any reason other than a constitutionally valid one (need to identify a constitutional power under which they are using the property)
  • High Court has held executive commandeering property without compensation DURING wartime is valid under Crown prerogatives (Johnson Fear v Cth (1943))
  • In the UK, it has been held that this prerogative only applies when AT war, not merely when the enemy is approaching – very narrow
  • “Acquisition” tends to be interpreted narrowly – does not apply to fines, taxes, etc.


Attorney-General (Cth) v Schmidt

  • Issue: Did the “just terms” condition apply to the taking of property under the defence power (German property during WW2)
  • Held: Yes, it did, but it did NOT apply to property forfeited as a penalty/payment of a tax – and since the money was being used to repay reparations for german activity during the war, it was not considered to have been taken by the Cth, but rather forfeited for that purpose

Johnson Fear v Cth (1943)

  • Issue: Was a Commonwealth seizure of a printing press during wartime (by breaking and entering onto the premises) bound by the requirement of just terms?
  • Held: Yes, it was – when the Cth set the price without regard for whether or not it was just, they acted in an unconstitutional manner

What is Property?

  • Exclusive possession for an indeterminate time period without title
  • Includes: Land (even if seized temporarily), Vessels, Interest on payments owed by the Cth, Shares, and Rights to legal actions.


Minister for Army v Dalziel

  • Issue: Was a car park temporarily requisitioned by the army under the defence power subject to just terms?
  • Held: Yes, held just terms extends to any acquisition of any interest in any type of property – requires just terms an a purpose in respect of which Parliament has the power to make laws

Bank of NSW v Cth (1948) (Bank nationalisation case)

  • Issue: Did the Ministers compulsory seizure of bank shares/subsequent control of banks constitute and acquisition for the purposes of s 51 (xxxi)?
  • Held: Yes, it was – as the Minister set the prices, and gaining control of the ownership of the banks was an indirect acquisition of the banks, it constituted acquisition. Property has a fairly broad definition – ‘extends to innominate and anomalous interests’. (Also held the corporations power was not sufficient to interfere with State banks – that exception was constitutionally guaranteed)

Marine Board v Minister of State for Navy (1945)

  • Issue: Was the owner of a ship requisitioned during wartime entitled to interest on the payment for the use of the ship?
  • Held: Yes, owner of the tug requisitioned was entitled to interest on the payment

Georgidas v Australian and Overseas Telecommunications (1994)

  • Issue: Could the Workers Compensation Act extinguish common law rights and actions (for accidents that occurred prior to the Act coming into effect) without just compensation?
  • Held: The rights/actions were property for the purposes of (xxxi), as their extinguishment resulted in a direct benefit or financial gain to the Commonwealth

What is an “Acquisition”?

  • Compulsory only – any negotiated or contractual settlement NOT considered an acquisition
  • Can be temporary (Dalziel)
  • Key elements are “taking of control” and “dispossession”
  • Need not take property directly – applies to any Cth law that involves compulsory transfer of ownership
  • May include formally requesting state acquisition (Magennis)
  • Does NOT include diminishing property value, only actually seizing property (Tasmanian Dams)


Murphy Ores v Cth (1976)

  • Issue: Was refusing an export license when no local market existed an acquisition?
  • Held: No, as possession remained with Murphy Ores

Trade Practices Commission v Tooth (1979)

  • Issue: Was mandating a lessor renew a lease even when they did not wish to (because the lessor was a competitor) an acquisition?
  • Held: It was a law forbidding certain kinds of trading conduct under the corporations power, not an acquisition

BMA v Cth (1949)

  • Issue: Was a Commonwealth price ceiling for Pharmaceutical Benefits an acquisition under (xxxi)?
  • Held: No, it was a regulation, not a compulsory acquisition – no argument successfully made that the prices offered were not just.

Nintendo v Centronic (1994)

  • Issue: Did changing copyright laws to grant exclusive right/use of a specific integrated circuit in use by Nintendo constitute an acquisition of property under (xxxi)?
  • Held: No, it did not – it was a valid law to regulate intellectual property rights, any limitations on property use we incidental, and no actual acquisition took place.

Health Insurance Commission v Peverill (1994)

  • Issue: Was retrospectively reducing Medicare benefits an acquisition?
  • Held: No, it merely substituted one statutory benefit for another – BUT if it had been an actual fee for services rendered it may have been different

Limitations on Property Use

  • Regulation is generally not considered an acquisition (Tasmanian Dams)
  • Other countries (Canada – Alberta or EU – Banar v Sweden) see it differently – though they have specific rights Acts/Charters
  • HC seems to be approaching a US system, where proportionate ‘appropriate and adapted’ regulation is not an acquisition


Tasmanian Dams (1983)

  • Issue: Did limiting land use by preventing the construction of a Dam/environment regulations constitute an acquisition?
  • Held: No, it limited Tasmania’s rights, but did not actually acquire the land from them

Newcrest Mining v Cth (1997)

  • Issue: Was cancelling an existing mining lease an acquisition of property?
  • Held: Yes, it would have been, had the territories power not overridden (xxxi) in territories. Note: As the territories power no longer does this (Wurridjal) it would constitute an acquisition

Cth v WA (1999)

  • Issue: Was denying owners usage of land during defence training sessions tantamount to the acquisition of mineral rights in the land?
  • Held: It COULD be, if the training was frequent and prolonged enough. However they were unable to demonstrate that, and failed.

ICM v Cth (2009)

  • Issue: Did changes to the licensing scheme resulting in a serious reduction of water entitlements implemented under an agreement between NSW and the Cth constitute an acquisition of water entitlements?
  • Held: No, water control had always been a State function, and they were able to allocate water entitlements as they saw fit

Purpose of taking/acquisition laws

  • s 51 (xxxi) ONLY authorises takings for Cth purposes in respect of Cth powers – MUST STILL JUSTIFY UNDER A CTH POWER.

Just Terms

  • Do NOT require market value
  • A “fair amount” as decided by judicial discretion
  • Needs a fair hearing before an unbiased tribunal to determine

Circumvention of Just Terms caluse

  • Cth can bribe states with s 96 grants to seize property for them
  • Struck down in Magennis, but upheld in Pye.
  • HC seems to be considering re-investigating the question in obiter in ICM
  • Likely to be re-considered in Spencer v Cth (2010)


Magennis v Cth (1949)

  • Issue: Was an Act requiring states to seize land and grant it to the Cth for resettlement of soldiers under the defence power a Cth acquisition?
  • Held: Yes, it was, so just terms were required

Pye v Cth (1951)

  • Issue: Was an informal agreement with the states to seize land and grant to the Cth for resettlement of soldiers under the defence power a Cth acquisition?
  • Held: No, it was not – there was no formal obligation on the states to do so.

Non Discrimination on Religious Grouns (s 116)

  • (1) Prohibits discrimination amongst religions (establishment clause)
  • (2) Prevents Cth prohibiting free exercise of religion (free exercise clause)

Establishment Clause

  • Very Narrow, only effects establishment, mandating religious observance, and religious tests for Cth positions
  • Ex Rel Black v Cth (DOGS case) (1981)
  • Issue: Was funding of religious schools prohibited by the establishment clause?
  • Held: No, it only prohibited the establishment of a national religion, not the establishment of individual religious schools

Free Exercise Clause

  • Broader – protects practices AND beliefs, and religions/freedom to NOT have a religion
  • Limited by general purpose laws (only affects specifically religious targeted laws) and “reasonable necessity for the protection of the community and social order” (Jehovahs Witnesses Case)


Krygger v Williams (1912)

  • Issue: Did forcing someone who had religious prohibitions against violence to participate in military drills violate their freedom of religion?
  • Held: No, as there was no actual violence in the drills, and the Act stipulated that they would be allocated to non-combatant roles in actual wartime

Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943)

  • Issue: Did the declaration of Jehovah’s Witnesses as ‘prejudicial to the defence of the Commonwealth/efficient prosecution of war’ and seizure of their meeting hall violate their freedom of religion?
  • Held: The regulations did NOT violate their freedom of religion, but the specific regulation WAS beyond the powers conferred by the Act
  • Observations: Latham gave a VERY broad definition of religion, extending to wide terms of tolerance, belief, and non-belief.

Trial By Jury on Indictment (s 80)

  • (1) Applies ONLY to trials on indictment – essentially serious criminal offenses declared as indictable
  • (2) Only applies to Federal/Cth law, not state law
  • (3) Must be held in the state the offense was committed in, or if not committed in a state/in multiple states, where Parliament prescribes
  • Can be avoided by making offenses non-indictable (Kingswell)
  • Finding of guilt by jury MUST BE UNANIMOUS (Cheatle)
  • Juror’s qualifications may be modernised (Cheatle)
  • No appeal from a jury acquittal – only from a jury conviction (Cheatle)
  • Accused cannot opt for a trial with a judge but no jury (Brown)


Cheatle v R (1993)

  • Issue: Was a majority jury conviction sufficient to conclude guilt for an indictable offense?
  • Held: No, in 1900/at common law a jury conviction must be unanimous, so s 80 can be read as requiring a unanimous jury for conviction.
  • Observations: Also looked at ability to modernise juror qualifications (valid) and ability to appeal from a jury acquittal (no such power)

Kingswell v R (1984)

  • Issue: Was an Act retrospectively changing an indictable offence to non-indictable valid under s 80?
  • Held: s 80 did not specifically state how the offense was to be defined, so they could define it how they wished.

Brown v R (1986)

  • Issue: Could the accused exercise a statutory right to waive the trial by jury in favour of being tried by a judge alone?
  • Held: No, s 80 states that a trial by jury is mandatory, not merely a right/privilege

Freedom from Discrimination on grounds of residency (s 117)

  • Only applies to interstate discrimination, not intrastate
  • Not a general statement of equality, only an immunity from disability or discrimination
  • Prevents requirements to continue working in a particular state (Street)
  • Prevents limitations based on a trial being heard in a state other than where an accident occurred (Goryl)
  • Does not extend to regulation based on registration, only residency (Sweedman)
  • Hotel license residency requirements are exempt, as they have a valid justification and are appropriate and adapted
  • As are residency requirements to run for election/office for a particular state or region.


Street v Queensland Bar Association (1989)

  • Issue: Were Queensland Bar requirements that barristers be residents of Queensland, sign an affidavit saying they were staying in Queensland to practice, etc. discrimination on the basis of residency?
  • Held: Yes, they were – they imposed a disability that violated that guaranteed freedom.
  • Observations: Brennan J observed that the guarantee was based on the impact on the individual, rather than the characterization of the law as discriminatory.

Goryl v Greyhound (1994)

  • Issue: Was a restriction in the Queensland Insurance Act limiting damages to non-Queensland residents a disability covered by s 117?
  • Held: Yes, as it imposed a disability on the basis of state residency

Sweedman v Transport Accident Commission (2006)

  • Issue: Was a requirement of payment to the Victorian Accident Compensation by motor vehicles involved in accidents that weren’t registered in Victoria for an accident that occurred in New South Wales a violation of s 117?
  • Held: No, it was not – the differential treatment was on the basis of registration, not on residency or location.