All s.51 powers are subject to this right – the Cth can’t use any power to acquire property without paying just compensation (Attorney-General (Cth) v Schmidt (1961))
Exception: times of war (Johnson Fear v Cth (1943) allowed the executive commandeering of property without just compensation as it was justified under the common law prerogative of the Crown. Held in Burmah Oil v Lord Advocate [1965] that the enemy must be engaged with Australia, not just approaching)
Elements of the Acquisition Power:
Property
Acquisition
Just Terms
From any State or person
For any purpose in respect of which Parliament has power to make laws
Property
The term ‘property’ has been interpreted very broadly
Includes both real property (land) and personal property (chattels)
What amounts to property?
Exclusive possession without title: Minister fo State for the Army v Dalziel (1944) – Dalziel rented a vacant lot owned by the Bank of NSW and operated a commercial car park. The Minister for Army tried to requisition the land for defence purposes. Held that Dalziel’s right in the property was sufficient to entitle Dalziel to compensation.
s.51(xxxi) ‘extends to any acquisition of any interest in any property’
Company shares: Bank of NSW v Cth (Bank Nationalisation Case) (1948) – The Banking Act 1947 (Cth) authorised the CBA to acquire shares in the bank and upon such acquisition, government appointed directors would replace the company directors. No compensation was provided. Held that shares constituted property; thus, just compensation was required.
Ships requisitioned in wartime: Marine Board of Launceston v Navy Minister (1945) – a tugboat owned by the Marine Board was requisitioned during the war. The regulation provided for compensation; however, there was no provision for interest on delayed compensation
Cause of action vested in an injured worker: Georgiadis v Australia & Overseas Telecommunications Co (1992) – A Cth Act established a system of compensation for injured worked by extinguished all causes of actions for common law damages. Held that a cause of action was considered property
s.51(xxxi) refers to compulsory acquisition, not consensual acquisition (BMA v Cth)
Key element – taking control or deprivation or dispossession (Bank Nationalisation Case (1948))
The Cth does not have to take the property directly – a law that requires A to transfer property to B may amount to acquisition (Collins v Hunter)
State acquiring property for the Cth was held to be compensable acquisition (Magennis v Cth (1949))
Regulation of economic activity that diminishes property value (e.g. by limiting it’s use) does not amount to acquisition
E.g. Bans on export of minerals mined (Murphyvores Inc v Cth (1976));
allowing the lessee to obtain a renewal of a lease against the wishes of the lessor (Trade Practices Commission v Tooth & Co Ltd (1979)); fixing prices so low as to deprive the trader of any change of trading (BMA v Cth (1949))
Taxation does not amount to an acquisition of property (Attorney-Genera (Cth) v Schmidt (1961))
Forfeiture of prohibited imports does not amount to an acquisition of property. It is an incidental power of customs laws (Burton v Honan (1952))
Wealth transfers resulting from the exercise of legislative power does not amount to acquisition: Nintendo v Centronic (1994) – an Act vested copyright of an integrated circuit design in Nintendo. Centronic used this design and argued there was an acquisition of property as the Act had taken away their right to use the design. Held that there was no acquisition; Health Insurance Commission v Peverill (1994) – an Act reduced the Medicare benefits for pathology services. Peverill claimed that there was an acquisition of his property rights on fees. Held that while the payment for services can constitute property, this was a statutory right and the substitution of a less valuable statutory right was not an acquisition.
The Cth does not physically have to acquire something – can be an acquisition that leads to a direct benefit or financial gain (e.g. Georgiadis v Australia & Overseas Telecommunications Co (1992) – acquisition of a cause of action gave the Cth a direct benefit as it released them from liability for damages)
Limitation of Property Use:
bBundle of rights – the right to own, use, control, dispose of property
Is a party entitled to compensation of one of their rights are taken away? –generally, the regulation/limitation of property use will not amount to acquisition; thus, does not require just compensation (will amount to an acquisition when it reaches a certain point – no specific test, discretionary)
Tasmanian Dam Case (1983) – the State’s deprivation of land use did not amount to acquisition (only 4 judges addressed this issue – 3 said no)
Destroying property will not amount to acquisition – need to actually take possession of property
Limitation of mining rights (right to explore): Newcrest Mining (WA) v Cth (1997) – held that the legislative cancellation of Newcrest’s mining rights was an acquisition of property. Newcrest was not allowed compensation because the HC was bound by Teori Tau, which stated that no compensation was required for legislation made under s.122 (Teori Tau was overruled by Wurridjal v Cth [2009])
Cancellation of rights can amount to an acquisition of property
Limitation of water entitlements: ICM v Cth (2009) – under a new access licence, the plaintiff’s water entitlements were seriously decreased. Held that there was no acquisition as the State always had the power to limit the volume of ground water taken and there was no common law right to ground water
Purpose of Acquisition:
Acquisition can only be for purposes with respect to which Parliament as power to make law (not limited to enumerated heads of powers in s.51 but also extends to ss.52, 61, 71, etc – Blakeley v Cth (1953))
Just Terms
Does not require payment of market value (Grace Bros v Cth (1946))
‘Just terms’ = what is the fair amount of compensation taking into account the interests of both the property owner and the public (Nelungaloo v Cth (No 1) (1948))
Judicial discretion – will vary
Circumvention of the Just Terms Clause:
In the past – the Cth would enter into agreements with the States. The Cth would make grants to the States under s.96 subject to the condition that they would take or regulate property for the Cth (as the States are not bound by the ‘just terms’ condition) – Magennis v Cth (1949) invalidated such a scheme (the law made under s.96 was characterised as being a law of acquiring property, not an exercise of the grants power)
The Act invalidated in Magennis v Cth was modified to remove any reference to the acquisition of property. This allowed the Cth to circumvent s.51(xxxi) as the law could not be characterised as a law with respect to acquisition of property
States can achieve the same result by making formal agreements with the executive (an executive agreement between the States and Commonwealth, not an Act) – upheld in Pye v Renshaw (1951)
The constitutionality of this practice was left open in ICM v Cth (2009) but will most likely by reconsidered in Spencer v Cth [2010] when it returns to Court Pye v Renshaw will probably be overruled
Express Rights Non-Discrimination on Religious Grounds/Freedom of Religion
s.116 – The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Two objects:
Prohibits the Cth from discrimination among religions (establishment clause)
Prevents laws that prohibit free exercise of religion (free exercise clause)
Broad interpretation of ‘religion’ (Church of The New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) – held that Scientology was a religion and entitled to tax exemptions for religious institutions.
Mason CJ and Brennan J – two-fold test: belief in a supernatural Being, Thing or Principle; and the acceptance of canons of conduct in order to give effect to that belief (canons of conduct which offend against the ordinary laws are outside of s.116)
Wilson and Deane JJ – indicia of ‘a religion’: collection of ideas and/or practices involving a belief in the supernatural (reality extends beyond what we can perceive); ideas that relate to man’s nature and place in the universe and his relation to things supernatural; the ideas are accepted by adherents as requiring or encouraging them to observe particular standards of codes or conduct or participate the specific practices; identifiable group; the adherents themselves view the collection of ideas and practices as a religion
Murphy J – stated that any attempt to determine what a religion is poses a threat to freedom of religion
Establishment Clause:
The Cth cannot:
Establish any religion
Impose any religious observance
Impose a religious test for any office or public trust under the Cth
AG (Vic); Ex rel Black v Cth (DOGS Case) (1981) – HC upheld public funding of religious schools (argument that government funding of church school amounted to an establishment of religion was rejected)
Barwick CJ and Wilson J – establishment meant the establishment of a religion as a national or Cth institution
Gibbs and Mason JJ – establishment clause bars the erection of a religion as the official state religion
Stephen J – the clause prohibits discrimination between religions
Free Exercise Clause:
Protects not only the free exercise of religion but also the freedom not to have a religion, practices or beliefs (Jehovah Witnesses Case (1943))
s.116 protects the practice of religion and acts which are done in practice of religion
Subject to limitations – what is ‘reasonably necessary for the protection of the community and in the interests of social order’ (Jehovah Witnesses Case (1943))
Only laws that are aimed at limiting religious freedom are barred – laws of general application that incidentally impact religious freedom are allowed
Krygger v Williams (1912) - Krygger objected on religious ground to undergo peacetime military training. The Act provided that if a person is forbidden by religion to bear arms, they are to be allocated a non-combatant duty. Krygger argued that compulsory military training prohibited him from free exercise of his religion. The HC rejected this as said that it was a law of general application and stated that requiring someone to do something which has nothing to do with religion is not prohibiting him from free exercise of religion.
Right to be Tried by Jury on Indictment for Offences Under Federal Law
s.80 – The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
Elements:
Entitlement applies to trials on indictment (not any offence)
Indictment = a formal accusation of the commission of a criminal offence (usually very serious crimes) – presented by the A-G or DPP
Parliament can avoid s.80 by making the offence non-indictable – Kingswell v R (1985)
A person indicted for a federal offence cannot opt for a trial by judge without a jury – Brown v Queen (1986)
Applies to any offence against federal law
Trial must be held in the State the offence is committed
If the offence is not committed within a State (e.g. at sea, on a plane, if the offence spans more than on State), the trial is held in the place prescribed by Parliament
Parliament can avoid s.80 by making the offence non-indictable (this technically offers no guarantee of the freedom at all)
R v Bernasconi (1915) – ‘if a given offence is not made triable on indictment at all, then sec 80 does not apply’
Dixon and Evatt JJ argued a wider interpretation of s.80 in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) – s.80 should be read to guarantee a fundamental right to trial by jury in criminal cases (at least in serious ones)
Wide interpretation rejected in Kingswell v The Queen (1985) – ‘it has been held that s.80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves I to the Parliament to determine whether any particular offence shall be tried on indictment or summarily’
Trial by jury:
Finding of guilt by the jury for a federal offence on indictment must be unanimous – Cheatle v The Queen (1993)
Jurors my be randomly or impartially selected – Katsuno v The Queen (1999)
Innovation is allowed for other aspects of the jury framework
Freedom from Interstate Discrimination
s.117 – A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
Prevents State from discriminating against interstate residents
Street v Queensland Bar Association (1989) – QLD Supreme Court rules on the admission of barristers required an applicant admitted in another State to lodge an affidavit that he or she intended to practice principally in QLD. Non-QLD barrister were initially admitted for only 1 year to determine whether they practices principally in QLD. HC struck down this scheme as violating s.117.
Mason J – s.117 embodies federation and enhances national unity. The effect of s.117 is to confer on an individual an immunity against ‘impermissible disability or discrimination’
Goryl v Greyhound Australia (1994) – a NSW plaintiff suffered personal injury while travelling on a Greyhound bus owned by a company incorporated in QLD. Accident occurred in NSW but the case was heard in QLD under QLD law. s.20 of the Motor Vehicles Insurance Act (Qld) limited damages to what the plaintiff could have gained in their State of residence. Goryl would have been awarded less under NSW law. HC held that s.20 violated s.117.
Sweedman v Transport Accident Commission (2006) – discrimination based on when the car was registered did not violate s.117 as it was not based on residency (discrimination must be based on residency)
Discrimination which does not violate s.117 – State welfare benefits, licensee of a hotel being required to reside on the premises, in-State residency requirement for elective or other public office
Implied Rights
Some rights and freedoms are implied within the Constitution
Varying degrees of implication - some rights are necessary implications while others are inferred from the structure of the Constitution
Necessary implications = implications that are logically necessary
e.g. s.73 – implication that a party to a Supreme Court judgment is entitled with leave to appeal to the HC (Cockle v Isaksen (1959)); s.24 – implication that the people of the Cth have a right to choose the HoR (Roach v Electoral Commissioner (2007))
Ban on Bills of Attainder
A bill of an attainder is an ex post facto law that retrospectively creates crimes or retrospectively increases punishment for past crimes
Not all ex post facto laws are unconstitutional (e.g. laws that retrospectively grant benefits or cure past injustices are valid) and retrospective impositions of a civil nature are also valid (e.g. retrospective taxes)
Separation of power in the Constitution (ss. 1, 61 & 71) prevents Parliament from enacting Bills of Attainder (Parliament doesn’t have judicial power. Passing a retrospective criminal law allows the Parliament to predetermine the outcome of a particular case; which is analogous to judicial power)
Nullum crimen, nulla poena sine lege – Principle that a person must not be punished for a lawful act or suffer greater punishment than what is prescribed by law
Principle enshrined in Art 15(1) of the International Covenant on Civil and Political Rights (ICCPR
Exceptions:
The Nuremburg Exception
Art 15(2) – ‘nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations’
Polyukhovich v Cth (1991) – Cth retrospectively included war crimes in the War Crimes Act 1945 (Cth). Court upheld Act as the Parliament did not determine guilt, this was left to the Court to decide. The Nuremburg Exception was not used.
In the US, there is a express ban on bills of attainder
The Right to a Fair Trial Before Courts
Everyone is entitled to a fair trial before being deprived of life, liberty or property
Leeth v Cth (1992) – courts must ‘exhibit the essential attributes of a court and observe … the essential requirements of the curial process, including the obligations to act judicially’
Kirk v IRC (2010) – HC held that State Parliament cannot remove the supervisory jurisdiction of the Supreme Court (strengthens right to a fair trial under State law)
The Ban on Executive Deprivation of Life, Liberty and Property
Prohibition on executive action
Australian Communist Party v Cth (1951) - Communist Party Dissolution Act 1950 (Cth) was designed to ban the Australian Communist Party, liquidate its assets and disqualify its members from public office. The deprivations were to be imposed by executive order of the GG. HC invalidated the Act because it was not within the defence power during peacetime.
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) - reaffirmed the constitutional rule with respect to executive detention – ‘involuntary detention in custody by the State is penal or punitive in character, and under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.’
Following detentions are not punitive:
Detention pending investigation and trial;
Detention in cases of mental illness, detention in cases of infectious disease; and
Detention for the purposes of deportation of illegal immigrants, or until their applications are heard for asylum or refugee status
Two cases that were decided on the same day (Nationwide Newspapers and ACTV) establish that the Constitution embodies an implied freedom of political communication
Nationwide Newspapers v Wills (1992) – concerned the publication of an article calculated to bring the Australian Industrial Relations Commission into disrepute through imputations of corruption. Publisher was charged under s.299(1)(d)(ii) of the IR Act, which was interpreted to allow the punishment of statements that brought a member of the Commission or the Commission into disrepute, even if the statements were true. All judges held that the provision was unconstitutional:
Brennan, Deane, Toohey and Gaudron JJ – held there even though there may be a sufficient connection to s.51(xxxv) (conciliation and arbitration power), all s.51 powers are subject to the Constitution and the Constitution contained an implied freedom of communication and this provision unreasonably restricted this freedom
Mason J and McHugh J – held the provision lacked a sufficient connection with s.51(xxxv) and that a freedom of speech in relation to public affairs and institutions should be considered
Dawson J – held the provision was beyond the s.51(xxxv) as it was disproportionate to the achievement of a legitimate end
Australian Capital Television v Cth (ACTV) (1992) – Part 3D of the Broadcasting Act prohibited electronic broadcasting during election (Federal, State and Local) campaign periods. Free airtime was given to political parties represented in the previous Parliament in proportion to the number of fist preference votes they received at the previous election. Independents and private citizens were given free air time at the discretion of the Australian Broadcasting Tribunal. Held that while Part IIID was within the ‘postal, telegraphic, telephonic and other like services’ power, it unreasonably restricted the freedom of communication
