April 1

Without compensation: Governments take properties

An increasingly important issue in the nation is the extent to which State governments can confiscate property without paying fair compensation.  The Federal government cannot do this. This is because the Constitution only allows compulsory acquisition on “just terms” – and then only for a purpose “in respect of which the Parliament has power to make laws.(section 51(xxx1)”  ( The Federal Parliament only has those powers granted in the Constitution.)

But can the Federal government do this indirectly through a State government? State constitutions have no similar protection. 

A related issue is where a government places such obstacles on the use of a property that the owner is denied an income. Is that an expropriation which should be compensated?

… Peter Spencer…


 

This was the claim that the farmer Peter Spencer made when his land was declared to be part of a carbon sink to assist the Commonwealth to comply with carbon emission restrictions under the Kyoto Protocol. At the time the government would not sign the Protocol, but wanted to show it was reducing our carbon emissions.

After a series of unsuccessful legal actions Mr. Spencer’s hunger strike brought the situation imposed on him and thousands of farmers before the nation. The media took notice.

(Incidentally, his case, Spencer v. Commonwealth of Australia,  is being argued in the High Court on a pro bono basis by barrister Peter King, a founder of ACM and always a strong constitutional monarchist. Until 2004 he was the member for Wentworth in the House of Representatives.)

A political solution apart, Mr Spencer’s only answer may lie in the Federal Constitution. That all depends on the High Court saying the Commonwealth cannot do indirectly what it cannot do directly.

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…..Cape York ….

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We have recently seen another example of the effective confiscation or at least neutralisation of property in Queensland.

This is in the Wild Rivers Act, 2005 introduced by the Queensland Government  to prevent rivers on the Cape York Peninsula being damaged by farming and tourism. The Leader of the Opposition Tony Abbott is supporting  a private member’s bill introduced into the Federal Parliament to overturn the state law. He has told ABC Radio's AM program (12/1) the Wild Rivers Act is unfair on Aboriginal people living in the region.

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"It's about locking up the land in ways which deny Aboriginal people their legitimate right to use it for their own benefit," he said.  He told Parliament that the legislation was “the result of a deal between the green activists of Brisbane and the Beattie and the Bligh Labor governments of Queensland.”

Noel Pearson, the indigenous leader agrees and says the deal was to secure city seats for Labor with Green preferences. He told Alan Jones on 2GB (1/4) that some people expect Aboriginal people to live as they lived hundreds of years ago. He said that if they did not develop their land they would be held back to a life of dependency and despair.

Alan Jones pointed out the Cape York Peninsula is the size of Victoria and massively undeveloped. The Wild Rivers Act stops development one kilometre beside any river or water course.

ACM of course has no position on the federal or state legislation. However as a general principle it is surely fundamental that where the government takes land or significantly restricts its use, fair compensation should be paid.

…the race power….

The federal bill introduced by Senator Scullion, the Wild Rivers (Environmental Management) Bill, 2010, which would require the agreement, the Aboriginal traditional owners of the land.

The bill declares that it is the intention of the Parliament that if enacted, it protect the rights of traditional owners of native title land within wild river areas to own, use, develop and control that land.

It relies particularly on the race power in Section 51(xxvi) of the Constitution.  This provides that the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: –

(xxvi.) The people of any race for whom it is deemed necessary to make special laws.

Until 1967, there was one exception – the Aboriginal race in any State. This was the most significant part of the referendum that year which had nothing to do with voting rights or citizenship both of which were already enjoyed by the Aboriginal people. 

Introduced by Senator Scullion, the bill is now before the Senate Legal and Constitutional Affairs Committee. In a submission to the Committee constitutional lawyer Professor George Williams records his opinion that the bill if enacted would be a valid exercise of this power.

Although I do not always agree with my esteemed republican colleague, I do so on this occasion.

 


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