Diane Spooner, Law and Bills Digest Section
A Private Member’s bill
On 21 June 2010, a Private Member’s Bill was introduced
into the House of Representatives by Bob Katter. The Bill was
called the Constitution Alteration (Just Terms) Bill 2010.
The purpose of the Bill was to alter the Constitution to provide
that Commonwealth and state governments’ acquisition of
property and restrictions on the exercise of property rights can
only be undertaken after the provision of compensation on just
terms.
Section 51(xxxi) of the Constitution currently allows the
Parliament to make laws for the acquisition of property on just
terms from any state or person for any purpose in respect of which
the Parliament has power to make laws. The Bill seeks to repeal and
substitute section 51(xxxi) to extend the payment of just terms not
just to the acquisition of property but also to any laws placing
restrictions on the exercise of ‘property rights’.
Further, it adds a proposed section 115A to the Constitution
which would prohibit state laws acquiring property or restricting
the exercise of property rights of any person, except on just
terms. This is because the states’ constitutions do not have
a guarantee on just terms compensation.
Under section 128 of the Constitution the only way the
Constitution can be altered is by way of a referendum. A Bill
providing for constitutional change must pass both chambers of
Parliament by an absolute majority, or by one House twice, and then
the question posed by the Bill be agreed to by a majority of people
as a whole, and in the majority of the states (that is, at least
four of the six).
If Katter chooses to reintroduce his Bill, the 43rd Parliament
has the option of passing it, thereby agreeing that the terms of
the Bill be submitted to the Australian people for constitutional
amendments. Other Private Members’ bills for proposing change
may arise in this Parliament, including recognition of same-sex
marriages, indigenous Australians, local government and possibly a
Bill of Rights. Same-sex marriage legislation and a Bill of Rights
could be achieved through ordinary legislation, without
constitutional change, and this may be a preferred approach to
these issues.
In his first reading speech, Katter put the context of his Bill
into two specific instances. The first was Noel Pearson on the
‘theft’ of Aboriginal access to water, timber, and
rocks without paying a ‘single cent in compensation’
(this is reference to the Wild Rivers legislation). Katter quoted
Pearson threatening the Queensland government with the words
‘We’ll see you in the High Court. We have been there
before and we beat you last time’. Mr Katter added ‘And
I will be backing him this time’.
Recent court decisions
The second reference in the first reading speech was to the
actions of Mr Peter Spencer who at the time was protesting NSW
legislation and Commonwealth actions that diminished
Spencer’s ability to clear his land as he pleased and which
he alleged diminished the value of his land and this constituted an
unjust acquisition of his property.
Spencer’s case will continue during the term of this
Parliament. On 1 September 2010 he successfully won his case in the
High Court for his right to have his matter heard back in the
Federal Court of Australia. The Commonwealth and the states tried
unsuccessfully to have Mr Spencer’s case not heard on the
ground that he had no ‘reasonable prospect of success’.
In the course of the judgment, the Chief Justice did say
‘that is not to say that … he has a strong case. It is
sufficient to say that it is not fanciful …’
There has been a significant decision in the High Court since
the Federal Court had found the Mr Spencer should not be heard. In
ICM Agriculture Pty Ltd v Commonwealth (the ICM decision) the High
Court held, in brief, that the legislative power of the
Commonwealth does not extend to the grant of financial assistance
to a state on terms and conditions requiring the state to acquire
property on other than just terms. In essence this means that the
Commonwealth cannot by way of section 96 (the grants power) or any
other provision provide money for a state requiring the state to
resume land on unjust terms.
Katter’s Bill does remain relevant even in light of the
ICM decision. That case, and Spencer’s prospective case,
relies on the existing section 51(xxxi), and the narrow expression
‘acquisition of property’. The proposed changes in the
Bill widen this to include any restriction on the ’exercise
of property rights.’ This attempts to pick up licence rights,
access to land, water rights, and so on, that may not always gain
the protection of the just terms provision. There would have to be
an assurance that any change does not have a retrospective effect,
otherwise some existing laws may be rendered unconstitutional.
Constitutional change
The Bill also seeks to restrict state powers of acquisition and
interference with the exercise of rights without just terms
compensation, which is the major complaint of persons such as
Pearson and Spencer. Such a change has significant implications for
state sovereignty and rights.
This issue raised by Katter’s Bill and in these court
cases will continue to be very alive and relevant to the new
Parliament and in all jurisdictions. Currently in Western
Australia, the Premier is contemplating the compulsory acquisition
of land in the Kimberley region for a gas precinct. While some form
of compensation would likely be payable for the extinguishment of
claimed native title rights, the proposed acquisition has been
described by Professor Mick Dodson as being: ‘In a sense
it’s another act of colonialism, it’s another theft of
our land, it’s another invasion, it should never ever be
contemplated at the political level.’
Should any legal challenges eventuate, Katter could potentially
back Professor Dodson and Noel Pearson all the way to the High
Court due to the enhanced significance of Private Members’
Bills in the new Parliament.
Library publications and key documents
Constitution Alteration (Just Terms) Bill 2010.
http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r4362_first/toc_pdf/10155b01.pdf;fileType%253Dapplication%252Fpdf
Constitution Alteration Bill First Reading
Speech, House of Representatives, Debates, 21 June 2010,
p. 5995.
http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/2010-06-21/0177/hansard_frag.pdf;fileType=application%252Fpdf
Spencer v Commonwealth of Australia [2010] HCA
28. http://www.austlii.edu.au/au/cases/cth/HCA/2010/28.html
ICM Agriculture Pty Ltd v Commonwealth [2009]
HCA 51. http://www.austlii.edu.au/au/cases/cth/high_ct/2009/51.html
G Williams Property Rights and Just Terms
Compensation, NSW Farmers Association Annual Conference,
20 July 2010.