Research Paper

Environmental Restrictions on Use and Enjoyment of Property: Efficacy of

Adopting Section 51(xxxi) in Western Australia

Student:

Kristy-Lee Malkki
Bachelor of Laws student, Edith Cowan University

Unit:

Supervised Legal Research LAW3700

Research Supervisor: Rupert Johnson

The Parliamentary Internship program is a voluntary cooperative

arrangement between the Parliamentary Education Office and Edith Cowan
University through which university students undertake research on a
specified topic under the collective guidance of a Member of Parliament and
an academic supervisor.
The views expressed in this report of those of the author only and do not
represent the view of the School of Law and Justice Edith Cowan University
staff or Edith Cowan University in general. The University accepts no
liability for the accuracy of the report.

Contents
Introduction .......................................................................................................... 2
The Case of Peter Swift......................................................................................... 3
Private Property Rights ......................................................................................... 4
Land Clearing Restrictions .................................................................................... 6
No Compensation for Land Clearing Restrictions .................................................. 8
The Power of the State Legislature to Regulate Property Use ................................ 9
Statutory Provisions for Compensation in Western Australia ............................... 11
Constitution Act 1889 (WA) ........................................................................... 11
Land Administration Act 1997 (WA) .............................................................. 11
Planning and Development Act 2005 (WA) ..................................................... 12
Takings of Property on Just Terms Bill 2014 (WA) ......................................... 13
Section 51(xxxi) ................................................................................................. 13
An Acquisition of Property.............................................................................. 14
Just Terms....................................................................................................... 22
The Efficacy of Adopting s 51(xxxi) in Western Australia................................... 22
The Power of the State Parliament to Bind Successor Parliaments ....................... 25
Conclusion.......................................................................................................... 28
Bibliography ....................................................................................................... 30

Introduction
The Western Australian Parliament has enacted legislation to place
limitations on the use and enjoyment of property in areas declared
environmentally sensitive. Specifically, the Environmental Protection Act1
has removed private property owners privilege to clear native vegetation on
their land. In some cases this has been detrimental to land owners ability to
produce income off their property with the restrictions resulting in them
unable to cultivate their land or graze stock.
Statutory limitations on the use and enjoyment of property is not a foreign
concept to property owners, yet the land clearing restrictions are becoming
increasingly controversial as the statutory position becomes more stringent.2
Whether statutory provisions have eroded an individuals property rights
and privileges has been the focus of debate between advocates for the
environment, private property owners and legal and political minds. The
State Governments effort in environmental conservation is most topical,
especially where private property is affected with a substantial drop in value
without compensation.
There is no constitutional guarantee of compensation or just terms in the
Constitution Act 1889 (WA). The sovereignty of State Parliament allows it
to take, acquire or regulate the use of land, on terms it sees fit; 3 there is no
obligation on the State Parliament to compensate owners for their loss.
There are statutory provisions within Western Australia that compensate for
matters that do not qualify as an acquisition. 4 For example, the Planning
and Development Act provides for compensation for injurious affection
where adjoining land is detrimentally affected.5 The complexities of
injurious affection, however, will not be discussed in this research paper.
The present compensation provisions do not extend to limitations on the use
1

1986 (WA) s 51C.

The first land clearing restrictions implemented under the Soil and Land Conservation Act
1986 were not as extensive or restrictive when compared to the present land clearing
restrictions under Environmental Protection Act 1986.
3
Bank of New South Wales v Commonwealth (1915) 20 CLR 54, 77.
4
See the Land Administration Act 1997 (WA) and Planning and Development Act 2005
(WA).
5
Planning and Development Act 2005 (WA) s 173.
2

and enjoyment of property rights, as seen with land clearing restrictions.

The solution to the absence of a compensation provision could be to adopt
the equivalent of s 51(xxxi) Commonwealth of Australia Constitution Act
1900 (the Constitution) within Western Australia. To be effective, the key
question is whether the Western Australian Parliament has the power to bind
its successors to a provision akin to s51(xxxi) of the Constitution by
enacting a manner and form provision will be discussed. Treatment of the
degree to which manner and form provisions apply have provoked much
debate about the theoretical underpinnings for their operation. The question
of whether Parliament has the power to bind any successor Parliament by
enacting a manner and form provision has led debates cast in the language
of sovereignty or into philosophical debates about whether a generally
expressed power includes power to relinquish part of it.6
Confined only to estates in fee simple, this thesis will critically evaluate the
adequacy of the present statutory position in Western Australia regarding
environmental restrictions on the use and enjoyment of property and
whether the introduction of s 51(xxxi) to Western Australia will resolve the
issue of just terms compensation.

The Case of Peter Swift

In the case of The Department of Environment and Conservation v Swift7,
Mr Swift was prosecuted for clearing vegetation on his rural Manjimup
property without authorisation. Unauthorised land clearing contravened the
Environmental Protection Act8 as Mr Swifts property fell within an area
declared by the Western Australian State Government as an
Environmentally Sensitive Area. Mr Swift was acquitted, and although the
outcome turned on the facts,9 Mr Swift argued that he was unaware that his
property was declared environmentally sensitive when purchasing it as it
6

Attorney-General (WA) v Marquet (2003) 217 CLR 545, [68].

Department of Environment and Conservation v Swift (Unreported, Manjimup Magistrates
Court, Hamilton J, 6 December 2012).
8
1986 (WA).
9
Aerial and satellite photos were used to demonstrate the land clearing occurred prior to Mr
Swifts ownership.
7

was not noted on his Certificate of Title. The restrictions on his use of his
property have resulted in him being unable to farm, cultivate or earn an
income from his land, the purpose for which he purchased it. Furthermore,
this detriment is not compensable under current statutory provisions within
Western Australia.
Mr Swifts case is not an isolated one.10 There is a number of
Environmentally Sensitive Areas declared within Western Australia. The
impact of Environmentally Sensitive Areas, specifically the restrictions
imposed on land clearing, has sparked a debate as to whether the statutory
provisions have eroded the use and enjoyment of a landowners bundle of
rights and whether such restrictions can amount to an acquisition attracting
compensation.

Private Property Rights

Australia derives its property law from the British concept of real property
law. Under the feudal system, the Crown has radical title of all land and
private landowners derive their property rights by way of a grant of interest
in the Crowns land;11 a private landowner owns an estate in the Crowns
land and not the land itself. 12
In Yanner v Eaton, it was said that property does not refer to a thing, but
rather the legal relationship with a thing. It refers to a degree of power that
is recognised in law as power permissibly exercised. 13
An estate in fee simple is a type of freehold estate, however it will be the
only estate discussed. It is defined by the High Court in Commonwealth v
New South Wales14 as the estate in land which:

10

See also Water Corporation v Chief Executive Officer of the Department of Environment
[2006] WASC 256 and Szulc v Chief Executive Officer, Department of the Environment
and Conservation [No 4] [2012] WASCA 143.
11
Mabo v Queensland (1992) 175 CLR 1, 80-81.
12
Adrian J Bradbrook et al, Australian Real Property Law (Thomson Reuters, 5th ed, 2011),
55.
13
(1999) 201 CLR 351, [17].
14
(1923) 33 CLR 1, 12.

 is the most extensive in quantum, the most absolute in respect to the

rights it confers of all estates known to law and for all practical purposes
of ownership, it differs from the absolute dominion of a chattel in nothing
except the physical indestructibility of its subject.

The Hon. Barry House MLC produced a report in relation to the impact of
the State Governments various actions on the use and enjoyment of
freehold and leasehold land in Western Australia. 15 It was reported that
many complaints expressed to the committee by private landholders indicate
a misunderstanding of the limitations concerning the concept of freehold
estate.16 A private landowner is entitled to a bundle of rights that attach to
their interest in land. However, as the Crown is effectively the ultimate
owner with the reversionary interest, the Crown has the power to take away
those rights; property rights are not absolute. 17 Furthermore, and more
importantly, a landowners freedom to use their land is not absolute. On this
point, it is said that:
His freedom to use the land is wide but not absolute. All sorts of
limitations are placed upon land use, some specific to the particular land
(such as restrictive covenants or easements) and some general to all land
(such as planning laws and environmental laws). The idea of the owner
having unrestrained freedom to use and abuse the land is a myth; it is not
this that can be used to define what ownership is, at least not ownership of
land.18

At common law, it has been long recognised that limitations can be placed
on a private landholders use and enjoyment of their land. However, with
the exception of a variety of torts that may control land use affecting
neighbours, 19 the common law does not recognise any obligation from a
private property owner to the general publics interest in environmental land
15

Public Administration and Finance Committee, Parliament of Western Australia, The

Impact of State Government Actions and Processes on the Use and Enjoyment of Freehold
and Leasehold Land in Western Australia (2004).
16
Ibid 25.
17
Evidence to Public Administration and Finance Committee, Parliament of Western
Australia, Perth, 27 November 2002, 5 (Graham Houghton, Director of Graham Houghton
Town Planning).
18
Susan Bright, Land Law: Themes and Perspectives (Oxford University Press, 1st ed,
1998) 530-531.
19
For example, the torts of nuisance, trespass and negligence, and riparian rights.

management.20 There is no duty of care to the environment; the common

law can only protect the environment where personal interests are harmed.
Governments must therefore rely on enacting legislation that imposes
restrictions, such as land clearing restrictions, on the use and enjoyment of
land for the purposes of achieving environmental goals, such as native
vegetation protection and conservation.

Land Clearing Restrictions

The Environmental Protection Act21 provides for the prevention, control
and abatement of environmental harm and for the conservation,
preservation, protection, enhancement and management of the
environment. Clearing of native vegetation is reported to be a cause of
major environmental issues, such as salinisation of land and water and loss
of biodiversity.22
Division 2 of the Environmental Protection Act23 contains the statutory
provisions for the clearing of native vegetation. Section 51A defines
clearing as:
(a) the killing or destruction of;
(b) the removal of;
(c) the severing or ringbarking of trunks or stems of; or
(d) the doing of any other substantial damage to,
some or all of the native vegetation in an area, and includes the draining or
flooding of land, the burning of vegetation, the grazing of stock, or any other
act or activity, that causes
(e) the killing or destruction of;
(f) the severing of trunks or stems of; or
(g) any other substantial damage to,
20

G M Bates, Environmental Law in Australia (Lexis Nexis Butterworths, 4th ed, 1995) 72.
1986 (WA).
22
Public Administration and Finance Committee, Parliament of Western Australia, The
Impact of State Government Actions and Processes on the Use and Enjoyment of Freehold
and Leasehold Land in Western Australia (2004) 258.
23
1986 (WA).
21

some or all of the native vegetation in an area.

The first land clearing restrictions were implemented in 1986 by

regulations24 under the Soil and Land Conservation Act25. At the outset, the
restrictions were not extensive. Landholders simply had to provide notice of
their intention to clear in excess of one hectare of land, which the
Commissioner then had an opportunity to object to if, in their opinion, land
degradation was going to occur.26
The present statutory requirements for obtaining a permit that authorises the
applicant to clear native vegetation are much stricter. Any persons wishing
to clear their land must apply to the Chief Executive Officer (CEO) of the
Department of Environment.27 The CEO shall invite any public authority or
person who has a direct interest to comment on the application, 28 and lastly,
advertise the application inviting anyone else to comment on it.29 The
Environmental Protection Act does not stipulate timeframes for the
consultation and advertising period. The Environmental Protection Act
specifies that the CEO is to have regard only to clearing principles relating
to environmental factors, 30 and not to economic or social impact of the
application. 31
In 2003, an amendment to the Environmental Protection Act saw the
introduction of ss 51B and 51C to the land clearing Division. Section 51B
gave the Minister the authority to declare, by notice, any area of the State to
be an Environmentally Sensitive Area for the purpose of Division 2. Section
51C criminalises clearing native vegetation without a permit or clearing in
contravention of the conditions of a permit outlined in s 51H.32

24

Soil and Land Conservation Regulations 1992 (WA) s 4(1).

1945 (WA).
26
Soil and Land Conservation Regulations 1992 (WA) s 32(1); Public Administration and
Finance Committee, Parliament of Western Australia, The Impact of State Government
Actions and Processes on the Use and Enjoyment of Freehold and Leasehold Land in
Western Australia (2004) 271.
27
Environmental Protection Act 1986 (WA) s 51E (1)(a).
28
Ibid s 51E (4)(b).
29
Ibid s 51E (4)(c).
30
Ibid schedule 5.
31
Ibid s 51O (2).
32
Ibid s 51H.
25

Contravention of s 51C carries a maximum penalty for an individual of

$250,000.
Land clearing restrictions encompass the clearing of native vegetation for
crops, pasture, plantations, gardens, houses, mines, buildings and roads,
which is a daunting reality for private property owners hoping to cultivate
their land or graze stock for their livelihood.33 Furthermore, benefits for
clearing natural vegetation were noted in the Public Administration and
Finance Committee report. These include the efficient use of large-scale
agricultural machinery, which has made Western Australia a world leader in
agricultural production and the requirement that farmers need to maximise
their returns through increasing the percentage of their land that is available
for income-producing agricultural activities.34

No Compensation for Land Clearing Restrictions

In their report, the Public Administration and Finance Committee
acknowledged the complexities involved with establishing whether to
compensate private landholders whose property is subject to land clearing
restrictions. 35 It was recognised by the Conservation Council of Western
Australia that it would be inequitable to compensate those whose property is
subject to land clearing restrictions, while disregarding those who
voluntarily ceased clearing in recognition of the environmental problems it
causes. 36 Moreover, it would be incongruous to reward landholders for their
earlier poor land management practises. The concept of compensating
private land owners for not harming the environment is erroneous because it
undermines the approach taken by the Department of Environmental
Protection to impose penalties for causing environmental harm. As an
33

Public Administration and Finance Committee, Parliament of Western Australia, The

Impact of State Government Actions and Processes on the Use and Enjoyment of Freehold
and Leasehold Land in Western Australia (2004) 257.
34
Public Administration and Finance Committee, Parliament of Western Australia, The
Impact of State Government Actions and Processes on the Use and Enjoyment of Freehold
and Leasehold Land in Western Australia (2004) 365.
35
Ibid.
36
Evidence to Public Administration and Finance Committee, Parliament of Western
Australia, Perth, 25 September 2002, 4 (Conservation Council of Western Australia (Inc)).

alternative, it has been suggested that a more equitable alternative would be

to offer an incentivised solution to encourage the retention of natural
vegetation. 37
Incentivising environmental conservation, however, would be obsolete if
unauthorised land clearing remains a criminal offence 38 as all law-abiders
would be rewarded. If unauthorised land clearing is decriminalised and
conservation is incentivised, landholders could effectively choose to retain
native vegetation or clear their land, in many situations, based on what is
financially and environmentally best for them and not in the general publics
interest. Environmental conservation would be most effective if that control
is kept with State and not the individual landholder.
The majority of the committee considered that some assistance should be
provided by the Government to landholders who retain substantial amounts
of natural vegetation. However, landholders have a general duty to care for
the environment without recompense. 39

The Power of the State Legislature to Regulate Property Use

It was established at federation that sovereignty with Australia was shared;
both the Commonwealth and the States were sovereign within their own
spheres.40 In Egan v Willis, Kirby J noted that since its release from former
historical limitations under the Australia Act 1986, 41 State Parliaments are
an independent legislative body which enjoy plenary legislative powers for
the peace, order and good government of the State.42 The States enjoy the
same plenary power that Westminster exercised before the enactment of the
Australia Act. There are limitations on the exercise of legislative power
conferred upon State Parliaments, however the power of the State legislative
37

Western Australia, Parliamentary Debates, Legislative Council, 19 December 2001,

7324 (Hon Christine Sharp MLC).
38
Environmental Protection Act 1986 (WA) s 51C.
39
Ibid 366.
40
Anne Twomey, The States, the Commonwealth and the Crown the Battle for
Sovereignty (Research Paper No 48, Parliamentary Library, Parliament of Australia, 2008)
3.
41
(Cth).
42
Egan v Willis (1998) 195 CLR 424, 496.

is such that it has a right to enact legislation for the purposes of

expropriating and regulating property; a right stemming from the
sovereignty of Parliament.43
It was held in New South Wales v Commonwealth that the sovereignty of
State Parliament allows it to take, acquire or regulate the use of land, on
terms it sees fit. 44 Interestingly, Barton J speculated the only reason for
questioning and criticising the States power to expropriate property was
because of the power being so new. Despite its existence since federation,
the expropriation power is still subject to questioning and criticism. Barton J
stated:
The power of the State to expropriate real property by Statute is in these
days never questioned. If the power to expropriate personal property is
questioned as to any Australian State, it can only be because its exercise
has been so rare that its novelty rather exposes it to criticism and
opposition. But a power newly used is nevertheless a power. If the property
is taken without compensation, that is to say, if it is confiscated, the
question which arises is constitutional only in the political and not in the
legal sense. In other words, a statute passed by a Sovereign Parliament is
equally within the legal rights of the Legislature whether it nakedly
confiscates property or takes it upon terms of payment more or less.

In Durham Holdings v New South Wales, the impugned legislation vested

coal in the Crown.45 Upon acquisition of coal, it provided for the Crown to
choose the persons to whom compensation was payable, and placed a limit
on the amount of compensation payable. It was argued that the right to
receive just compensation upon acquisition of property is such a deeply
rooted right as to operate as a restraint upon the legislative power of the
[State].46 The Courts looked to whether any such principle existed in the
common law of England, at the time of colonisation or in modern Australia.
Gaudron, McHugh, Gummow and Hayne JJ acknowledged that while there
are implicit limitations to the exercise of legislative power, the right to
43

Douglas Brown, Land Acquisition (Lexis Nexis Butterwoths, 6th ed, 2009) 13.
(1915) 20 CLR 54, 77.
45
Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399.
46
Ibid [12].
44

10

receive just or adequate compensation for the acquisition of property is not

such a limitation. 47
There are statutory provisions within Western Australia concerning the
States acquisition of land,48 but its compensation provisions do not extend
to limitations on the use and enjoyment of property rights, such as land
clearing restrictions.

Statutory Provisions for Compensation in Western Australia

Constitution Act 1889 (WA)
Unlike the Commonwealth Constitution, there is no constitutional guarantee
of just terms in the Constitution Act 1889. Without a just terms
provision, the Western Australia Parliament can enact laws that restrict the
use of private property or laws that require the acquisition of private
property, on terms that Parliament sees fit. 49

Land Administration Act 1997 (WA)

The Land Administration Act50 provides for the acquisition of land, both by
agreement and compulsorily, under Part 9. All land acquired must be
acquired for a public work.51 All types of land and interests in land,
including native title rights and interests, can be acquired for public works.52
Whatever land or interest is taken is then converted into a claim for
compensation.
Compensation is payable in the event of State acquiring interests in
privately owned land. Part 10 of the Act outlines that private land owners
are entitled to compensation in the event their property is compulsorily
47

Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 399.
Land Administration Act 1997 (WA); Planning and Development Act 2005 (WA).
49
Douglas Brown, Land Acquisition (Lexis Nexis Butterwoths, 6th ed, 2009) 13.
50
1997 (WA) ss 151-201.
51
Land Administration Act 1997 (WA) s161; public work is defined in Public Works Act
1902 (WA) s 2.
52
Land Administration Act 1997 (WA) s 151.
48

11

acquired by the State, but there is no express reference of just or fair

compensation.53
There are provisions to compensate subsidiary-interest holders, such as
mortgagees, and for matters not qualifying as an acquisition, such as
injurious affection.54 The Land Administration Act stipulates an interest in
the land must be acquired to amount to an acquisition; restricting a private
property owners use of their land is not compensable because it does not
amount to an acquisition.
Interestingly, taken and acquisition has been used interchangeably in the
Land Administration Act. As will be demonstrated, those two phrases are
given different treatment in the High Court in the context of s 51(xxxi).

Planning and Development Act 2005 (WA)

In the Planning and Development Act55, there are provisions to compensate
for matters that do not qualify as an acquisition, such as injurious affection.
Injurious affection is established when the existing granted land use is
altered and compensation is payable for any reduction in the value of the
land resulting from that alteration. 56 At its broadest, the expression
injurious affection refers to a detrimental effect on the value of an interest
in land caused by works completed or proposed on adjoining land. 57 In the
context of compulsory acquisition of an interest in land, injurious affection
is not applicable to land acquired, but rather to the deleterious effect on land
adjoining that land.58 The Planning and Development Act regarding
injurious affection does not provide for the compensation of restricting the
use and enjoyment of property rights in the context of land clearing
restrictions.

53

Ibid ss 202-255.
Land Administration Act 1997 (WA) s 241(7).
55
2005 (WA).
56
Ibid s 173.
57
Law Reform Commission of Western Australia, Compensation for Injurious Affection,
Discussion Paper No 98 (2007), 17.
58
Planning and Development Act 2005 (WA) s 174(3).
54

12

Takings of Property on Just Terms Bill 2014 (WA)

A private members bill has been proposed to offer just terms compensation
for the taking of property. The bill uses the word taking instead of
acquiring and its meaning has been critiqued by the High Court in
Commonwealth cases. The Bill, in this instance however, provides a broad
definition of take, which includes:
(a) to extinguish an interest in the property; or
(b) to lower the value of the property; or
(c) to restrict the use and enjoyment of the property by its owner.
Should the proposed Bill be passed, it can be inferred from the expansive
definition of take that it would encompass those subjected to land clearing
restrictions as they restrict the use and enjoyment of property by its owner,
and in some cases, lower the value of property.
As demonstrated, the present statutory position in Western Australia does
not compensate private landowners for limiting their use and enjoyment of
their property rights in the form of land clearing restrictions. The
Commonwealth laws are vast and have been long established. Many cases
discuss, in detail, whether restricting a private property owners use and
enjoyment is an acquisition of property attracting the just terms guarantee.

Section 51(xxxi)
As the Commonwealth is not a fully sovereign power, it has the power to
legislate only in areas conferred upon it. Section 51(xxxi) of the
Constitution confers a power upon Parliament to legislate with respect to
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 law. The
provision has assumed the status of a guarantee, not of just terms but against
acquisition of property without just terms. 59 It serves as a limitation also. In
59

Minister of State for the Army v Dalziel (1944) 68 CLR 261, 276.

13

Grace Bros Pty Ltd v Commonwealth, Dixon J stated that the inclusion of
the just terms element was to prevent arbitrary exercises of the power at the
expense of a State of a subject.60 Section 51(xxxi) requires that all property
acquired must be done so with regard to the terms of s 51(xxxi). Dixon CJ
stated that s 51(xxxi) abstracts power with respect to the acquisition of
property from the other paragraphs of s 51. 61 Dixon CJ summarised the
power of s 51(xxxi) in Attorney-General (Cth) v Schmidt in stating:
It is perhaps not easy to express in a paraphrase the extent of the operation
of s 51(xxxi) and thus to define its full scope and application but it is at
least clear that before the restriction involved in the words on just terms
applies, there must be a law with respect to the acquisition of property (of a
State or person) for a purpose in respect of which the parliament has power
to make laws. The expression for any purpose is doubtless indefinite. But
it refers to the use or application of the property in or towards carrying out
or furthering a purpose comprised in some other legislative power. 62

Much of the debate has stemmed from whether regulation of property can
amount to property that is able to be acquired, which will be considered
here.

An Acquisition of Property
In the earlier cases, acquisition of property was likened to dispossession or
an acquisition of an interest in land. For example, to establish a deprivation
of property, it was held by Starke J in Minister of State for the Army v
Dalziel that a deprivation of the right of possession is tantamount.63 In the
same case, Rich J held that deprivation of possession was insufficient; s
51(xxxi) extends to any acquisition of any interest in any property. 64

60

Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269, 290.

Theophanous v Commonwealth (2006) 225 CLR 101, 124 citing Re Director of Public
Prosecutions; Ex Parte Lawler (1994) 179 CLR 270, 283.
62
82
63
Minister of State for the Army v Dalziel (1944) 68 CLR 261, 296.
64
Ibid 105.
61

14

Dixon J applied Minister of State for the Army v Dalziel in his judgement in
Bank of New South Wales v Commonwealth.65 He held that the notion of
property in s 51(xxxi) should be construed broadly and free of any pedantic
limitation. 66 He stated:
[Section 51(xxxi) is] not to be confined pedantically to the taking of title to
some specific estate or interest in land recognised at law or in equity, but
extends to innominate and anomalous interests and includes the
assumption and indefinite continuance of exclusive possession and control
for the purposes of the Commonwealth of any subject of property.67

Challenging the earlier propositions, the issue for Trade Practices

Commission v Tooth & Co Ltd 68 was that the Commonwealth acquired
property but took no interest in it. The matter for the Court was whether it
was a regulation or acquisition and if it was subject to s 51(xxxi).
Although the Court found it was a regulation and not subject to s 51(xxxi),
Stephen J distinguished explicitly between a mere regulation of property
rights and an expropriation of property. 69 Stephen J drew guidance from the
American position on eminent domain in that there is no set formula to
establish where regulations end and acquisition begins; it is a matter for
Courts to assess, with the particular facts of each case, against public
interest.70 He said:
On the one hand, many measures which in one way or another impair an
owners exercise of his proprietary rights will involve no acquisition such
as placitum (xxxi) speaks of. On the other hand, far reaching restrictions
upon the use of property may in appropriate circumstances be seen to
involve such an acquisition. That the American experience should provide
guidance in this area is testimony to the universality of the problem sooner
or later encountered wherever constitutional regulation of compulsory
acquisition is sought to be applied to restraints, short of actual acquisition,
imposed upon the free enjoyment of proprietary rights. In each case, the
65

(1948) 76 CLR 1.
Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349.
67
Ibid 349-350.
68
(1979) 142 CLR 397.
69
Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, 412-414.
70
Ibid citing Corpus Jusis Secundum.
66

15

particular circumstances must be ascertained and weighed and, as in all

questions of degree, it will idle to seek to draw precise lines in advance.

In the Commonwealth v Tasmania (Tasmanian Dams Case),71 the issue

before the Court was the validity of the land regulations stemming from the
impugned legislation, and whether there was an acquisition of property
subject to the requirements of s 51(xxxi).
Mason, Murphy and Brennan JJ found that although the Commonwealth
asserted control over the land by restricting its use, the Commonwealth did
not acquire a proprietary interest of any kind. 72 Murphy J stated that the
extinction or limitation of property rights does not amount to an acquisition.
Unless the Commonwealth gains some property from the State or person,
there is no acquisition within the paragraph. 73
Mason J suggested that a further principle existed in determining when s
51(xxxi) applied; that emphasis must be placed on acquisition of property
for the purposes of the Commonwealth, not on a taking of private
property. For the purposes of s 51(xxxi), it is insufficient that any legislation
adversely affects or terminates a pre-existing right that a private property
owner enjoys. The Commonwealth must acquire an interest in the property,
however slight or insubstantial it may be. He carried on to say:
In terms of its potential for use, the property is sterilised, in much the same
way as a park which is dedicated to public purposes or vested in trustees
for public purposes, subject, of course, to such use or development as may
attract the consent of the Minister. In this sense, the property is dedicated
or devoted to uses, ie, protection and conservation which, by virtue of
Australias adoption of the Convention and the legislation, have become
purposes of the Commonwealth. However, what is important in the present
context is that neither the Commonwealth nor anyone else acquires by
virtue of the legislation a proprietary interest of any kind in the property.
The power of the Minister to refuse consent under the section is merely a
power of veto. He cannot positively authorise the doing of acts on the

71

(1983) 158 CLR 1.

Ibid 3.
73
Ibid 181.
72

16

property. As the State remains in all respects the owner the consent of the
Minister does not overcome or override an absence of consent by the State
in its capacity as owner.74

His honour also adopted a statement by Dixon J in the Bank of New South
Wales v Commonwealth which sought to infer that s 51(xxxi) provides a
protection against governmental interferences with his proprietary rights
without just recompense.75
Deane J, in dissent, had a much more enlivening view. If his view was
accepted in subsequent Courts, one could see the possibility that regulation
of property use amounts to acquisition of property. In affirming Stephen Js
judgement in Trade Practices Commission v Tooth, Deane J stated:
Wherethe effect of prohibition or regulation is to confer upon the
Commonwealth or another identifiable and measurable advantage or is
akin to applying the property, either totally or partially, for a purpose of the
Commonwealth, it is possible that an acquisition for the purposes of
s51(xxxi) is involved.

Deane J acknowledged it is possible for the benefit of the land to be enjoyed

without any active rights in the acquired land. In this case, he likened the
Commonwealths regulation of property to that of a restrictive covenant,
which prohibits the doing of specified acts without consent and ensures that
the burdened land remains in a state which the covenantor wishes to have
preserved for purposes of his own. It is incorporeal, but is still property and
can constitute a valuable asset. Deane J conceded he could not see a
reason to exclude restrictive covenants from the broad definition of property
that extends to innominate and anomalous interests. Deane J concluded
that the benefit to the Commonwealth is the prohibition of the exercise of
rights for Tasmania to use and enjoy the property purported to be acquired.
Development of the land would be included in the specified acts sought to

74
75

Tasmanian Dams Case (1983) 158 CLR 1, 145.

Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349-350.

17

be prohibited under Deane Js expansive application of restrictive

covenant.76
There was no agreement between the judges on the issue. One judge
dissented and three did not resolve the issue; they found that as the
Commonwealth had acquired no property, the question of just terms did not
arise. 77 It was held amongst the majority that the statutory prohibition on the
use of the property to construct a dam was not an acquisition of property for
the purposes of s 51(xxxi). It was insufficient that the legislation terminated
Tasmanias pre-existing privilege to use and enjoy the land without control.
An interest in property, as established by Mason J, must be acquired,
however slight or insubstantial it is. 78
Mason Js often-cited judgement in Tasmanian Dam Case was criticised
and revaluated by Callinan J in Smith v ANL.79 Callinan J indicated he
would have decided Tasmanian Dams similar to the judgement of Deane J.
He could easily see that the Commonwealth did in fact acquire something of
immense value: the right to control virtually absolutely the use to which the
area in question would be put.80 Callinan J paid particular attention to
Mason Js distinction between taken and acquired 81 and his adoption of
Dixon Js statement in Bank of New South Wales v Commonwealth, which
referred to s 51(xxxi) serving as a protection against government
interference.82 On the perceived difference between taken and acquired,
he said:
I do not myself distinguish in that passage from the judgment of Dixon J,
any express, or indeed implied, support for the narrow view which Mason J
took of the provision in the Tasmanian Dam Case, or, for the attachment of
any great significance to any distinction between a taking or an acquisition,
whether perceived or actual. Indeed the statement by Dixon J that the
provision has as one of its objects, the protection against governmental
76

Tasmanian Dams Case (1983) 158 CLR 1, 283.

Ibid 248.
78
Ibid 145.
79
Smith v ANL Ltd (2000) 204 CLR 493, [166].
80
Smith v ANL Ltd (2000) 204 CLR 493, [166].
81
Ibid [164].
82
Ibid [165] citing Tasmanian Dams Case (1983) 158 CLR 1, 145.
77

18

interferences with ... proprietary rights without just recompense is clearly

open to the interpretation that an interference with such rights, and not
necessarily an acquisition of any particular right may be enough to attract
the operation of s 51(xxxi) In my opinion there is little or no
significance to be attached to any apparent shade of difference in meaning
between the two words, take and acquire. In some contexts acquisition
may even have a more expansive meaning than taking or take. 83

In Mutual Pools & Staff Pty Ltd v Commonwealth, the decision of Mason
CJ, Deane and Gaudron JJ stated:
The extinguishment, modification or deprivation of rights in relation to
property does not of itself constitute an acquisition of property. For there to
be an acquisition of property, there must be an obtaining of at least some
identifiable benefit or advantage relating to the ownership or use of
property. On the other hand, it is possible to envisage circumstances in
which an extinguishment, modification or deprivation of the proprietary
rights of one person would involve an acquisition of property by another
by reason of some identifiable and measurable countervailing benefit or
advantage accruing to that other person as a result.

Australia Capital Television Pty Ltd v Commonwealth (No 2)84 and

Australian Tape Manufacturers Association Ltd v Commonwealth 85
approved Mason Js restrictive notion of acquisition of property in the
Tasmanian Dams Case86. Dawson J in Australian Capital Television Pty Ltd
v Commonwealth (No 2) stated that the acquisition must be of a proprietary
nature.87 This was reaffirmed in Australian Tape Manufacturers Association
Ltd v Commonwealth88, where in their joint judgements, Dawson and
Toohey JJ confirmed that the concept of property is to be construed liberally
so to extend to all innominate and anomalous interests.89 They stated,
however, for s 51(xxxi) to apply, there must nevertheless be the acquisition
83

Smith v ANL Ltd (2000) 204 CLR 493, [165] citing Tasmanian Dams Case (1983) 158
CLR 1, 145.
84
(1992) 177 CLR 106.
85
(1993) 176 CLR 480.
86
(1983) 158 CLR 1, 145.
87
(1992) 177 CLR 106, 198.
88
(1993) 176 CLR 480, 509.
89
Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480,
528 citing Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349-350.

19

of something of a proprietary nature. The mere extinction or diminution of a

proprietary right residing in one person does not necessarily result in the
acquisition of a proprietary right by another.90 Property was also held to
include money and the right to receive a payment of money. 91
In Newcrest Mining (WA) Ltd v Commonwealth, McHugh J applied Mason
Js judgement in the Tasmanian Dams Case. 92 In considering whether the
Commonwealth acquired an interest, McHugh J acknowledged that the
Crown already owns the reversionary interest in the minerals and the land.
He found that although Newcrests right to mine was adversely affected by
the legislation that prohibited mining and their statutory interest may have
been extinguished, the Commonwealth did not gain anything which it did
not already have. 93
The majority found the legislation to be invalid as the laws amounted to an
acquisition of property without just terms compensation. The majority of the
High Court agreed with Gummow Js statement that acquisition of property
could occur for the purposes of s51(xxxi) of the Constitution not only by
the physical taking of the property, but also by way of restrictions on the
property that rendered it valueless.94 Gummow stated that this is not a case
where
there was merely an impairment of the bundle of rights constituting the
property of Newcrest Here, there was an effective sterilisation of the
rights constituting the property in question It is true that the mining
tenements were not, in terms, extinguished. The vesting in the
Commonwealth of minerals had the effect, as a legal and practical
matter, of denying to Newcrest the exercise of its rights under the mining
tenement.95

90

Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480,
528
91
(1993) 176 CLR 480, 509.
92
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 555.
93
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 555.
94
Public Administration and Finance Committee, Parliament of Western Australia, The
Impact of State Government Actions and Processes on the Use and Enjoyment of Freehold
and Leasehold Land in Western Australia (2004) 360
95
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 602.

20

Recently, the majority judgement in ICM Agriculture v Commonwealth,

comprising of French CJ, Gummow and Crennan JJ, reaffirmed that s
51(xxxi) is not directed to extinguishing a proprietary right, but rather
directed to taking an interest in it.96 In this case, the Crown gave New South
Wales a grant under s 96 of the Constitution, which is subject to the
limitations of s 51(xxxi), for purposes of reducing groundwater usage. The
issue for the Court to decide was whether reducing a licence holders access
to groundwater conferred some identifiable and measurable advantage on
New South Wales and was an acquisition of property without just terms for
the purposes of s 51 (xxxi). The majority found that there had been no
acquisition because New South Wales did not acquire property they did not
already have; water had been vested in the New South Wales Crown since
1966.97 The majoritys argument was that the State already had the right
under both statute and the common law to control the use of the water
resources as the common resources or common property of the
community.98
Cases following the Tasmanian Dams Case laid down principles more or
less consistently. 99 The first is that not every deprivation of property
amounts to an acquisition of property, even in the circumstances where the
property in question has been deprived or extinguished completely. The
second is that deprivation or extinguishment of property will not be
acquisition of property for the purposes of s 51(xxxi), unless some benefit or
advantage, however slight or insubstantial, is derived from it by the
Commonwealth. 100 Mason Js judgement in Tasmanian Dams, despite the
occasional criticism, is the present authority for the High Courts
interpretation of the degree to which s 51(xxxi) applies.

96

ICM Agriculture v Commonwealth (2009) 240 CLR 140, 180.

Ibid 200.
98
David Birch, The slippery nature of a constitutional guarantee: acquisition of water
rights in ICM Agriculture v Commonwealth (2011) 13(3) Constitutional Law and Policy
Review 4.
99
Health Insurance Commission v Peverill (1994) 179 CLR 226; Mutual Pools & Staff Pty
Ltd v Commonwealth (1994) 179 CLR 155; Re Director of Public Prosecutions; Ex Parte
Lawler (1994) 179 CLR 270; Georgiadis v Australian and Overseas Telecommunications
Corporation (1994) 179 CLR 297.
100
AJ van der Walt, Constitutional Property Clauses (Kluwer Law International, 1st ed,
1999) 54.
97

21

Just Terms
In many cases, just terms simply means adequate compensation. In
Nelungaloo v Commonwealth,101 the High Court found that just terms
needed to reflect the market value acquired. On paying just terms for
property restrictions, Deane J in Tasmanian Dams Case suggested that the
compensation which would represent just terms for that type of acquisition
of property would be the difference between the value of the land without
and with the restrictions.102
Another alternative view of just terms is that of Mason CJ, Deane and
Gaudron JJ in Geogiadis v Australian & Overseas Telecommunications
Corporation. They found that if it is clear that there was some benefit
received by the Commonwealth and not merely a loss or a taking, then
there is no reason why what is received or benefited should not correspond
precisely with what was taken. 103

The Efficacy of Adopting s 51(xxxi) in Western Australia

At first instant, the broad interpretation of property in Bank of New South
Wales v Commonwealth appears to assist the argument that property
restrictions could amount to acquisition of property. Innominate and
anomalous are defined to mean not classified and deviating from whats
standard. 104 The expansive definition, including the extension to indefinite
continuance of control, infers the realms of s 51(xxxi) are almost limitless;
any subject of property, including the restrictions on the use and enjoyment
of land, are encompassed.
The facts of the Tasmanian Dam Case are very similar to what private land
owners are experiencing with land clearing restrictions. The legislation
101

(1948) 75 CLR 495

Tasmanian Dams Case (1983) 158 CLR 1, 287.
103
(1994) 179 CLR 297, 301.
104
Marcus Jacobs, Law of Compulsory Land Acquisition (Thompson Reuters, 1st ed, 2010)
78.
102

22

exists for the purposes of environmental conservation and prohibits the

affected land owners from, in this case, clearing native vegetation without
consent. Mason Js well-accepted principle is that the legislation needs to
adversely affect a land owners pre-existing right and the Commonwealth
must acquire an interest in property, however slight or insubstantial.
Arguably, the Environmental Protection Act does not adversely affect a preexisting right as property owners rights never existed as absolute, and have
always been subject to regulation.
Mason J stated that the land in Tasmanian Dams Case is devoted to uses,
such as protection and conservation, which have become purposes of the
Commonwealth under s 51(xxxi). Similarly, the CEO of the Department of
Environments power to refuse consent is merely a power of veto; the CEO
cannot positively authorise the acts on the property. As the landowner
remains the owner, the consent of the CEO does not override an absence of
consent by the landowner in its capacity as owner.
Deane Js judgement in Tasmanian Dams Case would benefit private
property owners immensely if it was affirmed in subsequent judgements.
Applying his interpretation of the broad concept of property, innominate and
anomalous interests would certainly extend to the States acquiring the
benefit of prohibiting the exercise of the rights to use and enjoy the land.
Based on the majority judgement, it is, however, insufficient that the
Environmental Protection Act confiscates private property owners privilege
to clear vegetation on their land without control; an interest in land must be
acquired by the State.
Interestingly, Australian Tape Manufacturers Association Ltd v
Commonwealth extended the notion of property to include the right to
receive a payment of money. While the Courts have only extended this to
include a chose in action, private property owners could argue that the
restrictions on clearing native vegetation have heavily impacted their right
to receive a payment of money from agricultural activities, such as
cultivating their land or grazing stock.

23

In Newcrest Mining (WA) Ltd v Commonwealth, the Court acknowledged

that the Crown already owns the reversionary interest in the minerals and
the land, likewise with private property owners. Although private property
owners right to use and enjoy their land is adversely affected by the
Environmental Protection Act, the radical title holder is the Crown. The
reversionary interest remains with the Crown and the State in exercising
their plenary power, so the State does not gain anything which it did not
already have by enacting regulations restricting land clearing.
In Smith v ANL, Callinan Js reinterpretation of Mason Js judgement in
Tasmanian Dams Case indicates an application of an even broader concept
of property, stating that any interference with a right, and not necessarily an
acquisition of any particular right may be sufficient to satisfy s 51(xxxi).
The right Callinan J referred to is the right to unequivocally control the use
to which the land would be put. An issue for the Courts to decide, however,
is whether restrictions on land is the confiscation of a privilege attaching to
the enjoyment of an estate in land, or the confiscation of a property right.
The principle established in ICM Agriculture v Commonwealth is a further
refinement that 51(xxxi) is directed to taking an interest in land, not to
extinguishing a proprietary right. It does not provide relief for those
impacted by the land clearing restrictions as the States are not taking an
interest in their land and it would not amount to acquisition of property for
the purposes of s 51(xxxi). The Courts also held that there was no
acquisition of property because the Crown did not acquire property they did
not already have; water had been vested in the Crown since 1966. Again it
can be argued that land clearing restrictions do not provide the State, as the
reversionary interest holder, with an interest they did not already have.
JT International v Commonwealth is the current authority on what
constitutes an acquisition of property for the purpose of s 51(xxxi). If
extended to Western Australia, the benefit to the State must be proprietary
in character; acquisition is not made out by mere extinguishment of rights. It
could be argued that the benefit to the States is environmental conservation,
however it is unlikely to be found as proprietary in character.
24

The Power of the State Parliament to Bind Successor Parliaments

As established thus far, adopting the current High Court interpretation of s
51(xxxi) would not provide assistance to landowners seeking compensation
for restrictions detrimentally affecting their use and enjoyment of their land.
In addition to this issue, the matter of whether any amendment to the
Western Australian Constitution to compensate adversely affected land
owners can bind successor Parliaments is critical.
Manner and form provisions entrench certain legislative requirements that
restrict the way Parliament is able amend or repeal that provision. It binds
successor Parliaments to comply with the procedures prescribed by the
manner and form provision. As State Parliaments have plenary power, a
State Constitution can be amended by the enactment of ordinary legislation.
Manner and form provisions are effective in limiting that power but only
when the provisions are supported by a superior law. 105 That superior law
was formerly s 5 of the Colonial Laws Validity Act 1865 (Imp), which
enabled the legislature to enact laws respecting the constitution, powers,
and procedures of such legislature, on the proviso that such laws were to be
passed in such a manner and form as may from time to time be required by
any Act of Parliament This law was repealed with respect to the States
yet the effect of s 5 was preserved by the present s 6 of the Australia Act
1986 (Cth). As the majority stated in Attorney-General (WA) v Marquet,
the Australia Act stands as a form or law to which the Parliament of
Western Australia is relevantly subordinate. 106
Section 6 of the Australia Act requires only laws that are enacted in respect
to the constitution, powers or procedure of the Parliament to comply with
manner and form constraints. Only the laws purporting to amend or repeal
an entrenched provision must be one with respect to the constitution, powers
or procedures of Parliament and are subject to the manner and form
requirements; an entrenching provision or any provision that it purportedly
105
106

Attorney-General (WA) v Marquet (2003) 217 CLR 545, [65].

Ibid [69]

25

entrenches is not required to be one with respect to the constitution, powers

or procedure of Parliament. In Attorney-General (WA) v Marquet,107 Kirby J
incorrectly assessed whether the entrenching provision, not the law seeking
to amend the provision, was a law with respect to the constitution, powers
and procedure of Parliament.108
In Attorney-General (WA) v Marquet, the majority, comprising of Gleeson
CJ, Gummow, Hayne and Heydon JJ, held that it is neither necessary nor
appropriate to attempt to identify the boundaries of three separate integers of
the express constitution, powers or procedures but rather identify the
boundaries of the entire field; it is effectively enough to focus on the
meaning of the constitution of the Parliament. 109 Prior to Attorney-General
(WA) v Marquet, the courts decided that the constitution of the Parliament
encompassed the nature and composition of the Parliament. 110 The
majority in Attorney-General (WA) v Marquet extended the meaning of
constitution to include features which go to give it, and its Houses, a
representational character,111 while conceding that not every matter
concerning the election of members of Parliament is a matter affecting the
Parliaments constitution. 112
Attorney-General (WA) v Marquet has seemingly resolved the question of
whether manner and form provisions may be supported by superior law
other than s 6 of the Australia Act and its predecessor to allow laws other
than those with respect to the constitution, power or procedures to be
entrenched. Without another source for the valid entrenchment of those
provisions, successor Parliaments may amend them by ordinary

107

(2003) 217 CLR 545.

Ibid [197].
109
Attorney-General (WA) v Marquet (2003) 217 CLR 545, [74].
110
Taylor v Attorney-General of Queensland (1917) 23 CLR 457, 470; Attorney-General
(NSW) v Trethowan (1931) 44 CLR 394, 418.
111
Attorney-General (WA) v Marquet (2003) 217 CLR 545, [76]
112
Attorney-General (WA) v Marquet (2003) 217 CLR 545, [77] acknowledging
Clydesdale v Hughes (1934) 51 CLR 518, 528, where it was found that a law providing that
the holding of a particular office did not disable or disqualify a person from sitting as a
member of the Legislative Council of Western Australia was not a law that affected the
Constitution.
108

26

legislation. 113 It has previously been suggested that s 106 of the Constitution
or the Ranasinghe principle114 may be the source for the valid entrenchment
of provisions in the State Constitution. 115 This was not supported in
Attorney-General (WA) v Marquet.116 The majority found that s 106 is not a
source of power for entrenchment; it simply refers to the requirements of the
State Constitutions. It was emphasised that the requirements in s 106 is such
that State Constitutions are continued until altered in accordance with the
Constitution of each State, and is subject to the Constitution.117 The
Australia Act was enacted pursuant to the Commonwealths power under s
51(xxxviii) of the Constitution, therefore if s 6 of the Australia Act was
intended to cover the field with respect to manner and form requirements,
then it could not be inferred that s 106 offered an alternative source of
power for entrenching provisions. 118
It would be desirable for landowners if a provision is added to the Western
Australia Constitution to protect landowners regarding environmental
restrictions on the use and enjoyment of their property, specifically with
land clearing restrictions. The principle in Attorney-General (WA) v
Marquet dictates that the law entrenching, or purporting to entrench, the
restrictive provision is not required to be a law with respect to the
constitution, powers or procedures of Parliament. To effectively amend the
Western Australian Constitution, an entrenched provision may be protected
by manner and form constraints if it can be reasonably expected that any
law seeking to amend or repeal it in the future is a law with respect to the
constitution, powers or procedures of Parliament, as required by s 6 of the
Australia Act. While it can only be speculated, it is unlikely that any future
law seeking to amend or repeal a constitutional provision regarding

113

Anne Twomey, Manner and Form Limitations on the Power to Amend State
Constitutions (2004) 15 Public Law Review 18.
114
Bribery Commissioner v Ranasinghe [1965] AC 172, 197: a legislature has no power to
ignore the conditions of law-making that are imposed by the instrument which itself
regulations its power to make law.
115
Victoria v Commonwealth (1975) 134 CLR 81, 164; Wilsmore v Western Australia
[1981] WAR 159, 175; Skyring v Electoral Commission of Queensland [2001] QSC 080,
[22].
116
Attorney-General (WA) v Marquet (2003) 217 CLR 545, [80].
117
Ibid [67].
118
Ibid.

27

compensating landowners for restricting the use and enjoyment of their

property gives Parliament its representational character.119 If the contents
of the provision do not succumb to s 6 of the Australia Act, the provision is
not validly entrenched and may be amended by successor Parliaments
through the enactment of ordinary legislation. Ultimately, a provision
introduced to the Western Australian Constitution would not be effective.

Conclusion
The Western Australian Parliaments enactment of the Environmental
Protection Act has adversely affected landowners use and enjoyment of
their land. Specifically, the native vegetation land clearing restrictions
remove private landowners privilege to clear their land. However, a
landowners freedom to use their land is wide but not absolute. Ultimately,
as the Crown in right of the State holds the reversionary interest, a private
landowner simply owns an estate in the Crowns land and not the land itself.
At common law, it has been long recognised that limitations can be placed
on a private landholders use and enjoyment of their land. The power of the
State legislature is such that it has the right to enact legislation for the
purposes of regulating property and restricting its use; a right stemming
from the sovereignty of Parliament.
There are statutory provisions within Western Australia that compensate for
matters that do not qualify as an acquisition, such as injurious affection, but
not for restrictions such as land clearing. As a solution, it was considered
whether applying the acquisition provision in s 51(xxxi) of the
Commonwealth Constitution to Western Australia would provide a
resolution of compensating land owners where the use of their property has
been detrimentally affected. The High Courts interpretation of s 51(xxxi)
has varied considerably. In Tasmanian Dams Case, Deane J contended that
restrictions on property use are equivalent to enforcing a restrictive
covenant, the benefit of which is a valuable asset held by the

119

Attorney-General (WA) v Marquet (2003) 217 CLR 545, [76]

28

Commonwealth and amounts to acquiring a proprietary interest. His

reasoning was not followed in subsequent cases and was eventually laid to
rest. A common theme in recent cases, however, was the affirmation of
Mason Js judgement in the Tasmanian Dams Case. This reflects the
Commonwealths present statutory position: the benefit or interest acquired
must be proprietary in character, however slight or insubstantial; it does not
extend to the regulation of property use.
The adoption of the Commonwealth position would not provide assistance
to landowners seeking compensation for restrictions detrimentally affecting
their use and enjoyment of their land. Crucially, it is unlikely that any
provision introduced to the Western Australian Constitution that seeks to
compensate adversely affected land owners can bind successor Parliaments;
any law seeking to amend or repeal the provision in the future would not be
with respect to the constitution, powers or procedure of Parliament. The
search must continue for alternative methods to protect landowners.

29

Bibliography
a) Articles/Books/Reports
Bates, G M, Environmental Law in Australia (Lexis Nexis Butterworths, 4th
ed, 1995)
Birch, David, The slippery nature of a constitutional guarantee: acquisition
of water rights in ICM Agriculture v Commonwealth (2011) 13(3)
Constitutional Law and Policy Review 4
Bradbrook, Adrian J et al, Australian Real Property Law (Thomson Reuters,
5th ed, 2011)
Bright, Susan, Land Law: Themes and Perspectives (Oxford University
Press, 1st ed, 1998)
Brown, Douglas, Land Acquisition (Lexis Nexis Butterworths, 6th ed, 2009)
Carney, Gerard, An Overview of Manner and Form in Australia (1989) 5
Queensland University of Technology Law Journal 69
Clarke, Jennifer, Patrick Keyzer and James Stellios, Hanks Australian
Constitutional Law Material and Commentary (Lexis Nexis Butterworths,
9th ed, 2013)
Dixon, Rosalind, Overriding Guarantee of Just Terms or Supplementary
Source of Power?: Rethinking s51(xxxi) of the Constitution (2005) 27
Sydney Law Review 639
Gray, Kevin, Can environmental regulations constitute a taking of property
at common law? (2007) 24 Environmental and Planning Law Journal 161
Jacobs, Marcus, Law of Compulsory Land Acquisition (Thompson Reuters,
1st ed, 2010)
Lane, P H, Constitutional Law (2002) 76 Australian Law Journal 145
Public Administration and Finance Committee, Parliament of Western
Australia, The Impact of State Government Actions and Processes on the
30

Use and Enjoyment of Freehold and Leasehold Land in Western Australia

(2004)
Ritchie, Marcus, Compulsory acquisition of privately owned land in the
Australian jurisdictions: Is the (compulsory acquisition) cart before the
(planning and environment) horse? (2013) 22 Australian Property Law
Journal 28
Spigelman, J J, Principle of Legality and the Clear Statement Principle
(2005) 79 Australian Law Journal 769
Twomey, Anne, Manner and Form Limitations on the Power to Amend
State Constitutions (2004) 15 Public Law Review 182
Van der Walt, AJ, Constitutional Property Clauses (Kluwer Law
International, 1st ed, 1999)

b) Cases
Australia Capital Television Pty Ltd v The Commonwealth (No 2) (1992)
177 CLR 106
Australian Tape Manufacturers Association Ltd v Commonwealth (1993)
176 CLR 480
Attorney-General (Cth) v Schmidt (1961) 105 CLR 361
Attorney-General (NT) v Chaffey (2007) 81 ALJR 1388
Attorney-General (WA) v Marquet (2003) 217 CLR 545
Bank Nationalisation Case
Bank of NSW v Commonwealth (1948) 76 CLR 1
CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR
400
Crane v Gething (2000) 60 ALD 493

31

Commonwealth v New South Wales (1923) 33 CLR 1

Commonwealth v Tasmania (1983) 158 CLR 1
Commonwealth v WMC Resources (1998) 194 CLR 1
Department of Environment and Conservation v Swift (Unreported,
Manjimup Magistrates Court, Hamilton J, 6 December 2012)
Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399
Egan v Willis (1998) 195 CLR 424
Geogiadis v Australian & Overseas Telecommunications Corporation
(1994) 179 CLR 297
Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269
Health Insurance Commission v Peverill (1994) 179 CLR 226
ICM Agriculture v Commonwealth (2009) 240 CLR 140
JT International SA v Commonwealth (2012) 250 CLR 1
Minister of State for the Army v Dalziel (1944) 68 CLR 261
Mutual Pools & Staff Pty Ltd v Commonwealth (1979) 142 CLR 397
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513
New South Wales v Commonwealth (1915) 20 CLR 54
P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382
Pye v Renshaw (1951) 84 CLR 58
Re Director of Public Prosecutions; Ex Parte Lawler (1994) 179 CLR 270
Smith v ANL Ltd (2000) 204 CLR 493
Stow v Mineral Holdings (Australia) Pty Ltd (1977) 180 CLR 295
Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397

32

Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1

c) Legislation
Australia Act 1986 (Cth)
Colonial Law Validity Act 1865 (Imp)
Commonwealth of Australia Constitution Act 1900 (Cth)
Constitution Act 1889 (WA)
Constitution Acts Amendment Act 1899 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection Amendment Act 2003 (WA)
Lands Acquisition Act 1989 (Cth)
Land Administration Act 1997 (WA)
Metropolitan Region Town Planning Scheme Act 1959 (WA)
Public Works Act 1902 (WA)
Town Planning and Development Act 1928 (WA)
Interpretation Act 1901 (Cth)
Interpretation Act 1984 (WA)

d) Other
Evidence to Public Administration and Finance Committee, Parliament of
Western Australia, Perth, 25 September 2002, 4 (Conservation Council of
Western Australia (Inc))

33

Evidence to Public Administration and Finance Committee, Parliament of

Western Australia, Perth, 27 November 2002, 5 (Graham Houghton,
Director of Graham Houghton Town Planning)
Law Reform Commission of Western Australia, Compensation for Injurious
Affection, Discussion Paper No 98 (2007)
Public Administration and Finance Committee, Parliament of Western
Australia, The Impact of State Government Actions and Processes on the
Use and Enjoyment of Freehold and Leasehold Land in Western Australia
(2004)
Twomey, Anne, The States, the Commonwealth and the Crown the Battle
for Sovereignty (Research Paper No 48, Parliamentary Library, Parliament
of Australia, 2008)
Western Australia, Parliamentary Debates, Legislative Council, 19
December 2001, 7324 (Hon Christine Sharp MLC)

34